A grocery store warehouse company had a most unusual situation- someone was defecating (pooping) around the food warehouse. The employer wanted to identify the offender among its employees. It took saliva swabs of two suspected employees to use the DNA to identify the offender. The employees sued for violation of federal law that protects genetic information from being used to discriminate. A jury verdict held the employer liable ordering emotional pain damages and punitive damages for acting with malice or reckless indifference to the worker’s rights. The employer has appealed Jack Lowe et al v Atlas logistics Group Retail Services (Atlanta) LLC, Case no 16-13701 US Dist Ct App (11th Cir 2016), arguing that it did not use the test to detect health problems or discriminate on the basis of the results. One opinion is that this was no different than a routine blood or urine test used to detect the use/presence of illegal substances or intoxication. What do you think? Did the employer have a right to identify offenders and sicipline or did this step over privacy boundaries?
Tracy Jong has been an attorney for more than 20 years, representing restaurants, bars, and craft beverage manufacturers in a wide array of legal matters. She is also a licensed patent attorney.
Her book Everything You Need To Know About Obtaining and Maintaining a New York Retail Liquor License: The Definitive Guide to Navigating the State Liquor Authority will be available next month on Amazon.com as a softcover and Kindle e-book.
Her legal column is available in The Equipped Brewer, a publication giving business advice, trends, and vendor reviews to help craft breweries, cideries, distilleries and wineries build brands and succeed financially.
She also maintains a website and blog with practical information on legal and business issues affecting the industry. Follow her, sign up for her free firm app or monthly newsletter.
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Tracy Jong Law Firm