Even though employee’s complaint about her supervisor slapping her on the buttocks was internally investigated by the employer, it was not protected activity and could not support her retaliatory discharge claim.
Continue Reading Slap Happy Celebration of Work Accomplishment Not Severe or Pervasive Enough for Sexual Harassment or Retaliation Claim

The United States Court of Appeals for the Sixth Circuit ruled in Casias v. Wal-Mart Stores, that the Michigan Medical Marijuana Act ("MMMA") does not regulate private employment and, therefore, did not protect Joseph Casias, a Wal-Mart worker authorized to use marijuana for medical reasons, from being fired after he failed a drug test.

Employers and the courts continue to wrestle with issues involving whether employers must accommodate medical marijuana use by their employees. On one hand, marijuana use is illegal under the federal Controlled Substances Act ("CSA") and, therefore, does not need to be accommodated under the federal Americans with Disabilities Act ("ADA"). However, 17 states currently have legalized some form or another of medical marijuana use: Alaska (1998), Arizona (2010), California (1996), Colorado (2000), Connecticut (2012), Delaware (2011), Hawaii (2000), Maine (1999), Michigan (2008), Montana (2004), Nevada (2000), New Jersey (2010), New Mexico (2007), Oregon (1998), Rhode Island (2006), Vermont (2004), Washington (1998) as well as the District of Columbia (2010). The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis. The Michigan statute is the most recent one to come under judicial review. Here, is the background of that case and how the Sixth Circuit came to the conclusion it did.

In 2008, Michigan voters enacted the MMMA by referendum to provide protection for the medical use of marijuana. It allows only a “qualifying patient” or a “primary caregiver” to whom the state has issued a registry card to use or administer medical marijuana and prohibits, in part, “disciplinary action by a business or occupational or professional licensing board or bureau” against a person to whom the state has issued a registry card for the use or administration of medical marijuana. The key word in the statute for purposes of the Casias case is "business" and here’s why.

Casias started working at Wal-Mart in 2004 as an inventory control manager. He was later diagnosed with sinus cancer and an inoperable brain tumor. Due to his ongoing head and neck pain, he received a medical marijuana registry card and began using marijuana to manage his pain in the summer of 2009. Later that same year, Casias injured his knee at work, went to the hospital and was subjected to a standard drug test pursuant to Wal-Mart’s policy. Prior to the test, Casias showed his card to the testing staff. Well, as you probably guessed, Casias tested positive for marijuana. He showed his shift manager his registry card, and informed his manager that he never consumed marijuana while at work or came to work high. Nevertheless, Casias was fired for failing his drug test.

Casias sued Wal-Mart for wrongful discharge for violating the MMMA. The U.S. District Court for the Western District of Michigan dismissed Casias’ lawsuit finding that the word “business” in the statute does not regulate private employment actions and that the MMMA "contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses."

The Sixth Circuit agreed and held that the MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a “qualifying patient.” Focusing on the key term "business," Casias argued that although the MMMA does not expressly refer to employment, the term “business," as used in the MMMA, was independent and expanded the MMMA’s protections to private employers. In other words, Casias argued that Wal-Mart was a "business" and thus fell within the MMMA prohibitions which precluded “disciplinary action by a business or occupational or professional licensing board or bureau” against a person with a medical marijuana registry card.

Wal-Mart countered, arguing that the term "business" modified the phrase “licensing board or bureau,” and that it did not extend the MMMA’s protections.

The Sixth Circuit agreed with Wal-Mart and expressly rejected Casias’ proposed interpretation of the MMMA, which the Court found could prevent any employer in the state from disciplining a qualified patient who uses marijuana under the MMMA. The Sixth Circuit, siding with Wal-Mart, opted not to read the term “business” independently. Rather, it concluded that the word “business,” as used in the MMMA, modified the phrase “licensing board or bureau,” and that the MMMA “is simply asserting that a ‘qualifying patient’ is not to be penalized or disciplined by a ‘business or occupational or professional licensing board or bureau’ for his medical use of marijuana.” Therefore, because the term "business" merely described or qualified the type of “licensing board or bureau"; it did not refer to employment:

Based on a plain reading of the statute, the term "business" is not a stand-alone term as Plaintiff alleges, but rather the word "business" describes or qualifies the type of ‘licensing board or bureau" …. "Read in context, and taking into consideration the natural placement of words and phrases in relation to one another, and the proximity of the words used to describe the kind of licensing board or bureau referred to by the statute, it is clear that the statute uses the word ‘business’ to refer to a ‘business’ licensing board or bureau, just as it refers to an ‘occupational’ or ‘professional’ licensing board or bureau. 

