Category: Labor & Employment

Voters in Five States Approve Marijuana Ballot Initiatives on Election Day

Voters in Arizona, Mississippi, Montana, New Jersey, and South Dakota approved laws to legalize marijuana on Election Day 2020. Recreational marijuana was approved in Arizona, Montana, and New Jersey, while Mississippi voters approved medical marijuana. South Dakota voters approved both medical and recreational marijuana ballot initiatives.

Medical Marijuana

  1. Mississippi – Mississippi Ballot Measure 1 passed, with 68% voting “yes” and 32% voting “no.” Ballot Measure 1 asked voters to generally cast a vote for “either measure” Initiative 65 or Alternative 65A, or against both measures. Voters who cast a vote for “either measure” were then required to cast an additional vote for their preferred measure. Mississippi voters passed Initiative 65 with 74% voting for it and 23% voting for Alternative 65A.*

Initiative 65 allows the medical use of marijuana by patients who suffer from qualifying medical conditions. Qualified medical marijuana patients may possess up to 2.5 ounces of medical marijuana. The new law does not permit a qualifying patient to be “subject to criminal or civil sanctions for the use of medical marijuana.” However, it does not require “accommodation for the use of medical marijuana or require any on-site use of medical marijuana” in any place of employment. It also does not affect any “existing drug testing laws, regulations, or rules.”

The Mississippi State Department of Health has the authority to implement, administer, and enforce the law. It is required to issue final rules and regulations regarding medical marijuana by July 1, 2021. The Department must begin issuing medical marijuana identification cards and treatment center licenses no later than August 15, 2021.

  1. South Dakota – South Dakota’s Initiated Measure 26 passed, with 69% voting “yes” and 31% voting “no.” The new law allows the medical use of marijuana by patients who suffer from a debilitating medical condition. Medical marijuana card holders may possess up to three ounces of marijuana and cultivate marijuana plants. The law goes into effect July 1, 2021, but it may take up to a year before medical marijuana is available in the state.

Under the new law, medical marijuana cardholders are entitled to “all the same rights under state and local laws” as the person would be afforded if they were prescribed a pharmaceutical medication as it pertains to: (1) any interaction with a person’s employer; (2) drug testing by a person’s employer; and (3) drug testing required by any state or local law, agency, or government official.

The new law requires the South Dakota Department of Health to issue regulations regarding medical marijuana within 120 days after the law goes into effect (October 29, 2021) and to begin issuing registry identification cards to qualifying patients within 140 days after the law goes into effect (November 18, 2021).

The new law does not apply to employers to the extent it would conflict with the employer’s obligations under federal law or regulation or if it would disqualify an employer from a monetary or licensing-related benefit under federal law or regulation.

Although employers may discipline employees for ingesting marijuana in the workplace or for working while under the influence of marijuana, employers may not consider a qualifying patient to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in “insufficient concentration to cause impairment.” Employers in South Dakota should take note of this language because there is no universally accepted concentration of marijuana that proves “impairment.”

Recreational Marijuana

  1. Arizona – The Smart and Safe Arizona Act passed with nearly 60% voting “yes” and 40% voting “no.” Under the Smart and Safe Arizona Act, individuals 21 years of age or older may lawfully use and purchase less than one ounce of marijuana (except, not more than five grams may be in the form of marijuana concentrate) and may cultivate up to six marijuana plants for personal use at the individuals’ primary residence (subject to certain restrictions). The new law does not include a delayed effective date, but it will likely be several months before Arizonans can purchase recreational marijuana.

The new law requires the Arizona Department of Health Services to begin accepting applications for marijuana establishment licenses from “early applicants” beginning January 19, 2021 through March 9, 2021. Licenses will be issued to qualified applicants within 60 days of receiving an application.

The new law does not restrict the rights of employers to “maintain a drug-and-alcohol free workplace” or prevent employers from having workplace policies “restricting the use of marijuana by employees or prospective employees.” It also does not require employers to “allow or accommodate the use, consumption, possession, transfer, display, transportation sale or cultivation of marijuana in a place of employment,” nor does it restrict employers from prohibiting or regulating marijuana use that occurs on or in their properties.

Arizona passed the Arizona Medical Marijuana Act in 2010, prohibiting employers from discriminating against medical marijuana patients. The recreational marijuana law expressly states that is it not intended to limit any privilege or right of a qualifying patient under the Arizona Medical Marijuana Act.

  1. Montana – Montana’s Initiative 90 and Constitutional Initiative 118 both passed with approximately 57% voting “yes” and 43% voting “no” for Initiative 90.  Effective January 1, 2021, individuals age 21 or older may possess, use, or transport one ounce or less of marijuana, and grow up to four mature marijuana plans and four seedlings on the grounds of a private residence. The Montana Constitution provides that a person 18 years of age or older is an adult for all purposes, except that a different legal age may be established for purchasing, consuming, or possessing alcoholic beverages. Effective October 1, 2021, the Montana Constitution will similarly permit a different legal age (i.e., 21 years of age or older) to be established for the purchase, consumption, or possession of marijuana.

Certain provisions of the new law go into effect on October 1, 2021, which is the deadline for the Department of Revenue to issue rules and regulations related to licensure of adult-use marijuana providers and dispensaries. The Department must begin accepting applications from dispensaries, providers, and manufacturers on or before January 1, 2022. However, for the first 12 months, the Department will only accept such applications from providers and dispensaries licensed under Montana’s medical marijuana statute.

The new law does not impose restrictions on employers. It states that is may not be construed to: (1) require an employer to permit or accommodate recreational marijuana use (or any other conduct permitted by the law) in any workplace or on the employer’s property; (2) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana; (3) prevent an employer from declining to hire, discharging, or otherwise taking adverse action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual’s violation of a workplace drug policy or intoxication by marijuana while working.

Montana has had a medical marijuana law since 2004.

