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    Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more!
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    The Labor and Employment Law Update is provided for information purposes only, and should not be construed as legal advice on any subject matter, nor should it be construed as creating an attorney client relationship. Do not send confidential information or facts about a legal matter. The opinions of this blog's contributors do not reflect the opinions of SmithAmundsen LLC as a whole. See the disclaimer page for further information.

Are You Prepared for Medical Cannabis?

Contributed by Noah A. Frank

Medical marijuana (MMJ) is now permitted in 23 states and Washington D.C. Out of those 23 states four of them permit recreational use. Though it remains illegal on the Federal level, the U.S. Department of Justice recently announced the release of over 6,000 inmates convicted of nonviolent drug charges. This begs the question – are you prepared for medical cannabis in the workplace?

Nondiscrimination Policies

Most states with MMJ prohibit discrimination on the basis of a worker or applicant being a registered patient. However, employers should also carefully consider that a registered patient’s underlying medical condition is likely a disability under the Americans with Disabilities Act. As a result, employers that discriminate against (or refuse to provide reasonable accommodations for) a MMJ user could face unanticipated exposure under the ADA and other equal employment opportunity laws. Therefore, employers may regulate use and impairment in the workplace, but not discriminate against the underlying condition or status as a registered patient.

19261587_sSignificantly, employers will also have to carefully scrutinize their background check process to ensure compliance with the Fair Credit Reporting Act, EEOC guidance, and “Ban the Box” laws to avoid any unintentional discrimination. This is especially true with the impending release of inmates with actual conviction histories. In general, a background check policy should be tailored to the position(s) being applied for, and employers should have a bona fide basis for disqualifying those with a criminal history (i.e., a nurse with access to controlled substances versus a groundskeeper). If there is no bona fide reason for excluding those with certain types of crimes, then do not do so.

Drug (In)Tolerance & Testing

Employers need to determine what they will and will not tolerate. Zero tolerance policies and discipline for impaired work (especially resulting in injury or damage) are permitted. Use by a non-registered user is not protected conduct (the same as using another’s codeine).

Take a close look at drug testing policies to ensure that they are based on reasonable suspicion: lack of agility, dexterity, and coordination could be the result of impairment from MMJ or other intoxicating substances, or could be the physical manifestation of the underlying protected disability. A good faith basis for considering discipline and providing the employee with the opportunity to explain will help mitigate risk of a discrimination claim.

How to Prepare for MMJ

Employers should take proactive steps today to ensure compliance with the various laws now to avoid bigger problems later. This includes:

  • Reviewing the company’s philosophy towards medical marijuana and other controlled substances in the workplace, and ensuring that managers and supervisors are training in the company’s policies.
  • Determining which positions are safety-sensitive, and updating job descriptions accordingly (side note: with impending updates to the DOL’s FLSA regulations, it is not a bad time to consider which positions are non/exempt).
  • Updating handbooks and manuals to reflect drug testing, workplace search, disability, and other related policies.
  • Engaging employment counsel to audit policies and practices to ensure compliance prior to there being an incident.

Will Abood v. Detroit Board Of Education Survive?

Contributed by Carlos Arévalo

In June 2014, the Supreme Court issued a decision impacting “fair share” provisions in public sector collective bargaining agreements. By a 5-4 vote, the justices ruled in Harris v. Quinn that home health care workers in Illinois could not be compelled to financially support a union they did not want to join. Writing for the majority, Justice Samuel Alito noted that the “primary purpose of permitting unions to collect fees is to ‘prevent nonmembers from free-riding on the unions’ efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.” The Harris ruling, however, was narrow insofar as the home health care workers at issue were not deemed “full-fledged public employees.”

Now comes Friedrichs v. California Teachers Association¸ one of five cases to watch in the Court’s 2015 term according to Washington’s The Hill newspaper. In Friedrichs, the issue is whether public employees may be compelled to pay union dues as a condition of their employment. The case stems from a California law that allows school districts to require public school teachers, as a condition of employment, to either join the union or opt out. The teachers are nevertheless required to still pay a portion of the union dues.

