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Today is the last in a five-part blog series on New York’s sweeping changes to the legal landscape for Empire State employers. In prior posts, we covered limitations on the use of nondisclosure provisions in settlement and separation agreements, the new standards for litigating and defending harassment claims, expanded equal pay protections, and the statewide ban on salary history inquiries. Today, we will explore the remaining changes to the state’s anti-discrimination laws. All of the changes discussed in this article will take effect 60 days after Governor Cuomo signs the Bill, unless otherwise noted:

Expanding Protections to More Employers and More Workers

All New York employers will now be subject to the state’s anti-discrimination law, regardless of size. Under the prior incarnation of the law, employers with fewer than four employees were excluded from coverage (except for sexual harassment claims). Now, every single employee and employer in New York will be covered by these protections. This change will take place 180 days after enactment.

In addition, non-employees – such as independent contractors, vendors, and consultants (and their employees) – will now be entitled to the protections afforded by the state’s anti-discrimination law. This expands on a 2018 law that afforded such protections to non-employees asserting claims of sexual harassment. In addition, the law will also now protect domestic workers from all forms of harassment.

Increased Damages

The law also makes two important changes to the availability of damages in employment litigation cases. First, plaintiff-employees who prevail on state law discrimination, harassment, and/or retaliation claims will be able to recover uncapped punitive damages. Previously, punitive damages were only available pursuant to state law for housing, but not employment discrimination claims. Second, prevailing employees will also automatically be awarded attorneys’ fees incurred during the lawsuit. This provision takes effect immediately upon enactment.

These two changes mirror existing law in New York City, which already provides for uncapped punitive damages and attorneys’ fees for successful discrimination, harassment, and retaliation claims.

Annual Notification Requirements

In accordance with a 2018 New York law, all statewide employers must provide annual sexual harassment prevention training to their employees, and must also maintain a written sexual harassment prevention policy. Under the 2019 Bill, employers must disseminate a notice containing the employer’s sexual harassment policy to all new hires. Additionally, employers must provide all employees with a copy of the information presented at any sexual harassment prevention training session. These materials must be provided in both English and the employee’s primary language, at the time of hire and each year at the time of training. This change goes into effect immediately upon the law’s enactment.

Ban on Mandatory Arbitration Agreements

In 2018, New York barred the use of mandatory arbitration agreements for sexual harassment claims. The new law now prohibits mandatory arbitration for any form of unlawful discrimination or harassment claims. As discussed in our prior blogs, however, this ban is likely preempted by federal law.

Increased Statute of Limitations for Sexual Harassment Claims

The statute of limitations for sexual harassment claims filed with the New York State Division of Human Rights will be increased from one year to three years. This change takes effect one year after enactment of the law. This change will likely have minimal impact on the litigation of such claims, as there is already a three-year statute of limitations for an employee to bring a civil action and there is no requirement that the claim first be brought before the Division of Human Rights. However, employees seeking to pursue their sexual harassment claims at a lower cost, whether pro se or via counsel without incurring filing and service fees, may take advantage of the expanded timeframe in which they may file with the New York State Division of Human Rights.

These are only some the most recent additions to New York’s ever-changing employment landscape. Employers should consider speaking with an experienced employment attorney about how these changes may affect your policies or practices.

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The German Federal Leave Act (Bundesurlaubsgesetz) provides that employees forfeit the right to claim outstanding holiday entitlement at the end of the calendar year or at the end of a specific transfer period; in other words, all holiday must be granted and taken beforehand. Under previous case law, this did even apply in the event that the employer declined an employee’s holiday request even though the request was made in a timely manner.

The Court of Justice of the European Union, however, has taken a different approach. In its ruling of 6 November 2018, the court decided that the regulation according to which employees automatically lose annual leave if they have not submitted a holiday request is not in line with European law. Following this decision, the Federal Labour Court, the highest labour court in Germany, developed its current case law and stated in its ruling of 19 February 2019 that the employer is obliged “to ensure in a concrete and fully transparent manner that the employee is actually in a position to take their paid annual leave by formally requesting them – if necessary – to do so”.

