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The National Labor Relations Board in recent years has embarked upon a program to attack numerous work rules used by employers, on the theory that overbroad rules can "chill" legitimate union activities or other concerted employee activities. A recent example of such an attack is the case in which the NLRB General Counsel attacked an employer's work rule that prohibited employees from recording ". . . conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from the store or facility leadership." The NLRB General Counsel contended that the rule could reasonably be interpreted by employees to prevent them from recording statements or conversations that involve activities permitted by Section 7 of the Act, including alleged unlawful statements made by supervisors.

The NLRB administrative law judge rejected the General Counsel's contentions, noting that the prohibition on recording conversations was stated in a context that clearly stated the rule's lawful purpose, and that the rule addressed legitimate business concerns. Whole Foods Market, Inc., 197 LRRM 1518 (ALJ decision, 10/30/13).

Editor's Note – It has long been assumed that an employer has the right to promulgate a work rule prohibiting the use of recording devices on its property, at least in the absence of special circumstances. For example, it might be risky for an employer to promulgate such a rule in the midst of a union organizational campaign, in which employee organizers are using recording devices for protected activity. Therefore, it is of some concern that the General Counsel attacked the employer rule in the Whole Foods case. While the administrative law judge ruled in favor of the employer, the ruling was based at least in part on the stated lawful purposes of the rule in the particular case, and it would have been better had the rationale for the decision been broader.

While the Americans with Disabilities Act Amendments of 2008 (ADAA) greatly expands the definition of those considered disabled, and thus the requirement to provide reasonable accommodations, even the ADAA gives employers broad rights in rehabilitating alcohol and drug-dependent employees. A recent example of this occurred in a case in which an alcoholic driver was required to remain drug and alcohol free as a condition of returning to work. Ostrowski v. Con-Way Freight, Inc., 28 AD Cases 1197 (C.A. 3, 2013).

In this case, the plaintiff requested a leave of absence pursuant to the Family and Medical Leave Act (FMLA) to enter a rehabilitation program for the treatment of alcoholism. The employer granted the request and did not impose any discipline in connection with the leave. When the plaintiff returned to work, the employer required him to sign a "Return-to-Work Agreement" in which he agreed to remain "free of drugs and alcohol (on company time as well as off company time) for the duration of his employment." Within a month of signing this agreement, however, the plaintiff again admitted himself into a center for the treatment of alcohol abuse after he suffered a relapse and resumed consuming alcohol. The employer terminated the plaintiff's employment, with the sole reason being that he had consumed alcohol in violation of the Return-to-Work Agreement. The plaintiff then sued the employer under both the ADAA and the FMLA.

The circuit court confirmed the district court's summary judgment granted to the employer, dismissing all claims. The court stated that employers do not violate the ADAA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Such agreements that bar an employee from consuming alcohol – whether at the workplace or otherwise – have been recognized and upheld in many circumstances. Although the plaintiff was subject to different standards than other employees who did not sign a return-to-work agreement, the difference results from the terms of the agreement rather than disability discrimination. The appeals court finds that such agreements do not discriminate because of an alleged disability (alcoholism) or restrict the ability of individuals who suffer from alcoholism to work. Rather, such agreements merely regulate the conduct (drinking alcohol),  prohibiting employees subject to its terms from doing so. Thus, such agreements are not invalid under the ADAA.

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