Category Archives: legal issues

All Eyes on Volkswagen’s Amnesty for Answers

465782341 -- volkswagen2It’ll be interesting to see what comes of Volkswagen’s move to offer amnesty to all its bargaining-unit employees in hopes of uncovering just who was/is behind its emissions-cheating scandal.

According to a letter that went out Thursday from Herbert Diess, chief executive of the division that produces Volkswagen brand cars, employees have until Nov. 30 to come forward with information about who was responsible for installing software in 11 million diesel vehicles that disguised nitrogen-oxide output.

The letter, reviewed and reported on by the New York Times, says “people who provided information would not be fired or face damage claims [but] the company could not shield employees from criminal charges.”

In other words, the amnesty isn’t really designed for the really bad guys, “but rather, for the midlevel people who may have, without even knowing it, some relevant information,” Mike Koehler, a law professor at Southern Illinois University, told the Times.

It’s also, according to another legal source for that story — Alexandra Wrange, president of Trace International in Annapolis, Md. — “a tacit admission … that the usual reporting channels have been ineffective.”

You might call it a kind of pulling-out-all-the-stops kind of move, above and beyond the more commonplace no-retaliation policies contained in most whistleblowing programs, says Allan Weitzman, a Boca Raton, Fla.-based partner with Proskauer, whose list of specialties includes whistleblowing.

(At Volkswagen, it was an internal whistleblower who uncovered the false carbon-dioxide claims that the company made public last week. “German news media reports have said that internal investigators looking into the emissions-cheating software, which came to light in September, have been hampered by a reluctance among employees to come forward,” the Times story states.)

Weitzman joins in the general chorus of employment attorneys who consider Diess’ move new and different, to say the least.

“I know I’ve never heard of [this kind of corporate amnesty],” he says. “But these are unusual circumstances, and [as pointed out in the Times article as well], Volkswagen wants to show to governmental agencies that it has done everything it can to solve this problem; well, amnesty is pretty broad … I’d say ‘Yes, they have gone about as far as possible’ ” in this endeavor.

Is it the right move? Weitzman thinks so.

“I think it’ll work, too, if it has the support of the union, meaning [very simply] that the people who look to unions as their source of job security will participate in the amnesty program if their union supports it,” he says.

“And the union should support this,” he adds, “because the future of the union is tied to the future of Volkswagen, and if Volkswagen cannot solve this problem, it’s going to result in the unemployment of many, many union members.”

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Parental Leave Enters Political Storm, Too

Paid parental leave has certainly taken over the media waves of big businesses trying to one-up each other in just how accommodating 510042321-- parents & newbornto new parents they can be. (See our most recent HRE Daily posts on large companies announcing such leave accommodations, including Michael J. O’Brien’s post just Wednesday on Amazon’s plan to up its allotted leave for new parents and allow them to share their paid time with partners not employed there.)

In addition to this race toward better policies, however, paid parental leave has entered a political-football frenzy of late as well. Just as Amazon was making its announcement Monday via a memo to all employees, newly elected Speaker of the House Paul Ryan, R-Wis., was in the news for resisting calls to back a federal paid-family-leave law.

And this despite his outspoken desire to spend more time with his own family, according to this Huffington Post piece and this — far-more critical — piece on, as well as the fact that he provides his own staff with paid family leave.

“Because I love my children and I want to be home on Sundays and Saturdays like most people doesn’t mean I’m for taking money from hardworking taxpayers to create a brand new entitlement program,” Ryan told Meet the Press in a recent taping. He thinks offering such leave is up to employers; it’s their role, not the government’s.

Yes, that’s the common Republican stance — less federal control in favor of more individual control — but personally, says Terri L. Rhodes, CEO of the San Diego-based Disability Management Employer Coalition, the Paul Ryans of the world, as well as most all businesses and politicians from both sides of the aisle, “are all probably thinking mandated paid family leave is a good thing.”

Small and mid-sized businesses, especially, tend to be in favor of a federal mandate, she says, because they can’t necessarily afford the sweeping changes and allowances big businesses can in their attempts to stay one step ahead of their competition.

This mad race is further compounded by the fact that some states — including New Jersey,  California and Rhode Island — already offer some kind of paid family leave, and some states, and many companies, are backing paid sick leave as well.