  1. New Jersey – New Jersey’s Question 1 passed with 67% voting “yes” and only 33% voting “no.” Effective January 1, 2021, the New Jersey Constitution will be amended to legalize recreational use of marijuana for adults ages 21 and older. The constitutional amendment provides for the Cannabis Regulatory Commission to regulate recreational marijuana and subjects all retail sales of recreational marijuana products to state sales tax.

The Cannabis Regulatory Commission and New Jersey lawmakers will address the regulatory issues that will determine the amount individuals can possess legally, the requirements for operating dispensaries for sale of cannabis, and taxation by state and local authorities. This process is expected to take up to approximately one year.

New Jersey has approved the use of medical marijuana since 2013. Under 2019 amendments to the Jake Honig Compassionate Use Act, employers are not permitted to discriminate against those who use cannabis for medical reasons.

  1. South Dakota – South Dakota’s Constitutional Amendment A passed with 53% voting “yes” and 47% voting “no.” Effective July 1, 2021, the new law permits individuals 21 years of age or older to possess and use one ounce or less of marijuana and to grow up to six marijuana plants on the grounds of a private residence.

No later than April 1, 2022, the South Dakota Department of Revenue is required to issue rules and regulations related to the commercial sale, cultivation, and testing of marijuana. The new law also directs the legislature to pass laws regulating the cultivation, processing, and sale of hemp and medical marijuana by April 1, 2022.

The new law does not require employers to permit or accommodate conduct authorized by it. It also does not affect an employer’s ability to restrict the use of marijuana by employees.

Next Steps

Employers should review their drug and alcohol policies – especially drug and alcohol testing policies – for compliance with applicable state laws.

While marijuana remains a Schedule I drug under the federal Controlled Substances Act, the trend in the courts over the last three years is to disregard marijuana’s status under federal law and to enforce state laws instead (with the exception of federally regulated employees such as those regulated by the U.S. Department of Transportation).

Employers must be familiar with the marijuana laws in the states where they operate before taking employment actions against those who use marijuana.

Jackson Lewis P.C. © 2020
For more articles on marijuana legalization, visit the National Law Review Biotech, Food, Drug section.

Employment Litigation Is on the Decline, but Expect More Wage and Hour Claims

A recent Lex Machina study (available via signup here) noted that the number of federal employment cases filed in the second and third quarter of 2020 was down. Not surprisingly, harassment and discrimination cases showed the biggest decrease, by almost 20%, likely due to the increase in remote work and decrease in actual interaction between workers.

However, Family and Medical Leave Act (FMLA) claims and wage and hour cases under the Fair Labor Standards Act (FLSA) were down only slightly.  A crystal ball is not needed to predict that FLSA claims are likely to increase. One obvious reason is the increase in remote work.  A change from office to remote work makes it harder to actually observe when someone is working.  And, for a large number of workers, especially those impacted by changes to school or child care, work schedules may have shifted, such as more early or late work, in order to accommodate other demands on their time, and those changes may contribute to poor or difficult tracking.

Other aspects of the FLSA also make challenges more likely.  One is the timing for filing a lawsuit. Pursuing federal harassment or discrimination claims requires first filing an administrative charge, which in most states typically has to be filed within 300 days (in some states it is 180 days).  In contrast, FLSA claims can be filed up to three years after the alleged violation (but may be limited to a two-year period depending on circumstances).

Another difference is the potential for individual liability.  Title VII does not allow for individual liability, but the FLSA does.  The financial distress of a company might deter some harassment claims, but that is less likely for FLSA claims, since individuals can be sued and may be jointly liable.  Finally, unlike harassment claims, FLSA claims cannot be easily waived in a release.  FLSA claims are not properly waived unless there is approval from the Department of Labor or a court.

In short, employers should not interpret the decline in litigation as a decreased need for vigilance, especially for FLSA (and state wage and hour) claims.

The potential for such claims begs the question of what should companies be doing now?  Below are a few suggestions:

  • If you have not already done so, reassess your procedures for timekeeping.Do they allow for or adequately address current work circumstances, in which many employees are teleworking?If not, make adjustments – in writing.If applicable, communicate the temporary nature of the changes.
  • Regularly remind nonexempt employees to follow established procedures regarding time tracking, which may include some of the following:
    • Reporting all time worked (and a reminder to either not work outside of scheduled hours or being sure to report the additional work time).
    • Asking for approval for overtime (but remember, even if not approved, overtime must be paid at time and a half of the regular rate) or otherwise communicating about the need for overtime.
  • Remind managers or supervisors to notice if someone seems to be working outside of normal hours, especially if it is a pattern (like frequent late night or weekend emails). And they should assess whether time reports are too regular (reflecting working Monday to Friday, 8-12 and 1-5).If so, the information is probably only reflecting the schedule for work, not the actual time the employee is working.
© 2020 Foley & Lardner LLP
For more articles on employment litigation, visit the National Law Review Labor & Employment section.

Driven To The Edge: Saga Of Uber And Lyft Litigation Continues As Court Of Appeal Affirms Order Forcing Driver Reclassification

On Thursday, October 22, 2020, the California Court of Appeal denied Uber and Lyft’s request to overturn a recent California Superior Court’s preliminary injunction ordering the companies to reclassify their drivers as employees, rather than independent contractors. With the appeal garnering Amicus Curiae briefs from more than 50 different organizations—ranging from the U.S. Chamber of Commerce to Mothers Against Drunk Driving—the decision marks the most recent entry in the highly watched ongoing litigation against the companies over their compliance with A.B. 5. With California’s upcoming vote on Proposition 22, however, many are left wondering what, if any, impact the denial might have on Uber, Lyft, or the gig economy as a whole.

