Friday, August 4, 2017

Scoop on Poop at Work: Protest, Medical, and Genetic-Testing Issues

During my labor arbitration conference with union leaders yesterday, several people related the following incident. An employee who cleans aircraft defecated in the cabin, and smeared the “deposit” (union rep’s apt-phrasing) on the cabin walls. No, the union isn’t aiming to get the person’s job back. Their concern is that the employer is ordering genetic testing for 16 employees who had access to the plane.
There is a “lead case” on genetic testing for fecal matching. Google Lowe v. Atlas Logistics for details. The employer operates a food warehouse (for human consumption). One or more employees were defecating in the aisles. The employer had to destroy some pallets of food.
The record doesn’t disclose if the defector was caught—but two employees who were required to give a cheek swap for genetic testing sued under GINA, the federal law that prohibits genetic testing of employees. The men were awarded $2.2 million.
The test is interesting. It doesn’t analyze chromosomes; it only measures gaps between genes. Everyone has a unique spacing sequence. The employer argued that it wasn’t acquiring any medical information. The court said that’s beside the point—Congress said—and Congress meant—to very broadly prohibit genetic testing in the employment relationship.
The Atlas and airline cases appears to be examples of anti-social people going to extreme lengths to protest working conditions.
But other defecation cases are entirely different. In Allen v. CH Energy Group, an employee who was undergoing cancer treatment was fired after a woman reported that the worker defecated on a sidewalk. 
The employer took the complaint at face value and did not investigate. By the way, the woman later retracted her first story, and said she observed wiping.
The employee admitted to wiping himself; but also said his termination for public defecation—circulated by the employer’s supervisor in a small town— defamed him.  A jury awarded the employee $250,000 against the employer for defamation.
I am trying to figure out what all this means. For now, these cases show two very different types of defecation at work, the anti-social variety and the medically-induced type. The two cases also show that other people are drawn into defecation disputes—some with genetic tests, some who circulate defamatory rumors. Both cases ended in large liability judgments for employers. In all, it’s an unsettled and unsettling picture.

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