Maine Employers Can No Longer Fire Employees for Smoking Marijuana off the Clock

Maine Employers Can No Longer Fire Employees for Smoking Marijuana off the Clock

Maine was one of several states where voters passed ballot measures in 2016 to legalize the possession and use of marijuana for recreational purposes, along with California, Massachusetts, and Nevada. In most states that have legalized recreational or medicinal marijuana, employers are still allowed to reject candidates or fire employees for testing positive for the drug as part of a drug-free workplace policy, but Maine’s law, which came into effect on February 1, explicitly protects employees from adverse action based solely on their use of marijuana outside working hours and off the employer’s property. Attorneys from Littler Mendelson explained this provision in a blog post at the time:

The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside the … employer’s … property.” However, regardless of where marijuana is consumed, the Act allows employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.” According to a spokesperson from the Maine Department of Labor, who spoke to the legislature in July, a positive drug test alone will not suffice to demonstrate that a worker was “under the influence” of marijuana.

Employers of workers who are subject to mandatory marijuana testing under federal law, such as federal contractors and certain commercial vehicle operators, may still drug test in compliance with those laws. Other Maine employers, however, may need to reconsider their current drug policies in light of the new law, the attorneys add, as they may be found in violation of its anti-discrimination provisions if they reject an applicant or penalize an employee solely for failing a drug test. Current tests for marijuana do not show whether the user is presently intoxicated, only whether they have used the drug within the past several weeks, so an employer may need other evidence to show that an employee is high at work.

“The big question now for Maine employers is what to do with a positive drug test,” Ann Freeman, an attorney and counsel in the Portland office of law firm Bernstein Shur, tells Roy Maurer at SHRM:

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NLRB Says Google Was Justified in Firing Author of ‘Anti-Diversity’ Memo

NLRB Says Google Was Justified in Firing Author of ‘Anti-Diversity’ Memo

James Damore, a former Google engineer, was fired last August after circulating a memo in which he argued that men predominate in software engineering because they are more biologically inclined toward analytical thinking than women; decried the company’s diversity and inclusion efforts as reflecting an “authoritarian” and “extreme” ideology; and claimed that Googlers with conservative political views were shamed, shunned, and silenced for expressing their opinions. Damore cried foul over his termination and subsequently filed a complaint with the National Labor Relations Board, then, along with another employee, later sued Google, claiming that the tech giant discriminated against white men.

The NLRB complaint was withdrawn later in January, ostensibly so that Damore and his lawyer Harmeet Dhillon could focus on the discrimination suit. But a newly disclosed letter written days earlier by Jayme Sophir, associate general counsel of the NLRB’s division of advice, concludes that Google had every right to fire Damore over the contents of the memo, Adi Robertson reports at the Verge:

In her analysis, Sophir writes that employers should be given “particular deference” in trying to enforce anti-discrimination and anti-harassment policies, since these are tied to legal requirements. And employers have “a strong interest in promoting diversity” and cooperation across different groups of people. Because of this, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’” she writes. “Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions.” …

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Germany Plans to Court Banks With Looser Employment Protections

Germany Plans to Court Banks With Looser Employment Protections

Nearly five months after being elected to a fourth term last September, German Chancellor Angela Merkel and her Christian Democratic party finally reached a deal earlier this month to form a government with their traditional rivals, the Social Democrats. One of Merkel’s policy goals in her final term in office is to modernize Germany’s very strict employment laws, which haven’t been substantially updated in a century. Currently, the law states that workers cannot be forced to work longer than eight hours in a day and that they get a 30-minute break at least every six hours, in addition to 11 hours of off time between shifts, but there are no provisions for freelancers or to accommodate the flexible work schedules that are becoming more common in the 21st-century economy.

Merkel’s policy advisors want to shift the maximum hours timeframe to one week instead of one day, thereby abandoning the eight-hour cap on the workday, and cut the mandatory break between shifts to nine hours. Germany’s influential labor unions, one of which recently secured its members the right to a 28-hour workweek, oppose these proposed reforms, which they fear will weaken the protections German employees currently enjoy.

In one case, however, weakening those protections is precisely the point. The coalition agreement inked this month includes an outline for loosening job security guarantees for highly paid employees at banks, the Financial Times reports. The plan is intended to make Frankfurt, the main financial hub for both Germany and continental Europe writ large, more competitive with London and New York, particularly as international banks prepare to shift their EU operations out of the UK after Brexit.

