Management Update Newsletter

Volume 7, Issue 10

October 2018

Employment Drug Testing Policies: Up in Smoke?

As state laws on marijuana use continue to change, employers are left wondering how such laws may affect their workplace drug-testing policies.

While marijuana remains illegal under federal law, recent news from Washington indicates that President Trump may eventually abandon his administration's previous anti-marijuana stance and instead let states decide whether to legalize the drug.

Currently, more than 30 states have passed laws authorizing (to varying degrees) the use of marijuana for medical purposes; the District of Columbia and nine states have laws allowing the recreational use of marijuana, including Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington. In addition, some states now prohibit discrimination against employees that have and use medical marijuana registration cards. In light of these contradictions between federal and state laws, it is easy to see why employers have questions. Continue reading.

After A Nine Year Hiatus, The DOL Issues Two New FMLA Opinion Letters

The Department of Labor last issued an FMLA opinion letter in January of 2009, that is, until August 28, 2018, the day that the DOL issued two new Opinion letters dealing with the FMLA. As we have discussed in the past, when a regulatory agency issues an Opinion Letter or Guidance, it behooves us to take heed. They are the agencies' way of telling us how they are going to construe the laws that they enforce. And, although such Letters and Guidance are not binding on civil courts, the courts often refer to them in their opinions. Continue reading.

Ninth Circuit Reverses Lower Court Decision In Uber Misclassification Case

The Ninth Circuit Court of Appeals gave Uber a major win on September 25, 2018 when it dismantled a class of Uber drivers alleging they were misclassified as independent contractors. Uber had previously requested that the lawsuit be thrown out because its driver agreement requires that this type of dispute be handled with private arbitration. In its ruling, the Ninth Circuit Court cited a Supreme Court ruling that held that federal labor law did not preempt arbitration agreements. The ruling means that the drivers will have to undergo individual arbitrations with Uber.

Walmart Will Not Be Held Liable After Employee Sexually Assaults Co-Worker

A California state appeals court has ruled that Walmart cannot be held liable for a sexual assault an employee committed against a co-worker. The victim, who filed the case under the name Jane Doe, failed to prove that Walmart was responsible for the attacker's actions. The attacker was convicted and sentenced to 35 years to life in prison. According to the court, an employer can be held liable for negligently hiring or retaining an employee who poses a risk to their co-workers. In Doe's case, the attack occurred in the parking lot as she was leaving for the day. The assailant attacked Doe because she had rejected his amorous advances earlier in the day, which the court said was not connected to their work. Walmart was unaware of two robbery convictions decades earlier and the attacker had been disciplined once by Walmart for a rude comment to a customer. Importantly, the court held that employers don't have a duty to warn employees of a co-worker's past wrongdoing, and Walmart could not have foreseen sexual assault in light of the employee's record.