Archive for the 'Uncategorized' Category

Leave it to the DOL to publish the regulations when I’m out – the Final Overtime Regs are here.

Well, leave it to the Department of Labor. They wait until I’m out of the office to issue new Regulations. That’s right, yesterday afternoon, the Department of Labor announced that the long awaited final Regulations under the FLSA will be issued today. I’m not going to read them today because I’m going to a baseball game. So let me give you the highlights that the DOL provided yesterday.

We all knew the salary level test was going up. The big question was how much. Would it be the 40th percentile/$970 per week that was in the proposed regulations or something else? How about a little of both. The Department of Labor stuck to its 40th percentile measure, but to throw a small bone to employers the final Regulations set the 40th percentile based on earnings of full-time salaried workers in the lowest wage census region instead of the 40th percentile of full-time salaried workers in the US. And that means . . . . drum roll please . . . the new salary level test is $913 per workweek. Annualized that’s $47, 476 per year.

The highly compensated test remains the same as in the proposed Regulations. It’s set at 90th percentile of full-time salaried workers in the country and comes out to $134,004 annually.

There is also an automatic updating provision in the Regulations. Beginning on January 1, 2020. the salary level tests will be reset every three years. The final Regulations also allow employers to include non-discretionary bonuses and other incentive payments including commissions to satisfy up to 10% of the salary level as long as the bonuses and incentive payments are paid at least quarterly.

The new Regulations go into effect December 1, 2016. So if you haven’t started thinking about what you’re going to do already, now is the time to do it.

You can find the DOL Fact Sheet here and the Q & A here. Or you can give us a call.

New Michigan Law Allows for Veterans’ Preference in Employment.

Wait a minute, it’s not Friday and this is not the FLSA, what is going on? Why am I sitting at my desk on a Saturday writing a blog post? Well, let me tell you. Late yesterday I got an email from one of our partners, Rob Dubault, a brilliant labor lawyer by the way, notifying me (and the other members of our practice group at good old Warner Norcross and Judd LLP) that Governor Snyder had just signed into law a new piece of legislation that applied to Michigan employers. I didn’t have time to read or write about it last night, so here I am.

So what is this new law that brings me into the office on a snowy Saturday in Michigan? It’s House Bill 5418, which will now be “known and cited as” the “Private Employer’s Veterans’ Preference Policy Act.” Well, what does this new law do? I’ll tell you what, it is so short that I’m just going to type the whole thing right into this blog post.

The People of the State of Michigan enact:

Sec. 1. (1) This act shall be known and may be cited as the “private employer’s veterans’ preference policy act”.

(2) As used in this act:

(a) “Private employer” means a sole proprietor, corporation, partnership, limited liability company, or other private entity with 1 or more employees.

(b) “Veteran” means an individual who meets 1 or more of the following:

(i) Has served on active duty with the armed forces of the United States for a period of more than 180 days and was discharged or released from active duty with other than a dishonorable discharge.

(ii) Was discharged or released from active duty with the armed forces of the United States because of a service‑connected disability

(iii) Was discharged or released from duty with other than a dishonorable discharge from service as a member of are serve or national guard component of the armed forces of the United States under an order to active duty, excluding active duty for training.

(c) “Veterans’ preference employment policy” means a private employer’s voluntary preference for hiring, promoting, or retaining a veteran over another equally qualified applicant or employee.

Sec. 2. (1) A private employer may adopt and apply a voluntary veterans’ preference employment policy.

(2) A veterans’ preference employment policy shall be in writing and shall be applied uniformly to employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in the workforce.

This act is ordered to take immediate effect.

So here is what it does: It allows a private employer to put in place a written policy that gives preference to veterans in hiring, promotions and retention during a reduction in force.

Three things I want you to notice here: First, this law goes into effect immediately. I’m not going to bother with the why of governmental procedure in Michigan, just know that the law is now law. Second, a policy giving preference, if you are going to do one, has to be in writing. No unofficial policy that you can rely on, a written policy. And finally, take notice of the word, “MAY”. That’s right, the law does not require an employer to give preference, it allows an employer to do this.

