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Federal Employment and Labor Law Blog

Can I 'just say no' to an employer drug test order?

Drug testing is now a part of life. Like it or not. Even if you've never taken an illicit drug in your life, you still face a good likelihood of having to prove it at some point.

Private employers have wide latitude to set such policies for prospective and current employees. For many federal employees, drug testing isn't even optional. Under the Drug-Free Workplace Act of 1988 and other rules and regulations that have followed, individuals in federally regulated industries, contractors and employees in executive agencies or the uniformed services face mandatory testing.

Sexual harassment: The evolution of speaking out

Sexual harassment in the workplace is nothing new. So why has it erupted into such a significant issue in recent weeks? In the view of some observers, it's a matter of evolution.

The first bit precipitation in what is now a major deluge is attributed to a case out of Cornell University in New York. In 1975, a former school employee filed for unemployment. She said she left her job because of unwanted touching by a supervisor. The school fought the claim, and in response, the woman organized with others to coin the term sexual harassment and to speak out about it.

Woman fired for online middle-finger picture. Is that legal?

There's no question that Judi Briskman has a lot of supporters. In just the past few days, a "GoFundMe" page set up on her behalf (but not with her authorization) has collected nearly $50,000. Why is she the focus of attention; because she lost her job with a government contractor. The company says she violated policy by posting a shot of herself presenting a middle-finger salute as her profile picture on two social media outlets.

That's not the entire story. The target of the salute was President Trump's motorcade, though you likely would not know that unless you'd read about the incident in the news. Also, you can't tell who the saluter is. Her back is to the camera. Still, when she gave her employer a heads up about the situation, the 50-year-old single mother of two lost her job. Is that legal? Don't the First Amendment and federal law protect her?

OPM nominee pledges to ease federal employment frustrations

Ronald Reagan is credited with saying, "The most terrifying words in the English language are: I'm from the government and I'm here to help." Some government officials have actually been known to use that as a humorous opening to talks they give and we are sure it elicits chuckles – even they're uncomfortable.

For federal workers, the one official they most likely hope will help is the director of the Office of Personnel Management. As the human resources manager of the U.S. government, the OPM's mission is to provide "high-quality services that protect and strengthen the merit system of government." It also oversees health and retirement benefit programs for the federal workforce, including dealing with appeals of denied benefit and disability claims.

What CIA's treatment of a canine washout might teach

Lulu is a good dog. Indeed, by most usual measures, those who know her agree she's a great dog. But the year and a half-old black Labrador retriever is not cut out for being a Central Intelligence Agency-trained explosives detecting dog. Earlier this month, the CIA announced that Lulu had washed out of the agency's latest "puppy class" for bomb-sniffing K9s.

Lulu was not run out on a rail. According to reports on her dismissal, she was afforded what some might argue was a level of treatment often denied human employees. Before her release and adoption by her handler's family, she was provided additional rest times and extra treats during training. She also had time with a "doggy psychologist."

When Work Causes A Mental Health Impairment

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Many jobs are stressful. But some jobs are so stressful that they cause employees to develop mental health impairments - or in some cases, aggravate pre-existing impairments.

There are two types of work-related injuries: Physical and psychological. Most people think of physical injuries - back injuries, bone fractures, repetitive stress injuries - when they think of a workplace injury.

Shield of law for VA whistleblowers about to get stronger again

The effort to shore up the Department of Veterans Affairs and counter the view of President Trump that the agency is the most corrupt in government continues. The latest move happened last week when the House of Representatives passed yet another bill expanding protections for potential VA whistleblowers. The measure passed the Senate in May and garnered a rare show of unity in the House – passing the chamber 420-0.

As we have observed before, the VA bears the stigma of being a symbol of all that is wrong with the federal government. One of the biggest complaints is that there are too many bad actors in the VA ranks – especially in the administrative echelons. Critics say current employee rights laws make it too difficult to weed out the bad actors efficiently. Additionally, there are concerns that employees who try to make a difference by blowing the whistle become victims of illegal job retaliation.

It's hard to know what's what when national security is a factor

In our previous post, we introduced readers to Kalkines and Garrity. These are forms of warning similar to the one most people are familiar with – the Miranda warning. One key thing that makes them different is the circumstances in which they are used. Federal officials are required to issue Kalkines/Garrity warnings to interview subjects when they investigate suspected or alleged misconduct. If the purported wrongdoing is criminal in nature, authorities are required to Mirandize you before placing you in custody.

There is another significant difference between the warnings. While Miranda lets you know that you have a right to remain silent and that that anything you say could be used against you. Kalkines/Garrity is supposed to make clear that you don't have a right to remain silent, but that you do have criminal immunity for anything you do say. Obviously, it's an important distinction for protecting rights of federal workers.

You know Miranda. Now meet Kalkines and Garrity

There is a warning about your legal rights that nearly everybody knows, even if they have never heard the words directly from an investigator. If you have ever watched a cop show on television you appreciate that "you have a right to remain silent" when being questioned. And, anything you say after you have been read your rights can be used against you in a court of law. It's the Miranda warning.

Officials conducting investigations involving federal employees have similar obligations to inform those they question about their rights. It's called the Kalkines/Garrity warning. If you've never heard of this, it's time you did to be confident you are protecting your rights to the greatest possible extent if the need arises.

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