A REJOINDER AND UPDATE TO WARD: THE CONTINUING SAGA OF EMPLOYEE DRUG TESTING In an article entitl... more A REJOINDER AND UPDATE TO WARD: THE CONTINUING SAGA OF EMPLOYEE DRUG TESTING In an article entitled "Employee Drug Testing: Aalberts and Walker Revisited," which also appears in this issue, Edward A. Ward (1991) asserts various concerns he has about an earlier JSBM article entitled "Employee Drug Testing: What the Small Firm Owner Needs to Know." The latter piece was co-authored by Dr. Jim L. Walker and myself (Aalberts and Walker 1988). Ward's article brings to light more recent information not available in the literature at the time our original article was written. This current article addresses the drug testing controversy with still more recent developments. The purpose of the article is to help small business owners keep up-to-date on changing court interpretations federal and state legislation, procedural innovations, and other factors which continue to create an atmosphere of unpredictability regarding drug testing Ward raised five issues: (1) inexpensive urinalysis is far more inaccurate than the companies providing this service would want small business owners to realize; (2) the chain-of-custody requirement may be seen as irritating as well as embarrassing for both parties involved; (3) the extent to which small business owners can monitor off-duty drug use is an unresolved legal question; (4) the positive result found with a valid urinalysis does not indicate that the employee was intoxicated on the job; and (5) the legal requirements of drug testing vary from state to state and require frequent review by a small business owner. In this rejoinder to Ward, I shall basically follow these five points, updating his research to include the latest cases. To save space, points 3 and 4 will be discussed together. In our article as well as in Ward's, it was pointed out that the EMIT test by itself is highly unreliable. In particular, it was noted that there are problems with false positives for legal drugs and food. False positives render such tests legally indefensible and leave the employer open to expensive litigation and damages. All this is still true today and, in fact, the small business owner would be advised not to test at all rather than use just the EMIT test. Employee drug use may be expensive, but so are lawsuits and insurance premiums. The small firm owner might wish to consider the following information in deciding whether to drug test. The U.S. Chamber of Commerce recently stated that a recreational drug user is one-third less productive than other employees, is four times likelier to be involved in injuries on the job, is three times more inclined to be tardy, twice as likely to request early leave, and two and a half times more likely to be out eight or more days a year (Schwartz 1989). These data should be weighed against the cost of drug testing, which can run into the thousands of dollars. Thus, in weighing these costs, simply using the EMIT test alone would be foolhardy, since the cost of a possible lawsuit would tip the scales against such a marginal procedure. In deciding whether to drug test, the small firm owner should be apprised of the following legal development as well. In March 1989, the U.S. Supreme Court ruled on two monumental cases which will help to clarify the EMIT issues as well as many other drug testing issues. The cases, Skinner v. Railway Labor Executives Association (1989) and National Treasury Employee Union v. Von Raab (1989) dealt with two drug testing schemes for railway workers and U.S. Customs workers. It should be emphasized that in both of these cases the tested workers are protected under the U.S. Constitution, in particular, the Fourth Amendment, which prohibits unreasonable searches and seizures. This is a right not usually accorded to private sector employees (Bible 1986). However, these cases may be applicable to small firm owners in at least two ways. First, because of Skinner, the treatment of employees working in small businesses heavily regulated by governmental agencies will be influenced by these cases. …
ABSTRACT: CONTROLE DU PERSONNEL: CE QUE LE PETIT CHEF D'ENTREPRISE DOIT SAVOIR SUR L 'EMP... more ABSTRACT: CONTROLE DU PERSONNEL: CE QUE LE PETIT CHEF D'ENTREPRISE DOIT SAVOIR SUR L 'EMPLOIDETEST ANTIDROGUE Soumettre le personneld' entreprise a des examens medicaux afin de lutter contre les mefaits de l'alcool et de la drogue, est l'un des problemes les plus debattus aujourd'hui dansle monde du travail. Pour rester competitifs, les petits entrepreneurs doivent proteger leur statut economique et les conditions de securite au sein de leur firme, en reduisant au minimum les risques lies a l'emploi de la drogue ou a l'alcoolisme. Les travailleurs, inquiets pour la securite de l'emploi et la protection de leur reputation recherchent l'appui des tribunaux. Pour rendre le controle possible, les firmes peuvent utiliser trois tests de cout et de precision variables. Ces tests peuvent etre appliques de trois facons: (1) au hasard ou sous forme d'examens obligatoires, (2) dans le cadre d'une visite medicale requise avant recrutement, ou au cours d'un controle medical annuel, et (3) en cas d'evidences serieuses de delit. La premiere approche est juridiquement risquee: les deux a utres ont plus de chance d'etre reconnues comme legales. Les examens de controle de la toxicomanie resteront des questions juridiquement delicates pour les petits chefs d'entreprise, tant que les tribunaux et le corps legislatif n'auront pas clarifie leur contexte juridique. Testing workers for drug and alcohol use is a controversial and important issue in the workplace. Small