So if you want to do this, give Rob or me a call.  You can find Rob here.

Screening your employees to see if they are stealing isn’t stealing time.

You have a bunch of employees that work in your warehouse. You also have a bunch of really cool stuff that you ship from your warehouse. Apparently, you don’t trust your employees, because at the end of each shift you require your employees to wait around while you conduct security screens of each employee to make sure that they are not walking out of the warehouse with your really cool stuff. Do you have to pay your employees for the time they spend (up to 25 minutes each day by the way) waiting to go through your security screen? According to the Supreme Court the answer is a big old NO!

Yesterday, SCOTUS issued its opinion, a unanimous opinion by the way, in Integrity Staffing Solutions, Inc., v. Jesse Busk et al., 574 U.S. __ (2014). You can see it here.

“Integrity Staffing Solutions, Inc. provides warehouse staffing to Amazon.com throughout the United States. Respondents Jesse Busk and Laurie Castro worked as hourly employees of Integrity Staffing at warehouses in Las Vegas and Fenley, Nevada, respectively. As warehouse employees, they retrieved products from the shelves and packaged those products for delivery to Amazon customers.”

Id.

According to the opinion, at the end of each shift Integrity requires its employees to pass through a metal detector. From the sounds of it, it was like boarding a plane without the pat down or full body scan. You know, you take your keys and wallet and stuff out of your pockets and walk through a metal detector. We do that all the time now, don’t we, at airports, going into stadiums, even at some schools. No big deal, right? Seems like it was a big deal for the employees. They filed suit claiming that the failure by Integrity to pay for the time it took for these screens, up to 25 minutes per day according to the plaintiff’s, should have been paid under the FLSA. They argued that the screenings were to prevent theft and thus “solely for the benefit of the employers . . . .” Id.

SCOTUS disagreed. First, the Court pointed to the Portal-to-Portal Act and reminded us that “activities which are preliminary to or postliminary to said principal activity or activities” are excluded from the FLSA’s coverage. We talked about this a while ago. Remember Donning and Doffing? Check it out here. Then the court reminded us that principal activity includes activities that are an integral and indispensable part of the principal activity. The question, according to the Court, “Was the waiting time for the screen an ‘integral and indispensable part of the principal activities’ of the employees?” If it is, it is paid time. If it is not, it is unpaid time.

The Court then said that an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Like, the Court said, “showering and changing clothes” after working with toxic chemicals, or “sharpening knives” in a meat packing plant but not “donning protective gear” in a poultry plant.

Ultimately, the Court held that the security screenings at issue were not compensable. In short, the company does not have to pay the employee’s while they wait for their turn to go through the metal detector.

SCOTUS said, quite logically, screenings were not “principal activities” pointing out that the company did not employ the employees to be screened. They employed them to ship products. Then the Court noted that the screenings were not “integral and indispensable” to shipping products. The Court stated that the employees could have very easily continued to ship products even if the screenings stopped. They also could have walked off with a bunch of really cool stuff form the warehouse. The Court didn’t say that I did and Integrity must be worried about it of why do the screens?

Then the Court noted that the 9th Circuit erred when it focused on the fact that the employer required the screenings stating: “If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “principal activities,” the very activities that the Portal-to-Portal Act was designed to address.” Id. Makes sense again right? I mean like I said before, who would drive to work if their employer didn’t make them do it? Especially today when so many jobs can be done remotely. And finally, the Court rejected the employee’s argument that they should get paid for waiting simply because the employer could, if they wanted, shorten the waiting time. Basically, the court said deal with it at the bargaining table it is not covered by the FLSA.

Again, you can see the whole opinion here if you are interested.  Oh and by the way, I wrote this one, we will get back to Emily next time.

Overtime and the Workweek. A short but important post.

Let me start this week with an editorial comment.  This post is shorter than the last couple have been.  Only about 850 words.  The first draft was like 2200 words.  In fact, this post and the one before were combined into a single post.  Too long, right?  So I cut them in half and I’m working really hard at keeping them shorter.  Two reasons for that.  One, easier for you to read.  Who wants to read 2000 words on the FLSA in a single sitting?  Second, I’m really busy and this is hard work.  So I’m going to try to go back to shorter posts, say 800 or 900 words.  Hope that is OK with the three of you reading this thing.

