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Creative forces behind fictional crime fighters—and the EEOC—are on the case in advancing equality for women in Hollywood

June 21st, 2017  |  Cynthia L. Hackerott  |  Add a Comment

The impressive box-office performance of the new Wonder Woman movie, the recent success of two female stars of a long-running network television series in negotiating pay increases on par with their male counterparts, and reports earlier this year that the EEOC is in settlement talks with the major studios to resolve charges that they systemically discriminated against female directors are promising signs that equal opportunity and pay equity for women in Hollywood is progressing. However, getting a “Hollywood ending” as to gender equity remains a struggle.

Success illustrates value of wonder women. In two recent developments of note, women who have brought beloved fictional female crime fighters to movie and television screens have triumphed. First, Forbes reported just yesterday that the new Wonder Woman film has earned around $582-$585 million worldwide as of Monday, and is expected to cross the $600 million-plus global milestone on Thursday. Wonder Woman is the first superhero film that has both a woman, Gal Gadot, in the title role, and a woman, Patty Jenkins*, as its sole director. According to the Forbes article, the film is well on its way to becoming the biggest-grossing live-action movie ever from a female director, and it looks like the film will be the largest grossing movie ever helmed by a solo female director. A June 14 piece in Variety discusses how the critical and commercial success of the film could pave the way for more female directors. Indeed, Variety was the first to report (in an exclusive story) yesterday that Jenkins is already at work in developing a sequel.

Second, earlier this month, various media outlets, including Variety and Deadline, reported that long-time “Criminal Minds” stars Kirsten Vangsness and A.J. Cook closed deals to return to the 13th season of the CBS series (a personal favorite of mine) after the women negotiated together  seeking parity with their male co-stars, Joe Mantegna and Matthew Gray Gubler, who both closed their contracts in May. The reports indicate that the two actresses have landed raises that put them essentially on par with Gubler. According to the Deadline story, the female stars took a similar stand during their 2013 negotiations, with less success. The two woman had consistently been paid less than half of what their male counterparts, Gubler and Shemar Moore, were making at the time, Deadline noted, reporting that while they eventually secured salary increases, they did not achieve parity at that time.

On June 14, Vangsness tweeted that she was correctly quoted in the Variety article as to the following statement she made last month when asked by TMZ if she would not return to the popular show if she was unsuccessful in her pay parity efforts:

“’That’s the way it works sadly,’ she said. ’I feel so uncomfortable about it and I feel so sad. You know what it would be telling me? That my value isn’t what I thought it was and in that case, I need to go get another job.’ Speaking of Mantegna and Gubler, she continued, ‘There is the rationale that they’re a little more popular or they’ve paid their dues a little more — that’s absolutely true and that’s why I’m not asking to be paid the same amount as them. I’m asking to be paid closer. Just closer.’”

EEOC reportedly in settlement talks. This past February, Deadline reported that an EEOC investigation, started in 2015, into allegations of discrimination against female directors in the film and television industries “is over” and the agency “has moved into the settlement phase.” Deadline quotes “a knowledgeable source” as saying “‘[e]very one of the major studios has received a charge contending that they failed to hire women directors.” If the agency is unsuccessful in resolving the charges, it may file a lawsuit, Deadline’s source said (noting the EEOC’s standard process).

In October 2015, the EEOC began contacting female directors to investigate gender discrimination in Hollywood, according to a contemporaneous report in the Los Angeles Times. Deadline published a similar report at that time. An updated story posted by the LA Times on May 11, 2016, reports that the EEOC interviewed more than 50 women directors during the fall and winter of 2015, and the federal agency was “widening its circle of interview subjects to include studio executives, producers, agents, actors and male directors.”

