Employers Do Not Have An Automatic Right To Conduct Post-Injury Drug Tests

There’s a common perception that Iowa law permits employers to drug and alcohol test an employee any time there’s a work-related injury.  That perception is wrong.  Employers do not have an absolute right to conduct post-injury drug and alcohol testing.  A more complicated analysis, which goes beyond whether there was a workplace injury, is required to determine whether an employer has the right to test.

The applicable employee drug testing statute provisions only allow employers to force a drug or alcohol test if they have evidence that an employee has caused an accident while at work that resulted in an injury to a person or property or when investigating accidents in the workplace in which the accident resulted in an injury to a person or property.  Thus, whether (1) there was an accident and (2) the cause of that accident must also be considered per Iowa’s drug testing statute.

So what is an “accident” under Iowa law?  Good question.  This is basically an “eye of the beholder” inquiry.  There is no scientific method to identify an “accident,” but Iowa law does provide a few guidelines.  In general, an “accident” means an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.  The term can include an unexpected medical development of an unfavorable or injurious nature occurring in a person of apparently good health.  “Accident” has also been defined as a sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result.

As for the “cause” component of the post-accident drug testing analysis, that too can be a complicated question.  Was the person to be tested a cause of the accident?  Was a combination of factors the cause?  Did the person to be tested do nothing at all to cause the accident?

These are especially difficult questions when employees injure themselves.  Back injuries are a common example.  Many employers will just assume the right to conduct drug and alcohol testing at that point.  But do they really have that right?  Can an “accident” be proved when employees hurt themselves?  Can employees “cause” injuries to themselves?  Not necessarily.

On the one hand, voluntary initiation of the chain of events that culminates in an injury does not necessarily preclude the finding of an accident. But on the other hand, what happened immediately after that initial voluntary act must also be considered.  An “accident” does not occur if the person’s initial voluntary act proceeds as intended and nothing unforeseen, unexpected, or involuntary occurs.  Conversely, if there occurred any unforeseen or involuntary movement, turn, or strain of the body that brought about the injury or if there occurred any unforeseen circumstance that changed the movement of the person’s body, then the event is properly described as an accident.

Further, regarding the “cause” portion of the inquiry, there is no presumption that bodily injuries are self-inflicted.  A factual inquiry must occur when trying to determine the cause of a work-related accident that only involved the injured employee.

In sum, employers that automatically conduct post-injury drug and alcohol testing need to think twice before doing so.  And employees who are asked to submit to post-injury drug and alcohol testing must carefully consider whether their employer has the right to do so.  Employers’ right to conduct post-injury drug and alcohol testing is much more complex than employers and employees may realize.

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Play Yards: New Federal Safety Rule to Take Effect

Beginning Feb. 28, 2013, manufacturers and importers of infant and toddler play yards are required to test their play yards to ensure that they meet new federal safety standards.  The U.S. Consumer Product Safety Commission has announced these new rules in an effort to prevent personal injuries or death due to product liability.

Play yards are framed enclosures with a floor and mesh or fabric side panels. Most can be folded for storage or travel.

Play yards that meet the new safety standard must have:

  • Side rails that do not form a sharp V when the product is folded. This prevents a child from strangling in the side rail.
  • Stronger corner brackets to prevent sharp-edged cracks and to prevent a side-rail collapse.
  • Sturdier mattress attachments to the play yard floor to prevent children from getting trapped or hurt.

The new play yard standard is one of many safety standards that CPSC has passed as part of the Danny Keysar Child Product Safety Notification Act, or what we call “Danny’s Law.” Danny Keysar was killed in Chicago in 1998 when a previously recalled play yard in which he was napping collapsed, suffocating him. This new play yard standard was completed in honor of Danny and his family.

In addition to the play yard safety standard, CPSC has issued mandatory safety standards for cribs, children’s bed rails, baby bath seats, baby walkers, infant swings and toddler beds.

CPSC staff is currently working on safety standards for bedside sleepers, hand-held infant carriers,  bassinets, and bassinet attachments to play yards and will propose rules this year for strollers, soft infant carriers and infant slings.

If you use a play yard, keep it bare when you put your baby in it. Each year, CPSC receives reports of infant suffocation deaths. Some key causes of these deaths are the placement of pillows and thick quilts in a baby’s sleeping space and/or overcrowding in the space. Here’s more information on how to put your baby to sleep safely.