“For big multi-state or global companies,” says Rhodes, “they can afford to figure how all this fits in with their policies and costs.” They can find a way to make it all work. But for smaller and mid-sized businesses, it’s much more complex “when it comes to considering provisions and accruals” and such.

“If we had a mandated paid leave,” she says, the playing field would be leveled more in terms of “what is expected; it would be more cut-and-dried.”

What’s more, she adds, many large corporations may espouse more liberal parental-leave policies, but don’t actually “support the policy that’s just been announced” when it comes to the corporate culture. The actual taking of the leave may still be frowned upon internally, but the external employer brand comes out smelling like a rose.

The sad reality — in the United States, anyway — is that “having a family still isn’t looked on as a great career path,” Rhodes says. “That’s a problem for everyone” — big business, small business … and Paul Ryan.

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Employers Worry About Pay-Ratio Perceptions

Results of a recent poll by New York-based Towers Watson show it’s not the mechanics of complying with the new CEO pay-ratio-101366398 -- money on scaledisclosure rule — such as data gathering, getting the right sampling, identifying the median employee and the like — that worries employers the most.

It’s how they’re going to explain the pay-setting process to their employees and how their pay ratio will look compared to other companies’ ratios. This according to the almost 600 corporate compensation professionals who weighed in on the Towers Watson Webcast Poll on CEO Pay Ratio Disclosure Rule.

The communication issues loom especially large. Half the respondents cite that issue among their top concerns. Also, how employees will react when they start comparing their compensation to their CEO’s and to the median employees’ is keeping many a top business leader up at night.

For a refresher, this New York Times piece offers some pretty complete details, history and analysis of the 3-to-2 vote on Aug. 5 by the Securities and Exchange Commission that will require most public companies, starting in 2017, to regularly reveal the ratio of their chief executive’s pay to that of employees.

Some of the controversy is also spelled out in the piece:

“Representatives of corporations were quick to assail the new rule … saying that it was misleading, costly to put into practice and intended to shame companies into paying executives less.

“But the ratio, cropping up every year in audited financial statements, could stoke and perhaps even inform a debate over income inequality that has intensified in recent years as the wages of top earners have grown far more quickly than anyone else’s.”

What’s disconcerting at this point isn’t just how this ratio will be perceived, but how few employers really know what they need to do to comply. In the poll mentioned above, only 17 percent of employers agree they understand all of the costs, effort and data that will be needed while almost two-thirds (65 percent) disagree.

In an earlier Towers Watson survey of 170 U.S. compensation professionals, Towers Watson Talent Management and Rewards Pulse Survey, only 48 percent agree that their companies had identified the data they’ll need and know how they will capture it to calculate the pay ratio, while even fewer (41 percent) say they’re prepared for how the disclosure will affect employee perceptions of their pay.

And if you think time is on your side and you’ll get it right with many months to spare, think again, says Steve Seelig, senior regulatory adviser for executive compensation at Towers Watson.

It’s “not too early for HR to begin thinking about how well its company communicates with employees, and to then set a strategy for improving its message,” he says, adding to:

“Keep in mind that, when the disclosure comes out, workers below the median will [immediately start to] wonder what it takes to get them to that level, and why their company is not paying them more. Those employees at or above the median will naturally wonder whether their pay levels are determined fairly, or how the level of CEO pay might be hindering their pay increases. Workers also will be looking at companies across the street and pondering if their median pay is higher, and whether it might be a good idea to look around.

“Human resource executives should [be proactive and] view the pay ratio disclosure as a chance to make sure their employees understand [their company’s] pay-value proposition. Companies that get this communication effort right will find they actually have strengthened their relationship with the workforce, with better productivity and reduced turnover as likely outcomes.”

Those that don’t get it right shouldn’t be surprised when the opposite occurs.

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Anxiety Disorders and the ADA

A recent Pennsylvania district court ruling underscores what one attorney calls the “fundamental difficulty” that employers face in responding to mental health-related disabilities in the workplace.

In Kiera Barber v. Subway, the U.S. District Court for the Middle District of Pennsylvania has ruled that Subway must head to trial to defend claims that the sandwich restaurant chain violated the Americans with Disabilities Act by terminating an employee rather than accommodate her disability.