Also on May 11, 2016, the ACLU issued a statement reporting that the EEOC and the OFCCP were investigating allegations of discrimination against women directors in the film and television industries. In that statement, Melissa Goodman, director of the LGBTQ, Gender and Reproductive Justice Project at the ACLU of Southern California said that the investigation was launched following the group’s 2015 efforts in which it sent letters to the EEOC, the OFCCP, and the California Department of Fair Employment and Housing asking these government agencies “to investigate the systemic failure to hire women directors at all levels of the film and television industry.” Among other statistical evidence, the letters cited a 2015 USC study which found that only 1.9 percent of directors of the top-grossing 100 films of 2013 and 2014 were women, and that, of the 1,300 top-grossing films from 2002-2014, only 4.1 percent of all directors were women. Wide disparities also exist as to women in directing episodic television, the letters claimed.

The failure to hire women directors in film and television cannot be attributed to a lack of qualified or interested women, the ACLU asserted, stating that estimates place the number of female students in prominent film schools such as USC, NYU and UCLA who are focusing on directing as roughly equal to the number of men.

In a statement commenting on the February 2017 report in Deadline, the ACLU noted that, while it could not independently confirm the information in the Deadline piece because federal law prohibits government agencies from commenting on specific ongoing investigations, it had “no reason to doubt its veracity.” Moreover, the ALCU believes that the story was bolstered by another Deadline article earlier that month concerning December 2016 contract negotiations between the major studios and networks and the Directors Guild of America during which the guild pressed producers to adopt a rule “’that would have required producers to interview female and minority candidates as part of the hiring process for directing jobs.’” According to Deadline, the companies, “declined to discuss the proposal ‘for legal reasons’” that involved their settlement talks with the EEOC.

Despite the recent successes of prominent female directors, the vast majority of women directors are still denied equal opportunity, the ACLU maintains in its February 2017 statement, citing another USC study published that same month which showed that “the percentage of women directing movies in 2016 fell by nearly 50 percent from the 2015 number, all the way down to the same percentage as in 2007.”

“And even if a female director does get hired,” the ACLU statement continues, “research shows she’s much less likely than a male director to get hired again.”

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* I cannot resist pointing out that, like me, Jenkins grew up primarily in Lawrence, KS, and attended my alma mater, Lawrence High School, through her junior year.

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Employee’s refusal to provide social security numbers of children results in denial of enrollment in health plan

June 15th, 2017  |  Ron Miller  |  Add a Comment

There was no way around the eligibility requirements of a union healthcare benefit plan for a union member, even if those requirements violated his religious beliefs, ruled a federal district court in California in Sanchez v. Teamsters Western Region & Local 177 Health Care Plan. The plan was adamant that the member would have to provide proper certified birth certificates and social security numbers for the dependent children he sought to enroll in the plan, even though he asserted that he could not receive the social security numbers of his children because of his belief in God’s law.

Change in plan administrator. The employee worked for UPS, and had been a member of the Teamsters’ union for over 15 years. He received benefits in accordance to the union’s collective bargaining agreement between the employer and union. In 2014, the union began using the Teamsters Western Region Health Care Plan for its health care, and Southwest Service Administrators (SSA) administered it. The employee met the eligibility requirements for benefits, and he alleged that his dependents were also eligible.

Enrollment of dependents denied. The employee tried to enroll his three children into the plan by providing records of their birth, affidavits, letters from the hospital, and a photocopy of the Sanchez’s family bible record. However, the plan’s eligibility and enrollment department declined to enroll his dependents without proper certified birth certificates and social security numbers. According to the employee, his religious beliefs prevented him from acquiring social security numbers for his children. He submitted a written appeal, and provided the requested birth records, but not social security numbers. The appeal failed and his children were denied enrollment. Thereafter, he initiated this lawsuit alleging that the union violated 42 U.S.C. § 1981 and Section 7 of the Privacy Act. The defendants filed a motion to dismiss.

Intentional discrimination. The court found that although the employee stated that he could not receive the social security numbers of his children because of his belief in God’s law, he did not state that the denial of enrollment in the plan for his children was based on a desire to intentionally discriminate against his race or religious beliefs. As a consequence, he could not maintain a suit for violation of his rights under §1981.