Source:  http://www.cpsc.gov/onsafety/2013/02/play-yards-new-safety-rule-to-take-effect/

John Deere Recalls Gator Utility Vehicles Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product:

Utility Vehicles

Hazard:

The oil filter can leak, posing a fire hazard. Pinholes or cracks have been identified in oil filters installed by the engine supplier which were not manufactured to specification.

Consumer Contact:

Deere and Company; at (800) 537-8233, from 8 a.m. to 6 p.m. ET Monday through Friday, and Saturdays from 9 a.m. to 3 p.m. ET or www.johndeere.com and click on Services & Support for more information.

Description

This recall involves John Deere Gator™ RSX850i Base, Sport and Trail model recreational utility vehicles manufactured between May 2012 and October 2012. They have side-by-side seating for two people and were available in Realtree® Hardwoods™ HD Camo, olive and black, or traditional green and yellow. RSX850i is located on the hood. The serial number is on the rear frame above the receiver hitch. Utility vehicles with the following serial numbers are included in this recall:

Model Serial Number Range
RSX850i Base 1M0850TB++M010009 thru 1M0850TB++M010778
RSX850i Sport 1M0850TS++M010001 thru 1M0850TS++M012077
RSX850i Trail 1M0850TT++M010001 thru 1M0850TT++M012867
Incidents/Injuries

John Deere has received four reports of incidents resulting in fires. No injuries have been reported.

Remedy

Consumers should stop using the recalled utility vehicles and contact a John Deere dealer to schedule a free inspection and free repair. John Deere is contacting all registered owners of the recalled utility vehicles directly.

Sold at

John Deere dealers nationwide from August 2012 through January 2013 for between $12,900 and $15,500.

Manufacturer

Deere & Company of Moline, Ill.

Manufactured in

United States

Source:  http://www.cpsc.gov/en/Recalls/2013/John-Deere-Recalls-Gator-Utility-Vehicles/

There Is No “Lady Gaga” Overtime Exemption

Recently, reporting on what has to one of the most fascinating overtime cases in history, the media released excerpts from a deposition singer Lady Gaga gave in an overtime lawsuit filed by her former personal assistant.  It appears that Gaga’s former assistant claims that she was always at Gaga’s “beck and call” and that Gaga did not properly count all of the assistant’s “waiting time” and “sleeping time” as “working time” for wage and hour purposes.  Given the lifestyle Gaga described in her deposition, it would be interesting to try to sort out exactly when members of her entourage are working and when they’re just with her partying but not working.  If you’re on a yacht with Lady Gaga as her personal assistant, drinking champagne and eating caviar, but at a moment’s notice you might have to run and find her sunglasses for her, are you working the entire time or are you just having fun and only working during the ten minutes you’re looking for the sunglasses?

One quote from Gaga’s deposition caught my eye.  It occurred when she poo-pooed her assistant’s overtime claims:  “[She] knew exactly what she was getting into, and she knew there was no overtime, and I never paid her overtime the first time I hired her, so why would she be paid overtime the second time?”  Ah, the notorious “waiver” defense.  Let me tell you folks, employees cannot lose (waive) their federal overtime rights by waiting to bring their claim or by voluntarily working under unlawful conditions (assuming that the overtime claim is filed within the applicable statute of limitations).  Nor can employees forfeit their overtime rights by failing to complain about a lack of overtime.  The law is self-executing and compliance is always mandatory for employers who are covered by the Fair Labor Standards Act’s overtime provisions.  Employees do not have to do anything to preserve their overtime rights beyond filing a timely legal claim.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

BlueStar Wall Ovens Recalled by Prizer Painter Stove Works Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product:

BlueStar™ residential gas wall ovens

Hazard:

Some of the wall ovens have been improperly installed and/or have damaged flexible gas appliance connectors, posing a fire hazard.

Consumer Contact:

BlueStar; at (800) 449-8691, from 9 a.m. to 5 p.m. ET Monday through Friday, or online at www.bluestarcooking.com and click on “Recall” for more information.

Description

This recall involves all colors of three models of BlueStar gas-powered stainless steel wall ovens manufactured prior to November 23, 2012. Oven sizes include 24-, 30- and 36-inche wide units. Each of the three sizes was available for use with natural gas or liquid propane. The propane version is designated by the letter “L” at the end of the model number. Model numbers and date codes are located on the rating plate inside the control panel. There is a BlueStar logo on the upper left front of the oven, above the door.

