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Medical Marijuana, the ADA, and Hiring/Firing

Is the use of medical marijuana a justified reason for termination? Or is that a violation of the Americans with Disabilities Act? With the legalization of medical marijuana use in several states, drug screenings during the hiring process just got trickier.

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EEOC vs The Pines of Clarkston

Jamie Holden, a licensed practical nurse, applied for a position as nursing administrator with The Pines of Clarkston, an assisted living facility, in Michigan. Holden was offered the position contingent on the results of a routine drug screen. The results of the drug screen revealed high levels of marijuana. Holden met with her supervisors to explain that she uses medical marijuana for her epilepsy. After being questioned about her epilepsy, Holden was told that they did not believe she could perform the job. A few days later Holden was terminated for violating the company’s drug-free workplace policy.

Holden filed suit with the Equal Employment Opportunity Commission (EEOC) and maintains that her termination was not related to her use of medical marijuana, but rather that she suffers from epilepsy – a violation of the Americans with Disabilities Act (ADA) and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). The Pines maintains that Holden was fired because she violated their zero tolerance drug policy by using medical marijuana.

The Pines of Clarkston agreed to a four-year consent decree that resolves the dispute without admitting guilt. The company also agreed to pay $42,500 and institute policies regarding discrimination and training on the ADA.

Tips for Employers

This case got sticky because the candidate revealed a medical condition covered by ADA protections. With medical marijuana use expected to skyrocket, drug tests on their own may no longer be a reliable screening process and, in fact, may open a can of worms in terms of medical conditions. More court cases at the state and federal level eventually will shape employment drug-screening policies. In the meantime, when failing to hire a candidate or terminating an employee with a medical condition – whether the employee uses medical marijuana or not – employers must never make decisions based on the protected medical condition.

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What Is the Americans with Disabilities Act?

The ADA became law in 1990 and bans discrimination against individuals with disabilities in all areas of life – employment, transportation, public accommodation, communications, and governmental activities.

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West Virginia: New Wage Payment and Collection Posting

West Virginia released updates to its Wage Payment and Collection Act which are required for all workplaces effective June 11, 2015.

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West Virginia recently amended the West Virginia Wage Payment and Collection Act (WPCA) which establishes when and how often wages must be paid, making it comparable to similar statutes in other states. The new amendments:

  • Give employers the opportunity to supply newly released employees with their final paycheck on or before the next regularly scheduled payday versus the previous deadline of 72 hours.
  • Reduced the amount of damages an employee is able to receive when they do not receive their final paycheck within the required timeframe, from three times to two times the unpaid amount.
  • Changed the frequency employers in West Virginia need to pay their employees. Employers are now required to pay their employees at least twice every month, with no more than 19 days between paydays.

There were no changes to the time requirements for employees who quit, are suspended as part of a labor dispute, or are laid off.

According to GovDocs Compliance Research Counsel, Anne Jakala, Esq., employers must display the updated posting in a conspicuous location. The new posting is included as part of the West Virginia Poster Compliance Package, which contains workplace postings required for West Virginia employers:

  • Unemployment Benefits
  • Notice to Employees (Workers’ Compensation)
  • Minimum Wage
  • NOTICE: The West Virginia Human Rights Act (Discrimination)
  • Wage Payment and Collection
  • Parental Leave
  • H. B. 4140 Meal Breaks Poster
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Discussing Job Security is a Protected Activity, NLRB Finds

The NLRB found that an employer violated Section 7 of the NLRA when it fired an employee for discussing job security with a co-worker.

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A vending-machine route driver left work early one Friday without notifying management, which is a violation of company policy. That weekend, she noticed a local ‘help wanted’ ad for a vending-machine route driver. She assumed it was her company that had placed the ad and that she was going to be fired.

When she returned to work the following Monday, she and another route driver discussed the ad. She asked her co-worker if he thought the ad meant their company was going to fire someone, but the co-worker thought she was implying he was going to be fired. The second driver went to the owners of the company and expressed his concern about losing his job.

The owner assured him that he would not be fired and asked why he was worried. The other route driver mentioned his conversation about the ‘help wanted’ ad. The company eventually fired the first driver – the one who ducked out of work on Friday – for gossiping and telling other employees they were going to be fired.

The NLRB Steps In

In a 2-1 majority ruling, the NLRB found that the driver’s termination violated the National Labor Relations Act (NLRA) because discussion of job security concerns with her co-worker were “inherently concerted,” and therefore considered protected concerted activity, even though there wasn’t any evidence that they were “engaged in with the express object of inducing group action.”