The employee first alleged that by denying his children enrollment in the plan, the union and administrator violated §1981, which protects against intentional race-based discrimination in making contracts. The defendants argued that this claim should be dismissed because the employee alleged that his children were denied health insurance coverage for religious, not racial, reasons, and there was no allegation of intentional discrimination.

To obtain relief under §1981, a plaintiff must allege intentional or purposeful discrimination. Further, the intentional discrimination must be racially based. Here, the employee’s claim was legally insufficient. He merely alleged that the plan denied his children’s enrollment after not receiving the documentation the plan requested. There was no suggestion that the plan’s denial was related to race or other discrimination. Accordingly, the court granted the union’s motion to dismiss the claim under §1981.

Privacy claim. The employee first alleged that the union violated Section 7 of the Privacy Act. Section 7 provides, in part, that it is unlawful for any governmental agency to deny any individual any right, benefit or privilege provided by law because of the individual’s refusal to disclose his social security number. Moreover, he alleged that the defendants were withholding agents under 26 U.S.C. § 6109(a)(3), and therefore subject to Section 7. According to the employee, when a government, state, or private employer makes a request for information, such as the collection of social security numbers, it is acting as a withholding agent under § 6109(a)(3). Therefore the defendants were acting as a withholding agents by requesting social security numbers.
The court found that the employee’s statement that the defendants were acting as a withholding agent by requesting social security numbers was not an accurate reading of § 6109(a)(3). Neither § 6109(a)(3) nor its other subdivisions addressed withholding agents or stated that a party may become a withholding agent. Thus, the employee’s conclusory allegation that defendants became withholding agents by asking for social security numbers was not supported by § 6109(a)(3).

Private right of action. Alternatively, the defendants argued that they were not liable under Section7 because a private right of action extends only as against agencies of the government. The Privacy Act’s private right of action is limited to actions against agencies of the government, and does not apply to private individuals, state and local officials, or private entities. Here, the employee did not allege any nexus between the defendants and the government, so that they maintained their status as private entities. Further, he did not allege any deprivation of a benefit or privilege that is provided by law. Rather, he alleged that the defendants denied his children the right to benefits provided by the CBA. Receiving health care benefits under the plan was not a legal right nor law. Accordingly, the court granted the defendants’ motion to dismiss the Privacy Act claim.

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When an employee requests a religious accommodation, take it on faith that his belief is sincere

June 13th, 2017  |  Lisa Milam-Perez  |  Add a Comment

I’m not sure what the employer was thinking, with this one. The case had drawn considerable attention because the facts were novel. And as religious accommodation cases go, the employer’s defense was novel, too.
The employer had just implemented a new biometric hand scanner system to better track its employees. A devout Evangelical Christian with 40 years at the company told his supervisor that he could not use the hand scanner. As he understood the Book of Revelation, the Mark of the Beast brands followers of the Antichrist, allowing the Antichrist to manipulate them. Use of a hand-scanning system would result in being so “marked,” he feared, “for even without any physical or visible sign, his willingness to undergo the scan … could lead to his identification with the Antichrist.” Because using the hand scanner would violate his sincerely held religious beliefs, he asked for a religious accommodation, some alternative means by which the company could follow his comings and goings.

I’m not sure what the employer was thinking with this one. The case had drawn considerable attention because the facts were novel. And as religious accommodation cases go, the employer’s defense was novel, too.

The employer had just implemented a new biometric hand scanner system to better track its employees. A devout Evangelical Christian with 40 years on the job told his supervisor that he couldn’t use the hand scanner. As he understood the Book of Revelation, the Mark of the Beast brands followers of the Antichrist, allowing the Antichrist to manipulate them. Use of a hand-scanning system would result in being so “marked,” he feared, “for even without any physical or visible sign, his willingness to undergo the scan … could lead to his identification with the Antichrist.” Because using the hand scanner would violate his sincerely held religious beliefs, he asked for a religious accommodation, some alternative means by which the company could follow his comings and goings.