Therefore, the loss of annual leave is only permissible if the employer has specifically requested the employee to take annual leave before the end of the year and has informed them that annual leave will otherwise expire at the end of the calendar year or at the end of a specific transfer period. However, the Federal Labour Court did not specify in detail how and when employers should notify their employees. There has been no further case law in this regard; further clarification would be welcome and is anticipated within the next months. In the meantime, to mitigate the risk that annual leave is carried over into the following year and to minimise the build-up of accrued leave, employers should consider the following approach:

  1. employers should notify their employees during the year to ensure that they are still in a position to take any outstanding annual leave; and
  2. the notification should include the following:
  • The number of days of accrued holiday entitlement
  • Notification that all accrued holiday will be lost unless taken before the end of the calendar year or the specific transfer period
  • An instruction requiring employees to take the accrued holiday

This being said, the hurdles are now much higher for employers seeking to ensure that any untaken accrued leave is automatically forfeited. In future, employers will have to demonstrate that they are compliant with the ruling of the Federal Labour Court. In order to fulfil the new requirements outlined above, employers will face additional administrative duties and will need to review and modify their HR-related processes accordingly.

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Today is the fourth in a five-part blog series on New York’s sweeping changes to the legal landscape for Empire State employers. In prior posts, we covered limitations on the use of nondisclosure provisions in settlement and separation agreements, the new standards for litigating and defending harassment claims, and expanded equal pay protections. Today, we will discuss important changes that will affect hiring practices – most notably, a statewide ban on salary history inquiries.

In another legislative move to broaden the state’s anti-discrimination laws, New York state will now prohibit employers from asking applicants or current employees about their wage or salary history. This new law will go into effect 180 days after Governor Cuomo signs the legislation, which he is expected to do. While New York City, as well as Albany, Suffolk, and Westchester counties, have enacted salary inquiry bans over the past few years, Empire State employers outside those jurisdictions have been free to ask applicants and current employees about their wage or salary history – until now.

The new Bill will revise the New York Labor Law to prohibit all private and public employers in New York state from:

  • Relying on the salary history of an applicant in determining whether to offer employment or in determining salary;
  • Requesting salary history from an applicant or employee as a condition to be interviewed or considered for employment or a promotion; or
  • Requesting the salary history of an applicant or employee from a current or former employer.

The new law will also prohibit employers from retaliating against an applicant or employee because (s)he did not provide salary history or because (s)he filed a complaint with the New York State Department of Labor alleging a violation of the statute. The purpose of the salary history ban is to prevent employers from (intentionally or unintentionally) perpetuating pay disparities between gender, race, and other protected characteristics, by using historical pay data to set future wages. This change comes on the tail of the U.S. Equal Employment Opportunity Commission’s initiative to collect pay data as part of the EEO-1 filing process for employers.

Employers should note, however, that the revised law provides two key carve-outs to the salary inquiry ban. First, applicants and employees may disclose or verify their wage or salary history provided they do so voluntarily and without prompting by the employer, including for the purpose of negotiating wages or salary. Second, employers will be permitted to verify wage or salary history if, at the time an offer of employment with compensation is made, the applicant or employee responds by providing prior compensation history to support a request for a wage/salary that is higher than that offered by the employer.

To ensure compliance, employers should immediately review all applications and pre-employment forms to remove any salary history inquiries and should train human resource personnel and employees participating in the interview or hire process on this new law. Employers should also take steps to ensure that any external recruiters with whom they work in identifying and vetting applicants, are apprised of this change in the law and implement its restrictions in all future dealings with applicants. If you have any questions about the implications of this legislation or if you would like assistance conforming your applications, pre-employment forms, and trainings, Reed Smith’s experienced employment attorneys are available to help.

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Today is the third in a five-part blog series on New York’s sweeping changes to the legal landscape for Empire State employers. In prior posts, we covered limitations on the use of nondisclosure provisions in settlement and separation agreements and the new standards for litigating and defending harassment claims. Today, we will cover the expansion of New York’s equal pay law.

As part of New York’s overhaul of its existing anti-discrimination laws, legislators have expanded the scope of the state’s Equal Pay Act (N.Y. Labor Law § 194) to encompass all classes and characteristics protected by the New York State Human Rights Law. In addition, the new law lowers the standard of proof needed to establish pay discrimination. These changes will take effect 90 days after Governor Cuomo signs the legislation, which he is expected to do.

