Tag Archives: Minnesota

Medical Marijuana Update: Colorado Supreme Court Upholds That Employers May Enforce Drug Free Workplace Policies

Contributed by Michael Wong

On June 15, 2015, the Colorado Supreme Court upheld the appellate court’s ruling that employers can lawfully terminate employees for use of medical marijuana outside of work in compliance with a drug free workplace policy in Coats v. Dish Network, 2015 CO 44 (June 15, 2015).

This is an important decision for employers as many of the state laws “legalizing” marijuana for medical and/or recreational use have been recognized as providing protections from criminal laws, but are unclear as to how much, if any, civil or employment protections are provided to employees under those laws and other state laws.

In Coats v. Dish Network, an employee in an administrative position tested positive during a random drug test. The employee advised the employer that he had a state-licensed medical marijuana card and only used marijuana at home outside of work. After reviewing this information the employer terminated the employee for violating its drug free workplace policy.

The employee then sued the employer under Colorado’s Lawful Activities Act, Colo. Rev. Stat. Ann. § 24-34-402.5 (West), which prohibits employers from disciplining or terminating an employee for lawful activities engaged in off the premises of the employer during non-working hours. Colorado’s Lawful Activities Act is similar to many other state laws, including Illinois, California, Minnesota and New York, which were primarily enacted to prohibit employers from having policies that would prohibit employees from engaging in lawful activities, such as tobacco and alcohol use, outside of work.

The Colorado Supreme Court held that the Colorado Lawful Activities Act only protected outside-of-work activities that are lawful under both Colorado law and federal law. As such, any activities that are unlawful under federal law, like the use of marijuana (medically or recreationally), are not protected under Colorado’s Lawful Activities Act.

This is important, as Colorado employers are able to enforce drug free workplace policies without violating Colorado’s Lawful Activities Act. Additionally, it provides employers in other states some indication that their state courts may follow the Colorado Supreme Court’s lead and find that employers may still enforce drug free workplace policies without violating their state laws. It should be noted that the Colorado Supreme Court relied in part on the federal classification of marijuana as a Schedule I drug that has no medically accepted use, a high risk of abuse and a lack of accepted safety for use under medical supervision, and that a change to the federal classification of marijuana could impact this decision.

The takeaway from the Coats v. Dish Network decision for employers is that until there is clear statutory language or case law stating otherwise, employers are able to enforce their drug free workplace policies. That being said, since this is an issue in which case law is still developing and each state has different statutory language and regulations, employers should consult with legal counsel in addressing these types of issues prior to making any discipline or termination decision.

Pregnancy? Parental Leave? Social Media? Data Breaches? Your State Employment Law Update

Contributed by Heather Bailey

Florida: After much debate in the lower courts, it is settled – employers may not discriminate against pregnant workers in FLA (you couldn’t before under Federal law, but FLA confirms the same).

Iowa:  If you have to notify at least 500 state residents including your employees and applicants of any potential personal information security breach, you must also notify the Iowa Attorney General’s Office of the same.

Maryland: Do you have between 15 – 49 employees?  If so, beginning October 1, 2014, you must provide similar FMLA leave of up to 6 unpaid weeks for parental leave for the birth of a child or adoption and foster care situations.

Minnesota: Beginning August 1, 2014, you must add in your Employee Handbooks a notice that employers are not allowed to retaliate against employees for requesting or receiving reasonable accommodations related to pregnancy or child birth (which took effect on May 12, 2014 requiring employers to give such reasonable accommodations).   Also effective on this same date, employers cannot prohibit or have a policy or practice prohibiting employees from discussing their wages.

MissouriThe pending Right to Work bill died in the house before getting to the senate.  Additionally, in a 5-2 decision, the Missouri Supreme Court said that you only need to use the “contributing factor” standard in a workers’ compensation retaliation claim.  This reversed 30+ years of MO courts requiring “exclusive causation.”

Tennessee:  Beginning July 1 this year, Tennessee went pro-management this time.  Managerial and supervisory employees will now be shielded from individual liability under the Tennessee Human Rights Act for discrimination claims.  Moreover, employees will now have to show their protected activity was the sole reason for their discharge as opposed to it being just one of the reasons in order to sustain a retaliatory discharge claim.  Tennessee now allows employers to prohibit those employees with handgun permits from storing or transporting firearms or ammunition in company vehicles.

West Virginia: Your minimum wage increases on January 1, 2015 to $8.00 an hour and to $8.75 per hour as of January 1, 2016.

Wisconsin:  Getting on the band wagon, WI employers are now prohibited from requiring applicants or employees to give their personal login information for their personal social media sites or require the company’s monitoring of the sites as a condition of them to remain employed.  Moreover, good news for employers is that you no longer need to keep track of a salaried employee’s hours worked for those who are exempt from overtime.

“Convicts Shall Apply” – So Says the State of Minnesota (And Illinois is Likely Next)

Contributed By Jeffrey A. Risch

In line with a minority but growing trend, on May 13, 2013 Minnesota enacted the Criminal Background Check Act.  The new law, effective January 1, 2014, restricts an employer’s ability to request any criminal history (including actual convictions) from a job applicant.  The new law allows employers to only consider or require disclosure of an applicant’s criminal history until after the applicant has been selected for an interview, or if there is not an interview, before a conditional offer of employment is made.  Violations will be investigated and monetary penalties assessed, exclusively by and through the Minnesota Department of Human Rights.  Exceptions do exist for employers who have a statutory duty to inquire, request and consider criminal convictions or histories. Minnesota joins other states like Massachusetts and Hawaii with the so-called “BAN THE BOX” legislation directed at private and public employers.  And, Illinois is likely next…

Illinois’ proposed Employee Background Check Act (HB 3005), would prohibit any employer, on the face of an employment application or through any other means, from inquiring into, considering or requiring disclosure of the criminal record or criminal history of a candidate for employment until the candidate has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the candidate.  However, such restrictions would not apply to employers who are required to exclude candidates from employment because of municipal, state, or federal law or regulation.  Also, under the proposed law, if an employer hires a candidate pursuant to the law, the employer shall have a rebuttable presumption in any legal proceeding against the employer regarding the employment of the candidate that the employer performed its due diligence and acted in good faith in hiring such candidate. The Illinois Department of Labor would investigate and assess monetary penalties for willful and knowing violations.

All employers should pause and carefully review their applications as well as their hiring practices.  The “one size fits all” approach is done (and has been for quite some time) for multi-state employers.  Also, under EEO and anti-discrimination laws, most employers are strictly prohibited from using criminal convictions or histories as a per se basis to deny employment or other opportunities in the workplace.

SmithAmundsen LLC continues to monitor such developments on a local, regional and national basis for our clients and contacts.