The litigation involves a recent complaint filed by the California Labor Commissioner alleging, in relevant part, that Uber and Lyft violated California’s recently enacted legislation, A.B. 5, by classifying their app-based drivers as independent contractors, rather than employees. Under A.B. 5, companies are required to classify their workers as employees unless the companies can show:

  • The workers are generally free from the company’s direction and control over how they perform their work;
  • The workers are not engaged in the type of work the company usually engages in in its regular course of business; and
  • The workers are engaged in an established trade or professions separate and apart from the company itself.

Whether or not Uber and Lyft’s app-based drivers satisfy this test has been a hotly debated point of dispute. For Uber and Lyft, however, the consequences of being found to not pass this test are potentially dire, as an adverse decision on this point would force the companies to restructure their entire business model by changing the classification of their app-based drivers from independent contractors to employees.

The appeal was motivated by a California Superior Court’s recent decision to issue a preliminary injunction that ordered Uber and Lyft to begin this reclassification process, even prior to the suit’s resolution—a decision signaling that the Superior Court believed the companies to be fighting an uphill battle they would ultimately loose. In light of the order, Uber and Lyft promptly appealed the decision, citing in relevant part, the grave harm that the order would cause by necessitating “substantial changes to…organizational structure, hiring processes, software tools and management systems, and company culture.” To adapt to these forced changes, the companies explained that they would likely need to “reduce the number of drivers” allowed to use the platform, “control the drivers’ time…by having them work scheduled shifts,” and “prohibit drivers…from unilaterally rejecting or cancelling rides.” Unfortunately, Uber and Lyft’s arguments ultimately fell on deaf ears, as the Court of Appeal affirmed the lower court’s ruling forcing the companies to reclassify their app-based drivers—although the order isn’t set to take effect for at least 30 days.

Proposition 22 could save Uber and Lyft from this fate long before those 30 or so days are up. Currently set for the November 3rd ballot, Proposition 22, would exempt certain gig-economy companies, like Uber and Lyft, from the strictures of A.B. 5 while simultaneously allowing for a new middle ground between independent contractor and employee classification. The ballot initiative would do this: (a) allowing app-based drivers to maintain their traditional independent contractor status; while also (b) providing them with new and added benefits not previously available to independent contractors—a compromise that could inhere to the benefit of both parties.

If successful, Proposition 22 could stop the California Labor Commissioner’s suit in its tracks. As a result, only time will tell if the recent Court of Appeal ruling will ultimately have any impact on Lyft, Uber, or the gig economy generally.

©2020 Greenberg Traurig, LLP. All rights reserved.
For more articles on Uber & Lyft, visit the National Law Review Corporate & Business Organizations section.

Why Employees at Religious Organizations May Not Be Protected Against Discrimination

In Demkovich v. St. Andrew the Apostle Parish, the Seventh Circuit recently held in a 2-1 decision that the ministerial exception does not preclude church ministerial employees from asserting hostile work environment claims.

Supreme Court Rulings Clarify Ministerial Exception in Employment Discrimination Cases

The decision in Demkovich was preceded by two significant Supreme Court cases that clarified the reach of the ministerial exception by explaining the test for determining which employees of a religious institution are considered ministers. In the 2012 case Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, in a unanimous decision, the Court recognized that the ministerial exception bars ministerial employees from bringing employment discrimination claims against their religious employers. The issue was whether a teacher in a religious school who taught secular subjects should be considered a minister. The Court held, based on several specific facts about the teacher’s duties and status, that she was in fact a minister in the church’s view and thus was barred from bringing her claim that she was fired because of her disability. The ministerial exception bars all types of employment discrimination claims brought by ministers alleging discrimination under Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, at issue in Hosanna-Tabor. Although it appears to protect bad actors, the ministerial exception serves to ensure that the ecclesiastical authority to select and control who will minister to the faithful is not undermined by the state.

More recently, this past July, in a 7-2 decision in Our Lady of Guadalupe v. Morrissey-Berru, the Court held that the primary consideration in determining whether a claim was barred by the ministerial exception turned on the tasks the employee performed. Hence, in determining whether two parochial school teachers who taught fifth and sixth grade classes and claimed they were fired—in one instance because of her age and in the other because she had breast cancer—could assert an age discrimination or a disability claim, the court determined they could not assert such claims, because the tasks they performed were vital religious duties such that the ministerial exception would apply. Specifically, the Court held that both teachers educated their students in the Catholic faith and guided them to live according to that faith.

As explained in the Demkovich decision, these Supreme Court decisions analyzed termination decisions by the religious schools and held that courts could not allow ministerial employees to challenge such decisions regardless of the reasons for their terminations. Demkovich, on the other hand, would determine whether the ministerial exception should apply to bar hostile work environment cases that did not involve such tangible employment action.

Applying the Ministerial Exception in Hostile Work Environment Cases

In September 2012, Mr. Demkovich began working as the Music Director, Choir Director, and Organist for the Archdiocese of Chicago and St. Andrew Parish in Calumet City. His supervisor, Saint Andrews Pastor, Reverend Jacek Dada, often made derogatory comments about Mr. Demkovich’s being an openly homosexual man engaged to a same-sex partner. Mr. Dada called Mr. Demkovich a bitch and his nuptials a fag wedding. Mr. Dada, also aware that Mr. Demkovich suffered from diabetes and a metabolic syndrome that caused weight gain, made additional remarks about his weight—urging him to walk his dog to lose weight, complaining about the cost of keeping him on the parish’s health and dental insurance, and commenting that he needed to lose weight because Mr. Dada did not want to preach at Mr. Demkovich’s funeral. After enduring prolonged verbal abuse, Mr. Demkovich was finally terminated in September 2014 after marrying his same-sex partner.