But the employer was adamant. It was armed with written assurances from the scanner’s manufacturer that the system did not detect or place a mark, including the Mark of the Beast, on a person’s body. The manufacturer also offered its own interpretation of “the Scriptures,” explaining that because the Mark of the Beast “is associated only with the right hand or the forehead, use of the left hand in the scanner would be sufficient to obviate any religious concerns regarding the system.” But that was not the employee’s interpretation. And, faced with the employer’s insistence that he would be subject to discipline if he did not use the scanner (with his left hand, as the manufacturer recommended), the employee retired instead.

It’s unclear why the employer dug in its heels here, especially since, as the employee later discovered, the company had provided an alternative to the hand scanner for two employees with hand injuries. They simply had to enter their personnel numbers on a keypad attached to the system—a bypass that came at absolutely no cost or hardship to the company.

Because the employer refused to provide this accommodation for the employee’s religious beliefs, the EEOC brought a Title VII constructive discharge suit on his behalf, and won a jury verdict in his favor. The district court denied the employer’s motion  for judgment as a matter of law. Affirming, the Fourth Circuit, in EEOC v. Consol Energy, Inc., upheld the verdict, ruling there was sufficient evidence from which the jury could find a conflict between the employee’s bona fide religious belief and the requirement that he use the hand scanner.

Management lawyers typically advise employers: Never doubt the sincerity of an employee’s religious belief. Instead, focus on whether the religious accommodation that the employee has requested would be an undue hardship for the company. In this case, the employer didn’t doubt the sincerity of the employee’s belief. Where it went wrong, though, was in insisting that his religious belief was mistaken. In the employer’s view—which essentially relied on the scanner manufacturer’s interpretation of scripture—allowing the employee to scan his left hand instead of his right hand was enough to avert any potential religious conflict. In fact, at oral argument, the employer cited scripture passages “purporting to demonstrate that the Mark of the Beast can be imprinted only on the right hand.”

That the employer thought the employee’s religious beliefs were unfounded was beside the point, the appeals court explained. Nor did it matter that the scanner manufacturer, or even the employee’s own pastor, did not share his view. The jury specifically found that the employee’s religious belief was sincere, and that was all that mattered. As the appeals court pointed out, it wasn’t the employer’s place—or the court’s—“to question the correctness or even the plausibility of [the employee’s] religious understandings.”

Again, in religious accommodation cases, the dispute usually centers on the “undue hardship” question. Here, though, once the “sincerely held belief” issue was resolved, this was an easy case, the appeals court noted, because the employer conceded it would pose no additional burden on the company to have honored the employee’s religious belief. Indeed, that much was obvious, since the employer had readily granted an accommodation to other employees.

All that was left to make out a constructive discharge case was for the EEOC to show that the employee was put in such an intolerable position that he had no choice but to quit. And the appeals court affirmed: Demanding that an employee use a scanner that he “sincerely believed would render him a follower of the Antichrist, ‘tormented with fire and brimstone,’” was objectively intolerable.

Consequently, the employer was left to pay nearly $600,000 in damages, and learned a costly lesson: Courts (and juries, it seems) are quite deferential to employees’ asserted religious beliefs. Rather than debate scripture with an employee, take it on faith that his views are sincere, regardless of whether you deem them theologically sound.

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DOL moves to hold appeal in abeyance and rescind ‘persuader’ rule

June 8th, 2017  |  Pamela Wolf  |  Add a Comment

The DOL has filed a motion in the Fifth Circuit to hold in abeyance its appeal of an injunction blocking implementation and enforcement of the so-called “persuader” rule. “The Department of Labor has initiated a new rulemaking process in which it proposes to rescind the rule,” according to the motion, which is opposed by the plaintiffs in the case.

The Labor Department previously sought and received two extensions of time within which to file its opening brief in its appeal of a Texas district court’s ruling that the DOL’s persuader rule is “defective to its core.” On November 16, 2016, in National Federation of Independent Business v. Perez, the court made permanent the preliminary injunction it issued on June 27, 2016, granting summary judgment to those who had challenged the rule, finding it unlawful and setting it aside.