By way of background, federal and New York State law have, for decades, prohibited pay differentials between employees of the opposite sex who perform equal work. In 2015, New York amended its Equal Pay Act to limit an employer’s defenses against equal pay claims. The State also increased the amount of liquidated damages available to a prevailing plaintiff-employee in an equal pay lawsuit.

The Bill passed last week by Albany lawmakers expands New York’s equal pay protections to employees of all classes and characteristics protected by the state’s anti-discrimination law. This means that an equal pay lawsuit can now be brought, as always, on the basis of sex, but also based on alleged discriminatory pay differentials due to age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status. New York State businesses should therefore brace themselves for an uptick in equal pay claims.

Beyond this important change, the 2019 Bill also lowers the legal standard for a plaintiff-employee to prove that they were subjected to discriminatory pay practices. Under the prior iteration of the State’s Equal Pay Act, New York employers were required to ensure equal pay for “equal work on a job requiring equal skill, effort and responsibility, and performed under similar working conditions.” Under the revised law, however, New York employers will now be required to ensure equal pay for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” This change lowers the bar for employees asserting equal pay claims because it broadens the number of employees a plaintiff-employee could identify as comparators for the purposes of establishing differential pay. It is crucial to note that an employee’s actual job duties, not their title, control the determination of whether an employee is being compensated in compliance with the law.

Notwithstanding these two important changes, New York State still allows for pay differentials based upon non-discriminatory factors such as seniority, merit, quantity or quality of work, or a bona fide factor such as education, training, or experience, provided the factor is job-related, consistent with business needs, and is not based upon protected-class-related compensation differentials. In addition, as was the case with the prior version of the law, an employee can overcome an employer’s bona fide factor defense by showing that: (i) the employer’s practice causes a disparate impact on the basis of a protected class; (ii) an alternative practice exists that serves the same business purpose and would resolve the pay differential; (iii) the employer refused to adopt the alternative practice.

The above changes are particularly notable because New York law, which has a six-year statute of limitations for equal pay claims, imposes 300% liquidated damages for willful violations of Labor Law § 194. This means that, if an employee is awarded $10,000 in economic damages because of an equal pay violation, the employer will likely also have to pay an additional $30,000 in liquidated damages (not to mention the other available quanta of damages, including attorneys’ fees).

In light of these changes to New York’s Equal Pay Act and the exponential damages associated with such claims, employers should review their payroll, benefits, and compensation programs to ensure that employees performing substantially similar work are equally compensated, absent a bona fide basis for a pay differential. Employers should further be prepared to justify and support any pay differentials among employees performing substantially similar work. If you have any questions about the implications of this legislation or if you would like help conducting pay equity audits, Reed Smith’s experienced employment attorneys are available to assist.

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Employment Law Watch by Carl De Cicco And David Ashmore - 2w ago

The European Court of Justice (ECJ) has recently decided that the Working Time Directive (WTD) imposes an obligation on employers in all EU member states to record all working time, not just excess hours or overtime. This marks a significant departure from standard practice and may mean that employers will, in future, be required to implement systems that record workers’ time.

Background

In Confederación Sindical de Comisiones Obreras, the ECJ considered the provisions concerning rest periods and the weekly working hours limit under the WTD. In this case, a number of trade unions brought a group action against the employer, seeking to obtain a declaration that the employer was under an obligation to set up a system recording the actual amount of time worked each day. This system should, the claimants argued, make it possible to check that the working times laid down in legislation and collective agreements were properly adhered to. The employer did not have such a system in place, but it did operate a computer application that enabled whole-day absences to be recorded without measuring the duration of time worked by each worker or the number of overtime hours worked.

Article 3 WTD provides for a minimum period of daily rest (11 hours in any 24-hour period) while Article 5 provides for a minimum period of weekly rest (24 hours per period of seven days). The WTD also contains an upper limit of 48 hours for the average working time for each seven-day period, although UK employees can opt-out of this limit by written agreement.

The ECJ was asked to consider whether national Spanish law (which did not require every hour to be recorded) was sufficient to ensure the effectiveness of the working time limits laid out in the WTD, and if not, whether employers should be required to establish systems whereby the actual daily working time worked by full time employees is recorded.

Decision

The ECJ ruled that member states and employers are obliged to introduce “an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. This was, the Court held, to ensure the effectiveness of the rights provided in both the WTD and the EU Charter of Fundamental Rights.

