Marijuana Users In Colorado Can Be Fired, Rules Court

A Colorado court ruled that an employer can still fire an employee for a positive marijuana drug test, even though state law permits the medical and recreational use of marijuana.

Colorado, under a new law passed in 2012, allows recreational use of marijuana in addition to medical use. The case involved an employee who had a medical marijuana prescription and was terminated after failing a company drug test.

The employee sued, arguing that he couldn’t be fired for engaging in a lawful off-duty activity. The Colorado court upheld the termination, ruling that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” 

If the act violates federal law but complies with state law, the act is not lawful. Because medical marijuana use is still illegal under federal law, the Colorado court found that there was no employment protection for those engaged in activities that violate federal law.

What’s the rule in California? California employers have the right to enforce a drug-free workplace policy, even though California law allows the use of medical marijuana. In a 2008 ruling in Ross v. RagingWire Telecommunications, Inc., the California Supreme Court upheld the termination of an employee for testing positive for marijuana use – despite the employee’s medical marijuana prescription.

The court found that medical marijuana does not have the same legal status as other prescription drugs because it is still illegal under federal law.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

Employee's Facebook Post Leads to Firing

A San Diego Gas & Electric (SDG&E) company employee filed a lawsuit against SDG&E after she was fired because of her Facebook post about a customer. Did SDG&E do anything wrong?

The issue of whether an employer can discipline an employee for his/her Facebook posts has received plenty of attention in the national press. HRWatchdog previously reported on the National Labor Relations Board’s activity in this area.

If an employee discusses working conditions on his/her Facebook page, that activity may be protected under Section 7 of the National Labor Relations Act (NLRA). Under Section 7, employees in both union and nonunion workplaces have the right to engage in concerted activities, including discussing working conditions, pay or other work-related issues.

In 2011, the NLRB acted against several employers when those employers disciplined employees for work-related comments on Facebook.

In San Diego, the SDG&E employee said she was fired after allegedly posting a comment on a co-worker’s Facebook page about a customer and using the customer’s first and last name. According to the employee, SDG&E told her she was fired because her Facebook post violated the company’s customer privacy policy.

The SDG&E employee filed a lawsuit claiming that the alleged violation of the company’s customer privacy policy is not the real reason for the termination. The lawsuit alleges that the firing has a discriminatory motive.

Though employees may not be fired for an unlawful reason, such as engaging in protected activities, employers still have the right to set and enforce policies protecting the privacy rights of their employees and their customers. It is a balancing act with competing interests: the company’s right to protect proprietary information and obligation to protect customer privacy, and employees’ rights to discuss working conditions.

With the ever-changing landscape, employers should carefully craft their social media policies.  Employers may also want to consult with counsel before terminating an employee for conduct involving social media.

Visit the San Diego's 10News website for the full story on the Facebook firing. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Download CalChamber’s “Making Sense of Social Media in the Workplace” white paper for more information on this controversial issue (registration required).

HRCalifornia subscribers can visit the HR Library’s Social Media section for more detailed information.

NLRB Judge Finds Firings Based on Facebook Posting Unlawful

HRWatchdog has frequently blogged on the increased activity by the National Labor Relations Board (NLRB) as it relates to employer discipline for social media postings made by employees. In the past year, the NLRB has seen an increase in the number of charges related to social media and has filed several complaints against employers who discharged employees for social media postings in which the employees complained about workplace conditions.

Employees, in both union and non-union workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities. Such activities might include two or more employees discussing working conditions, pay or other work-related issues. The typical example of a protected activity is when employees gather around the water cooler to complain about their supervisor. These days, that water cooler conversation might take place online – on Facebook, Twitter or some other social media outlet.

There has been some uncertainty for employers as to when social media postings will be regarded by the NLRB as a protected concerted activity and when employers can and cannot take disciplinary action against employees for their social media postings. Last month, the NLRB's Office of General Counsel issued a report outlining some of the social media cases. The report detailed the outcome of the NLRB's investigation into these cases. The purpose of releasing the document was to provide guidance to labor law counsel and human resource professionals.

Now, for the first time, a NLRB Administrative Law Judge (ALJ) has weighed in on the issue after a full hearing. The ALJ ruled against a Buffalo non-profit organization and found that the organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

An employee at Hispanic United of Buffalo, Inc. (HUB), a non-union employer, posted the following on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow employees how do u feel?” Several other HUB employees then went on Facebook and commented on the original post. These comments expressed negative opinions about Cruz’s criticism, defended employee job performance, and complained about working conditions. The comments were often sarcastic and some used profanity.

None of the posts were made during work hours and none were made using a work computer. After learning of the posts, HUB discharged the employees who had participated, claiming that the comments constituted harassment of Lydia Cruz, who was originally mentioned in the post.