HandshakeBWMany observers anticipate that the court’s conservative majority will overturn its 1977 opinion in Abood v. Detroit Board of Education. In Abood, the Supreme Court upheld “fair share” provisions in union contracts where a group of public school teachers in Detroit had sought to overturn the requirement that they pay fees equivalent to union dues on the grounds that they opposed public sector collective bargaining and objected to the union’s ideological activities of the union. The court, nevertheless, found that non-union members could be charged dues for “collective bargaining, contract administration, and grievance adjustment purposes” so long as their dues were not used for other ideological or political purposes. In Harris, Justice Samuel Alito questioned the Abood court and its understanding of precedent. He was also critical of the court’s failure to appreciate the conceptual difficulty of distinguishing what are chargeable versus non-chargeable union expenditures in the public sector. Finally, Justice Alito criticized the Abood court’s analysis as resting on “an unsupported [unwarranted] empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop.”

Writing for the dissent, Justice Elena Kagan noted that the “Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this court to reverse that decision.”

If the Supreme Court does overturn Abood, such a decision will have a profound impact, across the Country’s twenty five states that permit compulsory “fair share” for teachers, firefighters, police and other public workers as unions will not flourish if they cannot compel non-members to contribute toward their efforts. Friedrichs truly is a case to watch.


No Joint Employer Liability Found, Despite New NLRB Standard

Contributed by Beverly Alfon

A couple of months ago, we discussed the National Labor Relations Board’s (NLRB) startling decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), in which it determined that a non-union company shared joint employer liability, under the National Labor Relations Act (NLRA), with a labor contractor at one of its recycling plants. The Board held that two or more entities are joint employers if each one possesses sufficient control over employee’s essential terms and conditions of employment. Employers were in an uproar over the decision because of the potential exposure it brings to the use of any subcontractor and the fact that it makes it more difficult for an employer to avoid union organization through the subcontracting of work.

In the first reported decision since Browning-Ferris, the Regional Director for NLRB Region 5 found that in Green JobWorks, LLC/ACECO, LLC, Case No. 05-RC-154596 (Oct. 21, 2015), the union failed to establish a joint employer relationship between a subcontractor and a staffing agency. So, what made the difference in this case? See the chart below. (Click here if chart does not appear) 

BAChart (2)

BOTTOM LINE:  Unlike the Browning-Ferris decision, the Regional Director’s decision in Green JobWorks, LLC is not binding in other cases and the union has a right to appeal it (and we’ll keep you posted). Nonetheless, the decision confirms that the specific terms of the parties’ agreement and their conduct under those terms will be scrutinized.  As we suggested before, now is the time to take action:

  • Analyze all written agreements between your organization and any third party. A user company’s reservation of rights as to contracted employees should be limited and specific. The agreement should clearly indicate that the servicing company maintains exclusive authority to hire, fire, discipline, etc. and the user company reserves no/minimal rights to influence or decide these matters.
  • Carefully evaluate supervisory functions and oversight in practice, training requirements and other day-to-day activities surrounding employee relations (of your own direct employees and 3rd party employees). Consider requiring on-site “lead workers” from the servicing company so that they are responsible for tracking contracted employee hours, determining breaks and removing poor performers. 
  • Determine whether your current business model needs to be tweaked or modified in light of these developments.

Employer Not Liable under the ADA for Failure to Accommodate Employee’s Disability

Contributed by Debra Mastrian

A recent 7th Circuit case, Hooper v. Proctor Health Care, Inc., Case No. 14-2344 (7th Cir. 2015), serves as a reminder that a plaintiff cannot state a failure to accommodate claim under the Americans with Disabilities Act (“ADA”) if the plaintiff’s physical or mental limitations do not affect the plaintiff’s ability to perform essential job functions.

In Hooper, an employee diagnosed with bi-polar disorder prior to being hired by Proctor, requested time off after an incident that took place outside of work. He disclosed his diagnosis to the Director of Human Resources when he asked for medical leave. During that discussion, the Director of Human Resources mentioned her contentious relationship with her mother-in-law who was bipolar. She reported her conversation with the employee to the Vice President of Human Resources and the employee was put on medical leave.