The chain of events that led them to this point begins in the summer of 2012 …

Court records indicate that Kiera Barber—who worked as a “sandwich artist” at a Subway location in Harrisburg, Pa. for roughly two weeks starting in May 2012—completed an online employment application and subsequently interviewed with Akash Patel, the owner of the Harrisburg franchise. During that face-to-face meeting, Barber informed Patel that she suffers from anxiety and may need to take breaks when and if anxiety episodes occur during her shifts. (She also produced medical documentation of her anxiety disorder and social phobia, at Patel’s request.)

Patel, who had previously advised Barber that a sandwich artist’s duties included preparing sandwiches for and interacting with Subway customers, reportedly noted that Barber’s requested accommodation “wasn’t a problem.”

On June 12, however, Barber suffered an anxiety attack while preparing a sandwich at the front of the store, eventually retreating to an employee-only area to attempt to get her symptoms under control. According to Barber, Patel followed her to the back of the store, asking about her condition and pressuring her to return to work. When her condition did not improve, Barber requested permission to leave early.

And that’s where the concerned parties’ accounts of that June day begin to “diverge considerably,” according to court documents.

Barber says that Patel responded to her request by saying he “[didn’t] see any reason to keep training you if you’re going to keep having anxiety attacks.” She also testified that Patel “commanded” her to leave the store.

Barber claims she was never told that she was fired, but “perceived his order to leave as a formal termination of her employment with Subway.” Subway, however, maintains that Patel adequately accommodated Barber’s request and expected her to report for her next scheduled shift. When she didn’t, Patel concluded that Barber wasn’t coming back at all. Court records show that neither Barber nor Patel have initiated contact with the other since the June 12 incident.

It’s worth pointing out that this opinion is at the summary judgment stage, where the threshold for success is much lower than at trial or in the motion for summary judgment phase.

But, however the case plays out, it can still be instructive for employers, says Michael Studenka, a Newport Beach, Calif.-based partner at Newmeyer & Dillion.

Because mental-health disabilities are invisible to the eye, managers can simply perceive behavioral symptoms—tardiness, a lack of attention to detail, an inability to relate to co-workers or customers, for instance—as substandard work performance, says Studenka.

As such, mental health-related issues can be “a source of great exposure” for an organization, he says.

“Employers have an obligation to engage in the interactive process when they know or have reason to know that an employee is suffering from a disability in the workplace,” continues Studenka. “HR cannot be everywhere at once, and thus, in order to comply with this requirement, employers must remain vigilant in regularly training supervisors to recognize potential mental-health disabilities that exist in their workforce, as well as handling requests for accommodations based upon the same.”

Managers, he says, are “the eyes and ears of the company,” and “must understand what they need to do if they become aware of, or even suspect that an employee is dealing with a mental-health issue.”

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Restraining Orders as Legal Arsenal

When an email came my way recently, touting yet another approach to keeping employers safe from liability — restraining orders — I restraining order -- 473612428nearly discarded it, thinking it was surely common knowledge among HR leaders.

But something about the wording, and the invitation to interview a Los Angeles judge who thinks employers and their HR departments must not be privy to this technique, compelled me to look further. So I called him.

Herbert Dodell, Judge Pro Tempore for the Los Angeles Superior Court, thinks if employers really understood how much legal protection they’d be cloaking themselves in by filing restraining orders against potentially dangerous employees and ex-employees, more would be taking this approach. As it is, “maybe 5 percent to 10 percent are doing it today, tops,” he says. He goes on:

“Think about it, if there is an unruly employee or someone who is a credible threat of violence, the fact that [an employer] got a restraining order allows [that employer] to argue it did the prudent thing when confronted with a situation.

“If the employer doesn’t do it, and that employee shoots up the place, that employer will be faced with an argument that it didn’t do anything to protect the other employees or the work environment. In other words, it had notice and was negligent about doing something about it. It is no guarantee, but allows for an argument on liability issues.

“With the proliferation of lawsuits against employers for wrongful termination, discrimination, retaliation, you name it — all seeking damages, large and small — employers should be looking for ways to defend their actions and minimize damage claims. Restraining orders [can be] valuable tools in that regard.”

