Archive for February, 2011

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.

Facebook Firing Unfair Labor Practice Charge Settles!

The National Labor Relations Board announced that it had reached a settlement in its unfair labor practice charge against a Connecticut ambulance company. According to the News Release issued by the Board, the company has agreed to revise its “overly broad” blogging policy, agreed to not fire employees for engaging in online discussions of wages and other terms and conditions of employment and agreed to not threaten to fire, or fire employees for asking for union representation. The employee and the company settled in a separate financial agreement and it has been reported that the employee will not be returning to work at the company.

So, should you run out and change your policy? That is up to you. I suppose it depends on how risk-averse you are and how broad your policy is. According to the Board:

“An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

Is your policy this “broad?”  Does it prohibit “disparaging remarks when discussing the company or supervisors?” While the settlement may be nice news for the NLRB, it does not provide much useful guidance for employers with blogging policies. We will have to wait for a charge that does not settle and goes to hearing then ultimately to court for useful guidance.

Snow Days and the FLSA!

My wife thinks I’m crazy. When your 10 horsepower snow blower bogs down in the snow in the middle of your driveway, you know you got a lot of snow. Nevertheless, I got up this morning and plowed out the driveway so I could go to a dental appointment only to find out that the dentist’s office was closed. But I was already out of bed, so in to work I came. That is why (well, that is one of many reasons why) my wife thinks I’m crazy. So, yes, I am sitting at my desk, in my office writing this post, when I should be home in front of a fire sipping hot coca and watching my teenage kids kill virtual zombies while listening to their iPods and texting their friends.  Teenagers are great multitaskers.

And you might be in the same boat.You might just be asking yourself: “What do I do about pay for all of the employee’s who didn’t come to work today?” I mean, a bunch of them are home because they did not want to brave the bad roads, and a bunch of them are home because their kids don’t have school. And a bunch of them are home because you closed your business for the day. So what do you do about pay for people who didn’t come to work today? What does the law say? Let me tell you.

For non-exempt employees, the answer is easy. Under the Fair Labor Standards Act, if non-exempt employees do not work, you don’t have to pay them.  It is as simple as that.  Does not matter if they don’t work because the couldn’t navigate the bad roads, or because their kids didn’t have school or because you closed the business.  Under the law if they don’t work, you don’t have to pay them.  (Now you might have a policy that says somthing different, and that is a different law all together. We are just talking about the FLSA here, so before you do anything, check your company policies.)

But what about exempt employees? For them, it does matter why they did not come to work.  The basic rule is this:  an exempt employee, who must be paid on a salary basis, must be paid their entire salary for any week in which they do any work regardless of the quality or quantity of that work unless a deduction is specifically authorized by the regulations. You can find the permitted deductions here. So, is staying home for a snow day a permitted deduction?  It depends. If you close your business, you have to pay exempt employees their full salary and cannot deduct from that salary for that time missed. Wage Hour Opinion Letter FLSA2005-46 states:

“Furthermore, an employer may not make deductions “for absences occasioned by the employer or by the operating requirements of the business.” If the employer closes operations due to a weather related emergency or other disaster for less than a full work week, then the employer must pay an exempt employee “the full salary for any week in which the employee performs any work without regard to the number of days or hours worked,” because “deductions may not be made for time when work is not available.” See 29 C.F.R. § 541.602(a)(emphasis added).”

Ok, that seems pretty clear; close the business for the day and pay the full salary for the exempt employee.  What about when the business is open and the exempt employee decides not to come to work because of the weather?  Different rule (same Opinion Letter). Wage Hour Opinion Letter FLSA2005-46 states:

“The Department of Labor considers an absence due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee to choose not to report for work for the day even though the employer is open for business, an absence for personal reasons. Such an absence does not constitute an absence due to sickness or disability. Thus, . . . an employer that remains open for business during a weather emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions. . . . Please note, however, that deductions from salary for less than a full-day’s absence are not permitted for such reasons under the regulations. See 29 C.F.R. § 541.602(b)(1)(emphasis added).”

That seem pretty clear, too. If the business is open and the exempt employee does not work for the full day you don’t have to pay. Notice I said “does not work” and not “does not come to work.” And that is because I have one big caveat for you. Just because an employee is not at the office, that does not mean he is not working. An employee sitting at home answering emails and taking calls is working and would have to be paid. So, make sure the employee is really not working before you start making pay deductions.

So, I hope you all are warm and safe during the “BLIZZARD OF 2011” as the local news is calling it.  Go out and make some snow angels and have a great day.

How Good are your Supervisors?

So how good are your supervisors?  I’m not talking about how good they are at making widgets.  If you have been reading this blog, you know that I don’t think that is their job anyway.  I’m talking about how good they are at dealing with your employees.  If you don’t know, might not be too long before you have a chance to find out.  What am I talking about?  Union avoidance.  You see, a real union avoidance program is not about getting the word out to employees after the union comes knocking at your door.  We will want to do that, but that is only a very small part of a real union avoidance program.  A real union avoidance program is about making sure that your supervisors know what they are doing.  Making sure that they know that their job is to make your employees feel appreciated; to motivate your workforce so it is happy and productive and so it does not feel like it needs some outsider to take care of problems.

Now, for last 20 years of so, that hasn’t been a real concern for most companies in the U.S.  The union membership rate for private employers has been in a steady decline. Today it is at its lowest rate since they have been keeping records.  But as we told you, when Secretary Solis announced these statistics, she also made it clear that the administration was going to back organized labor.  And we noted that if it could not be done legislatively, the administration would find another way.  And so it begins.

On January 28, 2011 the National Labor Relations Board issues a decision in Parexel Int’l, LLC., 356 NLRB No. 82 (2011).  In Parexel, a nurse was fired when she suggested to her supervisor that all employees at the company should quit and come back in order to get a raise.  The nurse had been told by another employee who had quit and then returned to work that he had been given a raise to come back to work.  This was not true. After the nurse complained to her supervisor and suggested to the supervisor that others should quit and come back to get a raise, she was interviewed by the company’s HR director.  The HR director asked the nurse if she had discussed this issue with any of her coworkers.  When she said she had not, she was fired.  The ALJ found that the nurse was fired to prevent her from talking with other employees but found that there was no “protected concerted activity” and so he upheld the discharge.

The Board overturned the ALJ’s ruling.  The Board held that it does not matter in a case like this if there is protected concerted activity.  Rather the Board held that ascertaining one’s wages compared to other employees is a core right protected by Section 7 of the Act.  And any action that has the effect of suppressing these rights is a violation of Section 8(a)(1). The Board held:

The judge declined to find a violation  because, in his view, [the nurse] had not yet engaged in concerted activity.  He opined that Board law requires that an employee must have already engaged in protected concerted activity in order for the Board to find that she was unlawfully discharged to prevent protected concerted activity.  We disagree.  If an employer acts to prevent concerted protected activity – to “nip it in the bud”- that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.

What?  That’s right.  I’m going to borrow a phrase from one of the partners here who sent the article around that clued me into this:  Looks like “not only can you not fire someone who engages in protected concerted activity, but you can’t fire them if there is a possibility that they might engage in it.”  (Thanks Rob!).

So what does all this mean?  Well, for one thing it is proof that the administration was not kidding when they implied that they were going to help organized labor.  And another, it’s time to train those supervisors.  Don’t wait until something happens.  The problem is that this stuff is not intuitive.  Having supervisors with common sense is not going to be enough.  I mean who would have guessed this result?