What Happens When The Feds Decide To Enforce Marijuana Laws? Preparing For The Trumpocalypse Part II

While four more states legalized marijuana for recreational use and four passed medical marijuana laws, meaning a majority of states now have some form of legal marijuana, it looks like the Trump administration may step up enforcement on the federal level. What does this mean for workers who need marijuana for disabilities? Nothing good.

So far, seven states have passed laws banning discrimination against medical marijuana users in the workplace. However, states that have laws prohibiting discrimination against employees for engaging in legal off duty activities have pretty much universally decided that, since marijuana is still illegal on the federal level, using it even with a prescription still isn't a legal off duty activity. The Americans With Disabilities Act still doesn't cover medical marijuana as a reasonable accommodation due to its illegality on the federal level.

While it has been looking like the feds were not going to enforce marijuana laws and therefore states with legalized marijuana were on their own to decide how to regulate pot use, it now looks like that may be reversed under Trump. This will embolden employers who want to crack down on employees who use medical marijuana.

If you think you can use marijuana in your state and not be fired, even with a prescription, you might want to wait and see how things fall out with the Trump administration.

Another issue with stepped up enforcement will be whether you can be fired for an arrest or a conviction. In most states you can. Plus, in most states employers can refuse to hire you with a record. This means that even in states that have laws against discriminating against medical marijuana users, you may be out of luck if you are arrested by the feds for your prescription.

Then, of course, there's the issue of prison, which obviously is a major concern. All of this is pretty terrible news for folks with cancer, multiple sclerosis, HIV, seizure disorders, Crohn's disease, epilepsy, concussion, Alzheimer's, bipolar disorder and other conditions that are helped by marijuana.

Bottom line is you'll have to wait and see what the Trump administration decides to do about marijuana before you get too comfortable using it for medical or recreational purposes.

Next time, vote better.

Preparing Yourself For The End of ObamaCare (Bracing for the Trumpocalypse Part I)

Well, Donald Trump is our President-elect. He has made a cascade of promises throughout the campaign, and many of them will affect the workplace. First up will be the repeal of the Affordable Care Act. That seems to be Republican priority number one. With control of the House, the Senate, the Presidency and soon the Supreme Court, they will get to do whatever they want for at least two years. So this is happening.

I'm going to write about all the laws/executive orders that will be affected by this so you can start to protect your family and yourself from economic disaster.

If you have a preexisting condition, it was ObamaCare that made it illegal to deny insurance coverage to you. That means when ObamaCare is appealed, you may never get insurance coverage again. If you are one of the 16.64 million Americans who are insured due to ObamaCare, you may lose that coverage. There has been some backpedaling such that maybe the preexisting condition provisions will stay when other provisions are repealed. We have no idea what, if anything, will replace the Affordable Care Act or if any of it will remain, and we have no idea how soon this may happen. I suggest preparing for repeal with zero replacement.

Here are some things you can do to help prepare yourself for the repeal of the Affordable Care Act, which could happen as early as January or February 2017:

1. Ask your insurance company what they plan to do. If ObamaCare is appealed, you may be dropped by your insurance plan. The first thing to do is ask what they plan to do. They may not even know what they plan to do yet if ACA is repealed, so stay vigilant. Read all those inserts they send you. Set a Google alert for your insurance company name and "Affordable Care Act."
2. Start looking for alternative plans. Find an insurance agent you trust who can point you to alternative plans if you lose coverage. Know which plan you will pick before you lose your insurance so you can switch quickly.
3. Encourage your employer to have an insurance plan. I know this seems like a long shot, but many employers have health insurance to keep good employees, to improve morale and also to improve attendance. Healthy employees show up more. 
4. Unionize. If your company won't provide insurance voluntarily, you have the right to discuss working conditions with coworkers and try to organize them. That includes the right to unionize. It may be time to unionize your workplace to protect yourselves against the upcoming war on workers.
5. Look for a job with insurance. Now might be a good time to find alternative employment that does have insurance if your job doesn't cover you.
6. Put money in your health care savings. Many employers offer a health savings account. If you have a preexisting condition and may not be able to keep insurance, this may be your best option for now. It won't stop the catastrophic loss that will occur if you are hospitalized, but it will help with regular doctor bills.
7. Switch to your spouse's insurance. If your spouse's employer has insurance coverage, now is the time to switch from your Affordable Care Act insurance.

The Trump win has already affected the way I advise clients. I used to advise people who lose their jobs to look at their Affordable Care Act options along with COBRA, because ACA is almost always cheaper than COBRA, which is crazy expensive. It was nice while it lasted, but now I'm telling people not to sign up for ACA and to elect COBRA if they can because ACA won't be around much longer.

This is literally a matter of life and death for many people. Next time, vote better.

Facebook At Work: What's The Worst That Could Happen?

So Facebook came out with a yuge announcement that it has a brand new social platform in beta testing called "Facebook At Work." I know, huh? I gasped when I saw this announcement and if you've been doing employment law as long as I have (since dinosaurs roamed), you probably gasped too.

