Are Hair And Nail Follicle Tests Against Your Rights

April 01, 2022

Biden Administration Marks Transgender Visibility Day With Plan of... by: Michelle E. Phillips and Michael J. Roche, Jr.
Gold Dome Report – Legislative Twenty-four hour period 39 by: Stanley Due south. Jones, Jr. and Helen L. Sloat
HDHP/HSA First Dollar Coverage for Telehealth Extended past: Nick J. Welle and Marian E. Dodson
U.South. Supreme Court Rejects Courts' Use of 'Look-Through' Arroyo in... by: Samia Chiliad. Kirmani and Scott P. Jang
Copyright Events & Developments by: Laura Ganoza and Arian F. Jabbary
The President'southward FY 2023 Budget [PODCAST] by: McDermott Will & Emery
FTC Implements Annual Increase of Threshold for Premerger Reporting by: Jennifer M. Oliver and Timothy Z. LaComb
McDermottPlus Check-Upwardly: April 1, 2022 by: McDermott Volition & Emery
Beltway Fizz, April one, 2022 by: James J. Plunkett
Senate Judiciary Commission Completes Confirmation Hearing on Supreme... by: Stephanie 50. Adler-Paindiris and Stephanie Due east. Lewis
SEC Announces ESG as Examination Priority by: Jacob H. Hupart
Russian Government Officials Charged with Hacking U.South. Energy... by: Linn F. Freedman
DC Non-Compete Ban Further Delayed Until Oct 1, 2022 by: Linda M. Jackson and Andrew Baskin
Cases to Sentinel in 2022 by: Jeffrey H. Greene and Allison Fifty. Haugen
Biden'southward Wage and 60 minutes Division Head Nominee Fails In Senate by: Jeffrey W. Brecher and Justin R. Barnes
Tracking Employees with GPS? New Jersey Police force Requires Employers to... by: Deborah George
Courtroom Limits Federal Jurisdiction Over Arbitration Cases, Denies... by: Stuart M. Gerson
Federal Estimate Blocks Louisiana Labeling Police by: Nutrient and Drug Law at Keller and Heckman
USCIS to Aggrandize Premium Processing by: Mintz
Taxation Courtroom Proposes New Rules of Practise and Procedure by: Andrew R. Roberson and Kevin Spencer
Communist china'southward National Intellectual Belongings Administration Releases Second... past: Aaron Wininger
SEC Proposes New Rules for SPACs: What will the hereafter hold for SPACs? by: Garrett F. Bishop and Beth I. Z. Boland
Courtroom Limits Federal Jurisdiction Over Arbitration Cases: SCOTUS Today by: Stuart Grand. Gerson
Biden Uses Defence Product Act to Heave Domestic Mining in Support... past: Matthew H. Griffin and Daniel J Deeb
A Cursory Summary of the SEC'due south Proposed Climate-Related Rules by: Jacob H. Hupart and Megan N. Gates
The DOJ Pulls the Carpeting on the Frosties NFT Founders by: Matthew G. Lindenbaum and Robert L. Lindholm
Vishing Continues to be a Take a chance Worth Assessing by: Linn F. Freedman
DHS on New Premium Processing by: Amy L. Peck and Michael H. Neifach
An Initial Threshold Test Is Not Required in Guild to Apply the "ABC... by: Lynn R. Fiorentino and Noah 1000. Woo
$615M Cryptocurrency Heist Reported! past: Peter Vogel
Retail Industry Workplace Law Update – Spring 2022 past: Mark S. Askanas
New York District Courtroom Permanently Enjoins Reproductive Wellness... past: Evandro C Gigante and Laura Grand. Fant
Privacy Tip #325 – Largest Crypto Hack Ever? A Whopping $625 Million by: Linn F. Freedman
