Employer obligations to consider the use of medical marijuana as a reasonable accommodation just got murkier with a new case out of Delaware, Chance v. Kraft Heinz Foods Co., decided in December 2018.
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Oh, the Weather Outside is Frightful (I think I Need a Sick Day)!!
Whether you are looking out your window at the wonder of snow or trying to prognosticate when it will hit, one thing is for sure. If you are in a state with mandatory sick leave, employees may be invoking their right to no-questions-asked leave when you otherwise prohibit any excuses. Such “no excuse” policies are common during snow events at businesses that must provide service – hospitals, property management companies, no-stop assembly lines. Think patients to be cared for, sidewalks to be cleared, machines that will seize without humans.
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OSHA-Compliant Injury Reporting Policies
Several months ago, OSHA proposed to rescind part of its revised workplace injury and illness reporting rule, which was originally issued in May 2016. The rule contained controversial electronic reporting requirements, which OSHA proposes to rescind for the most part (as we discussed in our July 2018 E-Update). As I mentioned in a recent blog post, OSHA Pre-empts CBA Drug-Testing Provisions?, this action caused me to revisit some older guidance on compliance with the surviving aspects of the rule – including the prohibition on discouraging employees from reporting workplace injuries or illnesses.
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Is Equal Pay becoming the new #MeToo?
In the era of the #MeToo movement, it may be easy to overlook that equal pay is also having a moment. A huge moment. The federal Equal Pay Act (“EPA”) of 1963 requires “equal pay” for “equal work.” If the plaintiff shows a difference in pay for such work, the employer must prove the wage difference is due to a legitimate reason, which includes:
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DOL Provides Clarification on FLSA Tip Pooling Amendments
On April 9, 2018, the Department of Labor announced the issuance of a Field Assistance Bulletin clarifying the recent amendments to the tip pooling provisions of the Fair Labor Standards Act, which were incorporated in the omnibus budget bill that was passed by Congress on March 21, 2018. Additionally (but without fanfare), the DOL revised its Fact Sheet #15: “Tipped Employees Under the Fair Labor Standards Act (FLSA).” The Bulletin clarifies that employers who pay the full minimum wage to tipped employees may require their participation in tip pools that include workers who are not “customarily and regularly” tipped – an issue that had been subject to significant controversy.
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More On Maryland Earned Sick and Safe Leave – Enforcement Delay and Collective Bargaining Agreements
Today, January 23, 2018, Senator “Mac” Middleton filed a bill to postpone for 60 days the enforcement of Maryland’s new sick and safe leave (SSL) law by the state Commissioner of Labor and Industry. Given the law’s effective date of February 11, 2018, this means that enforcement would begin on April 12, 2018. We strongly note, however, that compliance – including the commencement of SSL accrual – is still required as of the February 11 effective date.
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The Federal Government Is Challenging State Legalization of Marijuana – What Does This Mean for Employers?
Only days after California started selling recreational pot, which had been legalized under state law, CNN reported that Attorney General Jeff Sessions will announce that he is rescinding Obama-era guidance that had set forth a policy of federal non-interference with state legalization laws. This action further complicates an already confusing situation for employers struggling with how to navigate the battling federal and state laws on the workplace impact of marijuana use.
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Lessons from Shake Shack: A Higher Minimum Wage = Loss of Jobs
This week, Shake Shack excitedly announced that it was implementing kiosk-only service at its newest NYC location, with an ostensible focus on digital innovation and improved customer experience. This means that, rather than interacting with a live cashier to place and pay for an order, the customer will use the kiosk to place an electronic order and use a credit card to pay for it. I don’t doubt that plenty of research has been done to establish that this will, in fact, increase efficiency, which is a good thing because, as I sadly know, those Shake Shack lines can be interminably long. I also am fine with the fact that I will no longer need to interact with cashiers who sometimes can be surly or incompetent (although, frankly, not usually at Shake Shack. I think their hiring practices and customer service training seem to be quite good.) But what this really means is that there are fewer jobs that will need to be performed by actual people. Who would otherwise get paid.
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The Value of Labor Goes Beyond Wages
Leaf raker, babysitter, waitress, retail salesperson, lawyer. I have had many jobs. Each has had value. Often, the pay and benefits did not match the value. When the value of the job exceeded the remuneration, I looked to find the next job.
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Do Employers Have to Provide Accommodations for Medical Marijuana Use?
The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use. (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users). However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke.
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