The ruling blocks implementation and enforcement of the DOL’s “reinterpreted” advice exemption rule and its revised Forms LM-10 and LM-20, documents that must be filed when an employer engages a labor relations consultant to undertake efforts to persuade employees regarding whether to vote for union representation.

Appeal to Fifth Circuit. After final judgment was entered in December 2016, the DOL appealed to the Fifth Circuit in January 2017. The government’s opening brief was initially due April 17, but was extended to May 22, permitting the incoming Trump Administration time to get up to speed. On May 9, the DOL filed an unopposed motion for a 30-day extension. “The extension [was] necessary because the Acting Solicitor General, the Civil Division of the Department of Justice, and new leadership at the Department of Labor are engaged in ongoing consultations regarding this litigation,” according to that motion. “The government requires additional time to complete those consultations.”

On May 10, the Fifth Circuit granted the extension, moving the due date for DOL’s brief to June 16. The appeals court also made clear that no further extensions would be granted.

Rescinding the regulation. The DOL has apparently completed its consultations and decided to rescind the controversial regulation and is now asking the court to hold the case in abeyance, “with the parties to file motions to govern further proceedings at the end of six months, or 30 days after a final rule issues, whichever is sooner.”

“The Department of Labor has now considered the issues and determined that it wishes to engage in notice-and-comment rulemaking to revisit the rule at issue in this appeal” the DOL’s latest motion states. “Accordingly, the Department of Labor has drafted a notice of proposed rulemaking entitled ‘Rescission of Rule Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act,’ and submitted it to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget for review and approval.” The DOL said that it expects to publish the notice of proposed rulemaking in the Federal Register within the next several weeks, as it has requested expedited review.

The intervener states do not oppose the motion, but the private plaintiffs (the business groups that brought the challenge) do and intend to file their written opposition, according to the DOL.

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How to react to marijuana use by employees without getting sued

May 31st, 2017  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

According to the National Conference of State Legislatures (NCSL), 29 states, the District of Columbia, Guam, and Puerto Rico currently allow for the medical use of marijuana and have comprehensive programs providing protection from criminal penalties and, in some states, from employment discrimination. Other states have more limited laws, in terms of dosage, protections for medical use, or use with respect to only certain types of health conditions. (For recent proposals, see Eight of nine states appear to have approved marijuana-related ballot proposals.)

After reviewing many of these laws, as well as articles and court decisions discussing them, I concluded two things. First, courts and commentators alike seem overly fond of quoting from songs and movies themed around getting high. Second, there are a few trends in the laws and cases that can provide some guidance to employers. Most importantly, state medical marijuana laws generally do not relate directly to workplace drug testing and do not require employers to accommodate marijuana use on duty. In addition, state laws that prohibit discrimination based on after-hours marijuana use make exceptions where the level of THC (the active ingredient in marijuana) in the blood is high enough to impair an employee while at work.

The following examples from recent cases also provide guidance on typical claims, including: plain violations of a medical marijuana statute; disability discrimination; inconsistently enforced drug policies (allegedly due to age or race discrimination); and tort claims based on how a test is conducted (negligence) or based on the dissemination of results (defamation).

Violation of medical marijuana statute

Marijuana is still an illegal drug under the federal Controlled Substances Act, and the prior administration’s policy of letting state and local authorities address marijuana use may not be followed by the Trump administration. Nonetheless, more states have enacted laws authorizing the production, distribution, and possession (in small amounts) of marijuana for medical use and in some cases recreational use. Some states have laws that specifically prohibit employers from taking adverse employment actions based on employees’ use of medical marijuana (though, again, no state requires condoning the use, or being under the influence, while on duty). So how does a case based on a statutory violation look? Consider a recent case from Rhode Island.

