Tag Archives: employment attorney

Medical Cannabis Goes to Work

marijuana for medicinal purpose

In the latest salvo in an evolving legal issue, a federal court in Arizona ruled against Walmart in a recent lawsuit for terminating an employee who possessed a valid medical marijuana card after a drug test of the worker came back positive.  On the issue of cannabis use by employees, employers are having increasing difficulty reconciling their duty to make reasonable accommodations for employees suffering from disabilities with their drug screening policies.  Employers can and should take action to prevent impairment at work.   But how should an employer in a state where medical cannabis is legal handle an employee who tests positive in a drug screen but produces a valid authorization for use of medical cannabis?  To date, with certain exceptions, most courts have permitted an employer to refuse to hire a candidate or to enforce discipline against an employee who tests positive for cannabis, despite a valid authorization to use it for medical purposes. However, employees and others are challenging that norm regularly on the state and federal level.  Stay tuned.

Savvy employer takeaways: Employers who take action against a candidate or employee based on a positive result for cannabis when the employee has a valid medical authorization and no evidence of impairment should be prepared for a fight.  Employees and their lawyers are looking for these cases in many states to try to change the law. Employers need to decide if screening out medical cannabis users is worth the risk of a potentially expensive court battle.  

Questions? Let me know.

What Employers Need To Know: New Jersey’s Appellate Division Issues Historic Ruling On Medical Marijuana Users’ Rights in the Workplace

Marijuana Medical PrescriptionEver since the use of properly prescribed medical marijuana became legal in New Jersey, Courts have grappled with reconciling state and federal laws protecting employees from disability discrimination, and employers’ rights to maintain workplaces free of drug use. In simple terms, New Jersey law permits the use of medical marijuana, which is illegal under federal law. With limited exceptions, the decisions in these cases have come down in favor of employers’ right to enforce workplace drug rules. Generally, courts have permitted employers to discipline, terminate, or refuse to hire employees who use medical marijuana, even if there is no evidence of use or impairment in the workplace.

This week, New Jersey’s Appellate Division joined the minority of courts that have found an employee may be able to state a disability discrimination claim against an employer who takes an adverse employment action due to the employee’s use of medical marijuana.

What Happened?

In 2015, the employee, a funeral director, was diagnosed with cancer and was prescribed and used medical marijuana as authorized by New Jersey’s Compassionate Use Act as part of his treatment. In 2016, the employee was in an auto accident while working and he was taken by ambulance to a hospital. The employee advised hospital staff he was authorized to use medical marijuana. The treating doctor responded that “it was clear [the employee] was not under the influence of marijuana [and, thus, his marijuana use was not a cause of the accident], and therefore no blood tests were required.”

While the employee recuperated, his father took his medical prescription and marijuana license to his son’s supervisor and explained what had happened and why the hospital had not given a drug test. Later that day, the employer called and spoke to the employee’s father to advise that a blood test was required before the employee could return to work.

Later that evening, the employee went to a facility to take a urine and breathalyzer test; however, the results of those tests were not provided to the employer and were not part of the case record.

The next day, the employee returned to the funeral home, not as an employee, but because a close friend’s family member had died. While there, he and his supervisor spoke briefly about his job status. His supervisor said he had not heard from “corporate” but did not see how it would be a problem since the employee had a prescription for his marijuana use. The employee told the supervisor, “I only take it when I am home, not at work because I don’t want to jeopardize my license for what I have worked so hard for.”

The employee eventually returned to work, but, shortly after his return, his supervisor advised him that “corporate” was unable to “handle” his marijuana use and that his employment was “being terminated because they found drugs in your system”, though no test had actually been provided to the employer. In a subsequent letter, the company told the employee it had terminated him not because of his drug use, but because he failed to disclose his use of medication that might adversely affect his ability to perform his job duties. According to a company policy, “employees must advise their immediate supervisor if they are taking any medication that may adversely affect their ability to perform assigned duties safely.”