Medspas Must Comply With Pennsylvania'due south Corporate Practice of... by: Matthew J. Morella
Structure: Labor Department Proposes Rule to Expand Coverage of... past: Brian P. Lundgren
FedEx Express and Elroy Air Take Off with Autonomous Drones to Ease... by: Kathryn M. Rattigan
Constructive Utilise of Non-Solicitation and Confidentiality Agreements in... past: Elizabeth H. White and Jonathan G. Rue
Washington Employers Required to Disclose Bacon Range and Wage Scale... by: Adam T. Pankratz and Sarah J. Platt
DOL Withdrawal of Trump-Era Contained Contractor Dominion Held Unlawful by: Victor Northward. Corpuz
Height 5 Insights for Cosmetic Manufacturers for 2022 by: Nathan A. Beaver and Devaki Patel
OFCCP Directive on Compliance Evaluation Procedures Signals Renewed... past: Jack Blum
California Man Convicted in $27 Million PPP Fraud Scheme by: D. Jacques Smith and Randall A. Brater
SECURE Act 2.0 Passes the House: Which Retirement Plan Rules Would... by: Brian T. Gallagher and Nhan T. Ho
USCIS Final Dominion Expands Premium Processing For Sure Backlogged... by: Tejas Shah and Sarah J. Militarist
From Farm to Runway – The Ascent of Regenerative Farming in Fashion past: Karen Ellis Carr and Katie Heilman
Manitoba Employers' Accessibility Standards: May 1 Deadline Looms by: Michael Comartin and Gloria Ilunga
Marketer in Kickback Scheme Involving Compound Pharmacies Sentenced... by: Nathaniel T. Arden
Persistent Post Concussive Syndrome in Children Subsequently Mild Traumatic... by: Bruce H. Stern
Data Privacy Office 1: The New Currency Businesses Should Protect and... by: Angela P. Doughty
Even so Time To Take Your Voice Heard In The UK COVID-nineteen Public Inquiry by: Beth Thompson
JUST RELEASED: 2022 Q1 AI/Biometric Litigation Trends by: Kristin 50. Bryan and David J. Oberly
Construction Industry: Data Security Considerations past: Jason C. Gavejian and Joseph J. Lazzarotti
Equally Regulators Double Click on Crypto, CBDC and Stablecoins Remain... by: Jason H. Finger
Russia-Ukraine Sanctions in Australia by: Tim Webster and Adam Levine
Some Immigrants Uncomfortable Reporting Labor Violations by: Raymond G. Lahoud
April Fools: Winding Up Petitions Set to Increase, Is this a Current of air Up? by: John Alderton
Does Improving CalPERS' Returns Justify State Mandated... by: Keith Paul Bishop
FCC Rules Requiring Broadcasters To Disembalm Foreign-Sponsored... by: Jeffrey East. Rummel and Alan Thou. Fishel
Governing Wellness Part I - Priorities and Trends for The... by: Michael W. Peregrine
NLRB to Make up one's mind Whether Misclassification Is Standalone Violation of... by: Amanda E. Beckwith and Keahn Due north. Morris
Keep On Truckin': California'southward Meal And Rest Break Rules Preempted By... by: Roland 1000. Juarez and Steven A. Morphy
Sustainable Outlook: The Push to Modernize the Grid from Smart... past: Molly M. Barker
Federal Cyberbanking Regulators Issue New Guidance for Complying with 36... by: Alexander Boyd and Noor K. Kalkat
French Insider Episode 12: Navigating the Metaverse with Jim Gatto [... past: Sarah E. Aberg and James One thousand. Gatto
Climate Change Regulatory Update for US Insurers past: Thomas Thou. Dawson