While employers would have some discretion as to how the system is set up, the ECJ stated that the system would need to provide access to objective and reliable data, allowing workers, as well as national courts, to check whether working time limits set down in national legislation and collective agreements were being adhered to. In the absence of such a system, member states could not ensure compliance with working time limits set out in the WTD or the Charter.

Implications for UK employers

The WTD takes effect in UK law through the Working Time Regulations 1998 (WTR). Under regulation 9 WTR, employers are currently under an obligation to keep and maintain records that adequately show that working time (including overtime) for all workers who have not opted-out does not exceed 48 hours per week and that the limits on night work have been complied with. Compliance is measured over a reference period of 17 weeks and records must be kept for two years. At present there is no obligation to keep records in relation to rest breaks and rest periods.

The ECJ’s decision in Confederación Sindical suggests that the WTR fails to implement the WTD. The UK Government may therefore decide to amend the WTR to eliminate any risk of a claim in respect of a failure to sufficiently implement the WTD. However, due to Brexit, there is considerable uncertainty as to whether this amendment to the WTR will be made.

Notwithstanding the uncertainty surrounding the potential amendment of the WTR, employers may still wish to consider proactively changing their systems in line with the ECJ’s decision. This would best place employers to defend future claims should the UK requirements change suddenly.

*Research and drafting assistance for this post was provided by Reed Smith Trainee Solicitor Anna Greenfield.

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This is the second in a series of blog posts concerning a suite of legislation passed last week by New York State legislators. Yesterday, we discussed a Bill that will change how nondisclosure provisions are used in the context of settlement and separation agreements. Today, we look at a series of measures that will change how harassment claims are litigated in New York State (although many of these changes should already be familiar to New York City employers).

Perhaps most notably, the new laws lower the standard for proving claims of workplace harassment under New York State’s anti-discrimination law. Currently, under both federal and New York State law, an employee-plaintiff alleging harassment must establish that the conduct at issue was “severe or pervasive.” Without this showing, the employee cannot succeed in proving their claim of harassment.

Under the new law, however, harassment will be deemed unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” In other words, New York State will no longer recognize the longstanding “severe or pervasive” standard. As a slight consolation to the business community, the new laws do provide an affirmative defense to harassment claims if the employer can show that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” These changes align New York State law with New York City law, which eliminated the “severe or pervasive” standard and adopted the “petty slights or trivial inconveniences” affirmative defense years ago.

This is not the only critical change, however, to the existing framework for litigating harassment claims. In addition to lowering the threshold for proving harassment, the new laws also eliminate the ability to invoke the so-called “Faragher-Ellerth” defense to harassment claims under the New York State anti-discrimination law. The “Faragher-Ellerth” defense has, for years, allowed employers to avoid harassment-related liability by maintaining policies and practices to prevent and correct harassing behavior and by showing, in addition, that the employee-plaintiff unreasonably failed to take advantage of such corrective opportunities. New York has now eliminated this oft-cited and relied upon defense. This change, too, brings New York State law into line with New York City law, under which the Faragher-Ellerth defense has been unavailable since 2010.

For New York employers – especially those outside of New York City – these changes will likely alter the approach to lawsuits and administrative agency complaints, and perhaps even internal complaints, alleging sexual harassment. The changes will also likely alter some of the fundamental concepts utilized by employers and their human resource departments in creating policies and training employees. Employers should therefore familiarize themselves with these changes immediately, and update their policies and practices as necessary. If you have any questions or need assistance reviewing your company’s procedures, Reed Smith’s employment attorneys are available to help.

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Late last week, New York legislators passed a series of sweeping changes to the state’s employment laws. These drastic changes come on the heels of landmark legislation enacted just last year – in April 2018 – aimed at curbing workplace sexual harassment. This year’s laws, which are in part a further response to the #MeToo movement, will impact settlement and separation agreements, litigation of harassment and discrimination claims, hiring practices, and pay policies for employers operating everywhere from Montauk to Buffalo. We will address the myriad of new laws – and how they will affect your business – in this five-part series.

To start, much of the discussion surrounding the new laws has focused – and understandably so – on the lowered legal standard for proving workplace harassment claims. While we will cover this topic in tomorrow’s post, there is another new change that will likely have a greater impact for Empire State businesses on a day-to-day basis: namely, the severe curtailment on the use of nondisclosure provisions in agreements resolving claims of unlawful discrimination, harassment, and retaliation.