Mr. Demkovich initiated a Title VII, ADA, and wrongful termination claim. The defendants, Saint Andrews Parish and the Archdiocese of Chicago, moved to dismiss arguing the suit was barred by the ministerial exception. The district court granted the defendant’s motion, holding all the claims were barred. Mr. Demkovich filed an amended complaint dropping his wrongful termination claim, but seeking damages for a hostile work environment caused by discriminatory remarks and insults based on his disability and sex. The district court dismissed his hostile work environment claims based on sex, sexual orientation, and marital status because even though the claims were not barred by the ministerial exception, their adjudication would lead to excessive entanglement in matters of faith. The district court certified the following legal question for review by the Seventh Circuit: “Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?”

Hostile environment claims do not involve challenges to employment decisions made by religious officials, so the resolution of the question in Demkovich turned on whether litigating the claim would nevertheless result in excessive entanglement between church and state. The Demkovich court discussed both procedural and substantive entanglement. The court concluded there would be no undue procedural entanglement, which refers to the operation of the entire legal process. The church’s concern about the intrusive nature of litigation is shared by all litigants and thus concern of excessive entanglement would not bar hostile work environment claims by ministers any more than by the non-ministerial employees of a church. Next, the court discussed substantive entanglement, analyzing whether civil courts can decide substantive questions of law while avoiding issues of faith. The court discussed a variety of cases allowing claims against churches involving tax disputes, property disputes, tort claims, and application of the Fair Labor Standards Act to church employees. As in those cases, the court determined it was possible for a court to rule on a harassment claim without getting into matters of religious faith. Mr. Demkovich faced ongoing harassment in part due to his sexual orientation. The church argued that all comments made about Mr. Demkovich were motivated by church doctrine and the manner Reverend Dada expressed these beliefs were shielded from judicial scrutiny. The church also argued that haranguing Mr. Demkovich about his health was within his supervisor’s purview in implementing the proper formation of a member of the clergy. Although the district court had accepted the church’s argument in part, dismissing his sexual orientation claim, the court of appeals was not as persuaded that the risk of substantive entanglement was so great that hostile work environment cases should be dismissed without further inquiry. The court emphasized that Reverend Dada could have expressed the church’s views on gay marriage and obesity without being personally abusive, so the content of his religious reprimands did not excuse compliance with valid, neutral laws against harassment.

Courts Split on Reach of Ministerial Exception

The Seventh Circuit decision to narrow the reach of the ministerial exception deepens a split among the circuit courts of appeal. The Seventh Circuit now has joined the conclusion the Ninth Circuit reached in 2004 in Elvig v. Calvin Presbyterian Church, holding that the ministerial exception does not categorically bar ministers’ hostile work environment claims where the religious employer denies or disavows the conduct. At the same time, the Seventh Circuit has rejected the Tenth Circuit’s opposite conclusion in a 2010 case Skrzypczak v. Roman Catholic Diocese of Tulsa, holding that the ministerial exception bars all hostile work environment claims. Because of this lack of uniformity in applying the ministerial exception, ministerial employees who are victimized by any type of harassment constituting a hostile environment should consult an employment attorney to determine whether they can pursue a claim against their religious employer.

Katz, Marshall & Banks, LLP
For more articles on labor discrimination, visit the National Law Review Labor & Employment section.

Spooktacular Severability Ruling Raises Barr From The Dead, Buries TCPA Claims Arising Between November 2015 and July 2020

A few weeks ago, the Eastern District of Louisiana held that courts cannot impose liability under Sections 227(b)(1)(A) or (b)(1)(B) of the TCPA for calls that were made before the Supreme Court cured those provisions’ unconstitutionality by severing their debt collection exemptions.  The first-of-its-kind decision reasoned that courts cannot enforce unconstitutional laws, and severing the statute applied prospectively, not retroactively. Plaintiffs privately panicked but publicly proclaimed that the Creasy decision was “odd” and would not be followed.

So much for that. Yesterday, the Chief Judge of the Northern District of Ohio followed Creasy and dismissed another putative class action.  The new case—Lindenbaum v. Realgy—arose from two prerecorded calls, one to a cellphone and another to a landline. The defendant moved to dismiss, arguing that “severance can only be applied prospectively,” that Sections 227(b)(1)(A) and (b)(1)(B) were unconstitutional when the calls were made, and that courts lack jurisdiction to enforce unconstitutional statutes. The plaintiff opposed the motion, arguing, among other things, that a footnote in Justice Kavanaugh’s plurality opinion in Barr v. AAPC suggests “that severance of the government-debt exception applies retroactively to all currently pending cases.”

The court sided with the defendant. It began by agreeing with Creasy that this issue “was not before the Supreme Court,” and the lone footnote in Justice Kavanaugh’s plurality opinion is “passing Supreme Court dicta of no precedential force.” It then surveyed the law and found “little, if any, support for the conclusion that severance of the government-debt exception should be applied retroactively so as to erase the existence of the exception.” It reasoned that, while judicial interpretations of laws are “given full retroactive effect in all cases still open on direct review and as to all events,” severance is different because it is “a forward-looking judicial fix” rather than a backward-looking judicial “remedy.” In short, severance renders statutes “void,” not “void ab initio.”

Defendants are now two-for-two in seeking dismissal of claims based on the now-undeniable unconstitutionality of the debt-collection exceptions in Section 227(b)(1)(A) or (b)(1)(B). With more such motions pending in courts across the country, this may become a powerful weapon against whatever claims remain after the Supreme Court’s decision in Facebook v. Duguid.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.
For more articles on the TCPA, visit the National Law Review Litigation / Trial Practice section.