March 31, 2022

What To Do When You Receive a Congressional Subpoena by: Dr. Nick Oberheiden
SEC Announces 2022 Examination Priorities, Includes Crypto-Assets by: Sarah Due east. Aberg and Gabriel Khoury
Massachusetts' Franchisee Nomenclature To Be Resolved Using... by: Valerie C. Samuels and Ann H. MacDonald
UPDATE: Washington, D.C. Ban on Not-Competes Postponed Until Oct... by: Nathaniel M. Glasser and Eric I. Emanuelson, Jr.
ML Strategies Free energy & Sustainability Washington Update — April... by: R. Neal Martin
The Department of Justice Issues "Web Accessibility Guidance" by: Sean J. Kirby and Maria A. Gomez
BIS Grants Authority of Aircraft to Get out Russia and Updates List... by: Chris Harrison and Stewart B. Herman
GDPR Update – US and EEA May Have a Deal for "Privacy Shield 2.0" by: Brad C. Moody, JD, CIPP/US and Blythe Yard. Lollar
When Are Cryptocurrencies Appropriate Investments for Retirement... by: Andrea S. Kramer and Brian J. Tiemann
Sustainability in the Way Manufacture by: Mia Lombardi and AJ Schumacher
New York State Amends Its Workplace Anti-Discrimination and Anti-... past: Sean J. Kirby and Maria A. Gomez
SMART Fabrics by: John D. Lanza
U.S. Supreme Court Hears Oral Arguments on Waiver of PAGA Claims in... by: Mia Farber and Scott P. Jang
Supply Chains for Way & Beauty by: Gary B. Solomon
Hydrogen Town Hall: Central Trends in Global Hydrogen Policy and... by: David 50. Wochner and Kelly Davies
U.S. Fish and Wildlife Service Proposes "Endangered" Listing for... by: Matthew P. Clark and Endre M. Szalay
NFTs and Trademark Matters in the Metaverse past: Arian F. Jabbary and Robert S. Weisbein
Will SEC Get the 'Securities and Environment Commission?' past: Richard E. Glaze Jr. and Ashley Due east. Parr
Department of Homeland Security Designates Ukraine and Transitional islamic state of afghanistan... past: Arash R. Bahar
Behavioral Wellness Trends for 2022 by: Christopher J. Donovan and Alexis Finkelberg Bortniker
2022 M&A Outlook past: Steven R. Cade
Digital Markets Act Now Firmly on Its Way by: Hendrik Viaene and David Henry
Roetzel HealthLaw HotSpot: Five Steps a Healthcare Banker Recommends... by: Ericka L. Adler
How Businesses Can Use LinkedIn Company Newsletters in Their... past: Stefanie M. Marrone
The U.S. and European union Denote an "Understanding in Principle" to Replace the... by: Simon J. McMenemy and Grant D. Petersen
Half-Broiled Case: No Misappropriation or False Advertising Given Over-... by: Hala Mourad
Not a Bullseye: Defendant Must Rebut Presumption That Claims Lacking... by: Colin J. Stalter
Michigan Supreme Court to Provide Clarity on Alternative... past: Christie R. Galinski and Gregory A. Nowak
International Personal Data Transfers: An Eventful Week by: Claude-Étienne Armingaud and Noirin Chiliad. McFadden
Chevron Agrees to Fenceline Monitoring at Three Texas Plants in DOJ... by: David 1000. Loring and Samuel A. Rasche
OSHA Reopens Rulemaking Record for a Permanent Standard to Protect... by: Denise Merna Dadika and Joanita N. Gakami
Did the Supreme Court Oral Argument on Viking River Cruises Signal a... by: Michael S. Kun
Russian Sanctions Create Patent Risks past: Ryan Cagle
Diagnosing Health Care: DOJ Goes After Civil Cyber-Fraud [PODCAST] by: Stuart M. Gerson and Alaap B. Shah
Only Nether Rare Circumstances Can the Patent Trial & Appeal Board... past: James Thou. Oehler
The X Box: EEOC Announces Add-on of Nonbinary Gender Option to... past: Aretta Yard. Bernard and Stephanie Olivera Mittica
OSHA Pushes Rut Standard by: Courtney M. Malveaux and Catherine A. Cano
Re-Poster Kid for § 230: Immunity under the CDA for Reposting... by: Sarah J. Fischer
Intellectual Belongings in Russian federation past: Intellectual Property Group
When It Comes to the Accomplish of the Federal Clean Water Human action, Is Rule... by: Jeffrey R. Porter
A Growing Circuit Divide: Does the IRS Take Sovereign Immunity from... past: John T. Baxter
Supreme Court to Review California Prop 12 by: Food and Drug Law at Keller and Heckman
Outlier? Split Federal Circuit Denies En Banc Review of Written... by: Jenny Chen, Ph.D.
Municipal Bond Projects: Intellectual Property Risks by: David L. Dubrow and Mark A. Angelov
What the Future Holds for Esports Gambling by: Daniel Due east. Schnapp and Skyler Hicks
BREAKING NEWS: OFCCP Releases New Directive Setting Expectations of... by: Laura A. Mitchell
The Voice of Canadian Automotive Parts Manufacturers [PODCAST] by: Birgit Matthiesen
15 Means to Exist More than Successful on LinkedIn Today by: Stefanie M. Marrone
New York Metropolis'southward Upcoming Salary Range Disclosure Law Guidance Issues... past: Marc A. Mandelman and Nancy Gunzenhauser Popper
Supreme Court Hears Oral Argument in Viking River, California's PAGA... past: Jack S. Sholkoff and Alexander Thousand. Chemers
With Russian Hackers on the Ascent, Need for Cybersecurity... by: Eva Gunasekera and Renée Brooker
Ohio Expands Availability of Telehealth past: Robert D. Nauman
Legislator Proposes To Expand Definition of "Manager From An... by: Keith Paul Bishop
Supreme Court to Consider Fair Utilize and Transformative Works of Art past: Amol Parikh
PFAS Air Regulations Proposed By Firm by: John Gardella
Spacing Out for Resiliency – Why Satellite Technology is Vital to... by: Jodi Goldberg and Emily Dalessio
USCIS To Expand Premium Processing Service Over Adjacent Several Years by: Suzan Kern
New Code of Exercise on Employers' Failure to Consult – Policy or... past: David Whincup
Superlative Legal Industry News March 2022: Law Firm Expansion, Industry... by: Chandler Ford and Rachel Popa