Paid time offThe next month the employee’s doctor determined that the employee could return to work.  For the safety of its employees, Proctor had an independent medical exam (IME) performed. The IME doctor verbally confirmed that the employee was able to return to work. A written report followed two weeks later, in which the IME doctor stated that the employee could return to work with no restrictions. The IME doctor suggested steps Proctor could take to help alleviate the employee’s stress and improve performance, such as a modified work schedule, sick days and regular performance evaluations. Proctor tried multiple times to contact the employee about returning to work; however, the employee could not be reached.  After two weeks, Proctor sent a letter to the employee telling him he had been cleared to return to work and he would be terminated if he did not return by the end of that week. The employee did not respond or return to work by the deadline, and the employee was terminated.

The employee sued Proctor for disability discrimination and retaliation. Although he alleged general disability discrimination in his complaint, in response to Proctor’s summary judgment motion, the employee claimed Proctor failed to accommodate his disability by not discussing the IME doctor’s suggestions. The 7th Circuit found that the claim failed because the employee could perform his job without regard to his bipolar disorder and he required no accommodations. A failure to accommodate claim under the ADA arises only when an employee requires an accommodation. As a procedural aside, the claim also failed because the employee did not plead sufficient facts to put Proctor on notice that he was making a failure to accommodate claim.

The 7th Circuit also found that the employee could not prove disability discrimination. As discussed in our previous post, the Court continued to question the use of the indirect and direct methods of proof under the McDonnell Douglas framework, and ultimately found that no rational jury could find Proctor discriminated against the employee. Proctor made numerous efforts to contact the employee about returning to work. There was no reason to believe that the termination was related to anything but the employee’s failure to return to work. The remark by the Director of Human Resources about her mother-in-law was not evidence of any bias, but was simply a stray remark with no casual connection to the termination.

Alcohol Use – Can you regulate and/or discipline an employee for using alcohol outside of work?

Contributed by Mike Wong

Can I regulate and/or discipline an employee for using alcohol outside of work?

While you might think the answer is pretty straightforward – it is NOT.  Attorneys often respond by saying, “it depends.”

If an employee’s use of alcohol (or any other legal product) outside of work is negatively impacting their performance or resulting in them coming to work impaired, then you can issue discipline in line with your policies and procedures for that conduct.

What if it is not impacting their performance and they are not coming to work drunk?

Again the answer is the dreaded – “it depends.” In part, the reason for this is that different states have different laws. For example, in Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin employers are prohibited from discriminating against or treating employees different because of their use of legal products. In California, Colorado, New York, and North Dakota employers cannot treat employees differently based on their decision to engage in legal activities.

What if you are not in one of those states?

code of conductIt again depends on the circumstances and what actions the employer is trying to take. In an Informal Discussion Letter from August 28, 2014, the EEOC addressed whether an employer can require employees who are alcoholics, or are perceived to be alcoholics, to permanently abstain from drinking alcohol on or off the job as a condition of continued employment. The EEOC advised that requiring these employees to permanently abstain from drinking would likely violate the American with Disabilities Act (ADA) and constitute discrimination based on alcoholism, which is a recognized disability.

Employers may have a legitimate business interest in ensuring that employees are not impaired during work; however, they generally do not have a legitimate business interest in regulating an employee’s conduct outside of work. When dealing with alcohol and alcoholism there are a few things that employers should remember:

  1. Employers can prohibit employees from using, being impaired by or possessing alcohol in the workplace – i.e. have a drug and alcohol free workplace policy.
  2. Alcoholism is a protected disability under the ADA
  3. The ADA specifically allows employers to hold alcoholics to the same performance and conduct standards as other employees.
  4. Employers can discipline/terminate employees for performance or conduct, in the same manner as other employees, even if the employee claims the performance or conduct was due to alcoholism.
  5. Last Chance Agreements can be used to require an employee to get substance abuse treatment, avoid further workplace problems, be tested for alcohol and not violate the company drug and alcohol policy. However, it should steer clear of any prohibition on alcohol use outside of work.