What the heck is Facebook thinking? Well, I know what they're thinking. They're thinking $$$$$. I'm thinking potential disaster. But there's more. Here's what Facebook says about this app:

Workplace gives users access to familiar features like Facebook Live video, Groups, Messenger, and a News Feed, but these Workplace accounts are separate from traditional personal Facebook accounts. The service is meant to help facilitate productive workplace discussion – similar to the popular communications tool Slack – rather than offering a chance zone out at your desk.

Workplace also offers a separate Work Chat app that can be downloaded for iOS and Android devices.

For those looking to connect with contacts in other companies, the service will also offer Multi-Company Groups, which are being called “shared spaces that allow employees from different organizations to work together.” These groups will be rolling out over the course of the next few weeks.

I just have to laugh so I won't bang my head against a wall, which my doctors would definitely frown on. I've written about how Facebook firings are rampant. Let's just talk about some possible disasters that could come from this before your company jumps on this bandwagon to hell:

• Sexual harassment: How many cases have there been of social media sexual harassment? Too many to count. Yes, you can get accused of sexual harassment for posting museum photos of nude statues, passing on "funny" cartoons or making jokes about politics this season. And yes, employers, if this activity occurs on your social media platform guess who will be responsible? (Hint: it's you). On the other hand, social media can be used against sexual harassment victims too.
• Race, national origin and other discrimination: Jokes about Bin Laden, Obama and Canadians abound on social media. What do you think will happen when they start circulating on your company social media platform? Who is going to police that? Because someone had better be watching carefully. As to employees, you can't treat Facebook At Work like your regular social media. 
• Disability discrimination: Social media is a great way to find out more about your employees. Like whether they have a disability or a family member with a disability. And once you find out, what will happen when you try to fire them for poor performance? Nothing good.
• NLRA: If employees criticize their workplace, working conditions or boss on this or any other social media, they are probably protected. Office gossip? Possibly protected. But there are some posts that can get you fired, so there's a fine line. And if you try to prohibit such discussions in the handbook, you may get slapped by NLRB.

There are lots of ways social media can go wrong already. And with millennials entering the workforce, we have workers who put their entire lives on display.

I'd think long and hard and consult with a management-side employment lawyer before using this new app in a workplace.

Noose In Workplace Doesn't Equal Discrimination, Says Court

People look at me like I'm crazy when I tell them that there are multiple cases saying a noose at work does not equal actionable race discrimination. Well, here's another one. This case was shocking even to me because coworkers testified that there had been multiple instances of nooses hung in this workplace. Plus, the employee claimed other instances of being treated differently than non-black employees.

Yet, in this case the 7th Circuit found that the employer did enough by reporting the incident to the police and leaving the rest to them. Here's what the court said:

Employers are strictly liable for supervisor harassment, Williams, 361 F.3d at 1029, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment,’” id., quoting Mason v. Southern Illinois University, 233 F.3d 1036, 1043 (7th Cir. 2000). There is no evidence that a supervisor was involved in leaving the noose, so Cole must instead present evidence allowing a reasonable jury to find that the university was negligent—which means in this context that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring,” Erie Foods, 576 F.3d at 636, quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000). A prompt investigation is the first step toward a reasonable corrective action. See Erie Foods, 576 F.3d at 636, citing Lapka, 517 F.3d at 984.  

The undisputed facts here show that once Cole notified Richards of the discovery of the noose, she spoke to him about it (albeit insensitively, we must assume) and delivered her own notes on the incident to the university 16 No. 15-2305 police. She also reported the incident to Nicklas, then vice president of public safety and community relations, as well as Perez and Daurer. She did nothing more after that, but in these circumstances it was reasonable for the administration, having involved the university police, to leave the investigation to them.

The same would apply to a single instance of sexual grabbing, a single racial or other offensive slur, or other coworker harassment.

Bottom line is this: a single incident with a coworker, no matter how serious, is rarely going to equal a lawsuit against your employer. You have to report it under the company's harassment policy and give them a chance to correct the situation. They don't have to fire the person or take any specific action. They only have to assure it won't happen again. They don't have to tell you what action they took. And you can't just refuse to come back to work.

Not my rule. Don't blame me when I tell you that this is what the courts are saying. Talk to your legislators about changing the law. Better yet, vote well on Tuesday.

Now That My Office Is Closed For Hurricane Matthew, Do I Get Paid?

So I'm sitting here waiting to get hit by Hurricane Matthew, as is most of eastern Florida, Georgia and the Carolinas and I'm already bored. One of the worst parts of hurricanes is waiting in a shutter-enclosed cave, knowing havoc is about to be wreaked. What I do know is that almost every employer in the cone of concern is shut down right now.

It occurred to me that you may be wondering: do I get paid for this?

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so be glad the new rules expanding entitlement to overtime don't go into effect until December i.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators).

If you’re hit with the big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Stay safe!

Can You Be Fired For Your Facebook Posts? Yes (With Exceptions)

Do I really have to tell you to watch what you say on social media? Apparently I really do because I run into people all too often who were fired for inappropriate postings, emails, texts, or other comments. My best advice is this: don't put anything in writing that you don’t want posted on the front page of the company newsletter.

