Tuesday, November 13, 2018

Does Pennsylvania's Medical Marijuana Act only protect status and not use?

Why is it so hard to write a clear and easy-to-understand statute? Pennsylvania has a fairly new Medical Marijuana Act (MMA). The statute protects "an individual who is certified to use medical marijuana."

I have heard, however, some conjecture that employers may still maintain zero tolerance policies and terminate employees (or rescind offers to applicants) based solely on a positive (for marijuana) drug test - even if the employee is an MMA cardholder. The gist of the argument is that the statute protects the employee's status as a MMA cardholder, but not their use of marijuana. Under the language of the statute, there's certainly some room for that argument:
(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana. 35 P.S. §  10231.2103(b)(1).
Emphasis on "solely" and status." But, that is tough to square with the next subsection of the statute:
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position. 35 P.S. §  10231.2103(b)(2).
Why would the legislature create these carve-outs - focusing on workplace use and impairment - if all use could be banned? It would render subsection (2) meaningless surplus, which we try to avoid in statutory construction.

I'm not aware of any Pennsylvania courts weighing in on this issue. But, a Connecticut federal court ruled on precisely this argument (under a very similar Connecticut medical marijuana law). Pardon the lengthy bloc quote, but it's right on point:
Defendant next argues that PUMA prohibits discrimination only on the basis of one's status as an approved medical marijuana patient but not on account of one's use of medical marijuana in accordance with a PUMA program. For this argument, defendant relies on the language of the statute that forbids an employer from refusing to hire someone "solely on the basis of such person's or employee's status as a qualifying patient." Conn. Gen. Stat. § 21a-408p(b)(3). But the language and purpose of the statute make clear that it protects employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA. Under defendant's restrictive interpretation of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana—the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense and would render the statute's protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.  
Moreover, the statute provides that "[n]othing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours." Ibid. By negative implication, this language makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.
Noffsinger v. SSC Niantic Op. Co., LLC, No. 3:16-cv-01938 (D. Conn., Sept. 5, 2018).

To be clear, in my humble opinion, this issue is not resolved under Pennsylvania law, but employers should tread carefully.


Wednesday, November 7, 2018

Ninth Circuit's Revenge: SCOTUS on ADEA definition of "employer"

The 6th, 7th, 8th, and 10th Circuits held one way . . . and then the 9th Circuit held another way, creating a circuit split. The Supreme Court granted certiorari, which means the 9th Circuit will surely get reversed right?

That would be the conventional wisdom. But, the 9th Circuit had the statutory text on its side.

The Supreme Court issued its first opinion of the term yesterday in Mount Lemon Fire Dist. v. Guido. The ADEA generally only covers employers with 20 or more employees, but does that 20-employee cutoff apply to state entities (including political subdivisions)? Let's go to the text of the ADEA:
The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .
In a unanimous opinion (minus Justice Kavanaugh, who was not yet on the Court when the case was argued), Justice Ginsburg focused on the text. In particular, the words, "also means." This suggests that the statute is creating additional categories aside from the 20-employee prelude. Thus, the Court held "state and local governments are “employer[s]” covered by the ADEA regardless of their size."

Tuesday, October 23, 2018

Job interviews and expunged criminal records in Pennsylvania

Pennsylvania law limits employers' use of criminal records:
Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied. 
18 Pa.C.S. § 9125.

What about an expunged record? The gist of expungement is that (in most cases) it is like the criminal conviction never happened. So, what about when an employer asks an applicant with an expunged record if (s)he has ever been convicted of a crime?

Well, technically, as a matter of historical fact the applicant has been convicted. But, as a matter of law, that conviction no longer really counts. It's a no-win situation for applicants:
  • Answer historically correct (disclose the expunged record) and the employer knows about the record (defeating the purpose of getting it expunged); or
  • Answer technically correct (no convictions) and the employer may find out about the expunged record and feel like the applicant was dishonest. 
An individual required or requested to provide information [about expunged convictions, outside of a few exceptions] may respond as if the offense did not occur.
18 Pa. C.S. ¶ 9122.5. The amendments appear to become effective on June 28, 2019.