So, what is the workweek we spoke of last time?  First and foremost, the workweek is the basis for overtime payments under the Act.

If in any workweek an employee is covered by the Act and is not exempt from its overtime pay requirements, the employer must total all the hours worked by the employee for him in that workweek (even though two or more unrelated job assignments may have been performed), and pay overtime compensation for each hour worked in excess of the maximum hours applicable under section 7(a) of the Act.  In the case of an employee employed jointly by two or more employers (see part 791 of this chapter), all hours worked by the employee for such employers during the workweek must be totaled in determining the number of hours to be compensated in accordance with section 7(a).  The principles for determining what hours are hours worked within the meaning of the Act are discussed in part 785 of this chapter.

29 CFR § 103.

In addition, it is a single workweek that determines overtime payments.  No averaging over workweeks.  I can hear you now.  “I have an employee who worked 30 hours last week and 50 hours this week and that equals 80 hours over the two weeks so I don’t have to pay any overtime, right?”  Wrong.  Each workweek stands alone (with an exception, a very narrow exception, for certain health care occupations).  29 CFR § 104.’  “So, come on, what is a “workweek?’”

An employee’s workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. For purposes of computing pay due under the Fair Labor Standards Act, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees.

* * *

29 CFR § 778.105 (emphasis added).

Let me go over that one more time for you.  A FIXED AND REGULARLY RECURRING PERIOD OF 168 HOURS – SEVEN CONSECUTIVE 24-HOUR PERIODS.

Got that?  So, my handbook says the “normal workweek is Monday from 8 a.m. to Friday at 5 p.m.”  Good enough?  NO.  OK, how about “the workweek starts with the first shift on Sunday evening and ends with the last shift on Saturday night.”  Good enough?  NO.  Neither of these meet the definition.  Here is one that does.  “For purposes of computing overtime, the workweek begins at 11:00 p.m. Saturday and ends at 10:59 p.m. the following Saturday.”   That meets the definition.  Pick whatever time or day you want to start it but that is the way the workweek for overtime should be expressed.  I don’t care when your office is open or when your first shift starts for the week, you have to follow the definition in the Regs.

So, once you set the workweek, can you change it?  Yes, you can, but only within limits.  29 CFR § 778.105 goes on to state:

Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act. The proper method of computing overtime pay in a period in which a change in the time of commencement of the workweek is made, is discussed in §§778.301 and 778.302.

Oh, and one last thing, when do I have to pay overtime?  Well, you pay it on the regular pay date for the workweek in which it is earned.

There is no requirement in the Act that overtime compensation be paid weekly. The general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made. Where retroactive wage increases are made, retroactive overtime compensation is due at the time the increase is paid, as discussed in §778.303. For a discussion of overtime payments due because of increases by way of bonuses, see §778.209.

29 CFR § 778.106.

And by the way, the word that is really important here is “CANNOT.”  You don’t get to wait to pay overtime just because you want to, or it is inconvenient, or for any other reason than you can’t actually figure it out because you don’t know how much it is.  And that is the basic rule.

Steve.

“Don’t give too much for the whistle.”

This, however, was afterwards of use to me, the impression continuing on my mind; so that often, when I was tempted to buy some unnecessary thing, I said to myself, Don’t give too much for the whistle; and I saved my money.

The Whistle, Benjamin Franklin (emphasis added).  See http://grammar.about.com/od/60essays/a/whistlessay.htm

Let me start by saying this post has nothing to do with Mr. Franklin’s quote, or his essay The Whistle, but the quote has some special meaning to me, and both the quote and the post do mention whistles, and this is my blog, so what the heck.  And thanks Doc, we haven’t forgotten.