Examples of social media firings I've heard of that stand out are posting cruise pictures while on FMLA leave (doh!), posting a foul curse-laden rant about the company (probably legally protected), posting a photo of a nude museum statue (a coworker complained of sexual harassment even though they weren’t FB friends), and posting pictures of an office party gone wild (with some resulting retaliation by a boss captured on film). Basically, I’d say use your judgment and think twice, then think again before you post, whether pictures or just your thoughts. If you don’t think it would go over well on the company newsletter front page, don’t post it.

That being said, although HR does get involved in employee social media posts, 90% of the time it’s none of their business. And the NLRB would agree with me to the extent that employees have the right to gripe about and discuss working conditions. However, if the comments are racist, sexist or otherwise demonstrate that you are inclined toward unlawful discrimination or harassment, then I’d say it depends on the situation. You might be someone HR would want to give extra scrutiny to regarding your workplace behavior. 

But if you posted, say, a Nazi symbol on your Instagram but acted respectful and considerate of coworkers at all time, then I’d go back to my position that it’s none of HR’s business. On the other hand, posting a Nazi symbol, sexist comments or other evidence of a bias means that, if HR is watching or finds out about it, they’re on notice of the employee’s propensity to discriminate. If you do it at work, then the company could be strictly liable. So it’s a balancing act. You probably want to avoid being on that HR tightrope by watching what you post.

Most times it’s better for HR not to know what people are posting unless it somehow becomes disruptive at work. If HR is checking employee social media, they may accidentally find out about your disability, pregnancy, sexual orientation or other protected status and subject the company to potential discrimination claims.

If HR is going to scrutinize social media, personal emails written on work devices or other things that employees may think are none of their business, then HR should make a written policy and put people on notice. Otherwise, it will become a morale issue.

Some states have laws protecting employees for being fired for legal off-duty activities. Those laws may protect employees who post on their own time. 

For political posts, some states have laws that may help. For instance, in Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." Here in Broward County, it's illegal to fire employees based upon political affiliation.

So you do have some legal protection for some social media posts. However, use caution, especially during political season.

Trump Campaign Noncompete Agreements May Break Multiple Laws

You may have seen that the Trump campaign is imposing confidentiality and noncompete agreements on its staffers that are quite broad. Here's the agreement, posted online. It's a great example of what not to do. Let's take a look at what they did wrong for a moment.

Election law: The agreement is with The Trump Organization. If Wikipedia has it right, “The Trump Organization (formerly Elizabeth Trump & Son) is an American privately owned international conglomerate based in Trump Tower in Midtown Manhattan, New York City. It serves as the principal holding company for Donald Drumpf's [okay, so some John Oliver fan has been playing with the site, but I think the rest is correct] business ventures and investments.” So they may well be violating election laws here because it is the campaign, not “the Trump Organization” that should be hiring campaign workers. If they work for The Trump Organization, then there are some serious in-kind contribution issues going on. On the other hand, if they are being paid by the campaign, why is the campaign paying for legal issues relating to his family members? I wonder if the Federal Election Commission has already opened an investigation on this.

National Labor Relations Act: Onto the employment law issues, NLRB has been cracking down on non-disparagement agreements that seem to prevent or discourage criticism of management during employment, and this one does that. An example is Quicken Loans, Inc., 359 NLRB No. 141 (June 21, 2013), where an administrative law judge found that a similar provision would have a chilling effect on employees who wanted to discuss working conditions. The judge said the "line between lawful and unlawful restrictions is very thin and often difficult to discern." The judge found the agreement language violated the law and that prohibiting disclosure of "non-public information relating to . . . the Company's business, personnel . . . all personnel lists, personal information of co-workers . . . personnel information such as home phone numbers, cell phone numbers, addresses and email addresses" would hinder employees' exercise of their rights under the National Labor Relations Act.

Antitrust: I don’t know what level employees that The Trump Organization is imposing these agreements at, but there can be serious antitrust issues if the company has no legitimate interest to protect other than preventing competition. The New York AG has been going after companies imposing noncompetes with no legitimate interest. A good example is the Jimmy John’s case. The FTC and Department of Justice also have antitrust divisions that could scrutinize a noncompete agreement imposed solely to prevent competition. Here are some pieces I’ve written on topic:

Non-Compete Agreements Can't Be Used to Prevent Competition

Low-Wage Worker Noncompetes? Can You Say Antitrust?

The White House Wants Your Horror Stories on Noncompetes and Wage Collusion

I'm not the only one who has noticed problems with these agreements. For an excellent analysis of some legal problems with this agreement, take a look at Robert Teachout's piece on SHRM's website, Trump Noncompete Agreement Draws Criticism.

So if you're drafting a noncompete or confidentiality agreement, the Trump campaign's agreement is a good example of what not to do. If your employer's agreement looks a lot like this one, it may be time to get some legal advice from an employee-side employment lawyer in your state, because the laws on noncompete agreements vary from state to state.