The U.S. Court of Appeals for the Ninth Circuit has a reputation as an employee-friendly forum.  Yet that Court recently rendered a decision that employers should applaud.  In Carlson v. Charter Communications, LLC, the Ninth Circuit refused to revive a former employee’s lawsuit against his employer in which he alleged that he was wrongfully terminated due to his legal use of medical marijuana.  Interestingly, the panel of the Court that issued the decision consisted of two judges appointed by Presidents Clinton and Obama and one judge appointed by President George W. Bush.  The case involved a Montana statute known as the Montana Marijuana Act, which allows patients with state-issued medical marijuana program cards to have a certain amount of marijuana in their possession. Continue Reading Employers Tread Carefully!  The Interplay between Federal and State Laws Regarding Medical Marijuana Usage

A recent case highlighted a important point under the Americans with Disabilities Act that is often overlooked – reasonable accommodations are not limited only to enabling employees with disabilities to perform the essential functions of their jobs! They must also be provided to allow those employees to enjoy privileges and benefits of employment equal to non-disabled employees! Continue Reading Reasonable Accommodations – Not Just for Essential Functions!

We’ve talked about this before.  There is an ongoing tension between state laws decriminalizing or legalizing marijuana for medicinal purposes and federal law, under which marijuana is still classified as an illegal Schedule I Controlled Dangerous Substance.  Back in July, we wrote in our blog that the FDA had recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  As we stated in that blog post, this approval by the FDA did not necessarily signify that the federal government would soon reclassify marijuana, removing it from the list of Schedule 1 drugs because it has a medical purpose. Continue Reading Upon Further Review:  The DEA Legalizes a Marijuana-Derived Drug

It has become an all too familiar story in this age of #MeToo (although this one has a twist, as you’ll see below): a supervisor using managerial authority to pressure a subordinate to give sexual favors. In this story, the employee claims the pressure started at hire, involved the supervisor demanding attention, favors, gifts and even food then escalating to demands for sex in the office. The employee needed the job and ultimately concluded that sex was the only performance metric that mattered because the clear implication was that the supervisor would ruin the employee if the employee did not comply. Continue Reading What, #MeToo???

Before I became a lawyer or even considered the profession, I was a waitress. I also was a feminist.  I was 18 and working at a restaurant In Providence RI.  Ronnie’s Rascal House!  One of the line cooks constantly called me “honey, baby and sweetie.”  Every time I put an order check on the wheel and spun it to him into the kitchen, he said it. One day I had had enough and I said, “I am not your honey or baby or sweetie.”  I snapped those words. He looked at me stunned and said, “I am sorry. I had no idea.”  After that we became very good friends. Continue Reading You Have To Believe It To See It!

Finally! The new Family and Medical Leave Act (FMLA) forms and notices are here!

As FMLA-covered employers sadly know, the FMLA requires employers to provide certain very detailed notices to employees requesting FMLA. In addition, employers may request only very specific and limited information from employees and their (or their family member’s) health care providers. The Department of Labor provides model FMLA forms and notices that meet the FMLA’s requirements on its website. Continue Reading Time to Update Those FMLA Forms!!!

A recent case brought something to my attention that I had not focused on before. As noted by the U.S. District Court for the District of New Jersey in Vodopivec v. Anthony’s LLC, Section 1981’s specific prohibition on “race discrimination” encompasses more than just the traditional notions of race – it also includes ancestry and ethnicity! But not national origin. What?!!! Continue Reading Race Discrimination Under Section 1981 – The Lines Are Blurred

In light of the Occupational Safety and Health Administration’s recent announcement of a Notice of Proposed Rulemaking to rescind the majority of its controversial electronic reporting requirements (which we discussed in our July 2018 E-Update), I decided to review some previous guidance on these requirements (yes, because I am that much of a nerd). The requirements had been imposed through a final rule issued in 2016, which also sought to provide additional protections to workers for reporting work-related illnesses and injuries – specifically targeting safety incentive programs and drug-testing programs. I was shocked to realize that OSHA asserts that post-incident drug-testing of employees pursuant to a collective bargaining agreement violates the Occupational Safety and Health Act! Continue Reading OSHA Pre-empts CBA Drug-Testing Provisions?

Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination. Continue Reading Another Misleading EEOC Press Release on the ADA…

Back in 2016, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which Shawe Rosenthal is a member, we filed suit against the U.S. Department of Labor to block the DOL’s new interpretation of the “persuader rule,” which is the advice exemption of the Labor Management Reporting and Disclosure Act (“LMRDA”). Several other suits were filed as well, a nationwide injunction was issued by a federal court in Texas, the DOL issued a proposed rule to rescind the new interpretation, and now, repeatedly citing the favorable decisions in our lawsuit and directly quoting the comments to the DOL’s proposed rule we submitted on behalf of Worklaw, the DOL has officially rescinded the rule. Continue Reading We Sued the DOL, and the DOL Blinked