March 30, 2022

SBA OHA Says Small Business on Observe of Email in Junk Folder: Entreatment... past: Emily S. Theriault
An Analysis of the Auxin Petition and Commerce Investigation and... past: Carl J. Fleming and David J. Levine
USCIS Announces New Measures to Reduce Immigration Backlog by: Ana C. Santiesteban Gutiérrez
Health Care Triage: Navigating the Independent Dispute Resolution... by: Steven G. Pine and Gary South. Qualls
The Touch of DOD's Enhanced Debriefings Rule on Bid Protest... by: Ryan E. Roberts and Ariel Debin
CFPB Issues Warning About Contractual Gag Clauses and Consumer Reviews by: Richard B. Newman
Gold Dome Study – Legislative Day 38 by: Stanley Southward. Jones, Jr. and Helen L. Sloat
9th Circuit Blocks New Acrylamide Warning Lawsuits Under... by: Debra Albin-Riley and Lynn R. Fiorentino
TSCA New Chemicals Coalition Asks EPA to Suspend Conclusion to Revoke... by: Lynn L. Bergeson and Carla Northward. Hutton
BOEM Issues Final Sale Notice for Offshore Wind Lease Areas in... by: Stanford D. Baird and Kenneth J. Gish
SEC Proposes to Amend Regulations South-K and South-X to Require Extensive... past: Dionne M. Rousseau and Andrew Yard. Jarreau
Famous for What? Monster Energy Founders at the TTAB by: David H. Siegel
Outside the Beltway of Health Intendance - Episode 15 [PODCAST] by: Harry Sporidis and Barry D. Alexander
Pennsylvania Regulatory Commission Approves Expansive Tipped Employee... past: Stephanie Peet and Morgan D. Schwartz
DOJ Brings Criminal Charges Against Two Defendants in NFT Fraud past: Scott H. Kimpel
Permanent Healthcare COVID-19 Standard Update: OSHA Sets Hearing Date... past: Melanie L. Paul and Catherine A. Cano
Red Flags Indicating a Potentially Invalid Volition past: Paul W. Norris
Movement On CMRE Act and More Act On Capitol Hill by: Sarah A. K. Blitz
Federal Court Approves $one.1 Million TikTok Settlement Over Children's... by: Hunton Andrews Kurth's Privacy and Cybersecurity
Focus on Caregiver Discrimination, Harassment and Bigotry... by: Employment, Labor, Workforce Direction Epstein Becker Greenish
Crime-Fraud Exception to Chaser-Client Privilege Applies to Trump'due south... by: Adam Diederich and Kirstie Brenson
Corporate Restructuring in the United kingdom of great britain and northern ireland – the Old or the New? past: John Houghton and Ian Jack
The LIBOR Act: 7 Key Things Financial Institutions Need to Know almost... by: James W. Wright, Jr. and Shelby D. Lomax
California on Path (Again) toward Regulating Hexavalent Chromium (... by: Timothy J. Carlstedt
Fiduciaries versus FOMO: Department of Labor Releases 401(k)... past: Richard B Levin and Christopher J. Eby
WorldSmart: The Impact of the USMCA on International Business in... past: Hunter T. Carter and Malcolm South. McNeil
Immigration Matters Episode 5: Growing Upwards as an American Immigrant... by: Raymond G. Lahoud
Commerce to Investigate Alleged Solar Circumvention by: Michael J. Walsh Jr and Jeffery R. Atkin
Is a Privacy Shield Replacement on the Horizon? by: Sheila A. Millar and Tracy P. Marshall
FDA Requests $viii.4 Billion to Further Public Health Efforts by: Food and Drug Law at Keller and Heckman
12 Things Constabulary Firms Should Avert Doing in Their Marketing Efforts by: Stefanie Grand. Marrone
5 Law House Contact Direction Best Practices by: Sarah Bottorff
Risk Management on Need with David Gresko of Strategic Hazard... past: Vincent E. Morgan
What exactly is a "Transfer Impact Cess" (TIA), and where the... past: David A. Zetoony
Debt Ceiling Shrinks for Modest Business concern Bankruptcies past: Lance P. Martin
PTAB Institutes IPR Following Federal Circuit'due south Decision to Transfer... by: Litigation Do Group
USCIS Announces FY 2023 H-1B Option Process Completion by: Jared M. Hooven
Gold Dome Study – Legislative Mean solar day 37 by: Stanley South. Jones, Jr. and Helen L. Sloat
Privacy Shield 2.0 On The Horizon past: Eva J. Pulliam and Christine Chong
D&I Reporting and Quotas — Practical Concerns for Employers (Great britain) past: David Whincup
Cheque Your [Legal Professional] Privilege - a Timely Reminder from... by: Christien Corns and Marking Dobbie
TX-RAMP Requirements for Higher Education by: Corinne Smith
Congress Ends Forced Mediation of Sexual Assault and Harassment... by: Kathryn Evans
California Continues to Become to the Dogs by: Anthony J Oncidi and Dylan K. Tedford
Copyright Dispute Over Andy Warhol's Portraits of Prince Heading... past: Susan Yard. Kayser and Eric W. Lee
California Enacts Temporary, Yet Urgent, Police force Assuasive Virtual But... by: Keith Paul Bishop
Stopping "Woke"? Florida HB 7, The Bill That Attempts To Put Florida... by: Whitney J. Jackson and Anne R. Yuengert
USCIS Policies Lead to High Denial Rates for 50-1B Petitions by: Raymond G. Lahoud
NYC Commission on Man Rights Bug Guidance Regarding Minimum and... past: Kelly M. Cardin and Jessica R. Schild
DER Aggregations in RTO/ISO Markets: An Update on FERC Order No. 2222... by: Kayla J. Grant and Nicholas Gladd