The employee brought an action alleging he had been a victim of disability discrimination.

What did the Courts decide?

The trial court dismissed the employee’s claims, finding that New Jersey’s Compassionate Use Act “does not contain employment-related protections for licensed users of medical marijuana.” The employee appealed.

On appeal, a three-judge panel of New Jersey’s Appellate Division reversed the dismissal in a unanimous decision. The Appellate Division acknowledged that the Compassionate Use Act unambiguously states it does not “require . . . an employer to accommodate the medical use of marijuana in any workplace.” Nevertheless, the appellate panel found that the New Jersey’s Law Against Discrimination might require such an accommodation. Although the Compassionate Use Act does not make illegal an employer’s adverse action against an employee for medical marijuana use, by the same token, the Appellate Division stated it does not immunize an employer’s conduct that might otherwise have been a violation of the Law Against Discrimination. For this reason, the Appellate Division reversed the trial court’s dismissal and permitted the case to proceed.

What do employers need to know?

At the outset, it is important to understand that the Appellate Division did not rule that this employee had been a victim of disability discrimination. In fact, the Court expressly recognized that the case was at the earliest stages, and the employer had pled potentially valid defenses.  The Court ruled only that the case could not be dismissed on its face.

Although this precedent is now binding on state trial courts in New Jersey, it is far from settled law, and may well be subject to an appeal to the New Jersey Supreme Court. However, New Jersey employers need to be mindful that they no longer have a free pass to take adverse employment actions against employees and candidates solely because they use medical marijuana; those affected by such decisions will be emboldened by this new case, and their lawyers will be confident that a lawsuit challenging the adverse actions is more likely to survive a motion to dismiss at the beginning of the case. As the law in New Jersey now stands, employers are not required to accommodate medical marijuana use, but there is now an increased risk if they refuse. Additionally, various bills have been proposed and are being considered by the New Jersey legislature, which, if adopted, may expand employee rights in this area of the law.

In other words, stay tuned, because we have certainly not heard the last word on this topic. With that said, employers remain free to take adverse action if an employee shows any sign of impairment from use of medical marijuana, or, for that matter, any other drug, legal or not.

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If you have any questions about this legal alert or if you run across a related issue in your workplace, please feel free to contact Adam Gersh or any other member of Flaster Greenberg’s Labor & Employment Department.

Walmart Takes a Seat in California

walmart.jpg

Walmart reportedly agreed to pay $65 million to settle a case brought on behalf of nearly 100,000 current and former California cashiers who claimed the company violated their rights under a state law dating back to 1911 when it failed to provide them with seating.  The workers claimed Walmart, which denied any wrongdoing, breached its duty to make seating available “when the nature of the work reasonably permits.”

Walmart claimed that the nature of the cashier job did not reasonably permit seating, because placing stools or chairs at the store’s cash registers would pose a safety risk and hinder productivity. However, Walmart had a policy of offering stools to cashiers with medical conditions or disabilities, and store managers had the discretion to provide stools to cashiers on a case-by-case basis.

In a court filing, Walmart and counsel for the cashiers said the settlement, if approved, would be the largest ever under California’s unique Private Attorney General Act, which allows workers to sue their employers on behalf of the state and keep a portion of any award.

Curiously, other major retailers in California faced similar lawsuits, but Walmart did not act proactively to address this issue.  Even putting aside the anticipated benefit of improved employee relations resulting from voluntary compliance, with the benefit of hindsight, one has to wonder if the cost of compliance, even if it were to result in reduced productivity, would have been less than the cost to settle.

Savvy employer takeaways: Employers need to look carefully at their duty to offer reasonable accommodations to employees and to engage in an interactive process to make sure that the employer can justify any denied accommodation.

Questions? Let me know.

What New Jersey’s New Law On Employment Contracts Means for Employers: Are Non-Disclosure and Arbitration Provisions Out?