firms are as vulnerable to this problem as large corporations, but the lack of case and statutory law involving small firms makes it very difficult for small firm owners to implement effective drug testing policies in efforts to reduce their legal liability for accidents caused by their employees. The purpose of this article is to clarify some of the issues of concern to the small business owner in the area of drug testing and to review the potential legal problems associated with three approaches to drug testing. ARGUMENTS IN FAVOR OF EMPLOYEE TESTNG Proponents of drug testing contend that drug and alcohol abuse cost U.S. industry from $30 to $60 billion a year due to absenteeism, lost productivity, accidents, and health care. Federal government experts estimate that 10 to 23 percent of all American workers engage in drug use on the job.' In terms of accidents alone, drug and alcohol abuse have resulted in many deaths. For example, between 1975 and 1984, at least 48 train accidents resulting in 37 deaths, 80 injuries and more than $34 million in property damage were attributed to drug or alcohol use, including the recent Amtrak-Conrail disaster in Maryland in which 16 persons died . Under the doctrine of respondeat superior, an employer is liable for any tort committed by his employee within the scope of the latter's duties." Employers, then, often bear legal liability for personal and property losses attributed to defective products and accidents caused by drug- and alcoholinfluenced workers. Small firm owners are least likely to be able to bear such costs. It is not surprising, therefore, that drug and alcohol testing programs are considered by many as a means of curbing on-the-job drug and alcohol use. ARGUMENTS AGAINST EMPLOYEE TESTING Opponents of employee testing maintain that various types of urinalysis used to detect drug use are not appropriate due to the unreliability of test results. Three widely used tests-enzyme multiplied immunoassay (EMIT), gas chromatography, and mass spectrometry-can all yield false positive results. Human error in handling the samples can also contribute to the tests' fallibility, particularly when they are carried out on a mass scale. Opponents also maintain that employee drug testing programs may violate both private and public law. It has been suggested, for instance, that drug testing presumes a person's guilt until the test proves otherwise. …
Journal of the Academy of Marketing Science, Jun 1, 1991
Marketing decisions are particularly vulnerable to legal rulings made in both the courts and the ... more Marketing decisions are particularly vulnerable to legal rulings made in both the courts and the legislatures. The effective management of those legal implications challenges the modern marketing professional. Grasping marketing’s overall legal environment, including its governing case law, regulatory statutes and future trends, is essential. This review will provide analysis of recent court cases and legislation with particular emphasis on creatively assisting the marketer’s management of the legal factor.
In the past four years the U.S. Supreme Court has issued two critical decisions regarding the pra... more In the past four years the U.S. Supreme Court has issued two critical decisions regarding the practice of vertical price fixing, more commonly called resale price maintenance (RPM). Simply stated, these two cases, Monsanto Co. v. Spray-Rite Service Corp.' and Business Electronic Corp. v. Sharp Electronics Corp., have now made it easier for manufacturers legally to control the prices charged by their retailers and for large, powerful retailers to restrain their vendors from supplying their discount competitors. The impact of these decisions on some small businesses, particularly discount retailers, could come down to two choices: either conform to their competition's prices or possibly go out of business. Indeed, a recent news article by Jack Anderson and Joseph Spear reported that several small discount retail businesses have blamed their bankruptcies on these new legal developments. Others have maintained that they have or may soon have their supplies cut off if they do not buckle under the pressures created by their suppliers, generally precipitated by complaints from retail competitors threatened by discount pricing practices. The purpose of this note is twofold: First, briefly to examine the foregoing cases; second, to discuss how these cases may affect small businesses. Resale Price Maintenance A Matter of Standards Vertical relationships or dealings between independent business entities are the norm in the U.S. economy. This is due to economic realities which dictate that it is more economical to do business in this fashion than to own every vertical link.' Due to the need of the parties involved to control and protect their interests legally, contracts are typically negotiated. In the past, there have been instances when these contracts have been deemed to be in restraint of trade and therefore in violation of antitrust law. Resale price maintenance is one such antitrust violation under the Sherman Antitrust Act. Resale price maintenance exists when a seller, generally the manufacturer, tries to set a minimum or maximum resale price on its goods or services. The buyer, who may be a distributor, must then often be persuaded into pressuring the retailer to follow suit. Starting in 1911 with the precedent-setting case of Dr. Miles Medical Co. u. John D. Park & Sons Co., the Supreme Court has consistently ruled that RPM is a per se violation. What this has meant is once RPM is proved to exist, no defenses are permitted since it is thought to be inherently