After pondering the challenges posed by the legalization of marijuana, a Rhode Island superior court held that Darlington Fabrics violated the state’s Hawkins-Slater Act by refusing to hire an intern because she held a medical marijuana card. The statute, Section 21-28.6-4(d), states: “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” The applicant disclosed she had the card and said yes when asked if she currently used medical marijuana. She explained she was allergic to other painkillers and assured the employer she would not use marijuana at work or bring it to work, but she was denied the position. After finding that the Act provides for a private right of action, the court held that Darlington violated the law because it denied employment based on a belief that the applicant would not pass its drug screen. While the Act does not require an employer to accommodate medical use of marijuana in the workplace, the plaintiff was rejected for using marijuana outside the workplace. She was therefore granted summary judgment.

No preemption. It is worth noting that Darlington Fabrics also raised a preemption challenge to the Rhode Island law based on the federal Controlled Substance Act. Finding no preemption, the superior court explained that the purpose of the CSA, concerning the “illegal importation, manufacture, distribution, and possession and improper use of controlled substances,” was “quite distant from the realm of employment and anti-discrimination law.” It also pointed out that, when it comes to the use of medical marijuana, “Congress seems to want, as Justice Brandeis said, the States to be the laboratories of democracy” (Callaghan v. Darlington Fabrics, Corp.).

Disability discrimination

Medical marijuana cases also often feature claims employers used medicinal marijuana cards or use as a pretext for taking an adverse action based on the disability for which the employee was prescribed marijuana. In the Callaghan case above, the court also ruled that the plaintiff stated a claim of disability discrimination under state law, even though the employer claimed she never disclosed the condition for which she was prescribed marijuana (migraine headaches). The court found it undisputed the employer knew she was disabled—otherwise she would not have had a medical marijuana card.

Similarly, in a recent case out of the District of Columbia, a federal court refused to dismiss a discrimination claim by a medical marijuana user who was fired from his job at a supermarket after testing positive for marijuana. Although he might ultimately “face an uphill climb” in proving discrimination, the court found that he raised a plausible inference he was terminated because of his glaucoma (for which he was prescribed marijuana), rather than because of his positive drug screen, especially because he alleged another employee who tested positive for drugs was not fired (Coles v. Harris Teeter, LLC).

Again, keep in mind, it is okay to have workplace anti-drug policies and to prohibit the use of marijuana or being under its influence while working. Indeed, many of the state marijuana laws and several court decisions specifically provide that employers do not have to accommodate an individual’s medical marijuana use at work. It is the after-hours use that employers in medical marijuana states cannot use as a basis for termination or other adverse action.

Inconsistent enforcement of drug policy

And whatever you do, be consistent in enforcement; otherwise, your anti-drug policy may be considered a pretext. Realistically, the inconsistent enforcement of any employment policy that has an adverse effect on an individual or group of individuals is going to raise questions as to why. In the marijuana context, it is employers’ inconsistent enforcement of anti-drug or “zero tolerance” drug policies.

Consistent enforcement is not a problem. For example, a licensed medical marijuana caregiver caught up in a restaurant’s investigation of other employees for suspected drug dealing could not show the restaurant’s stated reason for firing her (she admitted giving medical marijuana to a coworker and a witness testified she sold drugs on the premises), alongside the others, was pretext for age discrimination under Michigan’s Elliott-Larsen Civil Rights Act. The federal court noted that the employee handbook strictly prohibited the “illegal use, sale, or possession of narcotics, drugs, or controlled substances while on the job or on Company property,” and despite the employee’s state medical marijuana card and license, marijuana remains illegal under federal law (Henry v. Outback Steakhouse of Florida, LLC).

In another case, an African-American truck driver who claimed he was not hired after he tested positive for marijuana had his Title VII race discrimination claim tossed because it was undisputed that the company did not hire individuals who test positive for marijuana, and he offered no evidence that the first test was unreliable or that a second drug test would have come out negative. Nor was the employer’s reporting the result to the state racially motivated because reports of positive results were made as a matter of routine, affirmed the Seventh Circuit (Turner v. Hirschbach Motor Lines). Likewise, a federal court in Pennsylvania found no evidence supporting federal and state-law race discrimination claims where an employer fired all eight employees who either failed or admitted that they would not pass a drug test. The employer investigated after a hotline call that specifically identified the plaintiff as having sold marijuana at work (Butler v. Arctic Glacier USA).