California Court of Appeal Rules that Challenge to Google’s Confidentiality Agreements May Proceed Past the Pleading Stage

On September 21, 2020, in a published 2-1 opinion in Doe v. Google Inc., the California Court of Appeal (Dist. 1, Div. 4), permitted three current and former Google employees to proceed with their challenge of Google’s confidentiality agreement as unlawfully overbroad and anti-competitive under the California Private Attorneys General Act (“PAGA”) (Lab. Code § 2698 et seq.).  In doing so, the Court of Appeal reversed the trial court’s order sustaining Google’s demurrer on the basis of preemption by the National Labor Relations Act (“NLRA”) (29 U.S.C. § 151 et seq.) under San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–245 (1959).  The court held that while the plaintiffs’ claims relate to conduct arguably within the scope of the NLRA, they fall within the local interest exception to Garmon preemption and may therefore go forward.  It remains to be seen whether plaintiffs will be able to sustain their challenges to Google’s confidentiality policies on the merits.  However, Doe serves as a reminder to employers to carefully craft robust confidentiality agreements, particularly in the technology sector, in anticipation of potential challenges employees may make to those agreements.

Google requires its employees to sign various confidentiality policies.  The plaintiffs brought a lawsuit challenging these policies on the basis that they restricted their speech in violation of California law.  Specifically, the plaintiffs alleged 17 claims that fell into three subcategories based on Google’s confidentiality policies: restraints of competition, whistleblowing and freedom of speech.  The claims were brought under PAGA, a broad California law that provides a private right of action to “aggrieved employees” for any violation of the California Labor Code.  PAGA claims are brought on a representative basis—with the named plaintiffs deputized as private attorneys general—to recover penalties on behalf of all so-called “aggrieved employees,” typically state-wide, with 75% of such penalties being paid to the State and 25% to the “aggrieved employees” if the violation is proven (or a court-approved settlement is reached).

In their competition causes of action plaintiffs alleged that Google’s confidentiality rules violated Business & Professions Code sections 17200, 16600, and 16700 as well as various Labor Code provisions by preventing employees from using or disclosing the skills, knowledge, and experience they obtained at Google for purposes of competing with Google.  The court noted that section 16600 “evinces a settled legislative policy in favor of open competition and employee mobility” that has been “instrumental in the success of California’s technology industry.”  The plaintiffs complained that Google’s policies prevented them from negotiating a new job with another employer, disclosing who else works at Google, and under what circumstances the employee may be receptive to an offer from a rival employer.

With respect to their whistleblowing claims, the plaintiffs alleged that Google’s confidentiality rules prevent employees from disclosing violations of state and federal law, either within Google to their managers or outside Google to private attorneys or government officials in violation of Business & Professions Code section 17200 et seq. and Labor Code section 1102.5.  Similarly, it is alleged that the policies ostensibly prevented employees from disclosing information about unsafe or discriminatory working conditions, a right afforded to them under the Labor Code.

In their freedom of speech claims, plaintiffs alleged that Google’s confidentiality rules prevent employees from engaging in lawful conduct during non-work hours and violate state statutes entitling employees to disclose wages, working conditions, and illegal conduct under various Labor Code provisions.  The employees argued this conduct could be writing a novel about working in Silicon Valley or to even reassure their parents they are making enough money to pay their bills—i.e., matters seemingly untethered to a legitimate need for confidentiality.

While Google’s confidentiality rules contain a savings clause—confirming Google’s rules were not meant to prohibit protected activity—the plaintiffs argued that the clauses were meaningless and not implemented in its enforcement of its confidentiality agreements.

Google demurred to the entire complaint, and the trial court sustained the demurrer as to plaintiffs’ confidentiality claims, agreeing that the NLRA preempted such claims.

On appeal, the Court of Appeal recognized that the NLRA serves as a “comprehensive law governing labor relations [and] accordingly, ‘the NLRB has exclusive jurisdiction over disputes involving unfair labor practices, and “state jurisdiction must yield’ when state action would regulate conduct governed by the NLRA.  (Garmon, [supra, 359 U.S.] at pp. 244-245.)”  But the court cautioned that NLRA preemption under Garmon cannot be applied in a “mechanical fashion,” and its application requires scrutiny into whether the activity in questions is a “merely peripheral concern” of the NLRA or where the “regulated conduct touche[s] interests so deeply rooted” in state and local interests.

In analyzing the federal and state issues at state, the Court of Appeal found that several of the statutes undergirding plaintiffs’ PAGA claims did not sound in principles of “mutual benefit” that are the foundation of the NLRA but protected the plaintiff’s activities as individuals.  The court cited several examples, including Labor Code section 242 prohibition of employers preventing employees from disclosing the amount of his or her wages (a statute enacted to prevent sex discrimination) and Labor Code section 232.5, prohibiting an employee from disclosing information about the employer’s working conditions (manifesting California’s policy to prohibit restrictions on speech regarding conditions of employment).  The court likewise found that the NLRA did not protect much of the activity prohibited by the statutes that supported plaintiffs’ PAGA claims, noting that the NLRA did not prohibit rules inhibiting employees from seeking new employment and competing with Google, as plaintiffs alleged Google’s confidentiality rules did.  It further does not protect whistleblowing activity unconnected to working conditions, such as violations of securities law, false claims laws, and other laws unrelated to terms and conditions of employment.

Nevertheless, the court held that, regardless of diverging purposes of the NLRA and the laws that support the plaintiffs’ PAGA claims, plaintiffs’ claims fall squarely in the local interest exception to NLRA preemption.  Where an employer’s policies are arguably prohibited by the NLRA, the local interest exception to NLRA preemption applies when (1) there is a “significant state interest” in protecting the citizen from the challenged conduct, and (2) the exercise of state jurisdiction entails “little risk of interference” with the NLRB’s regulatory function.  The court found no difficulty in determining that an action under PAGA, where the plaintiffs are serving as a “proxy or agent of the state’s labor law enforcement agencies” grows from “deeply-rooted local interests” in regulating wages, hours, and other terms of employment.  It also found that a state’s enforcement of its minimum employment standards, particularly in relation to the plaintiffs claims in this case, were peripheral to the NLRA’s purpose of safeguarding, first and foremost, workers’ rights to join unions and engage in collective bargaining.  Thus, the court held, there was no basis for NLRA preemption in this case.