By way of background, last year New York adopted a watershed law limiting the use of nondisclosure provisions in agreements resolving claims of sexual harassment. More particularly, the 2018 law prohibits employers from including a nondisclosure provision in agreements resolving claims of sexual harassment, unless (i) the employee-complainant prefers the inclusion of such provision and (ii) the employer complies with certain nuanced procedural requirements pertaining to the agreement at issue (for example, required consideration and revocation periods). Practically speaking, this law changed the way that New York employers approach separation and settlement agreements with employees who lodged allegations of sexual harassment.

This year’s Bill expands last year’s sexual harassment protections to encompass all forms of unlawful discrimination, harassment, and retaliation. This means that, if an employer is resolving a claim with an employee who has made a complaint of discrimination, harassment, or retaliation, the employer will be limited in its ability to keep certain information confidential. To that end, a provision barring the disclosure of the underlying facts and circumstances of a discrimination, harassment, or retaliation claim may be included in a settlement or separation agreement only if:

  • Inclusion of the provision is the employee-complainant’s preference.
  • They receive 21 days to consider the non-disclosure or confidentiality provision – a period that cannot be shortened or waived even with the complainant’s consent.
  • They have 7 days to revoke the agreement containing the nondisclosure or confidentiality provision after signing.
  • Their preference of confidentiality is memorialized in a separate written agreement.

State regulators previously published Frequently Asked Questions regarding nondisclosure agreements in the sexual harassment context. These same guidelines are expected to apply to the 2019 law as well.

Beyond just the expansion of last year’s Bill, this year’s measure also nullifies any nondisclosure provision to the extent it either (i) restricts the complainant from participating in an investigation (with local, state, or federal agencies) or (ii) prohibits a complainant from disclosing facts necessary to receive unemployment, Medicaid, or other public benefits. Lastly, beginning January 1, 2020, any nondisclosure agreement that prevents disclosure of future claims of discrimination – for example, in an agreement at the start of employment – is void unless it includes certain notifications, including that the agreement does not prohibit the employee from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or applicant.

This change in the law has the potential to impact many, if not most, separation and settlement agreements entered into between an employee and their employer. Any standard or template documents containing a nondisclosure or confidentiality provision should therefore be reviewed to ensure that they comply with the law’s requirements (which take effect 60 days after they are signed into law by Governor Andrew Cuomo). If you have any questions about the implications of this Bill or if you would like assistance drafting or reviewing your agreements, Reed Smith’s experienced employment attorneys are available to help.

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Does pay for regular voluntary overtime need to be included in the calculation of holiday pay? Yes, says the Court of Appeal in a decision which confirms several prior Employment Appeal Tribunal (EAT) decisions that the entitlement to holiday pay under the Working Time Directive (WTD) must include pay for regular voluntary overtime. As we explain below, the outcome is more complex in practice as tribunals will now have to decide, on a case-by-case basis, whether a particular pattern of voluntary overtime is sufficiently regular and settled to fall within the category of regular voluntary overtime.

Background

Under article 7 of the WTD, EU member states must ensure that workers have the right to at least four weeks’ paid annual leave. The WTD does not expressly specify how statutory holiday pay is to be calculated. However, it is well established that holiday pay should equate to ‘normal remuneration’. Normal remuneration has been interpreted to include not only basic salary but also remuneration which is intrinsically linked to the tasks the worker regularly performs.

The EAT held in Bear Scotland v. Fulton and others that compulsory non-guaranteed overtime (i.e., overtime that is compulsory for the employee if the employer requires it but which is not guaranteed to be provided) must be included in the calculation of holiday pay. The EAT also held, in Dudley Metropolitan Borough Council v. Willetts and others, that holiday pay should correspond to normal remuneration so that workers should not be discouraged from taking their annual leave entitlement; in other words, pay during holidays should not be below the rate a worker would expect to receive had they been working. For a payment to be treated as normal, it should have been made over a sufficient period of time on a regular or recurring basis.

The calculation of holiday pay has also been considered by the European Court of Justice (ECJ), which held in Hein v. Albert Holzkamm GmbH & Co. KG that remuneration received for overtime does not, in principle, form part of normal remuneration. However, where the employment contract requires the worker to work overtime on a broadly regular and predictable basis then that overtime should be included in the calculation of holiday pay.