The ALJ disagreed with HUB’s position and found that the Facebook discussion was protected because it involved a discussion among coworkers about the terms and conditions of employment, including job performance and staffing levels. The ALJ noted that expressions related to defense of job performance are a protected activity, especially where the employees could reasonably believe that they would need to defend their job performance to management.

The ALJ ordered reinstatement of the five employees and also awarded the employees back pay because they were unlawfully discharged.

The ALJ also found that the employees did not engage in any conduct that forfeited their protection under the NLRA. The ALJ noted that there was not a violation of HUB’s anti-harassment policy because there was no evidence that the complaining individual was harassed and no evidence that she was harassed based on a protected characteristic.

Cities Can Ban Grocery Store Layoffs

The California Supreme Court upheld a Los Angeles ordinance that forbids new owners of large grocery stores from laying off the existing workforce for 90 days after the new ownership takes over. California Grocers Assn. v. City of Los Angeles, (S176099, July 18, 2011).

The Supreme Court’s 6-1 decision reinstated the Los Angeles ordinance, which was originally enacted in 2005. The ordinance was blocked by the lower court’s earlier decision invalidating the ordinance. The ordinance, backed by organized labor, requires large grocery stores that go through a change in ownership to recognize a period of 90 days as an employee job vesting period during the ownership transition period.

This would require the new owners of large grocery stores to hire previous employees, excluding managers, for at least 90 days after the store reopens. Large grocery stores are defined as stores that are 15,000 square feet or larger. It is unknown at this time whether the ruling will be appealed to the U.S. Supreme Court.

The ordinance requires:

• The prior owner to prepare a list of nonmanagerial employees with at least six months employment.
• The new owner to hire from that list during the 90-day transition period.
  The new owner to only discharge the hired employees “for cause” during the transition period.
• The new owner to prepare a written evaluation of each employee’s performance at the end of the transition period.  
• The new owner to consider offering continued employment if the employee’s performance is satisfactory.

The ordinance does state that if the workforce is unionized, the union and the employer can agree on alternative hiring arrangements.

The cities of Gardena, Santa Monica and San Francisco enacted similar grocery worker retention ordinances. Worker retention ordinances for other fields of employment are also in effect in San Jose (airport business workers), Oakland (hospitality workers), Emeryville (hotel workers) and Berkeley (marina workers).

The lower court ruled that state law and the federal National Labor Relations Act pre-empted the ordinance. The California Supreme Court disagreed.

The one dissenting judge, Justice Grimes stated that the ordinance interferes with free market forces.  Also, Grimes said, “[t]he city’s ordinance requires a new grocery employer to … function during the important initial period of its operation with a work force it deems, for entirely legitimate reasons, unsuitable for its planned operations.”

Gail Cecchettini Whaley, Employment Law Editor/Staff Counsel

 

Religious Discrimination Suit Shows Need for Employer Awareness

On June 28, 2011, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against clothing retailer Abercrombie & Fitch. The lawsuit, filed in a Northern California federal court, claims that the company violated federal law when it fired a Muslim employee for wearing a hijab (religious head scarf).

According to the allegations, a 19-year-old Muslim woman was employed by Hollister (an Abercrombie & Fitch subsidiary) in San Mateo as an “impact associate,” primarily working in the stockroom. The employee was first asked to wear headscarves in Hollister brand colors, which she agreed to do.

Later, she was informed that her hijab violated Abercrombie’s “look policy,” an internal dress code. She was told she would be taken off -schedule unless she removed her headscarf while at work. She refused to take off the hijab, was suspended and later terminated. The EEOC seeks back pay, compensatory damages and punitive damages and injunctive relief.
 
Under federal and state law, employers must reasonably accommodate an employee’s sincere religious beliefs or practices. Employers are not required to reasonably accommodate religious beliefs if doing so would impose an undue hardship on the business, though employers should remember that undue hardship is a high burden and difficult for employers to meet. 

Further, valid safety-related reasons, such as hard-hat requirements, may allow employers to prohibit the religious garment. Reasonable accommodation may include modification of work practices, job restructuring, job reassignment, or allowing time off in order to avoid a conflict with religious observances. 

This lawsuit is the second the EEOC filed against Abercrombie & Fitch in the Bay Area over the company’s failure to accommodate workers who wear a hijab. In 2010, the EEOC filed a lawsuit concerning Abercrombie’s refusal to hire an applicant at the ‘abercrombie kids’ store in Milpitas due to the applicant’s headscarf.
 
The company’s ‘all-American look’ policy has been a focus of prior EEOC  litigation, resulting in $40 million paid in 2005 to a class of African Americans, Asian Americans, Latinos and women who were  either passed over for promotions or not hired at all.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can educate themselves on religious discrimination on HRCalifornia.
Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.