Law should know concept, The lawyer explained to the client to plan the case in court.

On March 18, 2019, New Jersey Governor Phil Murphy signed a new law, which, among other things, bars employers from requiring employees to sign or enforcing employment contracts that require employees to agree to waive certain rights or remedies and bars agreements that conceal details relating to discrimination claims.

Here’s what employers need to know:

  • Any provision in an employment contract that waives or limits any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment will now be deemed against public policy and unenforceable;
  • No right or remedy under New Jersey’s “Law Against Discrimination,” or “any other statute or case law” shall be prospectively waived;
  • A provision in any employment contract or agreement that has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable;
  • For unionized work forces, this law does not restrict agreements to waive rights contained in collective bargaining agreements, but it does extend its prohibition to clauses designed to conceal details of a discrimination claim from unionized employees;
  • Attempting to enforce an agreement that is unenforceable under this law will give employees a private right of action to sue in court and the right to recover their attorney’s fees and costs of suit if they prevail;
  • The law protects employees from retaliation for refusing to enter into an agreement that violates their rights under this new law;
  • The law does not restrict an employer’s right to impose and enforce restrictions on the use of the employer’s confidential and proprietary information other than with respect to the details of discrimination claims;
  • The law does not expressly prohibit confidentiality provisions in settlement agreements meant to prevent disclosure of the amount of a settlement;
  • The law does not require disclosure; rather it leaves the choice in the hands of the individuals involved; and
  • The law took effect immediately and applies to all new contracts and agreements and existing contracts that are renewed, modified, or amended going forward.

Although the law is aimed primarily at prospective waivers of rights and clauses concealing the details of discrimination claims, the full scope of this law’s applicability will become clear only after it has been interpreted by the courts.  For example, one of the most significant open questions is whether New Jersey courts will deem mandatory arbitration provisions in employment agreements unenforceable as to discrimination claims and, if they do, whether the Federal Arbitration Act will, in turn, be deemed to preempt such a limitation on the enforcement of arbitration clauses.  Another important question is whether courts will construe this law to bar confidentiality provisions in settlement agreements that restrict employees from disclosing the terms of the settlement.

As we wait for the courts to resolve these and other open questions, employers should proceed thoughtfully when seeking confidentiality in connection with a claim of discrimination.  A precisely drafted confidentiality agreement or policy might be desirable in some situations, such as to preserve the integrity of an ongoing investigation, but employers need to be mindful of this law and understand the limitations and potential consequences of requiring confidentiality and/or taking disciplinary action when confidentiality is breached.  Employers relying on mandatory arbitration provisions should also consider the impact of this law and consult their counsel in evaluating whether to exclude discrimination claims from arbitration.

If you have any questions about this legal alert or if you run across a related issue in your workplace, please feel free to contact Adam Gersh or any other member of Flaster Greenberg’s Labor & Employment Department.

U.S. Dept. of Labor Makes Its Move

Employment attorney adam gersh

As long-time readers of this blog may recall, since 2015, the U.S. Department of Labor  has been trying to update its Fair Labor Standards Act  regulations to qualify more employees for overtime pay. For basic exemptions, meaning those that are not industry-dependent such as the administrative, executive and professional exemptions, employers may generally classify as exempt from overtime pay only employees who meet both a duties test and a salary test.  Since 2004, federal law allowed employers to designate salaried workers who earn at least $455/week (the equivalent of $23,660/year) and meet certain “white collar exemption” duties-test requirements as exempt from overtime.  This month, the DOL issued a proposed rule to increase that salary exemption to $679/week (equivalent to $35,308/year).  If adopted, salaried employees who meet an applicable duties test and earn more than $455/week but less than $679/week will no longer be exempt from overtime under the basic exemptions.  Importantly, the DOL proposed rule will allow employers to use nondiscretionary bonuses (for example incentive bonuses tied to productivity or profitability) and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the salary test.  The DOL is also proposing to increase the exemption that applies to highly compensated employees.  Currently, salaried employees who earn at least $100,000/year in salary are exempt from overtime regardless of whether they satisfy the applicable duties test.  Under the proposed rule, the highly compensated employee salary threshold will increase to $147,414/year, meaning employees paid less than that threshold amount will be subject to a duties test or other exemption.  The proposed rule does not seek a change to any of the duties tests for the basic exemptions.

