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SHOULD EMPLOYERS CONSIDER DELETING POT FROM THEIR DRUG TESTS?

The U.S. is currently experiencing the tightest labor market in 17 years.  At the same time, marijuana is becoming more widely accepted in the U.S., as about two-thirds of Americans support its legalization.  More than half dozen states have legalized pot for recreational purposes, and 29 states have legalized it for medical purposes.  Employers do not screen applicants for alcohol, so in this type job market, some are asking why screen for pot?

Other considerations are involved.  Pot stays in one’s system for approximately a month, and thus a person may be disqualified from employment for minor recreational use some time ago.  Further, pot does not create the same dehabilitation features during work as does alcohol and many other drugs, but it does have other adverse effects on the body.

                                            

There are some countervailing considerations, however.  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, including marijuana.  Employers must still test for pot under Department of Transportation rules for those to which the rules apply.  Many are concerned because U.S. Attorney General Jeff Sessions rescinded the Obama-era policy that did not enforce federal drug laws in states in which pot was legalized.  U.S. attorneys thus can now bring drug cases in the 29 states where cannabis is legal, but most do not expect many of these cases to be brought.  In any event, the employment of pot users is not against the law, particularly if employers do not allow pot consumption on their premises.

There are special public relations issues, as most employers that have ceased testing for pot do so without fanfare.  AutoNation, for example, no longer refuses to hire applicants who test positive for marijuana in drug screenings, and they made the change silently two years ago.  AutoNation still rejects those who test positive for other illegal drugs.

EXEMPTIONS TO WAGE-HOUR LAW NO LONGER TO BE NARROWLY CONSTRUED

An April decision of the U.S. Supreme Court has important ramifications beyond its ruling pertaining to auto dealerships.  Encino Motor Cars, LLC v. Navarro, No. 16-1362 (U.S. 4/2/18).  The overtime rule exempts any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles, trucks or farm implements.  The lower court ruled that exemptions should not apply to the service advisor because they did not sell automobiles and did not engage in the manual labor of maintaining or repairing vehicles.  The employee argued that the exemption from overtime applied to those whose duties involved selling or servicing vehicles, even if they did not perform the manual tasks themselves.  The Obama Administration had supported their position on the issue.

In the current ruling, the Court objected to the narrow construction concept that exemptions should be narrowly construed in a way that provides the greatest possible benefit to a worker.  Justice Clarence Thomas, writing for the majority, stated: "We reject this principle as a useful guidepost for interpreting the FLSA."  Justice Thomas, joined by four other justices, ruled that exemptions in the wage-hour law were entitled a "fair reading."  Four justices dissented. 

This case is of great interest for two reasons.  First, it suggests that in the future, courts are likely to give broader interpretations to exemptions to the wage-hour rules.  Second, it shows the importance of newly-appointed Justice Gorsuch, who joined in the 5-4 majority ruling. 

In a related development, the federal government budget law signed March 23, 2018, includes a rider amending the wage-hour laws pertaining to tip-pooling arrangements.   A regulation had been proposed that allowed restaurants to require employees who directly earn tips to share them with workers who don’t.  The budget bill would prohibit employers, including managers and supervisors, from participating in the tip-pooling arrangements.  Questions still remain as to how this prohibition will apply to lead persons.  The original Obama-era rule asserted that tips are the property of employees who earn them, and the rider rescinds this rule and moots a December 2017 proposed rule that would have allowed broader tip pooling. 

EMPLOYER CAN PURSUE FRAUD CLAIM AGAINST UNDOCUMENTED WORKER

Undocumented workers generally have the right to bring lawsuits under the wage-hour and discrimination laws.  While their right to reinstatement and future pay may be limited because of the immigration laws, they generally are considered to have remedies nevertheless under these laws.  At the same time, when employers are sued, they in theory have the right to bring counter-suits or counter-claims.  One employer recently brought such a counter-claim of fraud based on the Plaintiff’s presentation of fake documents to gain employment.  Oxlaj v. Darby Road Pub. House & Rest., 2018 BL 86995, D.N.J., No. 2:16-cv-01180, 3/14/18.  

The court allowed a counter-claim to be made in this situation, in which the employer is seeking a return of monies the plaintiff received while working there.  It should be noted, however, that the case is in a preliminary stage, and this result is not a final ruling.

The concept of the case is extremely interesting because there are many other circumstances in which employers are plagued with "fake" applicants.  The applicant may be a union organizer, a reporter, a safety or animal rights activist, or various other types of persons seeking to gain employment for reasons unrelated to wanting the job.  The question is whether more employers will counter-sue for fraud or related claims in these circumstances. 

A great deal of caution is necessary because the retaliation laws may come into play.  That is, it is possible for a court to rule that a counter-suit is really retaliatory based on the bringing of the complaint against the employer.  On the other hand, the counter-suing employer may argue that certain counter-claims are mandatory or the employer is waiving its legal right to sue.  Obviously, these are complicated issues. 

TRUMP ISSUES EXECUTIVE ORDER TO IMPROVE ECONOMY BY GETTING PERSONS OFF WELFARE AND INTO EMPLOYMENT

The percentage of working-age Americans actually working has significantly dropped over the last 10 years.  At the same time, unemployment rates are dropping to a modern low, approximately 4%, and are expected to drop to around 3.5% over the next year.  America needs workers, and workers need jobs to improve their income and self-image. 

About 80% of federal government agricultural expenses go for food stamps, and in 2017 the federal government alone spent more than $700 billion on low-income assistance.  In comparison, federal spending was only about $545 billion for defense and $725 billion for Social Security.  Almost 110 million Americans received some sort of low-income welfare in 2011.  In contrast, during that same time period, there were only about 106 million Americans working full-time. 

The last major effort at welfare reform was enacted in 1996, and promoted by President Bill Clinton.  More recent favorable results are shown by the experience in Kansas.  A foundation reported that Kansas tracked 6,000 families who moved off welfare and went to work in 600 different industries, and incomes on average more than doubled over a year.

Some oppose welfare reform because they say any recipients already work or such reforms would hurt low-income individuals.  Others say those who stopped receiving welfare benefits because of a work requirement either have refused to work or train for work or no longer need assistance, the latter being a real success story.

Welfare programs can include a combination of food stamps, housing support, child care, Medicaid and other benefits.  Currently, the food stamp program has work requirements for most able-bodied people aged 18-49, but there are many exemptions and waivers operable in various states.  Under Congressional proposals in the farm bill, able-bodied adults between and 18 and retirement, without young children, would have to work to be eligible for food stamps or in the alternative would be required to take a minimum of 20 hours a week of new job training classes.  Some half-dozen states have already instituted work requirements for the receipt of Medicaid benefits.

More recently, on April 10, 2018, President Trump signed an executive order with the theme of "reducing poverty in America by promoting opportunity and economic mobility."  Among other things, the federal government would enforce welfare work requirements that are already required by law.  States and localities would be given flexibility to create, revise and evaluate innovative programs to get people off welfare and into employment, and the relevant agencies would establish metrics that measure outcomes so that the agencies administering welfare programs can be held accountable.  There would be a clearing house so that the agencies could evaluate successes of such reforms as well as failures, and certain information would be available to the states and localities that can benefit and adopt best practices.  Agencies would be required to view their programs not currently requiring work for receipt of benefits or services to determine whether enforcement of a work requirement would be appropriate.  Initial steps are supposed to be taken by the agencies within 90 days of the executive order.


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