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Washington State Non-Compete Legislation Dies on the Vine

Washington State Non-Compete Legislation Dies on the Vine

Two bills that would have all but banned the use of non-compete agreements by employers in Washington State did not come up for a vote before a February 14 deadline for moving forward in the current legislative session, GeekWire’s Monica Nickelsburg reports:

The House bill would have prohibited non-compete agreements for employees working fewer than 40 hours per week or earning less than 200 percent of the minimum wage. Independent contractors and employees taking a second job would have also been protected from non-competes.

The Senate bill is broader. It would have prohibited “any contract that restrains a person from engaging in a lawful profession, trade, or business of any kind,” except for an employee who sells all of his or her operating assets or ownership interest in a business entity to a buyer operating a “like business.” Exemptions would also have been made for partners who disassociate from a business partnership.

This is the third legislative session in which Washington lawmakers have tried and failed to pass restrictions on non-competes. Proponents of this legislation say it would help make the state more competitive with California, where the use of non-compete clauses is almost always prohibited, as a magnet for talent and business investment, particularly in the tech sector. However, Michael Schutzler, CEO of the Washington Technology Industry Association, tells GeekWire that this comparison is misleading and that it was wise for the legislature not to rush new legislation in this regard.

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Housing Shortage Threatens Toronto’s Ability to Attract Talent

Housing Shortage Threatens Toronto’s Ability to Attract Talent

Toronto is the crown jewel of Canada’s growing tech sector and a centerpiece of Prime Minister Justin Trudeau’s ambitions to make the country a leader in emerging technologies like artificial intelligence. The city boasts a high-quality research university and a highly educated talent pool. Unfortunately, it’s also starting to experience the same problem faced by other major cities in North America: a shortage of housing, leading to high living costs for young professionals.

The Toronto Region Board of Trade has warned that rising housing costs and a short supply of decent apartments in the greater Toronto area risks harming the city’s ability to attract and retain talent, according to the Star’s real estate reporter Tess Kalinowski:

A survey by the business group last year shows 42 per cent of young professionals would consider leaving the region because of the high cost of housing. That has prompted the board to publish a Housing Policy Playbook in advance of the June provincial election with five recommendations for how the next government should tackle the housing crunch. The proposals range from building condos over transit stations to expediting construction permits. …

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Home Depot Launches Apps to Help It Hire By the Thousands

Home Depot Launches Apps to Help It Hire By the Thousands

Springtime is always a busy season for home improvement and gardening businesses, so the largest of these businesses in the US are embarking on massive hiring sprees to fill tens of thousands of seasonal positions, some of which will turn into permanent roles. The Home Depot, the largest home improvement retailer in the US, plans to hire 80,000 employees for the coming season, while its main competitor Lowe’s is looking for 53,000 workers.

To assist in this massive recruiting drive in the context of a historically tight labor market, Home Depot is launching a series of new technological tools to help it recruit and onboard tens of thousands of new employees as efficiently as possible. In a press release last week, the company described an app that allows candidates who have submitted applications to self-schedule their in-person interviews at their convenience. The press release adds that 80 percent of candidates have used Candidate Self-Service since Home Depot began piloting the app in November:

Candidate Self-Service is the latest in a series of enhancements The Home Depot has made to its application process. Last spring, the company saw a 50 percent increase in candidates after rolling out its 15-minute application, Mobile Apply and Text-to-Apply capabilities.

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UK Supreme Court Hears Plumber’s Gig Economy Case

UK Supreme Court Hears Plumber’s Gig Economy Case

A year ago, UK plumber Gary Smith won a case in the Court of Appeal against Pimlico Plumbers, where he had worked for six years and from which he contended he was unfairly dismissed after seeking to reduce his hours. Pimlico considered Smith a self-employed independent contractor and contended it had no obligations to him as an employee. The Court of Appeal accepted that he was not an employee, but ruled that he was properly classified as a worker, entitling him to some (but not all) the rights enjoyed by regular employees, such as holiday and sick pay.

The company chose to appeal that ruling further, and on Tuesday, the UK Supreme Court began hearing arguments in the case, the BBC reports:

The case hinges on the distinction between Mr Smith’s status as either a self-employed contractor, or a worker for the company. He was VAT-registered and paying tax on a self-employed basis, but worked solely for Pimlico Plumbers. After he suffered a heart attack in 2010, Mr Smith, from Kent, wanted to work three days a week rather than five. Pimlico refused his request and took away his branded van, which he had hired. He claims he was dismissed. …

[Charlie] Mullins, the founder of London-based Pimlico Plumbers, says that plumbers were hired on the basis that they were self-employed, provided their own materials and did not have workers’ benefits, but were paid significantly more as a result. He argues that the case has nothing to do with the gig economy and that Mr Smith is not in the same as an Uber driver.

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