Dodell has a pretty good frame of reference for this. Not only has he heard hundreds of retraining-order cases in his judge’s robe, he also has experience as a transactional and trial lawyer, and mediator and arbitrator. So he’s represented people on both sides of these cases and decides them now, too.

Granted, he says, it won’t stop the violence (although it could deter it). “If someone has it in his or her mind to shoot up the place, he or she will shoot up the place,” he says. While such incidents were rare decades ago, he adds, they have been on the rise in recent years — perhaps the most recent being the February shooting at a Moorestown, N.J. security company that left one man dead and another injured.

Hard to say just how much they’re going up. Here‘s the Centers for Disease Control and Prevention’s word on that. But as a legal record of steps an employer takes, and as proof in a court of law that “the employers had some concerns and took action, that employer would be far more protected from liability than most are,” says Dodell.

“I’m convinced HR people and employers don’t understand how this works or far more would be doing it,” he says. (He’s not even sure enough risk managers know how effective and simple this is.)

Filing a restraining order, he says, is not a difficult procedure — “basically, a six-page form [that entails mostly] checking the boxes.” Judges like himself “don’t even come out of chambers for temporary restraining orders; then you have a hearing in 21 days; then, if it’s issued, it’s good for three years.”

The thing to remember, he says, is you don’t have to be right about a perceived threat. You simply need to present your concerns to the court in the form of a fact pattern — “this is what happened and this is what we think might happen.” If the judge concurs, you are, in essence, right, and you — and possibly your employees (if the order does serve to dissuade the violent behavior) are protected for three years.

These documents are not complicated and they’re not expensive, says Dodell, and they make a whole lot more sense than what he’s sadly seen far more often, “where companies simply transfer unruly employees to other departments” to the detriment — and sometimes injuries or murders — of other employees. What’s more, he adds:

“The terms of the restraining order can be ‘manuscripted’ for the court to approve.  I often tailor the relief to the need. In wrongful termination cases, it is invaluable to have a finding made by a judicial officer that there was a reason for the termination or conduct by the employer to refute arguments of discrimination, etc.

“In cases where an employee or former employee disrupts the operation of the business or causes damages such as a shooting at the place of business, the obtaining of a restraining order, before something happens, shows due diligence and goes directly against allegations of negligence. Insurance companies should love it when there is a restraining order in place.  It can then be shown that a neutral judicial officer found a sufficient basis, by the applicable standard, that the employee or former employee was unstable and that the employer sought to do something about it.”

So there you have it: When in doubt (or concern), file those restraining orders.

I don’t usually take over someone else’s soapbox here, but thought I’d err on the side of safety.

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The Feds’ War on Employee Misclassification

Seeking to clarify the issue of just what it is that distinguishes an independent contractor from an employee, the Department of Labor yesterday  issued its first Administrator’s Interpretation (AI) of the issue as it pertains to the Fair Labor Standards Act. The issue has only grown more heated in recent months with the rise of “gig economy” companies such as Uber and Lyft, along with long-running disputes between companies and workers such as FedEx Ground’s dispute with its drivers, who claim they were misclassified as independent contractors.

Written by the DOL’s Wage and Hour Division Administrator, David Weil, the 15-page memo states that the misclassification of employees as independent contractors “is among the most damaging to workers and our economy.” It emphasizes the WHD’s six-factor economic realities test that’s used to determine a worker’s status along with what a just-released briefing from law firm Seyfarth Shaw describes as “an extremely expansive reading of the FLSA’s ‘suffer or permit to work’ definition of ’employ.'”

“Combined,” the Seyfarth Shaw briefing says, “WHD’s efforts indicate a significant hostility towards the use of independent contractors.”

An agreement between an employer and a worker stating that the worker is an independent contractor “is not indicative of the economic realities of the working relationship and is not relevant to the analysis of the worker’s status,” Weil’s memo states. The true measure of whether a worker is an employee or an independent contractor, Weil writes, is the extent to which the worker is economically dependent on the employer. A worker who is really in business for him-or-herself is an independent contractor, he notes; a worker who is economically dependent on the company is an employee.