The Court further explained that adopting Casias’ argument would create an entirely new protected employee class in Michigan and "mark a radical departure from the general rule of at-will employment in Michigan." Because the case was one involving statutory interpretation, the Court highlighted the importance of carefully crafting groundbreaking legislation like the MMMA, and held that the MMMA does not govern private employment actions. The Court went one and noted that other states including California, Montana, and Washington had also held that their states’ similar medical marijuana laws do not govern private employment actions.

Continue Reading It’s High Times for Employers: The Sixth Circuit Holds Michigan Employers Can Say Nope to Dope

In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity.
Continue Reading State Tort and CFAA Claims Survive Motion to Dismiss In Ohio Employee Cyberhacking Case.

Presume for a moment an employee complains to Human Resources that a co-worker’s perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker’s scent can be another worker’s source of distraction or even discomfort. If the complaining employee’s problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue can result in a legal challenge.

In Core v. Champaign Cty. Board of County Commissioners, (S.D. Ohio No. 3:11-CV-00166), an employee sued the County under the Americans with Disabilities Act (ADA) and under Ohio disability discrimination law for not accommodating her request for a "fragrance-free" workplace policy. The employee suffered from severe asthma and chemical sensitivity to certain perfumes and other scents. She began experiencing difficulty breathing at work when co-workers in her proximity were wearing a perfume called "Japanese Cherry Blossom." According to the Complaint, her initial request that the employer ask employees to refrain from wearing that perfume went unheeded. Her symptoms became more severe and eventually she had to have emergency medical treatment.

Shortly after the employee sought medical treatment, co-workers began to mock her, including in Facebook posts making fun of her condition. She also alleges that employees began to wear the perfume intentionally around her and that the employer took no action to stop this conduct.

The employee presented a request to the employer signed by a nurse practitioner asking that co-workers be advised of the employee’s sensitivity and that they be asked to avoid use of the perfume. The employer apparently communicated by email to employees asking that they not approach the employee personally, and instead communicate with her only by telephone or email. The employer also asked the employee to attempt to have face-to-face conversations with staff only in well-ventilated, open areas of the office.

Continue Reading Employer Refusal to Provide a “Fragrance-Free” Workplace May Violate ADA

A lengthy and complicated new law enacted by the Ohio legislature and signed by Governor Kasich includes provisions that will make it easier for individuals with conviction histories to obtain employment and occupational licenses. Senate Bill 337 amends several Ohio statutes relating to collateral sanctions for criminal offenses by creating certificates of qualification for employment

Health care reform just got a clean bill of health from the United States Supreme Court. The Court today ruled on the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”), and generally upheld the legislation in a 5-4 decision written by Chief Justice John G. Roberts.
Continue Reading Health Care Reform Survives Supreme Court Scrutiny – But Not Entirely Intact

The Federal Motor Carrier Safety Administration ("FMCSA") has published another final rule which takes effect today, February 29, 2012. This rule addresses the drug use of commercial motor vehicles drivers, and the FMCSA aims to eliminate inconsistencies in at least three areas.

First, the final rule amends the physical qualifications for commercial motor vehicle ("CMV") drivers to clarify that drivers may not, under any circumstances, use Schedule I drugs and be qualified to drive a CMV. This change aligns the language with that used by the Drug Enforcement Agency ("DEA") in its regulations. The final rule now cites to 21 CFR part 1308, making it clear that the rule applies to the drugs and substances on the DEA’s controlled substance schedules.

The prior rule did not differentiate between Schedule I and non-Schedule I drugs for purposes of the prescription exception, so the Agency amended §391.41 to clarify that the exception that allows a CMV driver to use a substance or drug if it is prescribed by a licensed medical practitioner, applies only to non-Schedule I prescribed substances, amphetamines, narcotics, or other habit-forming drugs.

Secondly, the FMCSA amends §§382.201 and 382.215 because it found the use of the term "actual knowledge" throughout certain sections of the rule was incorrect. The words "actual knowledge" have been replaced with the word "knowledge," clarifying that the relevant prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct.

Lastly, prior to this final rule, §382.211 only prohibited drivers from refusing to submit to post-accident, random, reasonable suspicion, or follow-up drug or alcohol tests. The final rule amends this section to include pre-employment and return-to-duty testing as additional provisions. The final rule makes the regulation consistent with DOT-wide drug and alcohol testing rules.

