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In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

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Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

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Labor Talk Blog: Terminated Employee Entitled to Union Representation Prior to Taking Reasonable Suspicion Drug Test

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September 22, 2014

The National Labor Relations Board (NLRB), in agreeing with an administrative law judge's (ALJ) April 2013 ruling, has held that suspending and discharging a union member for refusing a drug and alcohol test after the employee demanded union representation is a direct violation of the National Labor Relations Act (NLRA).

In Ralphs Grocery Co., 361 NLRB No. 9 (2014), coworkers observed the employee displaying unusual behavior, such as slurring his words and having difficulty operating the computer. Based on these observations, the employee was ordered to submit to a drug and alcohol test. The employee requested a union representative, but was told that he did not have this right. The employee attempted to contact a union representative or alternate steward regardless, but was unable to reach anyone. The employee again refused to submit to the test, despite warnings that his refusal would lead to discharge under Ralphs Grocery Company's (Ralphs) drug/alcohol testing policy, and he was ultimately terminated.

Ralphs insisted that the employee's refusal to submit to the testing was insubordinate and amounted to an automatic positive test result under its drug/alcohol testing policy, and this was a complete defense in the case. Ralphs also argued that it was not required to postpone its investigation because the employee could not contact a representative.

Both the NLRB and the ALJ held that the drug and alcohol test trigger the employee's Weingarten rights, which were established by a 1975 U.S. Supreme Court decision allowing employees to insist on having a union representative present for any investigatory interview that the employee reasonably believes could lead to disciplinary action. The NLRB and the ALJ determined that the employee's discharge was a direct result of his invocation of his Weingarten rights, and not because Ralphs believed the employee to be intoxicated.

While employers may institute policies calling for an employee's discharge for refusing to submit to a drug/alcohol test, this decision underscores the importance of recognizing an employee's attempt at exercising his/her union rights. Managers also should make record of any observed behavior indicating intoxication or illegal drug use as a means to support any actions in the wake of an unfair labor practice claim.

For more Labor and Employment information, visit www.BassBerryLaborTalk.com.


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