New York City Bans Pre-Employment Testing for Marijuana

New York City Bans Pre-Employment Testing for Marijuana

In April, the New York City Council passed a bill that would prohibit employers from requiring candidates to undergo testing for marijuana as a condition of employment, becoming one of the first jurisdictions to grant employment-specific protections to marijuana users. Mayor Bill de Blasio, who expressed support for the bill, did not sign or veto it within 30 days of its passage, so it became law on May 10 and will come into effect a year from that date, according to Seyfarth Shaw’s marijuana law blog.

The new law includes exemptions for certain safety-sensitive occupations, including law enforcement, construction, medical and child care, and jobs requiring a commercial driver’s license. It also does not apply to federal and state employees or contractors, nor does it override federal regulations governing transportation workers such as truck drivers and pilots. Employees can still be subjected to marijuana testing if they appear intoxicated at work.

New York State legalized marijuana for medicinal use in 2014; recreational use of the drug remains illegal, but the state legislature is considering a legalization bill, which governor Andrew Cuomo has said he intends to pass and sign in this legislative session. In New York City, De Blasio supports legalization, while the NYPD announced last year that it would stop arresting most people caught smoking marijuana in public. Given that this pledge was central to Cuomo’s re-election campaign platform in 2018, it is likely that New York will soon join the growing number of US jurisdictions where recreational marijuana is legal, including Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington state, as well as Washington, DC.

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Platforms and Governments Take Steps Toward Sexual Harassment Protections for Freelancers

Platforms and Governments Take Steps Toward Sexual Harassment Protections for Freelancers

The freelance hiring and management platforms Fiverr and AND CO have teamed up to create a new standardized work contract for freelancers that they are calling the first of its kind to include built-in protections against sexual harassment, Ephrat Livni reported at Quartz on Wednesday:

The new contract explicitly states that harassment by clients or staff isn’t tolerated, which may seem obvious but isn’t a fundamental aspect of most freelance arrangements. The agreement also gives freelancers the right to terminate an arrangement if offending behavior continues after the client has been informed of it. A contractor who quits on these grounds must then be paid in full for the project or the month—depending on the terms of their arrangement with the client—and must receive that pay within 30 days.

Sounds decent, right? Well, it is. But it’s also not much, as the companies also admit. “We recognize this is a small step in a much longer journey, but it’s an important one,” they state.

After all, a big problem with harassment in the workplace is that it’s awkward to report in the first place, and all the more so when the perpetrator of the abuse is responsible for the paychecks. Despite the new clauses, contractors who are harassed by the clients who hired them aren’t very likely to feel comfortable demanding that abuses stop—not if they want to work for that client again. And few freelancers who are in an office on a contract basis will find it easy to complain about abusive staff with permanent positions.

These caveats highlight one of the fundamental perils of a labor market in which more workers are self-employed and fewer enjoy the protections that come with a formal employment relationship with a single organization. The #MeToo movement has sparked a long-overdue conversation about sexual harassment and misconduct in US workplaces, which has sent organizations and governments scrambling to find better ways to protect workers against these crimes. Most of these laws and policies, however, focus on employees, with independent contractors getting less robust protection, if indeed they have any at all.

Writing these protections into contracts is one way to help address the abuse of freelancers; another is to enshrine them explicitly in the law.

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More US States Move Toward Legalization of Recreational Marijuana

More US States Move Toward Legalization of Recreational Marijuana

Medical or recreational marijuana use is being decriminalized or legalized in a growing number of US states. In 2016, voters in California, Maine, Massachusetts, and Nevada passed referenda legalizing the recreational use of the drug, while Arkansas, Florida, Montana, and North Dakota either introduced or expanded policies legalizing it for medical purposes.

Last week, Vermont became the first state to legalize the possession and consumption of recreational marijuana through the legislative process, though the commercial sale of the drug remains prohibited (residents are allowed to grow up to six plants for personal use). At Lexology, Vorys Sater Seymour and Pease attorney Michael C. Griffaton notes that Vermont’s law, which comes into effect July 1, does not require employers to permit the use of marijuana in the workplace or on their premises and “does not create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana.”

New Jersey may follow in Vermont’s footsteps this year. The Garden State has had a medical marijuana law on the books since 2010, but former governor Chris Christie, a staunch opponent of legalization who came into office shortly after that law was passed, took action to limit its applicability, such as tightening restrictions on what medical conditions qualified for a medical marijuana prescription. Newly-elected governor Phil Murphy, who campaigned on a promise to liberalize the state’s marijuana policies, took the first step in that direction last week with an executive order aimed at easing the regulations imposed by his predecessor, the New York Times reported.

Murphy has indicated that he is in favor of legalizing recreational marijuana as well, which he believes would help combat the ills of mass incarceration and racial bias in the criminal justice system. Earlier this month, New Jersey Senator Nicholas Scutari introduced a bill in the state Senate that would legalize the possession and personal use of limited amounts of marijuana and establish a regulatory body to control its legal sale and taxation in the state. The bill also addresses employers’ concerns about marijuana use in the workplace, attorneys from the law firm Porzio Bromberg & Newman explain at Lexology:

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Cybersecurity Regulations Are Coming. Is HR Ready?