East of England Ambulance Service NHS Trust v. Flowers

The Employment Tribunal (ET) was asked to consider the question of voluntary overtime in Flowers. Here, the claimants sometimes undertook both compulsory non-guaranteed and voluntary overtime for their employer. The ambulance service did not include any overtime in the claimants’ holiday pay. The claimants brought claims for breach of contract and breach of the WTD.

The ET held that, in line with Bear, the non-guaranteed compulsory overtime should be included in the calculation of the claimants’ holiday pay. However, it rejected the claims to include voluntary overtime.

The claimants appeal to the EAT was allowed, with the EAT finding that voluntary overtime could be included in the WTD holiday pay calculation. The case was referred back to the ET for an assessment of whether the thresholds identified in Willetts had been met.

Court of Appeal decision

The NHS subsequently appealed to the Court of Appeal. However, its appeal was dismissed. The court rejected the submission that the ECJ’s decision in Hein meant that voluntary overtime should be excluded from the holiday pay calculation as this would undermine the principle that an employee should not be deterred from taking annual leave. In its view, the ECJ had simply been drawing a distinction between overtime that was exceptional and unforeseeable as opposed to that which is broadly regular and predictable.

Impact on employers

This case will have important implications for both public and private sector employers. Tribunals will now be required to interpret the Working Time Regulations in line with this decision. The issue for employers now will be whether a particular worker’s voluntary overtime meets the threshold of regularity identified in Willetts so as to be included in the calculation of holiday pay. This creates a large grey area for employers as this decision provides little certainty on when payments made for voluntary overtime need to be included in the calculation of holiday pay. In the meantime the decision opens employers up to an increased risk of litigation resulting from wages claims based on underpayments of holiday pay going back up to two years. Employers will now need to carefully weigh up the costs and risks arising from this decision. The safest option for most employers may be to include all overtime payments in future holiday pay calculations. This approach may help to avoid any administrative, and potentially legal, costs of differentiating between employees’ overtime patterns. However, clearly any cost implications must be considered before proceeding down this route.

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Over the past few years, 31 states have legalized some form of medical or recreational marijuana use and this wave of legalization continues to grow. Since there has been no consistent approach taken related to the intersection of legalized use and employment, employers must stay vigilant about recent developments in each location in which they operate.

To assist in navigating these waters, below is a summary of the recent enactments in Illinois and Nevada, as well as an update as to newly published judicial interpretations of the medical marijuana laws in New Jersey and Michigan.

Illinois

On June 4, 2019, Illinois became the 11th state in the nation to legalize the recreational use of marijuana when it passed the Cannabis Regulation and Tax Act (HB 1438). While the Act, which goes into effect on January 1, 2020, decriminalizes marijuana use, it maintains an employer’s right to prohibit such use in several respects. Specifically, the Act provides the following:

  • Explicit preservation of an employer’s rights to maintain a drug-free work place, conduct drug tests, and discipline or fire employees for failure to abide by employment or workplace policies.
  • No requirement for employers to ignore their obligations under federal law (i.e. Department of Transportation regulations), nor take any action that would jeopardize government contracts or funding.
  • No private cause of action against employers who discipline (including termination) an employee based upon a good faith belief the employee was in violation of an employment or workplace policy.

While the law gives employers great latitude to prohibit marijuana use by employees, and permits reasonable, non-discriminatory drug testing to accomplish that goal, it is less clear whether employers have the power to prohibit employees from using marijuana outside the workplace when such use does not interfere with employee job performance. If an employer intends to prohibit non-workplace cannabis use, then that should be clearly spelled out in an employment policy. Conversely, if an employer does not intend to explicitly prohibit that use, then it may be unreasonable to discipline or fire an employee based solely on the results of a failed drug test. Either way, in anticipation of the January 1 deadline, employers in Illinois should carefully consider their marijuana policies and make any expectations clear to their employees.

Nevada

In Nevada, the legislature recently passed the first statewide law preventing employers from rejecting potential job applicants based on a failed drug test for marijuana (AB 132). Although employers remain free to administer drug tests, in light of the prohibitions in this Act, employers should consider whether it is worthwhile to test for marijuana given the limitations on adverse actions based on a failed test. The Nevada law, which exempts most jobs in public safety, follows a similar law passed in New York City this April. These laws create unprecedented protections for job applicants based on marijuana use, unique even among the 31 states that have so far legalized some form of medical or recreational cannabis. The Nevada law becomes effective on January 1, 2020.

