In a speech given on October 17, acting Immigration and Customs Enforcement ("ICE") Director Tom Human stated that he has instructed Homeland Security Investigations, the investigative unit of ICE, to quadruple worksite enforcement actions next year, referring to the next fiscal year beginning October 1, 2018. He also stated that "not only are we going to prosecute the employers that hire illegal workers, we’re going to detain and remove the illegal alien workers."
While Congress could not legislatively repeal or even modify the Affordable Care Act ("ACA"), President Trump is moving to make significant changes in it administratively through the executive power. The Executive Order issued on October 12, 2017 instructs federal agencies to lay the groundwork for allowing less-expensive insurance plans with fewer benefits under certain circumstances, and to foster competition in the individual insurance markets. While the previous administration had allowed certain short-term insurance to provide limited coverage, the limits will be lifted under the programs envisioned by the Executive Order and will seek to expand ways in which workers can use employer-funded accounts to buy their own policies. Plans may also be developed to let small businesses and possibly individuals ban together to buy insurance that is cheaper but less extensive. The new health plan concepts would not be subject to as many restrictions. Other possible executive action changes have been announced that would include the discontinuance or reduction in certain health care subsidies that were not a part of the ACA, but that the Obama Administration nevertheless funded without Congressional approval. A federal district court judge had ruled that the subsidies were illegal but did not enjoin them. At the same time, the Trump Administration is considering certain legislative proposals that would preserve the payments to insurers while allowing for an Administration proposal to give states more flexibility in implementing the ACA. As this newsletter is going to press, reports indicate that a bipartisan group of senators are close to an agreement to preserve for two years the insurance subsidy payments made to help offset consumers’ out-of-pocket costs, while allowing flexible new provisions enabling more people to buy less comprehensive plans with higher deductibles but lower premiums, and also making it easier for states to get waivers from the ACA requirements.
With the growth in the use of medical marijuana and the continuing expansion of synthetic drugs, traditional employer drug-testing policies may need review. Let’s take the pot issue first.
Medical marijuana is now legal in 29 states, but federal law still considers marijuana a Class One drug under Schedule I of the Controlled Substances Act, along with other drugs on this list like heroine and LSD. How does an employer reconcile its drug-testing policies with these potentially inconsistent government policies? Further, what about the Americans’ with Disabilities Act ("ADA"), which requires an employer to accommodate an employee with a disability. And what about the employee at work who is using medical marijuana, should he or she report the use and ask for an accommodation, or in doing so, is the employee risking termination? And what about the situation with union contracts, which require "just cause" for termination?
Further complicating the issue is the fact that very few court cases address and resolve these issues. Nevertheless, let’s review the status of the pending cases and what guidance they provide for answers to the above questions. In the court cases or decisions that have addressed these issues, results are generally supportive of employers. Employers are generally allowed to prohibit marijuana use and impairment in the workplace. Further, if a significant portion of the employer’s business comes from federal contracts, the employers are subject to the Drug-Free Workplace Act of 1988, which requires such employers to prohibit employees from engaging in the unlawful possession or use of any controlled substance. Because marijuana is a "controlled substance" under federal law, federal contractors must comply with the federal law if they wish to continue to accept federal government contracts. Regarding the potential applicability of the ADA, no court has held that the ADA requires an employer to accommodate an employee who uses a drug like marijuana that is illegal under federal law. Similarly, labor arbitrators allow employers to discipline or discharge workers who test positive for marijuana, on the same basis that an employer should be allowed to prohibit a drug that is illegal under federal law.
In an important ruling in July of this year, the Massachusetts Supreme Judicial Court addressed an employee who was fired after telling her employer about her legal marijuana use to treat Crohn’s Disease. The court ruled that the plaintiff raised a potential disability discrimination claim under state law, rejecting the employer’s motion to dismiss the claim. The ruling is not considered a final one, however, but it tends to encourage potential plaintiffs who have experienced adverse employment actions because of their use of medical marijuana under the state laws of certain states. A few states, like Nevada, specifically require employers to accommodate medical marijuana users.
The legal issues are particularly controversial when there is no evidence that the prohibited marijuana use has created an impairment. Showing impairment from marijuana is very difficult if not impossible, since marijuana can be detected in an individual’s system as many as 30 days after usage, and there is currently no reliable test to determine if an individual is impaired by THC, the active chemical in marijuana.
In spite of these uncertainties, most of the case law supports the right of employers to discipline or terminate employees who test positive for marijuana. This conclusion also suggests that employees who disclose their use of medicinal marijuana to their employer are not immune from discipline if they subsequently are chosen for a drug test.
Some employers are reassessing their drug-testing for marijuana. Some medical tests have shown that marijuana is not as debilitating in terms of affecting skills such as driving an automobile, and most believe marijuana is not as dangerous as many other drugs. Further, marijuana remains in the system for such a long period of time and there is no consensus on the level of THC to warrant a positive drug test, so some employers are giving consideration to deleting marijuana from the list of drugs for which drug-testing is conducted. The scarcity of job applicants adds to this concern.
Another factor is the expanding use of so-called synthetic marijuana, popularly known in some circles as "spice." Synthetic marijuana is not prohibited by law in many areas, and reportedly only a few laboratories can even test for it and that at great expense. The entire area of synthetic drugs has created enormous practical as well as legal issues for employers, and indeed for everyone. That is, the challenges that employers and law enforcement officials face include detecting use of many impairing synthetic drugs that are not included under most drug-testing programs and, indeed, not even declared illegal. Reports suggest that foreign manufacturers, particularly in Mexico and China, try to modify synthetic drugs so that the substances no longer test as illegal and also allegedly to make them even more addictive, and thus increase sales. These synthetic drugs are often much stronger than the regular illegal drugs and often cause more adverse side effects. There are no easy solutions to these problems.