In other words, Pennsylvania will have a statute stating that generally job applicants with an expunged record may respond "as if the offense did not occur." As always, detecting employer violations and enforcement will be challenging.

HT: Dan McKenrick, who gave a great presentation about the amendments at Centre County Bench Bar Day. 


Thursday, October 18, 2018

Has #MeToo had an impact?

We have some early indicators that the #MeToo movement has had an impact - not just culturally, but in the actual field of employment law. 

Here in the Third Circuit, the Court of Appeals specifically recognized the #MeToo movement while issuing a very employee-friendly take on the Faragher-Ellerth defense (effectively making it easier for plaintiffs to prevail).

Two weeks ago, the EEOC released its preliminary data on sexual harassment claims, and guess what? They saw a 12% increase in sexual harassment charges filed by employees, and the EEOC itself filed 50% more sexual harassment lawsuits. 

We should also keep an eye out for the EEOC's long-awaited harassment guidance

So, we have: 
  • more people coming forward to file claims; 
  • more enforcement actions from the EEOC; 
  • courts taking notice and issuing opinions that (arguably) make it easier for harassment plaintiffs to win in court; and
  • employers will get some guidance on how to address harassment (hopefully) soon. 
While we've seen lots of action, what we're still waiting for is results. Will these steps have the intended effect?

Wednesday, October 3, 2018

SCOTUS kicks off new season with ADEA case

On Monday, the Supreme Court kicked off its new season with only 8 Justices (with a 9th possibly, maybe, on the way). The Court heard oral arguments in Mt. Lemmon Fire Dist. v. Guido (transcript here). The case presents an interesting ADEA issue.

Generally, the ADEA covers employers with 20 or more employees. Does that 20-employee minimum apply to states (and their political subdivisions, agencies, and instrumentalities)? The statutory text:
The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year…. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
29 U.S.C. § 630(b).

Most circuit courts that have examined this issue have held that yes, the 20-employee minimum applies. So, that's where my money is on this case - but we'll see.

Mt. Lemmon Fire Dist. v. Guido SCOTUSblog page.

Tuesday, September 18, 2018

NLRB Proposes Rule for Joint-Employment

Not official use.
Sometimes, two distinct entities share a relationship with the same workers. For example, when you walk into a fast food place - those workers are most likely employed by the local franchise, not the big national fast food corporation. The big national, however, has *some* relationship with those employees. Is it enough to consider the big national their "employer" (a "joint employer")?

The NLRB has gone back and forth on the proper test for determining whether an entity is a joint employer. Last week, the NLRB announced a new proposed rule - hoping that following the rulemaking process will give this latest iteration a little more heft than the standards coming out of dueling NLRB opinions.

We're still waiting on the details, but the press release should give you an idea:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
The new rule would make entities less likely to be joint employers as compared to teh Obama-era standard.

Monday, August 20, 2018

PHRC: Pennsylvania law prohibits sexual orientation discrimination

Here in Pennsylvania, we have a workplace anti-discrimination law called the Pennsylvania Human Relations Act (PHRA). It's a lot like the federal laws (Title VII, ADA, ADEA). One notable distinction is that the PHRA applies to employers with 4 or more employees, whereas the federal antidiscrimination laws generally require 15 (20 for the ADEA). One similarity is that the PHRA prohibits "sex" discrimination but not expressly "sexual orientation" discrimination.

Well, the Pennsylvania Human Relations Commission recently issued some important guidance: PHRC Guidance on Discrimination on teh Basis of Sex Under the PHRA. A key takeaway:
The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.
The PHRC will accept complaints from people alleging discrimination on the basis of sexual orientation or gender identity/transition/expression. But, will evaluate them "using any and all legal theories available depending on the facts of the individual case."