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Criticism of the FLSA, along with a with a look at reasonable suspicion drug testing

First up, one commentator has criticized the use of the term
“wage theft,” arguing that employers that fail to pay correct wages just do so
out of forgetfulness or confusion, rather than out of a desire to save
.  Besides the ridiculous
assumptions and tone of the post, which argues that all employers that don’t
pay accurate wages are just negligent (which, if you read our post about wage
issues in the Texas construction industry, will seem to you like complete
nonsense), the author argues that the FLSA is just too complicated for average employers to understand.  Because “wage theft” just results from
confusion, he argues that there really is no reason to punish employers at all
because “sometimes employees are underpaid.” 
While it may be true that the FLSA could use regulatory tweaks (that
statement could probably be said to some extent about every set of laws in the
country), I’m skeptical of any argument that revolves around that idea that
just because something is complicated it must be bad.  While laws often do suffer from having layers
and layers of amendments added over time that may not all be completely
consistent, arguing that there is no way to comply without providing any further
proof is just a weak argument- not to mention insensitive to the many very real
problems employees across the country face in getting paid for the work they
have already performed.  If you are an
employee and think you have not been paid properly, consult our FLSA FAQ for
guidance.  Remember, even though the FLSA
is complicated, it’s the law, and employees deserved to get paid for the time
they work.

Second, the Northern District of Illinois determined that a
written drug testing policy that allowed for “reasonable suspicion” based on
the opinion of only one supervisor was acceptable.
  A quick round-up of the
facts: a supervisor responded to an altercation at his workplace, and observed
one employee acting strangely and using “abnormal speech.”  Based on his observations, the supervisor
ordered the employee to submit to a reasonable suspicion drug test, and the
employee tested positive for cocaine. 
The employee was later terminated after failing a “last chance”
employment agreement by once again testing positive.  The employee later sued for discrimination because
only he was required to submit to a drug test, and not the white employee with
whom he was involved in the altercation with. 
However, the court found that in order to support a discrimination claim
the employee had to show he was subject to an adverse employment action- and
that drug tests did not usually satisfy that criteria if performed in
compliance with company regulations.  The
court found that the test was not performed in a manner that would be harassing
or humiliating.  Because the drug test
only required the supervisor’s subjective reasonable suspicion, it could be
based entirely on his perception, right or wrong.  As the blog entry succinctly states: “Any employer that incorporates drug testing
into their pre-hire or safety protocols should have a written policy
establishing the standards that must be satisfied in order to justify a
suspicion-based test.”

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