pernicious, with no redeeming competitive qualities. An analysis of the following two cases, however, will show that the Supreme Court has set off in a new direction in regard to RPM. One case eases off in the use of the per se standard, and the other places a greater burden of proof on the plaintiff in an RPM case. Both decisions may profoundly affect small business. Monsanto v. Spray-Rite Service Corp.: An Added Burden of Proof InMonsanto v. Spray-Rite Service Corp., the Supreme Court placed upon the plaintiff a much greater burden of proof than was formerly required in prosecuting an RPM violation. In effect, the Court has ruled that a purported victim of RPM must now produce, "something more than evidence of complaints" by its competitors made to their common supplier in order to prove that the company was a victim of vertical pricefixing conspiracy. According to the Court, the more stringent burden of proof was necessary since complaints are a normal and legitimate form of communication between suppliers and their customers. Furthermore, the amount of proof necessary must be sufficient to "exclude the possibility" that the supplier and the plaintiffs competitors were acting independently. This rule confirmed the long-standing precedent enunciated in United States v. Colgate & Co. which recognizes the supplier's right to deal independently or not to deal with a buyer. …
This article synthesizes the political-economic geography regime with existing political subdivis... more This article synthesizes the political-economic geography regime with existing political subdivision modeling to predict the legitimacy of various authorities that might order medical martial law. Such “districting” authority, as limited by the Constitutional right to travel, reveals a range of authorities to declare and enforce remediation of emergencies under various legal frameworks within defined geographic areas. The primary interdisciplinary approach used here is public policy, political economy and economic geography. We demonstrate how the latter contributes greatly. First, the science of spatial understanding is offered by physical geographers for the physical barriers that shape political borders and may define contagion vectors based largely on traditional travel patterns. Second, economic geography provides insight into the size, shape and extent of regional trade areas within which contagion vectors may be predicted. Third, the policy reach of various political entities and subdivisions is considered to yield insights fusing political geography with political science through the law.
A REJOINDER AND UPDATE TO WARD: THE CONTINUING SAGA OF EMPLOYEE DRUG TESTING In an article entitl... more A REJOINDER AND UPDATE TO WARD: THE CONTINUING SAGA OF EMPLOYEE DRUG TESTING In an article entitled "Employee Drug Testing: Aalberts and Walker Revisited," which also appears in this issue, Edward A. Ward (1991) asserts various concerns he has about an earlier JSBM article entitled "Employee Drug Testing: What the Small Firm Owner Needs to Know." The latter piece was co-authored by Dr. Jim L. Walker and myself (Aalberts and Walker 1988). Ward's article brings to light more recent information not available in the literature at the time our original article was written. This current article addresses the drug testing controversy with still more recent developments. The purpose of the article is to help small business owners keep up-to-date on changing court interpretations federal and state legislation, procedural innovations, and other factors which continue to create an atmosphere of unpredictability regarding drug testing Ward raised five issues: (1) inexpensive urinalysis is far more inaccurate than the companies providing this service would want small business owners to realize; (2) the chain-of-custody requirement may be seen as irritating as well as embarrassing for both parties involved; (3) the extent to which small business owners can monitor off-duty drug use is an unresolved legal question; (4) the positive result found with a valid urinalysis does not indicate that the employee was intoxicated on the job; and (5) the legal requirements of drug testing vary from state to state and require frequent review by a small business owner. In this rejoinder to Ward, I shall basically follow these five points, updating his research to include the latest cases. To save space, points 3 and 4 will be discussed together. In our article as well as in Ward's, it was pointed out that the EMIT test by itself is highly unreliable. In particular, it was noted that there are problems with false positives for legal drugs and food. False positives render such tests legally indefensible and leave the employer open to expensive litigation and damages. All this is still true today and, in fact, the small business owner would be advised not to test at all rather than use just the EMIT test. Employee drug use may be expensive, but so are lawsuits and insurance premiums. The small firm owner might wish to consider the following information in deciding whether to drug test. The U.S. Chamber of Commerce recently stated that a recreational drug user is one-third less productive than other employees, is four times likelier to be involved in injuries on the job, is three times more inclined to be tardy, twice as likely to request early leave, and two and a half times more likely to be out eight or more days a year (Schwartz 1989). These data should be weighed against the cost of drug testing, which can run into the thousands of dollars. Thus, in weighing these costs, simply using the EMIT test alone would be foolhardy, since the cost of a possible lawsuit would tip