New Jersey

In Wild v. Carriage Funeral Holdings, Inc., the Superior Court of New Jersey Appellate Division recently ruled that the disability discrimination protections in the New Jersey Law Against Discrimination (NJLAD) applied to a medical marijuana user. Although the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) explicitly states that “nothing” in the law “requires” an employer to accommodate medical marijuana use, the court reasoned that CUMMA “neither creates nor destroys rights and obligations.” Under its reasoning, employers remain bound by the requirements of the NJLAD even when an employee has violated their drug policies. The Appellate Division, therefore, reinstated the complaint that the Superior Court initially dismissed.

The Wild court made no mention of the District Court of New Jersey’s decision in Cotto v. Ardagh Glass Packing, Inc., which dismissed a medical marijuana user’s NJLAD disability discrimination and failure to accommodate claims when his employer refused to reinstate him to full duty until he passed a drug test.

Michigan

In 2008, Michigan passed its Medical Marihuana Act (MMA), protecting medical marijuana users from criminal prosecution or other adverse acts by the state or a licensing board or bureau. The law does not specifically regulate private employment and contains no language to undermine or limit private employers’ decisions regarding their employees’ medical marijuana use. Thus, it has been left to the courts to ascertain whether any such limits exist. In Eplee v. City of Lansing, an unpublished decision issued earlier this year, the Michigan Court of Appeals clarified that the MMA “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class of users of medical marijuana.” The MMA mandates that no person be denied “any right or privilege” because of their medical marijuana use; however, the court held that this did not prohibit the firing of an at-will employee who had no right to employment. Less clear is how the MMA would apply to a different set of facts, such as where an employee’s contract specified that they could only be fired for cause. The Eplee decision is consistent with the Sixth Circuit’s 2012 ruling in Casias v. Wal-Mart Stores, Inc., which similarly upheld the dismissal of a Michigan employee’s medical marijuana employment discrimination claim.

As various jurisdictions continue to relax the laws regarding marijuana use, employers should stay up to date as to the effects of any such laws in jurisdictions in which they have employees.

*Research and drafting assistance for this post was provided by Reed Smith Summer Associate Jake Ziering.

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Employers in three major cities in the Lone Star State should begin preparing for compliance with paid sick leave ordinances. Joining a number of other states and cities to have enacted paid sick leave laws, the cities of San Antonio, Austin, and Dallas passed ordinances requiring private employers to provide employees with paid sick leave. While the Austin ordinance has been blocked due to litigation regarding its constitutionality, which is now before the Texas Supreme Court, the San Antonio and Dallas ordinances are set to go into effect on August 1, 2019 (except as to employers with five or fewer employees in the preceding year, for which paid sick leave obligations will not go into effect until August 1, 2021).

The paid sick leave ordinances – which largely mirror each other – require all private employers to provide employees who perform at least 80 hours of work per year in the applicable city with one hour of paid sick leave for every 30 hours worked. Employees working for employers with 15 or more employees may accrue a maximum of 64 hours of paid sick leave annually. Employees who work for employers with fewer than 15 employees at all times during the preceding 12 months may accrue a maximum of 48 hours. Employees may carry over accrued, unused paid sick leave up to the maximum except where the employer makes sick leave equal to the maximum amount available to employees at the beginning of the year.

Employees may use paid sick leave for absences due to the employee’s or the employee’s family member’s (1) illness, injury, or need for medical or health care, including preventative care; and (2) need to seek medical attention or relocation, or to obtain services from a victim services organization, or to participate in legal proceedings related to an incident of victimization from stalking, domestic abuse, or sexual assault.

Employers with operations in San Antonio, Austin, and Dallas should watch for continuing developments regarding paid sick leave ordinances. In particular, employers should carefully watch for the Texas Supreme Court’s decision regarding the constitutionality of Austin’s paid sick leave ordinance. Given the similarities among the ordinances, the Texas Supreme Court’s decision on the Austin ordinance may impact the San Antonio and Dallas ordinances.

In the meantime, with the Dallas and San Antonio ordinances set to go into effect in less than two months, employers in those cities should consult with experienced legal counsel to put a plan in place for compliance.

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