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Arizona Employers: Is Your Workplace Ready for Medical Marijuana?

December 7, 2010 By Leave a Comment

With the passage of Proposition 203, Arizona recently became the 15th state to legalize marijuana for certain medical uses. Guest Author Rachel Weiss, an employment lawyer with Gammage & Burnham, urges Arizona employers to educate themselves about the Arizona Medical Marijuana Act and how it will affect the workplace.

 Is Your Workplace Ready for Medical Marijuana?

Emplyment Law Attorney Rachel Weiss

 Arizonans with qualifying medical conditions will soon be able to buy and use marijuana.  Some of them might be your employees.  Others could be filling out job applications in your lobby.  Employers need to adjust their policies and practices to comply with the new law and protect themselves from liability. 

 First, anti-discrimination policies must be updated to prohibit discrimination against employees or applicants based on their status as registered cardholders.  You can’t fire or refuse to hire someone because he is legally allowed to smoke pot, just like you can’t fire or refuse to hire a woman because she is a woman.

Second, drug testing policies must have an exception for cardholders who test positive.  Unless your card-carrying employees come to work stoned or spark up while on duty, they can’t be fired for failing a drug test.  You should modify your policy accordingly.

 Third, when a worker tells his boss that he uses medical marijuana, he is probably putting his employer on notice that he has a disability that brings him within the protections of the Americans with Disabilities Act.  Although the employer does not have to accommodate that employee by allowing time off to roll a joint, this knowledge may trigger your obligation to determine whether other reasonable accommodations are available. 

 This is only the tip of the iceberg.  The Medical Marijuana Act raises a bewildering number of questions in a variety of fields besides employment law, such as health care, land use, law enforcement and revenue, to name just a few.  Attorneys at Gammage & Burnham authored Proposition 203 and will be actively participating in the Department of Health Services’ rulemaking process.  If you would like assistance with your employment policies and practices, or if you have questions about any other aspect of the new law, please contact me at rweiss@gblaw.com.

Filed Under: Employment law, liability, rachel weiss, Uncategorized Tagged With: , , , ,

Employers Beware: The Department of Labor is Out to Get You

October 13, 2010 By Leave a Comment

Employers often think they understand wage and hour laws, but the fine print is more complicated than they realize and can lead to serious legal and financial exposures.  When the new Secretary of Labor announced that “There’s a new sheriff in town,” she wasn’t kidding.  As Emloyment Law Attorney Rachel Weiss explains, employers would be wise to heed the Secretary’s warnings and get good employment law counsel to review their polices and procedures now, BEFORE the exposure exists. –  Ike

Employers Beware:  The Department of Labor is Out to Get You

 This is not a threat, it’s reality.  The DOL’s focus has shifted from helping employers comply with the Fair Labor Standards Act (FLSA) to nailing those who do not.   

This is also not a secret.  In fact, watch for public service announcements in multiple languages featuring the Secretary of Labor and celebrities urging employees to call their hotline if they believe they are being paid unfairly.  (See for yourselves at http://www.dol.gov/wecanhelp/psa.htm)   Aptly named the “We Can Help” campaign, this initiative was launched just one week after the DOL announced that it is abandoning its practice of publishing Opinion Letters, which historically have provided important guidance to employers.  Reliance on DOL Opinion Letters has also served as a defense to liability for back-wages and other damages.  Instead, broader “Administrator Interpretations” will be issued that will not address the finer points of particular policies and practices, thereby requiring litigation to determine their application to the facts of each case.  

Then there’s the “Plan/Prevent/Protect” initiative, which proposes new regulations that will require employers to audit their pay practices, document how each employee’s exempt status and pay calculations are determined as well as the reasons why certain individuals are categorized as independent contractors and not employees.  Employers would need written plans and be required to track how they are implemented.  The failure to do all of this to the DOL’s satisfaction will be deemed noncompliance and result in sanctions and/or costly litigation.  The pending Employee Misclassification Prevention Act (H.R. 5107, S. 3254) seeks to impose similar obligations. 

If you think I’m trying to scare you, you’re right.  Most employers also don’t realize that once a violation is established in an FLSA lawsuit, the burden is on the employer to prove why double damages should not be awarded, and the employer will be liable for the employee’s legal fees.  Moreover, the owner of the company, or whoever was responsible for the decisions that led to the violation, will be held personally liable along with the company, regardless of laws that limit personal liability in other contexts.  Unlike cases brought under Title VII for discrimination, there are no administrative hoops to jump through before employees can go to court.  And remember, too, that wage and hour claims are not usually covered by insurance. 

Now more than ever, employers need to develop not just a plan for compliance, but a culture of compliance.  Consider conducting an internal or external audit of your employee classifications and pay practices, and seek advice from an employment attorney.  Wage and hour laws are complex and nuanced, and the DOL clearly is not interested in educating you.  If that were the case, it would have created an employer “help desk.”  Instead, it beefed up its enforcement staff with 250 new investigators and got famous people to reach out to employees. 

Lest there be any misunderstanding, I do not mean to imply that the DOL should not be an advocate for employee rights or that employers should be able to shirk their obligations under the FLSA.  Just consider this a public service announcement for the other side.    

Rachel Weiss practices labor and employment law with the law firm of Gammage & Burnham in Phoenix.  If you have questions about wage and hour issues, you can reach her at (602) 256-4448 or rweiss@gblaw.com.

Filed Under: Asset Protection, business legal planning, business survival, doctor sued, Employment law, Ike Devji, medical practice mangement, rachel weiss Tagged With: , , , , ,

Court decision helps shield employers with good policies against harrasment lawsuits

September 19, 2010 By Leave a Comment

Once again we are shown that proactively addressing employment law (and all other business planing issues) helps provide the best Asset Protection available while the most effective options still exist. In this brief update, Employment law attorney Rachel Weiss shares a case that illustrates the value and cost efficiency of having the right tools in place BEFORE you get sued or face other forms of employee claims.