The Michigan Whistle Blower Protection Act protects employees who report or are about to report, verbally or in writing a violation or suspected violation of a law, regulation or rule of the United States or the State of Michigan to a public body.  MCL §15.362.  So what does report or about to report mean?  Well, in Hays v. Lutheran Social Services of Michigan, the Court of Appeals gave us some guidance.  The employee in this case was a home health care worker and she had a patient who liked to smoke dope in his home while she was working.  Seems the employee was worried that she might get in trouble so she called a local Narcotics Enforcement Team and asked about what her liability might be if she failed to report the use of illegal drugs.  She provided no other information to the “public body.”  Her employer found out about the call and terminated her employment for violating its confidentiality policies.  Of course, the employee sued claiming protection under the Whistle Blower Protection Act.  She claimed her call to the Narcotics Enforcement Team was a “report” under the Act.

The Court of Appeals disagreed and found that the employee had not made a “report” under the Act.  Seems the Act does not actually define report so the court went to the dictionary:

While the WPA does not define the term ‘report,’ courts may consult dictionary definitions when giving undefined statutory terms their plain and ordinary meaning.  Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).  Accordingly, Random House Webster’s College Dictionary (2005), defines ‘report’ as ‘a detailed account of an event, situation, etc., [usually] based on observation or inquiry.’

Because the employee was only concerned about her liability and did not provide the “public body” with enough information to conduct an investigation there was, according to the court, no “report” under the Act.  The court put it this way:

[C]ategorizing plaintiff’s behavior as a “report” under the WPA would not further the purpose of the statute, namely, to protect the public by encouraging reporting of illegal activity.  Plaintiff’s phone call did not provide law enforcement with the means to investigate Client A’s marijuana use or to protect the public from such behavior.  Plaintiff’s only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law.  Thus, plaintiff failed to establish that she made a report under the WPA and having failed to establish a prima facie case, defendant was entitled to summary disposition.

If you want to read more, including a link to the case, head over to our sister blog One Court of Justice.

 

HOW ABOUT MY ‘RIGHT TO WORK’ ( OR NOT)

I’m pretty sure you have heard about this one.  Can’t open a paper without reading one side or the other.  Fortunately we have an expert.

Rob Dubault, a partner in our Muskegon office wrote and sent out to our clients an e-alert.  There is one update, of course. After  Rob wrote this yesterday afternoon, the Governor signed the bill.

Here you go, and thanks, Rob:

Michigan Becoming ‘Right to Work’ State

Michigan, the state recognized as the birthplace of the modern labor movement in America, will soon become the 24th Right-to-Work state. This afternoon, the Republican-controlled state legislature passed Right-to-Work legislation, which will allow workers in a collective bargaining unit the choice of opting in or out of union membership.

Under the legislation, which applies to public- and private-sector unions (with the exception of police and firefighter unions), an employee can no longer be required to join a union and pay dues as a condition of employment. Existing contracts that require employees to join or pay dues to a union are exempted until they are re-negotiated or extended. Senate Bill 116 and House Bill 4003, labeled “Freedom to Work” by supporters, are now on their way to Republican Governor Rick Snyder’s desk. The Governor has said he plans to sign the legislation. Passage occurred as organized labor conducted one of the largest protests ever seen in the Capitol City.

The Governor and legislative leadership agreed to exempt police and firefighter unions over concern about Public Act 312 of 1969, which calls for binding arbitration to prevent a strike. In addition, the Governor and legislative leaders were concerned about the potential for dissention within the ranks of those who risk their lives for public safety. Critics of the legislation and of the carve out for police and firefighters say Public Act 312 has nothing to do with joining a union or paying dues and that there are other union members in different occupations who also risk their lives for public safety but are not exempted.

If you have questions about this legislation or another labor-related legal development, please contact Rob Dubault (rdubault@wnj.com or 231.727.2638) or any other member of the Labor Law Group at Warner Norcross & Judd.

DISCRIMINATING AGAINST VICTIMS OF DOMESTIC VIOLENCE: The EEOC Issues a Q & A.