Particularly in light of this opinion, employers who require employees to execute confidentiality agreements with their employees should be cognizant of the myriad of ways that they can be challenged.  As in the case of Doe v. Google, Inc., such challenges may not be just from individuals bringing claims in their own capacity, but as private attorneys general bringing representative claims on behalf of all California employees.  Nor can NLRA preemption be mechanically applied to preempt claims based upon such agreements.  Employers would be well-advised to review their existing confidentiality agreements and consult experienced counsel before revising or rolling out such agreements.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.
For more articles on labor law, visit the National Law Review Labor & Employment section.

Lawsuits for Illegal Strip Searches

DETROIT — Strip searches are routinely performed by law enforcement officers of all types. This ranges from police to prison guards, as well as to TSA agents at airports in the United States.

Private security guards also perform strip searches, including in malls and retail stores.

While some strip searches are legal, others violate the person’s constitutional rights. In general, people have a reasonable expectation of privacy.

A public officer or private guard cannot simply conduct a strip search without a proper legal basis. When an illegal strip search occurs, the victim can file a lawsuit seeking compensation for the violation of protected rights.

The basis for most illegal strip search lawsuits is a violation of the Fourth Amendment of the U.S. Constitution. The text of the Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The key words in the Fourth Amendment as it relates to an unlawful search are “unreasonable” and “probable cause.” Probable cause is a higher standard than reasonable suspicion. An officer does not have the right to search a person simply because there was a basis for stopping that person. In fact, most illegal strip searches are performed on people who are legitimately stopped or apprehended, but there is no legal basis to perform a subsequent search.

The main requirement is if the person being searched had a reasonable or legitimate expectation of privacy. Probable cause is required only when there is a reasonable expectation of privacy. When a search is disputed, what is “reasonable” is often determined by a judge or jury.

There are often even disputes as to what constitutes a strip search in the first place.

Different parties often have varying definitions of what constitutes a strip search. And, the context of each type of search may vary from one person to another.

For example, a prison guard performing a strip search may have one definition in mind that involves a physical search of the inmate’s body.  Others may have broader definitions as to what they define as a strip search.  Case law, both state and federal, have examined a variety of situations and fact patterns and their decisions form the basis of what is legal and what is not.

Some case law holds that complete nudity is required to be constituted as a strip search. Other cases hold that it is a lesser degree, and that a strip search can be illegal without the person being totally naked. There are many cases that also address the degree of the search itself and how invasive it is on the person being searched. This can vary on the type of crime suspected and the urgency to perform the search to preserve potential evidence against the person.

There have been many illegal strip search lawsuits filed throughout the United States. Most are based upon violations of the Fourth Amendment when asserted against a governmental agency, or person acting on behalf of the government. Other claims are brought under an invasion of privacy theory, and this theory is frequently used in cases against private individuals and entities.

In addition, there have been several class action lawsuits filed by prisoners and inmates at correctional facilities.   These cases allege that a large number of inmates were illegal searched by prison staff and correction officers. Several of these lawsuits have resulted in substantial class action settlements, including a $ 53 million settlement against Los Angeles County for illegal strip searches of thousands of women by law enforcement personnel.

Individual lawsuits seek compensatory damages for the harm suffered by the victim.  This includes both physical pain and suffering as well as mental anguish. The damages inflicted upon the victim often cause serious and permanent psychological harm.

Lawsuits hold the wrongdoers accountable for violating a person’s constitutional rights.  They also serve as a deterrence to future unlawful actions.  This helps to protect every person’s right to be free from an unlawful search and curbs systematic illegal actions of law enforcement.

Sources:

https://www.law.umich.edu/facultyhome/margoschlanger/Documents/Publications/Jail_Strip-Search_Cases.pdf

https://buckfirelaw.com/case-types/sexual-abuse/illegal-strip-search/

https://www.aclu.org/blog/criminal-law-reform/reforming-police/supreme-court-says-jails-can-strip-search-you-even-traffic

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/upending_human_dignity_fourth_amendment/

Buckfire & Buckfire, P.C. 2020
For more articles on the Fourth Amendment, visit the National Law Review Constitutional Law section.

“Ban the Box” Update: St. Louis Enacts Ordinance; California and Hawaii Expand Existing Laws

Under the St. Louis ban the box Ordinance (the “Ordinance”), which takes effect January 1, 2021, employers in St. Louis with 10 or more employees may not:

  1. Base a decision to hire or promote on an applicant’s criminal history, “unless the employer can demonstrate that the employment-related decision is based on all information available including the frequency, recentness and severity of the criminal history and the history is reasonably related to or bears upon the duties and responsibilities of the job position;”
  2. Inquire about a job applicant’s criminal history until after the employer has determined that the applicant is otherwise qualified for the job position, and interviewed the applicant, “except that such an inquiry may be made of all job applicants who are in the final selection pool from which the position will be filled;”
  3. Publish job advertisements, including electronically, that exclude applicants on the basis of criminal history;
  4. Include statements on job applications and other hiring forms, including electronic documents, that exclude applicants on the basis of criminal history;
  5. Inquire into, or require applicants to disclose their criminal history on initial job applications and other hiring forms, including electronic documents; and
  6. “Seek to obtain publicly available information” concerning job applicants’ criminal history.

With respect to prohibition Nos. 3 through 6, the Ordinance creates an exception where federal, state, or local law prohibits the employer from hiring an individual with a certain criminal history.

California

The California Fair Chance Act (“CFCA”) makes it an unlawful employment practice for an employer with five or more employees to include on an application for employment any question that seeks the disclosure of an applicant’s conviction history, or to inquire into or consider the conviction history of an applicant, until that applicant has received a conditional offer of employment. Additionally, the Act requires employers to: (a) make individualized assessments as to whether the conviction history has a direct adverse relationship with the specific duties of the job; and (b) provide notice under a specific procedure to employees if they intend to deny employment based on the conviction history.