A recent 8th Circuit decision should serve as a reminder to employers that a well-written anti-harassment policy provides a valuable defense to harassment claims. 

In Cross v. Prairie Meadows Racetrack and Casino, Inc., the employer’s policy explained that there would be zero tolerance for sexual harassment and listed various ways that employees could seek help if they believed they had been subjected to harassing behavior, including talking to a supervisor or going directly to Human Resources.  The policy further provided that an employee who is dissatisfied with the resolution of a complaint could address her concerns to a member of upper management or the CEO.  The plaintiff had complained to her supervisor that she was being harassment by her co-workers, but she was not satisfied with the way the situation was handled.  Although the employee was aware that there were other avenues for reporting the incidents, she failed to take advantage of any of them. 

 The Court concluded that even if plaintiff’s allegations were enough to establish a hostile work environment, summary judgment for the employer was justified because the employee failed to act reasonably in attempting to stop the harassment. 

Lesson:   Employers with effective sexual harassment policies are in a significantly better position to defend against a harassment claim.  

An effective policy should include, among other things, multiple avenues of redress.  Employees and managers need to be educated regarding the policy, which can be accomplished by conducting periodic sexual harassment training.  Employers also should have a procedure for taking immediate action upon receiving a complaint of harassment and should follow that procedure consistently. 

Please contact Ms. Weiss directly at (602) 256-4448 or rweiss@gblaw.com if you have any questions or would like assistance drafting and/or implementing a proper sexual harassment policy for your business while it will be effective and proactive.

Filed Under: Asset Protection, business legal planning, business survival, Employment law, Ike Devji, liability, rachel weiss, recession lawsuits

Warning For Employers: Service Helps Job Applicants Lie to You

March 3, 2010 By Leave a Comment

Warning For Employers:

 

Service Helps Job Applicants

 

Lie to You

Please read this important warning about a troubling web site brought to my attention by my friend and employment law expert Rachel Weiss. Many of my clients have employees that are in sensitive positions, and whose actions can potentially place those I serve in jeopardy – this service creates huge liability. I’d love to see the owners of the company below SUED when one of their “clients” kills or injures someone or creates some other harm, theft or loss because they got a job based on the false history and credentials they created. This is especially terrifying for medical businesses.

Thanks, Ike

If any of you are involved in any way with your company’s hiring process, you need to be aware of a service called Career Excuse.

Career Excuse essentially provides job applicants with a completely or partially fabricated work history, complete with fake company names and fake references with phone numbers.

Real people will answer your phone calls and confirm whatever the applicant states in his or her resume. Career Excuse has become so popular that they’re not taking new “subscribers” at this time. (Of course, individuals currently filling out applications and submitting resumes may already be signed up).

Visit their website – CareerExcuse.com – for more information. In particular, read the “What If I Get Caught?” page, which assures its clients that lying on a resume is not a crime.

Please do not hesitate to contact me with any questions about this or any other employment or litigation issue. Rachel R. Weiss (602) 256-4448 rweiss@gblaw.com

Filed Under: Asset Protection, business survival, Employment law, fraud, Ike Devji, medical practice mangement, physicians, rachel weiss, recession, recession survival

SOCIAL MEDIA FOR EMPLOYERS AND BUSINESS OWNERS

November 3, 2009 By Leave a Comment
Massive increase in the use of social media for both business and personal use has created many new issues for employers. As our clients include thousands of business owners affected by these new tools and the liability they create, we turned to Employment Law expert, Attorney Rachel Weiss for a quick outline of current issues.

MySpace and Facebook and Twitter, Oh My!

Time to Start that Workplace Policy

Employers, it’s time to wake up. According to a 2009 survey conducted by Deloitte LLP*, 55% of employees visit social networking sites during work hours. More than a third of the employees surveyed don’t consider what their boss, co-workers, or clients would think about their online postings. Here’s the big red flag – almost 75% say it’s easy to damage a company’s reputation using social media.

While there’s no way to completely eliminate the legal and business-related risks posed by employee online networking activities, developing and enforcing a social media policy is crucial to avoiding legal pitfalls.


The exact wording will depend somewhat on the nature of the business and workforce, but at a minimum, a good social media policy should include these provisions:

1. Don’t expect privacy. Employees do not have a reasonable expectation of privacy if they use social media for personal purposes on a company computer or network.

2. Use good judgment. Employees may not post comments that are disrespectful, offensive or damaging to another employee or the employer’s business interests. The use of social media must not violate any other company policy (such as a computer usage or anti-harassment policy).

3. Only on your own time. Employees are prohibited from participating in social media during work time.

4. Post as yourself. Employees may not post anything that could in any way be attributed to the employer. Employees must notify readers that the views, opinions, ideas, and information are their own and are not sanctioned by the employer, and company trademarks or logos should never be used.

5. Keep secrets. Employees are prohibited from disclosing proprietary information, data, trade secrets or other confidential non-public information.

6. Don’t mess up. Violation of this policy may result in disciplinary action up to and including termination.

Distribute the policy in writing to every employee. Add it to any existing employee handbook.

Finally, enforce the policy. Better to have no policy at all than to have one and ignore it.

Rachel Weiss is an employment law attorney with the Phoenix firm of Gammage & Burnham, PLC. For additional information regarding this or any other employment-related legal issue, Rachel can be reached at (602) 256-4448 or rweiss@gblaw.com.

* Social Networking and Reputational Risk in the Workplace, Ethics & Workplace Survey, Deloitte LLP 2009

Filed Under: Asset Protection, employee social media usage, Employment law, face book, Ike Devji, linkedIn, rachel weiss, twitter