McDonnell Douglas Analysis Takes Another Blow: Employment Discrimination Cases Should Be Assessed from a Straightforward, Non-Shifting Perspective, Seventh Circuit Says

Contributed by Jamie Kauther

The Seventh Circuit recently took another shot at the increasingly rebuked McDonnell Douglas framework for determining employment discrimination claims. Seasoned employment attorneys can recite the McDonnell Douglas burden-shifting analysis in their sleep; in fact, it’s likely been the topic of some sleep-talking rants for some. Under the analysis, established by the U.S. Supreme Court in 1973, if a plaintiff lacks “direct” or “smoking gun” evidence of discrimination, which they usually do, their claim may still survive if they show that (1) they are a member of a protected class; (2) they were meeting 8519134_sthe employer’s legitimate expectations; (3) they suffered an adverse employment action; and (4) other similarly situated individuals not in their protected class were treated better. Then the burden shifts to the employer to demonstrate a legitimate reason for the alleged discriminatory action. Once the employer meets that burden of production, it reverts back to the employee to show the employer’s reason is really a pretext for discrimination. Head spinning yet? The Seventh Circuit, since 2012, has criticized the analysis as burdensome and unjustified.

The first criticism came in 2012 in the 7th Circuit’s Coleman v. Donahoe, 667 F. Supp.2d 835 (7th Cir. 2012) decision. The court held that the district court too rigidly applied McDonnell Douglas’s “similarly situated” requirement and should have used a more flexible standard instead, reversing the lower court’s decision for the employer. Specifically, Judge Wood in her concurrence wrote, “Perhaps McDonnell Douglas was necessary nearly 40 years ago….this case well illustrates, the various tests that we insist lawyers use have lost their utility.” She suggested that employment litigation be dealt with like tort litigation, through a straightforward approach. This straightforward approach again was championed on October 26, 2015 in the Hooper v. Proctor Health Care Inc., No. 14-2344 (7th Cir. 2015) decision. In Hooper, the court recognized its recent questioning of the “continued utility of the direct and indirect methods of proof in analyzing discrimination claims” but still utilized it. However, the court reiterated what it stated in Coleman, that  a court’s main inquiry should be “whether a reasonable jury could find prohibited discrimination.”

The clear take away is that the federal judiciary is looking beyond the framework of McDonnell Douglas and defense attorneys and employers should too. Since the analysis is still utilized, its requirements should not be neglected, but a defense to an employment discrimination claim also should not  solely rest upon the McDonnell Douglas framework.  Employers also should prepare a defense that takes into consideration the issues of the case and answers the question: “Could a reasonable person find discrimination here?” in the negative.

Employee States FMLA Claim Despite Never Having Taken Qualifying Leave

Contributed by Suzanne Newcomb

Last week a Federal District Court ruled a disgruntled former employee could proceed with her interference and retaliation claims under the FMLA even though she never actually took any FMLA-qualifying leave. The case serves as a reminder of just how easily an employee triggers the statute’s broad protections.

out of office signThe former employee submitted completed FMLA paperwork relating to a chronic condition and the employer approved her request to take intermittent leave, as needed, in the future. She never actually took leave under the statute and, in fact, she did not even ask for any leave after her employer approved her request for intermittent leave. Yet, when she was terminated some time later, she sued claiming her employer interfered with her FMLA rights and retaliated against her for exercising her FMLA protected rights. Her employer argued it could not have “interfered with” her FMLA rights or retaliated against her for taking FMLA leave, because she had never actually taken or asked to take leave under the statute. The Court disagreed and allowed her claims to proceed.

The FMLA requires employees to provide advance notice of their need for leave whenever possible and therefore, the court reasoned, it is only logical that the statute’s employee protections trigger as soon as the employee takes any action that invokes her rights under the statute. The retaliation claim is even more straight-forward. The plain language of the statute clearly prohibits retaliation against an employee who exercises or attempts to exercise her FMLA rights. An employee is not required to actually take leave in order to activate the statute’s protections.

This and other similar decisions serve as a reminder that an employee exercises her protected FMLA rights, and therefore triggers the statute’s protections, by simply putting her employer on notice of her possible need for a leave that may qualify under the Act. This could be by requesting, completing or submitting FMLA paperwork, but it does not have to be so formalized. In fact, an employee is not required to say “FMLA” or even “medical leave” in order to trigger the FMLA’s protection. Anything that puts the employer on notice that an absence could be FMLA-qualifying or that an employee may need leave for a qualifying reason at some point in the future, could trigger the employer’s FMLA obligations and the notice requirements.


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