Tort claims

Any supervisor, decisionmaker, or individual who investigates suspected violations of a workplace drug-use policy should be trained on privacy-related claims such as false light and intrusion upon seclusion claims, as well as defamation, emotional distress, and other claims that can arise in this context. For example, a registered medical marijuana cardholder in California was fired by Kohl’s after he applied for workers’ comp and tested positive for marijuana. Although he told the HR director he was not under the influence at work and only used marijuana in connection with his anxiety diagnosis, she purportedly said, “You should have chosen a different medication.” He will take his defamation claim to trial based on Kohl’s statements in a termination form that he tested positive and violated three policies, including reporting to work in a condition unfit to perform his duties. Based on evidence that marijuana is detectable in urine for up to 30 days but impairment lasts only hours, and based on the employee’s declaration that he did not use the medicine within several days of working and had not used marijuana for several days before his injury, a jury could find he was not in an unfit condition or under the influence at work. It could also find that Kohl’s statements were made with a “reckless or wanton disregard for the truth” (Shepherd v. Kohl’s Department Stores, Inc.).

One interesting type of defamation claim, which an emerging majority of state courts appear to be rejecting, involves “compelled self-defamation”—meaning an individual would be forced to disclose why he or she left a prior position, even if the individual believed it was based on an erroneous positive drug result. A recent example of this comes from a case filed by a technician who worked for an Exxon contractor in Texas and who was put on “inactive” status after testing positive for marijuana. Though he prevailed before the appeals court on his compelled self-defamation, discrimination, and tort claims arising from that employment decision, the Texas Supreme Court reversed and rendered judgment for the defendants, holding that there is no claim for compelled self-defamation under Texas law.

The discrimination claim against the employer failed for lack of valid non-Hispanic comparators, and his tort claims against Exxon failed because the mere fact that Exxon had contractual substance abuse program requirements for the plaintiff’s employer did not establish the requisite control by Exxon over the third-party drug screening company used by the employer, nor was it evidence of tortious inference with employment (Exxon Mobil Corp. v. Rincones).

How to avoid getting sued . . . or at least liability

Based on the foregoing, there are a few points to keep in mind when trying to avoid liability:

  • Tailor your zero-tolerance policy to comply with laws applicable in your jurisdiction, focusing on promoting a safe, healthy, and productive work environment. Consider including an at-will disclaimer, details on the logistics of drug tests (where done; who pays), and a consent for the employer’s receipt of test results.
  • Prohibit only work conduct (e.g., being under the influence at work) and avoid penalizing lawful after-hours activity. (Note, however, that marijuana is still illegal under federal law, so a wrongful discharge claim under a state lawful activities statute may fail if “lawful” refers to federal law too. That was the result in Coats v. Dish Network, a Colorado case.)
  • Notify employees, through handbooks or policies, when drug tests may be required (e.g., workplace accidents, erratic behavior, or other reasonable, clearly defined grounds).
  • Be consistent in enforcing the drug policy and train supervisors to react consistently over time and as between employees. Require that decisionmakers have a legitimate business reason for any adverse action and insist that there be a solid basis for any conclusion that an employee has violated a drug policy (e.g., an admission or a positive test result).

One final recommendation is simply this: Hire an employment law expert to craft your policy and review the policy on an annual basis. Don’t wait until you are sued. There are simply too many changes in this area of law to be certain that a policy will be compliant from year to year. For example, there were changes to OSHA’s regulations on reporting injuries, including post-accident drug testing (which prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses) but those were delayed and the future of the rule is uncertain, given the Trump administration’s regulatory rollback. There is also a question as to whether the federal government will start to increase enforcement efforts with respect to the Controlled Substances Act.

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