Continue Reading Drug Rules for Commercial Motor Vehicle Drivers Updated

The Sixth Circuit’s decision in Berryman v. SuperValu Holdings, Inc., clarifies that the "totality-of-the-circumstances" test used in hostile work environment cases does not have to be based on what the individually employee actually experiences, but rather what the individual employee is aware of.

In the case, eleven current and former SuperValu warehouse employees alleged that over a twenty-five year period, they were exposed to a racially hostile work environment that included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. The district court tossed out the employee’s claims out finding that while the acts were reprehensible, they did not amount to a hostile work environment. The Sixth Circuit affirmed the lower court and in doing so clarified what can be considered in the "totality-of-the-circumstances" test.

By way of relevant background, to prevail on a hostile work environment claim, a plaintiff must show that his work environment was both objectively and subjectively hostile. In evaluating hostile work environment claims, courts look at the totality of the circumstances and consider things like the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Oftentimes plaintiffs want to rely on instances of discrimination/harassment that happened to other employees, but not to them personally. Whether or not the experiences of co-workers are relevant is a common dispute among counsel in defining the scope of discovery in these types of cases. On one end, plaintiffs typically argue that courts should consider all employees complaints in the aggregate to show a hostile environment, regardless of whether the individual plaintiff was actually aware of the other incidents or not. On the other, employers typically argue that courts should only consider the actual experience of the individual plaintiff.

The Sixth Circuit declined both approaches in favor of a middle-of-the-road approach and found that: "a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it." In coming to this conclusion, the court noted that an employer could create a hostile work environment by directing discriminatory acts or practices at a protected group of which the plaintiff is a member, and not just at the plaintiff personally. The decision, however, does make clear that a plaintiff does have to be aware of the allegedly discriminatory acts or practices directed at others in order to use such evidence in the plaintiff’s individual case. Thus, for the plaintiffs to be able to use their collective experiences in the aggregate, they would have had to "marshal basic evidence to show that they were individually aware of the harassment experienced by other plaintiffs." Here they did not.

Continue Reading Sixth Circuit Takes the Middle of the Road Approach and Clarifies that the “Totality-of-the-Circumstances” Test in Hostile Work Environment Cases is Based on What the Employee is Aware of, Not Necessarily What the Employee Actually Experiences

We first introduced you to the Voluntary Compliance Settlement Program (VCSP), a program launched on the on the heels of the IRS announcing its three-year plan to increase audits of independent contractors (Announcement 2011-64), last September. In that post, we discussed the potential advantages and pitfalls of the VCSP. This post takes another look into the VCSP in light of the IRS’s FAQs, which answers a lot of taxpayers’ concerns but not all of them.

By way of background, the VCSP was designed to provide eligible employers partial relief from the federal employment taxes and penalties that typically result from misclassifying workers as independent contractors. The VCSP is supposed to work like an amnesty program. It offers eligible taxpayers a one-time chance to come forward and reclassify their improperly-classified independent contractors as employers for future tax periods with limited federal employment tax liability for the past nonemployee treatment. Employers accepted into the program pay an amount 10% of the employment tax liability (calculated at reduced rates) effectively equaling just over 1% of the wages paid to the reclassified workers for the most recent tax year – a substantial savings – due with the signed VCSP closing agreement to the IRS. The kicker… no interest or penalties and no audit on payroll taxes related to the reclassified workers.

Many taxpayers quickly lost faith in the VCSP when they learned that the IRS and the Department of Labor (DOL) entered into a Memorandum of Understanding (MOU) agreeing to share information and other data relating to worker misclassification. The MOU also provided for information-sharing agreements between the IRS and state taxing authorities and raised a huge red flag for employers: Is the IRS going to share my information with the DOL and/or state/local taxing authorities and open up a whole new can of worms for me?

Taxpayers Can Breathe a Little Easier, But Don’t Go Getting Too Comfortable: Well, the answer to this all-important question, among 21 others, was provided in a FAQ sheet on the VCSP concerns. Some of the high points are:

  • Despite the MOU, the IRS will not share information about VCSP applicants with the DOL or state agencies. So, while the IRS will share some information about employee misclassification with the DOL and state taxing agencies, it will not share applicant information.
  • Taxpayers who apply to the VCSP but who are rejected will not automatically trigger initiation of a Federal audit. Mind you, taxpayers may be audited for something else, but not for applying for the VCSP.
  • By signing the VCSP closing agreement, a taxpayer is not admitting liability for wrong during past years. The VCSP addresses future years only.

Continue Reading The IRS Voluntary Compliance Settlement Program (VCSP): Does it Offer Employers Amnesty or Put a Target on Their Backs? The Answer … Probably a Little Bit of Both