Cybersecurity Regulations Are Coming. Is HR Ready?

As cybercrime targeting the valuable personal data organizations hold about their customers and employees becomes more common, HR can add value to and even lead efforts within organizations to strengthen cybersecurity and data protection, first because HR department handle a lot of private data and as such are common targets for cybercriminals, second because enhancing cybersecurity systems means recruiting valuable and often hard-to-find cybersecurity talent, and finally because effective cybersecurity depends on ensuring that employees adopt best practices regarding passwords, online communications, and the handling of sensitive digital materials.

Currently, cybersecurity is less about compliance and more about protecting against breaches, but laws around data security are moving in the direction that cybersecurity will become a compliance issue for many US employers, at least at the state level, in the years to come (European law is also evolving in this regard). New York State, for example, enacted a regulation earlier this year that will make it mandatory for banks, insurers and some other private companies to meet a set of minimum cybersecurity standards. At SHRM, Dinah Brin dives into how HR can help New York employers face this mandate starting next year:

Among other measures, the regulation requires each covered entity to establish a cybersecurity program to protect company data systems and private consumer information from hacking. Affected companies, also required to implement written cybersecurity policies, must be prepared to detect, respond to and report system breaches, and will have to conduct penetration testing and risk assessments. …

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New York Raises Overtime Salary Threshold

New York Raises Overtime Salary Threshold

The fate of the US Labor Department’s controversial new overtime rule, which would raise the salary threshold at which employees are exempt from overtime pay from $23,660 to $47,476, remains uncertain after a federal judge blocked it from coming into effect in December. In New York State, however, which has an overtime rule of its own, the overtime salary threshold increased at the turn of the new year, Rosa Goldensohn reports at Crain’s:

New York employers had been required to pay overtime to employees making up to $675 a week, or roughly $35,000 a year, rules that do not apply to farm laborers, babysitters and many white-collar workers, among others. But on Dec. 28—and with very little fanfare—the state Department of Labor hiked that ceiling to $787.50 a week, or around $40,000 a year, for businesses with 10 or fewer workers, and $825 weekly or $42,000 annually for those with more than 10, a new threshold that went into effect Dec. 31.

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New York Rules Two Uber Drivers Eligible for Unemployment

New York Rules Two Uber Drivers Eligible for Unemployment

New York State regulators have determined that two former drivers for Uber are eligible for unemployment benefits and should be treated as employees rather than independent contractors for this purpose, the New York Times reports:

The rulings by the New York State Department of Labor were sent to the two Uber drivers (one also worked for Lyft) in August and September but have not previously been reported. They apply only to their unemployment insurance claims and do not directly affect other drivers or extend to other protections normally accorded employees. But worker advocates say they plan to pressure the state to extend the logic of the unemployment rulings to other areas.

“I think this is a game-changer,” said Bhairavi Desai, executive director of the New York Taxi Workers Alliance, which filed a federal lawsuit with the two drivers in July to force the Labor Department to make a determination in their cases. “Uber has depended on the political structure turning a blind eye. What these decisions do is force a microscopic review” of drivers’ employment status by elected officials and government agencies.

It is not clear how far the advocates will be able to push the ruling. … State regulators recently deemed a third driver who is a member of the New York Taxi Workers Alliance to be a contractor after he filed an unemployment claim. The labor group said it was because of his confusion in filling out the necessary paperwork. It is asking for a hearing and reconsideration of his case to reverse the decision.

Another Uber driver successfully filed for unemployment benefits in California earlier this year.

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Is Domino’s Responsible for Wage Theft by its Franchisees?

Is Domino’s Responsible for Wage Theft by its Franchisees?

New York Attorney General Eric Schneiderman believes so, and is suing the pizza chain, the Wall Street Journal reports, alleging that the company “mandated that [franchisees] use a payroll software system that under-calculated gross wages and failed to fix it when problems were brought to their attention”:

Mr. Schneiderman claims the company is liable for the alleged underpayment because it’s a joint employer with its franchisees, an argument at the heart of a broader industry fight over who’s responsible for the worker-related actions of franchisees. … The lawsuit against Domino’s and three of its franchisees, filed in state Supreme Court in Manhattan on Monday, claims that the company’s faulty payroll system led to workers being underpaid a total of at least $565,000 for 10 of its stores. Mr. Schneiderman says he is seeking that amount for employees but wants a full accounting of any wages owed.

Domino’s spokesman Tim McIntyre said Tuesday that the pizza chain’s franchisees, not the company, are solely responsible for the hiring, firing, and payment of their own employees but that the company had been working for more than three years to help its franchisees understand wage and hour laws. Regulators say they’re trying to keep up with labor market changes that are resulting in more fractured work arrangements that can leave employees and the government unsure about who’s responsible when a grievance arises.

The New York Times explains how this case is different than previous lawsuits against Domino’s franchisees:

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