Weil’s AI serves as a reminder to employers to regularly question their independent-contractor classifications as a part of their global risk audits, writes Michael Droke, a partner in the labor and employment division of Dorsey and Whitney. They should also be keeping records on the process used to determine whether one is an independent contractor or employee, and ensure that those classified as independent contractors aren’t given rights or access that may call their status into question, he writes: “For example, contractors should not have internal email accounts, should not be given server access, and should not be invited to employee functions.”

Weil’s AI is yet one more piece of evidence that the federal government is aggressively seeking out employers that misclassify (either deliberately or by mistake) employees as independent contractors and that businesses must proceed very carefully in this area, according to the Seyfarth Shaw memo.

“The guidance now makes it likely that DOL investigations and enforcement actions and private litigation contesting the classification of such workers will intensify,” the Seyfarth Shaw attorneys write. “Businesses should, therefore, carefully evaluate the DOL’s guidance and its potential impact on their operations.”

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Saying Goodbye to Same-Sex Benefits?

ThinkstockPhotos-533697873In the wake of the United States Supreme Court’s recent Obergefell v. Hodges decision—which guaranteed same-sex couples throughout the U.S. the right to marry—HRE’s Maura Ciccarelli pondered what this landmark decision would mean for employers and HR leaders.

The International Foundation of Employee Benefit Plans was apparently wondering the same when it recently surveyed 258 companies in an effort to gauge how the ruling would influence employers’ approach to offering benefits.

Overall, 53 percent of responding employers said they believe the ruling will have an effect on their organizations. (In total, 57 percent of the companies surveyed reported offering benefits to same-sex domestic partners at the time of the Obergefell v. Hodges decision.)

Take a closer look, however, and the impact figures to be negligible.

For example, just 4 percent of those surveyed by the IFEBP said they anticipate the Supreme Court’s same-sex ruling would be “extremely” impactful, while 6 percent said the ruling would be “very” impactful, and 43 percent indicated the ruling would have “somewhat” of an effect.

Among the companies currently providing same-sex benefits, more than 70 percent said they are likely to continue offering them. Of the remaining respondents who said their organizations are unlikely to continue making benefits available to same-sex domestic partners, nearly all (93 percent) said they only provided such benefits in the past because same-sex couples couldn’t legally marry; which is no longer the case. Forty-four percent of these companies pointed to administrative complexities—documentation, tax and payroll issues, for instance—as the main reason why they plan to discontinue same-sex domestic partner benefits, with 19 percent citing cost as the biggest factor in their decision.

Likewise, the Brookfield, Wisc.-based provider of employee benefits education, research and information asked those who said they plan to continue providing same-sex domestic partner benefits why they have chosen to do so. Fifty-three percent of these employers said they “provide benefits to opposite-sex domestic partners, and want to be equitable,” and 53 percent reported a desire to attract and retain quality employees as the No. 1 driver. Forty-two percent indicated their organizations “recognize all kinds of families,” with another 36 percent saying they feel offering benefits to employees in same-sex domestic partnerships is simply “the right thing to do.”

It seems the majority of employers are in agreement with this group, at least according to this IFEBP poll. Julie Stich, the organization’s director of research, noted as much in a recent statement.

“Despite the Supreme Court’s decision to make same-sex marriage legal, many employers are deciding to continue offering benefits to unmarried domestic partners,” said Stich.

“They see providing benefits—to both same- and opposite-sex domestic partners—as a way to ensure employees and their loved ones are happy and healthy.”


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Explaining the Unpaid Internship Enigma

judgeIf an intern is for all intents and purposes a regular employee, then should he or she still be considered an intern?

The U.S. Court of Appeals for the Second Circuit recently attempted to answer this existential question, or at least help clear up the confusion over whether interns should be treated as employees—and paid as such.

On July 2, the aforementioned appeals court—which covers New York, Connecticut and Vermont—ruled in the case of Glatt v. Fox Searchlight Pictures Inc., in which plaintiffs Eric Glatt and Alexander Footman claimed that Fox Searchlight and Fox Entertainment Group violated the Fair Labor Standards Act and New York Labor Law by failing to pay them as employees during their internships, as required by FLSA and NYLL minimum wage and overtime provisions.

In June 2013, Glatt and Footman—who interned on the set of the 2010 Fox Searchlight film Black Swan—were granted partial summary judgment by the U.S. District Court for the Southern District of New York, which found that Glatt and Footman were indeed employees under the Fair Labor Standards Act and New York Labor Law.

