Today, Massachusetts started retail sales of marijuana at two locations. Perhaps no location is closer to the population centers of Connecticut than Northampton — just 30 miles up the road from Enfield.  It’s the first store east of the Mississippi River.

And lest you think that this is a Massachusetts-only affair, you need only watch the news reports from today to understand that there are plenty of Connecticut residents lining up seeking to avoid the restrictions in place in the Constitution State.   And Governor-Elect Lamont has indicated he’s in favor of it. 

This is going to cause headaches and some choices for employers in Connecticut.

Small amounts of marijuana have been de-criminalized in Connecticut but recreational use and possession is still prohibited. Moreover, employers are still free to discipline employees for recreational use on the job or even off.

But Connecticut has, for several years now, permitted medical marijuana users (who have registered with the state) to have some limited job protections.  On-the-job marijuana use can still be prohibited as well as showing up under the influence.

The City of Waterbury recently announced a policy that testing positive for any amount of marijuana may subject employees to discipline.  As a news article notes, that policy is likely to be challenged in arbitration and the courts.  

So what can a private employer do when it drug tests employees in Connecticut and the results show up as “positive” for marijuana? Well, employers are going to first want to know if the employee is a medical marijuana patient, in which case further inquiries may be needed.  Otherwise, the employer may have the ability to still discipline or terminate that employee’s employment.

Beyond the “Can We Fire…” question, the newer question is going to be “Should We Fire….”

With legal sales just miles away from employers here, the line as to what should be permitted or not gets, if you permit the pun, hazier and hazier.  No doubt, some employers are going to try to draw lines in the sand and say that any drug use is not permitted — particularly if there are additional legal obligations that they need to follow. But some others may have a more permissive attitude and treat marijuana use as they do alcohol use — it’s fine so long as it doesn’t impact work and so long as it isn’t done at work.

The start of retail sales in Massachusetts is not the end of the story here; Connecticut may very well start to reconsider its own laws now that one New England state has taken the plunge. Regardless, employers should continue to talk with their counsel to navigate this ever-changing area of law.

Many states have approved the use of medical marijuana, despite the fact that the federal government continues to classify marijuana as a Schedule I controlled substance.  As a result there is a tension between state rights to use medical marijuana and federal law prohibiting its possession.  The Massachusetts Supreme Judicial Court had an opportunity to determine how to balance the rights of an employee who had been prescribed and was taking medical marijuana for Crohn’s Disease versus the employer’s interest in complying with federal law and maintaining a drug free work place.  The Court found that the employee had sufficiently alleged that she was a qualified individual with a disability who was entitled to a reasonable accommodation related to use of medical marijuana.  As a result, her firing after testing positive could be challenged and she could pursue a disability discrimination claim under state law.

As part of the hiring process, a new employee was required to take a drug test.  She immediately explained to her supervisor that she suffered from Crohn’s disease and she had been prescribed and was using medical marijuana which was improving her appetite and allowing her to stabilize her weight.  She said that she did not take it before work or during working hours, but that if tested, she would test positive.  After being tested and getting a positive result, the human resource administrator called and fired her.  When the employee tried to explain the she had a prescription, the administrator told her that the company follows federal law, not state law.

The employee ultimately sued in state court claiming that she was being discriminated against because of her disability and that the company had failed to accommodate her disability. Continue Reading Employer’s Defense Goes Up In Smoke

generalassemblyThe dust has finally settled from the close of the Connecticut General Assembly on Wednesday.  And it’s time to take a look at the last few days to see what employment law bills passed.

(I’ll tackle the changes that have been made to the CHRO in a post later today.)

As I’ve noted in prior posts (here, here and here), several employment law-related bills had already passed including: a bill regarding online privacy rights of employees (signed by Governor); a bill allowing double damages in wage/hour cases awaiting Governor’s signature); a bill protecting interns from discrimination and harassment (same); and a bill introducing labor history into school curriculum (same).

In the last days, however, a closely-watched bill that prohibits employers from enacting rules that prevent employees from sharing information about their wages, passed. It also awaits the Governor’s signature.

The bill has been amended since it was first introduced but still places additional restrictions on employers. As a result, employers should consider updating their policies and revisiting their approach to salary discussions.

As recapped by the General Assembly, the bill accomplishes the following:

This bill prohibits employers, including the state and municipalities, from taking certain steps to limit their employees’ ability to share information about their wages. Under the bill, such sharing consists of employees under the same employer (1) disclosing or discussing the amount of their own wages or other employees’ voluntarily disclosed wages or (2) asking about other employees’ wages. Specifically, the bill bans employers from (1) prohibiting their employees from such sharing; (2) requiring employees to sign a waiver or document that denies their right to such sharing; and (3) discharging, disciplining, discriminating or retaliating against, or otherwise penalizing employees for such sharing.

The bill allows employees to bring a lawsuit to redress a violation of its provisions in any court of competent jurisdiction. The suit must be brought within two years after an alleged violation. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.

The amendment to the bill that was passed limits an employee’s sharing of another employee’s wage information to information that (1) is about another of the employer’s employees and (2) was voluntarily disclosed by the other employee.