Heyl, Royster, Voelker & Allen Law Firm

Contempo Challenges to the Use of Hair Follicle Drug Testing

Sabbatum, February 3, 2018

Without question, the trucking industry must do all information technology can to make sure its drivers are drug-free. Nevertheless, employers must establish policies and procedures that recognize the diverseness in the work force and the need to be flexible in the types of drug tests information technology administers to drivers and applicants. Pilus testing is very effective in detecting drugs but should not exist used as an finish all for all applicants and experienced drivers. The National Minority Trucking Association reports that of the 3.five million truck drivers in the U.s.a., 1.5 million are minorities. As demands for new drivers increases, minorities are increasingly entering the profession. In addition, employers seek to retain experienced drivers. Recent courtroom cases and EEOC settlements point to the need for those wishing to hire and retain minority drivers to have flexibility when it comes to the types of drug testing used on minority drivers and candidates.

Race-Based Challenges to Hair Follicle Testing

A recent decision from the United states of america District Court of Appeals for the First Circuit revived a lawsuit filed by eight police officers, a cadet, and a 911 operator. All are African American. All tested positive for cocaine after a hair follicle test was administered by the Boston Police Department. This was the 2d fourth dimension the Kickoff Circuit found that the hair follicle exam had a statistical disparate bear upon on African American officers in violation of Title 7 of the Civil Rights Human action of 1964.

Title seven prohibits employers from utilizing "employment practices that cause a disparate impact on the footing of race," unless those practices are justified by concern necessity. A disparate impact claim can succeed even when the employer did not intend to discriminate confronting persons in a protected class. The Boston Law Department's officers and cadets had been subject to annual pilus follicle drug tests. When the testing agency reported that a sample tested positive for cocaine, a doc chosen by the department checked to see if the individual had been administered certain medications during a medical process. If non, the individual could elect to have a "prophylactic net" test of a different hair sample. The safe net tests were much more sensitive than the initial tests in detecting the presence of cocaine and its chemic by-products.