Among other changes, new regulations promulgated by the California Fair Employment and Housing Council, effective October 1, 2020, expand the definition of an “applicant” to include individuals who begin work upon receiving a conditional offer of employment but before the employer has conducted or completed a criminal background check.  Ostensibly prompted by the delay some employers are encountering in obtaining relevant criminal history information due to the COVID-19 pandemic, the new rule ensures that individuals working pursuant to a conditional job offer still enjoy the protections afforded by the CFCA to “applicants.”

Also of note, the California Department of Fair Employment and Housing recently issued Frequently Asked Questions concerning the CFCA, detailing employers’ obligations under the law and providing guidance on how employers may conduct a compliant criminal background check.

Hawaii

Hawaii, which was one of the first states to create a “ban the box” law, recently added a notable amendment to the law. Effective September 15, 2020, SB 2193 prevents most private sector employers from considering felony convictions older than seven years, and misdemeanor convictions older than five years, reducing the look-back period from 10 years.

Other 2020 “Ban the Box” Developments

Maryland: As we previously reported, Maryland’s “ban the box” law, effective February 29, 2020, prohibits private employers with fifteen or more full-time employees from asking job applicants to disclose any criminal records or criminal accusations prior to the first in-person interview.

Virginia: Effective July 1, 2020, a new law that decriminalizes simple possession of marijuana also contains a “ban the box” provision prohibiting employers from requiring job applicants to disclose information concerning criminal charges, arrests, or convictions for simple possession of marijuana.

Suffolk County, New York: As we discuss here, effective August 25, 2020, Suffolk County employers with fifteen or more employees are prohibited from inquiring about a job applicant’s criminal convictions during the application process or before a first interview.

Waterloo, Iowa: Effective July 1, 2020, a new City ordinance prohibits employers with fifteen or more employees within the City of Waterloo from, among other acts, requiring applicants to disclose arrests, convictions, or pending criminal charges during the application process, including, but not limited to, any interview.  An employer, however, may “discuss” such information with an applicant if the applicant voluntarily discloses it.

*                            *                                  *

Employers covered by a “ban the box” law in one or more of the jurisdictions discussed above should review and, if necessary, update their policies and procedures, including job advertisements, applications, and other hiring (and where relevant, promotion) forms to ensure they are compliant with all applicable mandates.  Employers should also consider training personnel involved in the hiring process, particularly recruiters, human resources personnel, and those tasked with interviewing applicants and conducting criminal background checks.

©2020 Epstein Becker & Green, P.C. All rights reserved.
For more articles on labor law, visit the National Law Review Labor & Employment section.

Building Resilience for the Stressful Times Ahead

Even in perfectly normal years, the last few months seem to be abnormally stressful.  This year, the ongoing pandemic will heighten the stresses your internal clients will experience.  You can help them by communicating that everyone is feeling a bit stressed right now and sharing strategies that your clients can use to help build resilience.

How stressed are we?

Since 2007 the American Psychological Association (APA) has issued an annual report on the “state of the nation,” with a specific focus on stress.  Earlier this year the group decided to take a monthly “pulse” to understand how individuals are processing key events that have occurred.  Thus, far they have issued three separate reports.

Among the key findings are the following:

  • Most Americans are experiencing considerable stress related to the coronavirus.  They also report higher levels of general stress than in recent years.
  • On average, American parents feel higher levels of stress than adults without children.  Parental stress relates to education, basic needs, access to health care services and missing major milestones.
  • Following the May 25th death of George Floyd, more than eight in ten Americans reported that the future of the nation is a significant source of stress.  Around seven in ten Americans reported that this is the lowest point in the nation’s history that they can remember.
  • Stress levels related to the pandemic remained generally consistent throughout the spring and summer.  On a scale of one to ten, the levels of stress reported were 5.9 in April/May, 5.6 in May/June and 5.7 in July.

Among concerns lawyers express in terms of managing work, JD Supra reports 32% worry about managing the current workload during the crisis, 31% worry about a broader slowdown in overall business, and 23% worry about collaboration between and among remote employees.

Should lawyers be particularly aware of the need to manage stress?

Absolutely yes.  Research undertaken by the American Bar Association and the Hazelden Foundation in 2016 found, “[l]evels of depression, anxiety, and stress among attorneys … are significant, with 28%, 19%, and 23% experiencing mild or higher levels depression, anxiety, and stress, respectively.”  The research further noted that “61% reported concern with anxiety at some point in their career…”  Additionally, it revealed “higher levels of depression, anxiety, and stress among those screening positive for problematic alcohol use.”

For additional information, read “The Prevalence of Substance Abuse and Other Mental Health Concerns Among American Attorneys,” Journal of Addiction Medicine, February 2016.

Martin Seligman, Director of the Positive Psychology Center at the University of Pennsylvania, has postulated that American lawyers may be particularly susceptible to depression, anxiety and stress for three significant reasons:

Pessimism – According to Seligman, the “pessimist views bad events as pervasive, permanent, and uncontrollable, while the optimist sees them as local temporary and changeable.”  He further notes that “pessimists are losers on many fronts.  But there is one glaring exception:  Pessimists do better at law.”

Low Decision Latitude in High Stress Situations – Decision latitude refers to the number of choices one believes he or she has on the job. Individuals who work in fields in which high demands are placed upon them and they experience low decision latitude, i.e., there is one right and one wrong option, experience higher levels of depression and cardiovascular disease.

Win-Loss Perspective – Seligman writes, “American law has…migrated from being a practice in which good counsel about justice and fairness was the primary goal to being a big business in which billable hours, take-no-prisoners victories, and the bottom line are now the principle ends.”

For additional information, read M. Seligman, “Why Are Lawyers So Unhappy?” (2016)

What are the signs that someone is stressed?

