A recent wave of state laws legalizing medical or recreational marijuana use has created a new compliance quandary for employers in these states, who don’t always know whether their own drug policies are compliant with state law. While marijuana remains outlawed at the federal level, its legalization in 30 states plus Washington DC means many employers are unsure of what they can and can’t do to police employees’ use of marijuana, such as whether medical users are protected under the Americans with Disabilities Act or how marijuana use affects employees’ eligibility for workers’ compensation.
Now, some business associations are urging the Trump administration to issue some guidance or rules to clarify how employers should handle this sticky situation, the Washington Examiner reports:
“We’d like to see [the Department of Labor] issue something just for clarity’s sake,” said a source for one major Washington trade association speaking on background, adding that they aren’t pushing for any particular direction. They just want the administration to say where the lines are drawn.
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The US Department of Justice is planning to bring criminal enforcement actions against employers who collude to hold down wages and prevent employees from changing jobs through non-poaching agreements, Roy Maurer reports at SHRM:
Makan Delrahim, the assistant attorney general for the department’s antitrust division, said that his team has been reviewing potential violations of the antitrust law prohibiting nonpoaching agreements and that added enforcement actions will be taken this year. … “In the coming couple of months, you will see some announcements, and, to be honest with you, I’ve been shocked about how many of these there are, but they’re real,” he said.
“While no criminal charges have yet been brought against employers for entering no-poach or wage-fixing agreements, that is about to change,” said Dee Bansal, an attorney in the Washington, D.C., office of law firm Cooley LLP. “The Trump administration has voiced support of this Obama-era policy.”
In tandem with the Trump administration’s decision last week to expand exemptions from the Affordable Care Act’s contraceptive coverage mandate, US Attorney General Jeff Sessions issued a guidance memo on Friday instructing federal agencies on how to interpret and apply federal laws regarding freedom of religion. The main takeaway from the broad but ambiguously worded guidance is that employers are to be granted the discretion to make hiring decisions based on their religious beliefs, BuzzFeed reported:
The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer’s’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”
Several rights groups immediately expressed concern that the guidance effectively opened the door for employers to discriminate against women and LGBT employees:
The Human Rights Campaign, the country’s largest LGBT group, issued a statement calling the guidance a “sweeping license to discriminate that puts millions of LGBTQ Americans at risk.” … Louise Melling, deputy legal director at the American Civil Liberties Union, was still reviewing the guidance early Friday afternoon. But she told BuzzFeed News she was concerned it prioritizes employers over the individuals nondiscrimination policies are designed to protect — such as women seeking contraception coverage and LGBT workers.
The US National Labor Relations Board considers arbitration agreements that bar employees from bringing class-action lawsuits against their employers invalid, according to a brief the NLRB filed in three cases the Supreme Court is hearing together on the legality of these class-action waivers, Allen Smith reports at SHRM:
Class-action waivers violate the National Labor Relations Act’s (NLRA’s) right to protected concerted activity, the NLRB argued in the brief written by General Counsel Richard Griffin Jr., an appointee of President Barack Obama whose term expires Nov. 4. The NLRB’s brief contradicts the Department of Justice’s (DOJ’s) June 16 brief in favor of class-action waivers—which was a shift from the DOJ’s position under the Obama administration. …
The NLRA’s right to protected concerted activity “is the core substantive right protected by the NLRA and is the foundation on which the act and federal labor policy rest,” the board stated. “An arbitration agreement requiring employees to resolve legal disputes solely on an individual basis is thus comparable to an unlawful contract providing that employees can be fired on the basis of age, contrary to the Age Discrimination in Employment Act, or paid less than the minimum wage, contrary to the Fair Labor Standards Act (FLSA).” Such unlawful contracts would not be permitted, so the Supreme Court similarly should not let the core purpose of the NLRA be undermined, the NLRB argued.
In a development welcomed by many employers, the Justice Department in June reversed its position on this issue, switching sides to argue on behalf of employers and against the NLRB. At the time, Greensfelder attorney Katherine Fechte described the change of position as “unprecedented” in a labor-related case:
In an unusual step, lawyers from the US Department of Justice submitted an amicus brief in the Second Circuit Court of Appeals in New York on Wednesday opposing the Equal Employment Opportunity Commission’s position that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits discrimination on the basis of sexual orientation. BuzzFeed’s Dominic Holden reported on the brief Wednesday evening, noting that the Justice Department, which does not normally intervene in private employment disputes, is not a party in the case:
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” says the Justice Department’s brief. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”
The Justice Department also contends that Title VII only applies if men and women are treated unequally. “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief says.
The brief was submitted in the case of Donald Zarda, a skydiving instructor who sued his former employer in 2010, claiming he had been fired after he told a customer he was gay and she complained. Zarda died in a skydiving accident after filing the lawsuit, but his estate has continued to pursue it. A three-judge panel from the Second Circuit had thrown out Zarda’s claim in April, citing a 2000 ruling in which the court had said Title VII did not apply to LGBT workers, but the full court agreed to hear the case in May.