Plaintiffs challenged the reliability of hair testing. They pointed out that the federal government has refused to authorize hair testing in drug screening of federal employees and employees of individual industries for which the authorities regulates drug testing. Plaintiffs argued that black individuals accept higher levels of melanin in their pilus and that causes cocaine and cocaine metabolites to bind to the pilus at higher rates. If someone snorts or smokes cocaine its "aerosolized pulverization" volition deposit on any nearby surface, including non-users hair. These deposits cannot be distinguished from the furnishings of bodily use by current pilus testing methods.

The plaintiffs also pointed to statistics kept by the department over a 7-year period. The statistics showed that out of 4,222 blacks that were hair follicle tested, 55 were positive. That compared to 10,835 whites beingness tested and xxx existence positive. This resulted in a standard departure of 7.14. The court acknowledged Marking Twain'south quip that there are three kinds of lies: lies, damned lies and statistics. Even so, the statistical analysis provided past plaintiffs provided to the court that "…we can exist almost certain that the difference in outcomes associated over race over that period cannot exist attributed to chance alone."

The court so discussed whether the testing was job related. The court readily agreed that the hair test was job related since abstention from drug use was an important chemical element of police behavior and that having a piece of work force that did not swallow drugs was a legitimate business organisation demand for the section. It noted that at that place was no reason why a examination need be annihilation almost 100% reliable - as few tests are - to be job related and consistent with business necessity. Withal, the disparate touch claim of the plaintiffs survived if they could bear witness that an alternative examination would decrease the chances of impacting innocent officers. Plaintiff's suggested that those who had a positive pilus follicle test go through a series of random follow upwards urinalysis tests in order to reduce the number of experienced officers beingness terminated and recruits being denied the opportunity of joining the force. The court found that a jury could agree with that arroyo and ordered that the suit go forward.

Religious Challenges to Hair Follicle Testing

In a accuse filed with the EEOC, four East Indian Sikh applicants challenged J.B. Hunt'south drug testing policy. The policy required applicants to provide a pilus sample for follicle testing. One of the five Articles of Faith for a Sikh is to maintain uncut hair. The Sikhs sought a religious accommodation, but were denied by J.B. Hunt. Though other testing methods were available, J.B. Hunt elected to require pilus follicle testing, arguing that hair follicle testing was more authentic – and therefore more likely to assistance in the company'south compliance efforts in having a drug-gratuitous driver force - than other methods.

The EEOC constitute reasonable cause to believe that Hunt failed to conform the Sikhs' religious beliefs and effectively failed to hire a class of individuals due to race, national origin and religion in violation of Title vii of the Civil Rights Act of 1964. The EEOC believed that alternate testing methods were a reasonable adaptation for the Sikhs, even if marginally less accurate than hair follicle testing. Hunt agreed to pay $260,000 and extend unconditional offers of employment to the complainants. In addition, it agreed to designate an EEOC consultant, develop written policies and procedures, and conduct grooming for all employees participating in the hiring, compliance, and grievance process.

These cases highlight the need for trucking companies to balance their responsibilities of keeping a drug-free driver corps while too respecting the rights of their diverse applicants and employees. Though hair follicle testing is common in the industry, it is important to annotation that at that place are some situations where trucking companies need to be flexible in its use.

Printer-friendly
E-mail this Article
Download PDF
REPRINTS & PERMISSIONS

TRENDING LEGAL ANALYSIS

Doug Heise, Litigator, Corporations, Product Liability, Trucking, Heyl Royster Law Firm

Doug joined the Edwardsville office of Heyl Royster in 2004 and became a partner in 2008. With more than than 25 years of litigation experience, Doug has defended a broad range of clients from individuals involved in automobile accidents, to major corporations in product liability claims, trucking/motor carrier litigation, and construction litigation.

At Heyl Royster, Doug has an active practice defending healthcare professionals who provide medical services to the prison house population in Illinois. These professionals are oft sued by prisoners for alleged ceremonious rights violations in state and...