the scales against such a marginal procedure. In deciding whether to drug test, the small firm owner should be apprised of the following legal development as well. In March 1989, the U.S. Supreme Court ruled on two monumental cases which will help to clarify the EMIT issues as well as many other drug testing issues. The cases, Skinner v. Railway Labor Executives Association (1989) and National Treasury Employee Union v. Von Raab (1989) dealt with two drug testing schemes for railway workers and U.S. Customs workers. It should be emphasized that in both of these cases the tested workers are protected under the U.S. Constitution, in particular, the Fourth Amendment, which prohibits unreasonable searches and seizures. This is a right not usually accorded to private sector employees (Bible 1986). However, these cases may be applicable to small firm owners in at least two ways. First, because of Skinner, the treatment of employees working in small businesses heavily regulated by governmental agencies will be influenced by these cases. …
ABSTRACT: CONTROLE DU PERSONNEL: CE QUE LE PETIT CHEF D'ENTREPRISE DOIT SAVOIR SUR L 'EMP... more ABSTRACT: CONTROLE DU PERSONNEL: CE QUE LE PETIT CHEF D'ENTREPRISE DOIT SAVOIR SUR L 'EMPLOIDETEST ANTIDROGUE Soumettre le personneld' entreprise a des examens medicaux afin de lutter contre les mefaits de l'alcool et de la drogue, est l'un des problemes les plus debattus aujourd'hui dansle monde du travail. Pour rester competitifs, les petits entrepreneurs doivent proteger leur statut economique et les conditions de securite au sein de leur firme, en reduisant au minimum les risques lies a l'emploi de la drogue ou a l'alcoolisme. Les travailleurs, inquiets pour la securite de l'emploi et la protection de leur reputation recherchent l'appui des tribunaux. Pour rendre le controle possible, les firmes peuvent utiliser trois tests de cout et de precision variables. Ces tests peuvent etre appliques de trois facons: (1) au hasard ou sous forme d'examens obligatoires, (2) dans le cadre d'une visite medicale requise avant recrutement, ou au cours d'un controle medical annuel, et (3) en cas d'evidences serieuses de delit. La premiere approche est juridiquement risquee: les deux a utres ont plus de chance d'etre reconnues comme legales. Les examens de controle de la toxicomanie resteront des questions juridiquement delicates pour les petits chefs d'entreprise, tant que les tribunaux et le corps legislatif n'auront pas clarifie leur contexte juridique. Testing workers for drug and alcohol use is a controversial and important issue in the workplace. Small firms are as vulnerable to this problem as large corporations, but the lack of case and statutory law involving small firms makes it very difficult for small firm owners to implement effective drug testing policies in efforts to reduce their legal liability for accidents caused by their employees. The purpose of this article is to clarify some of the issues of concern to the small business owner in the area of drug testing and to review the potential legal problems associated with three approaches to drug testing. ARGUMENTS IN FAVOR OF EMPLOYEE TESTNG Proponents of drug testing contend that drug and alcohol abuse cost U.S. industry from $30 to $60 billion a year due to absenteeism, lost productivity, accidents, and health care. Federal government experts estimate that 10 to 23 percent of all American workers engage in drug use on the job.' In terms of accidents alone, drug and alcohol abuse have resulted in many deaths. For example, between 1975 and 1984, at least 48 train accidents resulting in 37 deaths, 80 injuries and more than $34 million in property damage were attributed to drug or alcohol use, including the recent Amtrak-Conrail disaster in Maryland in which 16 persons died . Under the doctrine of respondeat superior, an employer is liable for any tort committed by his employee within the scope of the latter's duties." Employers, then, often bear legal liability for personal and property losses attributed to defective products and accidents caused by drug- and alcoholinfluenced workers. Small firm owners are least likely to be able to bear such costs. It is not surprising, therefore, that drug and alcohol testing programs are considered by many as a means of curbing on-the-job drug and alcohol use. ARGUMENTS AGAINST EMPLOYEE TESTING Opponents of employee testing maintain that various types of urinalysis used to detect drug use are not appropriate due to the unreliability of test results. Three widely used tests-enzyme multiplied immunoassay (EMIT), gas chromatography, and mass spectrometry-can all yield false positive results. Human error in handling the samples can also contribute to the tests' fallibility, particularly when they are carried out on a mass scale. Opponents also maintain that employee drug testing programs may violate both private and public law. It has been suggested, for instance, that drug testing presumes a person's guilt until the test proves otherwise. …
Journal of the Academy of Marketing Science, Jun 1, 1991
Marketing decisions are particularly vulnerable to legal rulings made in both the courts and the ... more Marketing decisions are particularly vulnerable to legal rulings made in both the courts and the legislatures. The effective management of those legal implications challenges the modern marketing professional. Grasping marketing’s overall legal environment, including its governing case law, regulatory statutes and future trends, is essential. This review will provide analysis of recent court cases and legislation with particular emphasis on creatively assisting the marketer’s management of the legal factor.