Model Name Model Numbers Color
24-Inch BlueStar™ residential wall oven with swing door BWO24AGS

BWO24AGSL

 

All Colors
30-Inch BlueStar™ residential wall oven with French doors BWO30AGS

BWO30AGSL

 

All Colors
36 -Inch BlueStar™ residential wall oven with French doors BWO36AGS

BWO36AGSL

 

All Colors
Incidents/Injuries

The firm has received one report of a fire, resulting in property damage to the cabinet that held the oven. No injuries have been reported.

Remedy

Consumers should immediately stop using the recalled ovens, contact BlueStar for instructions on identifying affected units and to schedule a repair.

Sold at

Appliance stores and authorized kitchen equipment dealers nationwide between January 2008 through November 2012 for between $2,250 and $3,900.

Manufacturer

Prizer Painter Stove Works Inc., of Reading, Pa.

Manufactured in

United States

Source:  http://www.cpsc.gov/en/Recalls/2013/BlueStar-Wall-Ovens-Recalled-by-Prizer-Painter-Stove-Works/

Thomas The Tank Engine Meets A Car — Liability For Railroad Crossing Collisions

There’s been some recent news coverage regarding Union Pacific Railroad’s request that Des Moines close off several streets on the east side of the city to eliminate train-vehicle intersections.  One reason for Union Pacific’s request is to avoid the traffic backups and delays that occur when a train is slowly rumbling through that area.  Another concern is safety.  The chances of people getting hurt or killed in a train-vehicle collision can be reduced or eliminated if traffic no longer intersects the tracks.  But, as long as vehicle traffic is crossing those tracks, what are the laws that govern train-vehicle intersections when cars or motorcycles are crossing the tracks?

Railroads are required to put “crossbuck” signs at railroad crossings to warn people to look out for trains.  The signs must be white with the words “RAILROAD CROSSING” in large and distinct black lettering.  And, in most instances, trains must also sound their horn at least 1000 feet before the train reaches a railroad crossing.  After sounding the horn, the train must ring the train bell until the train is past the crossing.  Speed limits for trains may be set by municipal code or ordinance; in the absence of a speed restriction railroads are required to use ordinary care as to the speed of their trains at road crossings.

Unless a railroad crossing is extra hazardous, all that is required as a warning to travelers are signs and sounding the train horn and bell.  In deciding whether the crossing is extra hazardous, railroads should consider unusual conditions like heavy traffic, anything that would interfere with visibility, and similar circumstances.  If a crossing is extra hazardous the railroad must have either electronic flashing signals or a flagman there to warn travelers.  It is because of those general principles that rural crossings usually have just the “crossbuck” sign while city crossings often  have both the sign and flashing lights and perhaps even a crossing gate that can be raised and lowered.

Please note that, even if there’s no warning of an approaching train, drivers of vehicles approaching a railroad crossing are not permitted to simply blast through it.  A driver of a motor vehicle is required to use ordinary care in looking and listening for trains in driving toward a railroad crossing.  This must be done at a time and place when the vehicle can be stopped if a train is seen or heard.

GM recalls 13,680 cars for possible suspension, airbag issues

General Motors is recalling 13,680 cars globally to address potential problems with improperly tightened suspension bolts and faulty airbags that could cause personal injuries or death due to product liability, according to the company and documents filed with U.S. safety regulators.

Neither issue has resulted in any accidents or injuries, GM said on Thursday.

GM is recalling 8,519 2013 model year Chevrolet Malibu sedans in the United States as one or more rear suspension bolts may not have been tightened properly, which could lead to loss of vehicle handling and increase the risk of a crash, according to documents filed with the National Highway Traffic Safety Administration.

GM is recalling another 1,060 of the cars in Canada, Mexico and overseas, GM said.

Owners initially may notice noise and minor handling issues, but as the condition progresses sudden changes in vehicle handling could occur, NHTSA said. The company has begun to notify owners.

GM also is recalling 3,896 2012 model year Buick Verano, and Chevy Camaro, Cruze and Sonic cars in the United States to address potentially faulty airbags, NHTSA said. Another 205 cars were affected by the recall in Canada, GM said.

The driver side front airbag has a shorting bar that may intermittently contact the airbag terminals, possibly causing the airbags not to deploy and increasing the risk of injury, according to the NHTSA. The recall is expected to begin on February 13.

GM said it was an expansion of a recall from last fall.

Source:  http://news.msn.com/us/gm-recalls-13680-cars-for-possible-suspension-airbag-issues