According to the APA, the coronavirus pandemic “is an epidemiological and psychological crisis.”  Everyone needs to be aware of the signs of anxiety, depression and suicide so that we know when we’re struggling as well as when a colleague, client or family member might be at risk.

The APA cites the following:

Signs of anxiety

  • Persistent worry or feeling overwhelmed by emotions.
  • Excessive worry about a number of concerns, such as health problems or finances, and a general sense that something bad is going to happen.
  • Restlessness and irritability.
  • Difficulty concentrating, sleep problems and generally feeling on edge.

Signs of depression

  • A lack of interest and pleasure in daily activities.
  • Significant weight loss or gain.
  • Insomnia or excessive sleeping.
  • Lack of energy or an inability to concentrate.
  • Feelings of worthlessness or excessive guilt.
  • Recurrent thoughts of death or suicide.

Risk factors for suicide

  • Talking about dying or harming oneself.
  • Recent loss through death, divorce, separation, even loss of interest in friends, hobbies and activities previously enjoyed.
  • Changes in personality like sadness, withdrawal, irritability or anxiety.
  • Changes in behavior, sleep patterns and eating habits.
  • Erratic behavior, harming self or others.
  • Low self-esteem including feelings of worthlessness, guilt or self-hatred.
  • No hope for the future, believing things will never get better or nothing will change.

What can we do to combat stress?

Long-term, chronic stress can affect physical health. The American Medical Association reports that chronic stress contributes to cardiovascular disease (related to high blood pressure, truncal obesity, and high lipid levels) and diabetes (high glucose levels) and osteoporosis (bone density). It also impacts our ability to think clearly.  Throughout the pandemic, several of my clients have reported difficulty focusing on projects for extended periods of time.  They have found that the best way for them to stay productive is to break the day into 15-minute spurts of focused activity, followed by a brief diversion, and then repeat.

According to the APA, the most effective strategies for reducing stress include the following:

  • Maintaining a healthy social support network;
  • Engaging in regular physical exercise; and
  • Getting an adequate amount of sleep each night.

Senior lawyers and other managers should implement the following additional strategies:

Create structured team and individual check-ins – Senior lawyers shouldn’t make the mistake of seeing this additional management responsibility as yet one more item that keeps them from tackling client emergencies and other billable work.  The team and one-on-one conversations that senior lawyers conduct throughout the upcoming winter months may be the single most important thing that they can do to ensure junior associates develop professionally and feel connected.  Even brief check-ins will help the firm retain its best associates long after the pandemic ends.

Communicate when it’s best for others to reach you – Junior associates are desperate to communicate with partners and yearn for the serendipitous conversations that used to occur in hallways and dining rooms.  Many are also hesitant to reach out to senior lawyers, because they know most partners are extremely busy tending to client needs.  Senior lawyers should block out some portion of each workday and let juniors know that you will be available to take their calls during that time.

Offer encouragement and emotional support – Throughout the course of their careers, senior lawyers have withstood several national crises, including the Great Recession of 2008, 9/11, the bursting of the dot com bubble, etc.  When the pandemic emerged, they had the benefit of perspective, something junior lawyers don’t yet possess.  Senior lawyers can help juniors better cope by sharing what they learned from previous crises.

Many junior lawyers feel terribly isolated, expressing concerns that they are losing professional relationships daily.  Remind them to take initiative and affirmatively reach out to others…make one call a day to a peer in their practice group, a colleague in another department who is in their starting class, a law school classmate at another firm, or one of the firm’s newest associates.

If senior lawyers fail to initiate conversations, associates must be encouraged to reach out.  As I recently told one junior associate, a good rule of thumb for succeeding at life is:  if you don’t ask, you won’t get.  If you feel the need for a mental health day, you need to ask for it; if you want to work on a specific client project, be prepared to ask to join the team; and if you need 10 minutes of a partner’s time to better understand the parameters of an assignment, send a meeting request immediately.  Juniors should be reminded that they won’t always “get” everything that they request, but they will increase the sense that they’ve taken control of their careers by asking.

© 2020 Mary Crane & Associates, LLC
For more articles on the workplace, visit the National Law Review Labor & Employment section.

Who is considered “disadvantaged” for purpose of a Disadvantaged Business Enterprise (DBE) and Minority Business Enterprise (MBE) Certification? The answer may surprise you.

For purposes of Disadvantaged Business Enterprise (otherwise known as “DBE”) Certification, the Code of Federal Regulations, 49 C.F.R. §§ 26.5 and 26.67(a)(1) provide that there is a rebuttable presumption of disadvantage for United States citizens (or lawful admitted permanent residents) who are:

  • Women;
  • Black Americans;
  • Hispanic Americans (persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin);
  • Native Americans (persons who are enrolled members of a federally or state recognized Indian tribe, Alaska Natives or Native Hawaiians);
  • Asian-Pacific Americans (persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guan, the U.S. Trust Territories of the Pacific Islands, Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, Nauru, Federated States of Micronesia or Hong Kong);
  • Subcontinent Asian Americans (persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka); or
  • Other minorities found to be disadvantaged by the SBA.

It may be a surprise to some that persons of Middle Eastern and North African origin are not considered disadvantaged by the DBE program.  In fact, the U.S. Department of Transportation has found that “[p]ersons of Lebanese and other Middle Eastern origins are not presumed disadvantaged under the regulations.”    In re SanUVAire, LLC, No. 20-0029, March 30, 2020.

Persons of Middle Eastern origins may also not be eligible for certain Minority Business Enterprise certifications, though it can be inconsistent from group to group.  While the Southern Region Minority Supplier Development Council allows certification of persons of Middle Eastern origin, the Eastern Minority Supplier Development Council does not, even though both are affiliated with the National Minority Supplier Diversity Council.

©2020 Strassburger McKenna Gutnick & Gefsky
For more articles on disadvantaged business enterprises, visit the National Law Review Labor & Employment section.