On October 12, 2012 the EEOC issued a Q & A on how Title VII and the ADA may apply to employees and applicants who are the victims of “domestic or dating violence, sexual assault, or stalking.”  What is interesting about this particular Q & A is that Title VII and the ADA don’t classify as the EEOC states “people who experience domestic or dating violence, sexual assault, or stalking” as members of a protected category.  In fact, in the Q & A the EEOC specifically points this out saying:

“Because these federal EEO laws do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.”

http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm

Despite this the EEOC apparently felt that individuals who are victims of this type of crime have been discriminated against and that this discrimination does implicate people who are protected by Title VII and the ADA.  In the Q & A the EEOC gives several examples of how persons who are victims of domestic violence, sexual assault and stalking might be discriminated against by employers.  For example:

An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

In this case, the employee is being sexually harassed by a stalker in the workplace.  Of course, the employer would have an obligation to see to it that the harassment ended.  In another example:

An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

Here the EEOC illustrates how a victim of sexual assault may, as a result of a subsequent disability, be entitled to protection under the ADA.

Employers may of course wonder how to react to this new guidance. You don’t have to add victims of domestic violence to the list of protected categories in your EEOC policy and you don’t need to add a bunch of examples to your handbook as I have seen suggested.  You do need to continue to do what you have always done, enforce your policies fairly and make sure your supervisors and manages are treating everyone, and I mean everyone, fairly.  Make sure you’re your supervisors and managers are fully trained on what is discriminatory.  You see Title VII, unlike say the NLRA, is a pretty common sense statute.  And if you “follow the golden rule” and treat everyone like you want to be treated yourself, and enforce your policy when there is a violation then you should be OK.

Are you one of these? Time to File your EEO-1

Tara Kennedy, an associate at WNJ wants to remind all of you to file your EEO-1.  You can read more about Tara at:  http://www.wnj.com/Professionals/Attorneys/Tara-M-Kennedy

Are you one of the following?

  • A private employer subject to Title VII of the 1964 Civil Rights Act and employs 100 or more employees;
  • A private employer subject to Title VII of the 1964 Civil Rights Act with fewer than 100 employees, that is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • A federal contractor with 50 or more employees and a “government contract, subcontract or purchase order amounting to $50,000 or more.”

If you are, then you must file a Form EEO-1 with the Equal Employment Opportunity Commission (“EEOC”). The deadline for filing the Form is September 30, 2012.

Generally speaking, Form EEO-1 is used to gather data on the race, ethnicity, and gender of an employer’s workforce. The EEOC uses the data it collects to support civil rights enforcement and to analyze employment patterns within companies, industries and regions. If you are a federal contractor, then the Office of Federal Contract Compliance Programs (“OFCCP”) will use the data to select facilities for compliance reviews, selecting facilities where the data shows systemic discrimination is the greatest. Submitting employers are allowed to use employee data from any pay period from July through September of the current survey year.

The EEOC’s preferred method that employers use to file the Form EEO-1 is online. The Form, along with instructions on how to file it can be found here. If you have any questions about the Form EEO-1, or any other employment-related matter, please feel free to contact any member of our Labor and Employment Law Practice Group.

HAS WORKERS’ COMP REALLY GOTTEN MORE EMPLOYER FRIENDLY? 10 Changes to the Michigan Workers Comp Act.

In December, for the first time in more than 25 years, the Michigan Workers’ Disability Compensation Act saw some major changes.  These changes are widely considered to be advantageous for employers.  Among the significant changes:

1.         Wage Earning Capacity is Redefined

2.         A Connection Between Wage Loss and Disability is Required

3.         Must Establish Medically Distinguishable Pathology

4.         Adds to the Definition of Mental Disability

5.         Changes the “100-Week Rule”

6.         Extends the Period When the Employer Controls Medical Treatment

7.         Expands Credit for Unemployment Benefits and Qualifying Pensions

8.         Requires the Magistrate to Take Into Account the Affect of Any Internal Joint Replacement Surgery, Internal Implant or Other Similar Medical Procedure When Determining Whether a Specific Loss has Occurred

9.         Restructured Redemptions

10.       Adjusts the Calculation of Interest

Now, I’d like to be able to tell you all that I know all about the changes, but that just wouldn’t be true. Fortunately, I work at a law firm with someone who does. Geri Drozdowski practices in the area of Workers’ Compensation law and she wrote an excellent article explaining all of this for you.  In fact, I stole her headings for this post.