Savvy employer takeaways: Employers need to evaluate their payroll to identify salaried employees who meet the applicable duties test but may no longer be exempt and assess whether increasing the employee’s salary or making the employee overtime eligible makes more sense.  Employers also need to consider applicable state law, which may be more restrictive than the exemptions permitted under the FLSA.

Questions? Let me know.

Severance Agreement Requirements for Older Workers

During a layoff or non-voluntary reduction in force, the topic of how much time employers need to give employees to consider severance packages and what disclosures must be made creates considerable confusion in the media, with much being made of employers’ supposed failure to make required disclosures (see example). Here is the deal: if employers are subject to the Age Discrimination in Employment Act (“ADEA”) (generally, private employers with 20 or more employees), and ask employees who are 40 years of age or older to release ADEA claims in exchange for a severance package that is part of a termination, then they must abide by specific regulations. Those regulations are meant as safeguards for employees protected under the Older Worker Benefit Protection Act (“OWBPA”) which amended the ADEA. That means covered employers may need to give employees up to 21 days to consider the severance offer, or 45 days in the case of a layoff of more than one employee, and a seven-day period after signing to revoke the release of the ADEA/OWBPA claims. Also, employers have a duty to disclose the age and title of the workers who are chosen for layoff and the selection criteria. The OWBPA has additional requirements and there are other best practices an employer’s counsel can and should use when drafting a release to help guard against challenges, so it is always best to consult an attorney familiar with these types of matters so that the employer gets the broad release they are seeking in exchange for severance. Employers who are not covered by the ADEA and employers who are conducting a layoff of employees who are not protected by the ADEA do not have to rigidly adhere to these requirements. In the case of a separation that is not part of a reduction in force, (for instance, a termination for cause) the employer may not need to abide by these rules either. Even if the ADEA/OWBPA rules do not apply, employers are wise to give employees a reasonable period of time to consider a severance package to help protect against arguments that the waiver of claims should be unenforceable because of coercion or other reasons.

Savvy employer takeaways: Employers should know what is and what is not required to make their separation agreements and releases enforceable and should use reasonable means to give employees enough time to thoughtfully consider them.

Questions? Let me know.

Quitters Sometimes Win? New Jersey Court Deems Former Employee Eligible for Benefits

In a ruling that challenges the adage that quitters never win, the New Jersey Appellate Division determined that an employee who resigned her job was eligible for benefits reversing a decision of the Unemployment Appeals Tribunal.  In re Cottman, the applicant was denied unemployment benefits on the basis that she voluntarily resigned her employment.  Cottman did not dispute that she resigned her employment when her babysitter cancelled and she had no child care available for her child. When Cottman tried to call out of work, her former employer did not dispute that Cottman was told by her supervisor she may be terminated if she did not appear for work or find a replacement to cover for her shift.  While the Appellate Division acknowledged that leaving work for personal reasons, no matter how compelling, ordinarily disqualifies an applicant from receiving benefits, the Court held Cottman was not disqualified because she only resigned under the threat of being terminated.  The Court found her violation of her employer’s policy would have led to termination based on its past practice even though her supervisor used the word “may.”  Since the Court found Cottman would have been qualified for benefits if she were terminated and she only resigned under the threat of termination, it reversed the Appeals Tribunal’s decision denying benefits.

Savvy employer takeaways: Employers should not threaten employees with termination unless they really mean it, and they should understand that employees who react to such threats by resigning may, under the right circumstances, be eligible to collect unemployment.

Questions? Let me know.

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