In the past four years the U.S. Supreme Court has issued two critical decisions regarding the pra... more In the past four years the U.S. Supreme Court has issued two critical decisions regarding the practice of vertical price fixing, more commonly called resale price maintenance (RPM). Simply stated, these two cases, Monsanto Co. v. Spray-Rite Service Corp.' and Business Electronic Corp. v. Sharp Electronics Corp., have now made it easier for manufacturers legally to control the prices charged by their retailers and for large, powerful retailers to restrain their vendors from supplying their discount competitors. The impact of these decisions on some small businesses, particularly discount retailers, could come down to two choices: either conform to their competition's prices or possibly go out of business. Indeed, a recent news article by Jack Anderson and Joseph Spear reported that several small discount retail businesses have blamed their bankruptcies on these new legal developments. Others have maintained that they have or may soon have their supplies cut off if they do not buckle under the pressures created by their suppliers, generally precipitated by complaints from retail competitors threatened by discount pricing practices. The purpose of this note is twofold: First, briefly to examine the foregoing cases; second, to discuss how these cases may affect small businesses. Resale Price Maintenance A Matter of Standards Vertical relationships or dealings between independent business entities are the norm in the U.S. economy. This is due to economic realities which dictate that it is more economical to do business in this fashion than to own every vertical link.' Due to the need of the parties involved to control and protect their interests legally, contracts are typically negotiated. In the past, there have been instances when these contracts have been deemed to be in restraint of trade and therefore in violation of antitrust law. Resale price maintenance is one such antitrust violation under the Sherman Antitrust Act. Resale price maintenance exists when a seller, generally the manufacturer, tries to set a minimum or maximum resale price on its goods or services. The buyer, who may be a distributor, must then often be persuaded into pressuring the retailer to follow suit. Starting in 1911 with the precedent-setting case of Dr. Miles Medical Co. u. John D. Park & Sons Co., the Supreme Court has consistently ruled that RPM is a per se violation. What this has meant is once RPM is proved to exist, no defenses are permitted since it is thought to be inherently pernicious, with no redeeming competitive qualities. An analysis of the following two cases, however, will show that the Supreme Court has set off in a new direction in regard to RPM. One case eases off in the use of the per se standard, and the other places a greater burden of proof on the plaintiff in an RPM case. Both decisions may profoundly affect small business. Monsanto v. Spray-Rite Service Corp.: An Added Burden of Proof InMonsanto v. Spray-Rite Service Corp., the Supreme Court placed upon the plaintiff a much greater burden of proof than was formerly required in prosecuting an RPM violation. In effect, the Court has ruled that a purported victim of RPM must now produce, "something more than evidence of complaints" by its competitors made to their common supplier in order to prove that the company was a victim of vertical pricefixing conspiracy. According to the Court, the more stringent burden of proof was necessary since complaints are a normal and legitimate form of communication between suppliers and their customers. Furthermore, the amount of proof necessary must be sufficient to "exclude the possibility" that the supplier and the plaintiffs competitors were acting independently. This rule confirmed the long-standing precedent enunciated in United States v. Colgate & Co. which recognizes the supplier's right to deal independently or not to deal with a buyer. …
This article synthesizes the political-economic geography regime with existing political subdivis... more This article synthesizes the political-economic geography regime with existing political subdivision modeling to predict the legitimacy of various authorities that might order medical martial law. Such “districting” authority, as limited by the Constitutional right to travel, reveals a range of authorities to declare and enforce remediation of emergencies under various legal frameworks within defined geographic areas. The primary interdisciplinary approach used here is public policy, political economy and economic geography. We demonstrate how the latter contributes greatly. First, the science of spatial understanding is offered by physical geographers for the physical barriers that shape political borders and may define contagion vectors based largely on traditional travel patterns. Second, economic geography provides insight into the size, shape and extent of regional trade areas within which contagion vectors may be predicted. Third, the policy reach of various political entities and subdivisions is considered to yield insights fusing political geography with political science through the law.
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