In reaching its decision, the court relied on a version of the Labor Department’s six-factor test to conclude the interns had been improperly classified as unpaid interns as opposed to employees. At the time, the DOL filed an amicus brief imploring the appeals court to adhere to the department’s test requirement that each of these factors—the internship is similar to training that would be received in an educational environment and the intern does not displace regular employees, for instance—is met before considering an internship unpaid.

The Second Circuit Appeals Court, however, recently opted to “decline [the] DOL’s invitation,” according to court documents, in which the appeals court described the test as “too rigid for our precedent to withstand.”

Rather, the court agreed with the defendants’ assertion that “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” To conduct the “primary beneficiary” test, the court focused on two issues—what the intern receives in exchange for his or her work and “the economic reality as it exists between the intern and the employer.”

In sending the case back to district court for further proceedings, the appeals court decision “delineates when and under what circumstances an intern must be treated—and more importantly, paid—like a regular employee,” says Mark Goldstein, a New York-based attorney and member of Reed Smith’s labor and employment group.

By making this distinction, the Second Circuit addressed an issue that “had been a thorn in employers’ sides for the past several years,” says Goldstein.

The test used by the Second Circuit Appeals Court differs from the DOL’s “all-or-nothing” approach, which essentially required that an intern be treated as an employee “every time the employer derived a benefit from the intern’s work,” Goldstein told HRE.

Under this new standard, an intern is not categorized as an employee “simply because he or she performs work for the company, or because the company derives a benefit from the intern’s work, as the DOL had attempted to argue,” he says.

Moreover, the Second Circuit “appears to have made it much more difficult for the plaintiff’s bar to obtain class and collective action certification in lawsuits brought by former interns,” in ruling that the question of an intern’s employment status is a “highly individualized inquiry,” says Goldstein.

“This alone may spell the end of the recent barrage of unpaid intern lawsuits.”

Even in light of the court’s employer-friendly decision, though, now would be a good time to assess internship programs “to ensure that such programs satisfy all applicable judicial and regulatory guidance,” says Goldstein.

“Unpaid internship programs still pose risks—including not only potential liability for wage and hour violations, but also potential tax- and benefits-related penalties—that must be weighed before an internship program is implemented.”

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Know When the ADA Trumps Your Policy

101390464 -- gavel and law booksBeware your urge to discipline.

That seems the best mantra for HR leaders in this new ADA day.

Two reminders of the mounting murkiness when it comes to drawing the line between your work policies and the amended Americans with Disabilities Act floated my way recently in this piece from the Society for Human Resource Management (registration required) and this from The Growth Co., headed up by Lynne Curry.

The SHRM piece highlights a $180,000 settlement Walgreens agreed to pay a cashier who the company fired after she took and ate a $1.39 bag of potato chips without paying for it. Turns out the cashier, Josefina Hernandez, was a diabetic who needed the chips during a hypoglycemic attack to stabilize her blood sugar.

Also turns out, in this age of heightened disability sensitivity and the need for employers to be sure they’re engaging in reasonable-accommodation discussions and the interactive process, Walgreens apparently did everything wrong. (Requests for comments from Walgreens have not been returned.)

According to the piece, when a loss-control supervisor asked for an explanation after finding the empty potato-chip bag under the counter at her cash register, Hernandez wrote in a statement, “My sugar low, not have time.” The supervisor didn’t know what she meant, so she was fired for violating Walgreens’ anti-grazing policy. On the contrary, the courts found, it was Walgreens that was in violation, of the ADA.

Had HR been involved throughout the investigation and pre-termination process, Walgreens would probably have been $180,000 richer. As Robin Shea, an attorney with Constangy, Brooks & Smith, says in the piece, “HR people are generally in the best position” to determine whether workplace discipline and/or termination is an overreaction.

“If it appears that the employer is using a nuclear weapon to kill a gnat, then maybe termination is not the answer,” she tells SHRM.

The other piece concerns alcohol. In it, Curry reminds us that, as much as an employee’s alcohol dependence brings everyone down — employee, co-workers and employer — and although you can establish policies prohibiting alcohol consumption at work or prior to work events, an alcoholic does have rights.