I’ve noted before that I think many of the provisions are duplicative of federal law and a concern that there isn’t a big public policy need to create a new cause of action here.

But it’s a bit too late for that. The Governor proposed this bill so he is very likely to sign it.  The provisions go into effect on July 1, 2015.  (Contrast that with other bills that go into effect on October 1, 2015.)

Another bill that passed in the closing days was House Bill 6707 which allows employers to fire employees for failing some off-duty drug tests without impacting their unemployment rating.  It awaits the Governor’s signature.  As recapped by the General Assembly:

This bill expands the circumstances under which a private-sector employer can discharge or suspend an employee without affecting the employer’s unemployment taxes. It creates a “non-charge” against an employer’s experience rate for employees discharged or suspended because they failed a drug or alcohol test while off duty and subsequently lost a driver’s license needed to perform the work for which they had been hired. (The law disqualifies a person from operating a commercial motor vehicle for one year if he or she is convicted of driving under the influence (DUI.)) In effect, this allows the discharged or suspended employee to collect unemployment benefits without increasing the employer’s unemployment taxes.

Several other bills failed in the final days including a low wage penalty, paid family & medical leave, a minimum work week for janitors, limits on criminal background checks and on credit reports,

Overall, it was a busy year for the legislature. For employers, the next few months should keep you busy with a review of your existing policies and procedures to ensure compliance with these new laws.

The Connecticut Appellate Court released three significant employment law decisions on Monday — one of the busiest days in recent memory for the court.

For employers, the cases are a mixed bag but do provide some useful practice pointers.

City Sheriff Was Not an “Employee” Entitled to Statutory Protection 

In Young v. Bridgeport, the Court ruled that a plaintiff could not proceed with his whistle-blower retaliation claims because he was an independent contractor, and not an employee. Because only “employees” can bring a cause of action under Conn. Gen. Stat. 31-51m and 31-51q (claims for whistle blowing and free speech protection), the court lacked jurisdiction over the claim.

So what was the Plaintiff’s position? He was a City sheriff, elected to hold office for a term of two years, and had held the position for approximately 18 years.  Notably, City sheriffs have no affirmative duties, have no scheduled work hours or office space in a city building, but may serve process on behalf of the city, private entities or even individuals.  This, in the court’s view, was not enough to satisfy the employee-control test outlined by the Court in 2004 in the Nationwide Mutual Ins. Co. v. Allen case.

For employers, it’s another reminder of the importance of clear rules of who is an employee and who is an independent contractor.  It can be the difference between a claim going forward and a claim being dismissed.

Failure to Return Personnel Belongings Promptly May Be Retaliatory

In Eagen v. CHRO, an UConn attorney who specialized in labor & employment law, unsuccessfully appealed a finding that he had retaliated against a former university laboratory animal veterinarian for whistle blowing activities.  For me, the most notable part is that the veterinarian’s name is — get this — “Daniel Schwartz”.  (To be perfectly clear, that is an entirely different Dan Schwartz and has no relation to me.) But of course, there’s more to the case than the name.

It’s an unusual decision.  At the CHRO, a Human Rights Referee awarded Schwartz $5000 in emotional distress damages for the attorney’s actions in failing to return all of Schwartz’ personal belongings following termination.   The court said that failure to return the belongings could be seen as being an “personnel action”, which the court interpreted as the same as an “employment action”.

For employers, this case has some significant implications if the logic is upheld. Typically, the employee’s employment termination will “end” the type of actions that can be viewed by an employer as retaliatory.  But here, the Court suggested that the failure to return personnel belongings could be viewed as retaliation for the actions of the employee and that it may have a chilling effect on other whistle-blowers.

Look to the “Adverse Employment Action” Date to Determine if Employee is “Qualified Individual”

Lastly, but perhaps just as significantly, the Court decided Tomick v. UPS upholding most of a $500K+ verdict against the employer but also sending part of the case back for further consideration.   The case has a long and tortured history and also a complicated background.  Frankly, it’s a mess try to briefly recap in a blog post.

Among the issues the court decided was whether an employer’s request of an employee to take a drug test without reasonable suspicion violates Connecticut’s drug testing statute, regardless of whether the employee actually takes the test.  The Court concluded that the mere fact that the request was made was sufficient to give rise to a claim, at least given the circumstances of the case.

The court also answered a question that has been out there on disability discrimination cases. Someone has to be a “qualified individual” in order to fall within the the state’s disability anti-discrimination laws.  But what is the proper  date for making that determination.  The employer argued that the relevant date is the date of the adverse employment action, not the date when the termination process occurred or began.  The court agreed.  Notably and by contrast, when evaluating a claim of negligent infliction of emotional distress, the relevant inquiry is whether the employer’s conduct was unreasonable during the “termination process.”  On this issue, the Court remanded the case back to the Superior Court for further findings.

The court also examined attorneys’ fees and emotional distress damages and upheld them as well.

For employers, the case emphasizes the need of employers to seek legal counsel the instant an employment situation seems complicated.  The facts of this case show things moving at a rapid pace.  In addition, it’s important for employers to consider the termination process as well; be fair and respectful to avoid possible “emotional distress” claims later on.