So, if you need an update on this important change in the law or if you are just curious, you can find Geri’s article at http://www.wnj.com/Publications/Michigans-New-Workers-Disability-Compensation-Ac

Court Says ACLU Can’t Blow Smoke Over the Real Purpose of the Michigan Medical Marijuana Act.

If you follow this blog you might remember (unless you take advantage of this statute and then you might not remember) that back in July we posted on the first challenge to an employment termination supposedly in violation of the Michigan Medical Marihuana Act. See MCL 333.26421 et. seq (MMMA).

I told you before, by the way, and I’ll tell you again I did not spell Marijuana with an ‘h’ instead of a ‘j’ —  the Michigan Legislature did. I don’t know why.  And back in the July post we pointed out the incongruity in the MMMA that the courts were going to have to deal with.

At that time I wrote:

“Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana . . . .”

“Seems pretty clear. You can’t fire someone for using medical marihuana, end of story, right? Not so fast, my friends. You see, Section 7 of the Act states:  “(c) Nothing in this act shall be construed to require: . . . (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”

Well, the U.S. District Court for the Western District of Michigan, Southern Division (and yes, that is a mouthful) dismissed the lawsuit brought by Joseph Casias and the ACLU against Wal-Mart.  Mr. Casias had alleged that he was discharged by Wal-Mart in violation of the MMMA and in violation of Michigan public policy.  The opinion is pretty straightforward.  After dealing with some procedural issues that are really only interesting to lawyers, the Court got right into an analysis of the statute and whether Mr. Casias had a cause of action against a private employer making a personnel decision.  The Court noted that Mr. Casias put forward two theories for his argument that the MMMA prohibited the termination of his employment:

First, Plaintiff argues the MMMA provides him with an implied right of action. Even Mr. Casias acknowledges his chances on this theory are remote, given the strictness of the current test in Michigan case law. See Lash v. City of Traverse City, 479 Mich. 180, 192-93 (2007) (a private right of action cannot be inferred without evidence of legislative intent). Under his second theory, Mr. Casias’s cause of action stems from the defendant’s alleged violation of the public policy of Michigan, as found in the MMMA.

In the opinion issued Friday, the Court disagreed with both of Mr. Casias’ theories.  Judge Jonker first stated:  “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  Judge Jonker went on to note that Mr. Casias public policy argument would confer on medical marijuana patients rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.  Judge Jonker stated:  Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.”  You can see Judge Jonker’s opinion here.

Ultimately the Court concluded that:

The MMMA [is]meant to provide some limited protection for medical marijuana users from state actions, primarily arrest and prosecution. Even the scope of that protection is unclear and limited. . . . Nothing in the language or the purpose of the MMMA indicates an intent of the Michigan voters to regulate private employment, and the MMMA does not address private employment directly. Whatever protection the MMMA does provide users of medical marijuana, it does not reach to private employment.

So, Mr. Casias stays fired, for now.  And your drug testing policy has not “gone up in smoke,” for now.  Why do I say “for now,” you ask?  Well, for one thing, this case was decided by a Federal Court. A Michigan Court might have a different interpretation.  And, the ACLU says it will appeal.

According the Wall Street Journal Law Blog:

The American Civil Liberties Union, counsel to Casias, has said it will appeal. “Today’s ruling does not uphold the will of Michigan voters, who clearly wanted to protect medical marijuana and facilitate its use by very sick people like Joseph Casias,” the ACLU said in a statement. “A choice between adequate pain relief and gainful employment is an untenable one.”

You can see the WSJLB post at http://blogs.wsj.com/law/2011/02/11/judge-okays-walmarts-firing-of-medical-marijuana-user/

So, while this is obviously a positive outcome for employers, it is not necessarily the last word on the MMMA.  If you have any questions about your policy or if you need one, as always, give us a call.

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