Conversations among employees are generally protected when they consider group action. However, the contemplation of group action is not required when the conversation is “inherently concerted.” Since job security discussions, like wages, are a vital conditions of employment, the NLRB held that they are inherently concerted.

The company was ordered to reinstate the driver with full back pay.

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Can Employees Talk About Their Pay?

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Protected Concerted Activity and Section 7 of the NLRA

Section 7 of the NLRA protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.

What Does This Mean For Employers?

Determining whether employee activity is protected under the NLRA ultimately depends on the specific facts of each case. However, it is clear from recent NLRB rulings that taking corrective action based on work-related conversations among employees can lead to trouble with the NLRB.

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Can You Be Fired for Being Too Pretty?

Of the many different claims of discrimination, can being too attractive be one of them? One such case seems to suggest the answer ‘yes.’

Amanda Holley vs. Port Authority of New York and New Jersey, et al

Amanda Holley was an Academy recruit at the Port Authority Police Department. According to a complaint filed with the U.S. District Court, Ms. Holley repeatedly suffered sexual harassment, ridicule, intimidation, and emotional distress by her instructors/supervisors during training.

The alleged offenses included instructors singling her out by directing her to perform squat thrusts in front of other recruits, calling her names such as “Barbie Doll” and “American Girl Doll,” and commenting on the size of her chest. One instructor reportedly even told her, “When you are killed in the line of duty, I’ll make sure you look pretty for your family.”

During one particularly troubling OC (pepper spray) training event, Holley was sprayed by more than four officers causing her eyes and face to swell. Instructors paraded her in front of her fellow recruits so everyone could see her face, implying she’d had a quick “Botox” injection and calling her “Angelina Jolie.” A fellow recruit told Holley afterward that it looked “as if she was being spray-painted with graffiti.” No other recruit was given this same treatment.

According to Professional Security Training Network “OC spray is so concentrated, it does not take much to shut down a person. It is designed to stick to skin, hair, and clothes.” OC spray “causes localized swelling of any moist surface, such as skin, eyes, nose, mouth, throat and lungs…causes involuntary closure of the eyes.”

Holley confided in a few fellow recruits that she wanted to formally complain about the harassment she was experiencing, but she was repeatedly threatened and intimidated and feared retaliation. Holley alleges that several of her instructors would regularly comment “snitches get stitches and end up in ditches.”

About a month before graduation, Holley was informed that she had failed her firearms evaluation and was asked to resign. Academy procedure for firearms range training requires recruits to sign their targets before they shoot at them. The targets are then graded and evaluated with the recruit. Holley maintains that she never saw any of her graded targets and instructors never evaluated them with her or instructed her about how to correct any issues. After refusing to resign, she was fired. Holley filed her complaint in December 2014.

New Jersey Law Against Discrimination (LAD)

According to The State of New Jersey the LAD “makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. The LAD prohibits unlawful discrimination in employment, housing, places of public accommodation, credit and business contracts.”

Sexual Harassment is considered discrimination and is covered by the LAD. The law states that “Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender.”

The U.S. Equal Employment Opportunity Commission

The legal requirements for a hostile work environment are:

  • Actions or behavior that discriminates against a protected classification such as age, race, religion, sex, or disability.
  • The behavior must last over time, and not be limited to an off-color remark or two.
  • The hostile behavior, actions or communication must be severe and create an environment that a reasonable person would find intimidating, hostile, abusive and that disrupts work. Another form of severity occurs if the hostile work environment interferes with an employee’s career advancement.
  • The employer knows about the actions or behavior and did not sufficiently intervene.

Melissa Nelson v. James H. Knight DDS, P.C.

In a similar case, Melissa Nelson worked for James Knight as a dental assistant for over 10 years. During her last year of employment, Dr. Knight began complaining that Ms. Nelson’s clothing was too tight and ‘distracting.’ Dr. Knight sent several inappropriate text messages stating if she “saw his pants bulging,” she would know that her “clothing was too revealing” and asked how often she experienced an orgasm.

Nelson never complained about the text messages, but says she also never reciprocated the behavior. She maintains that she considered Dr. Knight a friend and father figure. Dr. Knight’s wife discovered the text messages and demanded that he fire Nelson because she was a threat to their marriage. Dr. Knight ultimately agreed and after consulting with a senior pastor of his church, fired Nelson.

Nelson sued on the basis of gender discrimination. The court ruled in favor of Dr. Knight stating “Ms. Nelson was fired not because of her gender but because she was a threat to the marriage of Dr. Knight.”