Employers often complain about so-called "ambulance chasing" plaintiffs’ lawyers. In a recent ruling, a federal judge in Pennsylvania chastised a plaintiffs’ law firm about its solicitation efforts and set forth guidelines about accuracy and honesty in efforts to recruit clients to join in a class action as plaintiffs. Katz v. DNC Servs. Corp., No. 2:16-cv-05800 (E.D. Pa.) (motion to strike consent forms granted 9/28/17). The case was a wage-hour claim brought by a group of former Democratic Party organizers suing the Pennsylvania Democratic Party for overtime pay. One of the statements struck down by the judge as objectionable said: "If you do not join, you will not be entitled to and will not be able to receive any money in this lawsuit as a result of any federal wage violations committed by the DNC or the state Democratic parties." The judge found the sentence did not make it clear that someone who doesn’t join the action could still have separate counsel and file a separate lawsuit. The case also illustrates how a judge can supervise notification of the information provided to class or collective action members. The judge said he required a provision to avoid "unbalanced and misleading statements" to people who may be solicited to join the case.
In September, a federal judge ruled that the Equal Employment Opportunity Commission ("EEOC") must pay an employer almost $2 million in legal fees for pursing class sexual harassment claims against a company that it knew or should have known were frivolous. EEOC v. SRST Van Expedited, Inc., No. 07-CV-95 (N.D. Iowa, 9/22/17). The EEOC had claimed that the company had engaged in the pattern or practice of discrimination against female truck drivers and trainees who were sexually harassed. The judge making the award rejected the EEOC’s argument that claims against the employer did not have the sufficient "preclusive" effect on potential future legal action by the agency against the company for it to be deemed the prevailing party under Title VII. However, the judge did reduce a previous award from approximately $4.5 million because not all of the EEOC claims were deemed frivolous.
OSHA released its list in September of the 10 most commonly cited safety violations. The preliminary Top 10 most-cited violations for 2017 are as follows: (1) fall protection at 6,072 violations (29 C.F.R. 1926.501); (2) hazard communication at 4,176 violations (29 C.F.R. 1910. 1200); (3) scaffolding at 3,288 violations (29 C.F.R. 1926.451); (4) respiratory protection at 3,097 violations (29 C.F.R. 1910.134); (5) lockout/tagout at 2,877 violations (29 C.F.R. 1910.147); (6) ladders at 2,241 violations (29 C.F.R. 1926.1053); (7) powered industrial trucks at 2,162 violations (29 C.F.R. 1910.178); (8) machine guarding at 1,933 violations (29 C.F.R. 1910.212); (9) fall protection training at 1,532 violations (29 C.F.R. 503); and (10) electrical wiring methods at 1,405 violations (29 C.F.R. 1910.305).
In a long-standing saga, Southern auto workers have again rejected the United Auto Workers Union, this time after a 12-year campaign to organize the Nissan plant in Canton, Mississippi. The vote was 2,244 to 1,307 against the union on August 3-4. The union supporters thought they had certain demographics in their favor, since 80% of the Nissan workforce is African-American, and data shows that African-American workers are more likely to vote for a union than others. Further, the union hoped to capitalize on certain second-tier status given certain workers progressing from temp status to regular status. The union had attempted to convince Nissan to remain neutral, as Volkswagen has agreed to in an election several years ago in Chattanooga (which the UAW also lost).
The union used as a campaign slogan "workers’ rights are civil rights" and brought in well-known speakers such as Senator Bernie Sanders and actor Danny Glover. The union also through certain preachers and civil rights leaders challenged Nissan for a meeting for a "fair and free" election, but the company did not respond. The company not only ran a strong anti-union campaign, but had a lot of support from the business committee and Mississippi political leaders. The Chamber of Commerce took out certain local media ads, and the governor issued an anti-union message. The company played anti-union videos in the plant and supervisors enlisted support for the company.
A union committee person said that the union filed for the election with less than half of the workers having signed union cards, which is fairly unusual for a union, apparently because the campaign had been going on for so long. The union had difficulty soliciting support in the plant because reportedly its in-plant organizing committee was not as large or effective as normal. Further, the union had difficulty figuring out who were eligible voters as temp agencies reportedly account for as much as 40% of the 6,400 workers. In-plant organizing committee members try to have one-on-one conversations with as many eligible voters as possible urging their support for the union.
After the election, the UAW president, apparently looking for a scapegoat, blamed the loss on a scandal that broke before the election where a union vice president was charged with taking bribes from Chrysler. Reports from the Nissan plant, however, suggest that the indictment was not a major campaign issue, and that many workers voted against the union in a fear of "rocking the boat" and risk losing their high-paying jobs that exceeded most every other similar job in their community.
Union supporters claim that rumors circulated that Nissan’s favorable program of leasing cars to employees having little credit at below-market rates would end under a union contract. One worker described a "three-bag" demonstration at an anti-union company meeting. One bag said "Nissan," another said "Employee," and another said "Union." Nissan speakers explained that Nissan comes to the table with everything in their bag, and the employees come and get some from the Nissan bag. But the union comes in empty-handed and has to fill up its bag from the employee bag.