For the record, here’s Curry on that:

“According to the federal Equal Employment Opportunity Commission, an alcoholic who can perform the essential functions of his [or her] job may have a disability requiring employer accommodation under the Americans with Disabilities Act. The courts are fairly unanimous in ruling that an employer needs to grant at least one leave of absence so an alcohol-dependent employee can participate in a treatment program if the employee hasn’t misused alcohol on the job or engaged in misconduct.

“For example, in the landmark Schmidt v. Safeway Inc. case, the court ruled that the ADA may require an employer to provide a leave of absence to an employee with an alcohol problem if it is likely that the employee would be able safely to perform his duties following treatment. With an alcohol-dependent manager, a leave of absence for outpatient or inpatient treatment may be the logical accommodation.”

At the same time, she writes:

” … alcoholism doesn’t immunize managers or employees from the consequences of their actions. Employers can hold alcohol-dependent managers and employees to the same performance and behavior standards as non-alcoholics and discipline or discharge an alcoholic whose alcohol use adversely affects his job performance. As an example, if an alcoholic employee often arrives late to work or makes frequent errors, the employer can take disciplinary action based on the poor job performance and conduct. Furthermore, the 2nd U.S. Circuit Court of Appeals ruled that the ADA does not protect an employee from termination for alcohol-related absenteeism when reliable attendance at scheduled shifts is an essential job function.”

Where does this leave us? I guess with a simple “Be Careful.” And in today’s increasingly employee-supportive legal landscape, “Consult Counsel,” too.

As clear-cut as it may seem that certain activities — such as stealing company property and alcohol abuse — have no legitimate place in your organization, except as forbidden zones in your employee handbook, just remember to beware the law, where black-and-white mandates are far outweighed by shades of gray.

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Clearing the Haze Around Medical Marijuana

smokeEarlier this week, the Colorado Supreme Court handed down a ruling that one attorney says “may serve as a roadmap” for other courts—and employers—navigating the gray areas surrounding medical marijuana laws.

On Monday, the state high court’s 6-0 decision in Coats v. Dish Network determined that an organization can terminate an employee for using medical marijuana, even if said marijuana use occurs while off-duty.

Court documents indicate that former Dish Network employee Brandon Coats has been confined to a wheelchair since he was a teenager, as a result of injuries sustained in a car accident. Court records indicate that Coats registered for and obtained a state-issued license to use medical marijuana in 2009, as a way to treat leg spasms brought on by his quadriplegia.

On June 7, 2010, however, Coats was fired from his job as a telephone customer service representative with the Dish Network, after testing positive for tetrahydrocannabinol—a component of medical marijuana—the previous month.

At the time, Coats informed the company that he was a registered medical marijuana patient, and planned to continue using medical marijuana, according to court records. After being fired for violating the organization’s drug policy, Coats filed a wrongful termination claim against Dish, alleging the company was prohibited from firing an employee based on his or her engagement in “lawful activities” off the employer’s premises during non-working hours. Coats argued that his off-the-clock and away-from-work medical marijuana use was lawful under the Medical Marijuana Amendment and its implementing legislation.

In affirming lower court rulings, the Colorado Supreme Court found the term “lawful” applies only to those activities that are legal under both state and federal law. Ergo, employees engaging in activities such as medical marijuana use that are permitted by state law but forbidden by federal law are not protected by the statute.

While not binding in other states, this Colorado ruling could hold lessons for employers elsewhere, John DiNome, a Philadelphia-based labor and employment attorney and partner at Reed Smith, told HRE this week.

“The short takeaway,” says DiNome, “is that Federal law trumps state law. The Federal Controlled Substance Act lists marijuana as an illegal substance. As such, use of marijuana is not a lawful activity in Colorado.”

For employers, “this seems to confirm that, if they choose to have a ‘zero-tolerance’ policy with respect to drug use, they are on fairly solid ground in doing so.”

As such, “even if an employer is operating in a state where marijuana is either legal for medical or recreational use, the employer may ban use of illegal drugs and take the position that marijuana is not legal at the federal level,” he says.

DiNome notes that, while the Justice Department has said it will not prosecute certain marijuana use offenses, “the fact remains that Congress has not addressed the topic, and marijuana is still an illegal substance under federal law.”

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