Whopping $17M verdict in ugly sexual harassment lawsuit

The is likely one of the worst harassment lawsuits you’ll hear about this year. And it’s going to cost the employer in question a lot of money. 

A federal jury just awarded $17.4 million in damages to five former female employees of Moreno Farms Inc., a produce growing and packing operation on Felda, FL.

It was the result of a more-serious-than-usual sexual harassment and retaliation lawsuit filed by the EEOC on behalf of the women.

The suit accused two sons of Moreno Farms’ owner, as well as another male supervisor, of some pretty horrific and graphic acts of sexual harassment including:

  • regular groping
  • propositioning
  • threatening female employees with termination for refusing sexual advances
  • attempting to rape, and
  • raping multiple female employees.

As for the retaliation charge, the three men were also accused of firing all five women for opposing the men’s advances.

The EEOC filed the lawsuit after first trying to reach a pre-litigation settlement via its conciliation process.

After a trial, a federal jury returned a unanimous verdict in favor of the five women, awarding them $2,425,000 in compensatory damages and $15 million in punitive damages. However, it’s worth noting that it’s possible those damages will be reduced to statutory damage caps at a later date.

In a statement released by the EEOC about the case, Robert E. Weisberg, regional attorney for the EEOC’s Miami District Office, said:

“The jury’s verdict today should serve as a clear message to the agricultural industry that the law will not tolerate subjecting female farm workers to sexual harassment and that there are severe consequences when a sex-based hostile work environment is permitted to exist.”

The EEOC’s statement also reminded employers that preventing workplace harassment through systemic litigation and investigation is one of the six main areas of focus outlined by the agency’s Commission’s Strategic Enforcement Plan, as is eliminating practices that prohibit individuals from exercising their rights under employment discrimination statues.

People are strange: 14 incredible things employees were caught doing on the clock

One of the great things about writing about HR is the unbelievable range of stupid stuff that human beings do during work time. Here’s a small sampling.  

If you’re thinking, “Oh, I bet this is another one of those CareerBuilder surveys,” you’re right. This one asked 2,175 hiring and human resource managers for examples of the most bizarre things they caught employees doing while they were supposed to be working, and the most common productivity killers in the workplace.

First, the most outrageous behaviors:

  1. Employee was taking a sponge bath in the bathroom sink
  2. Employee was trying to hypnotize other employees to stop their smoking habits
  3. Employee was visiting a tanning bed in lieu of making deliveries
  4. Employee was looking for a mail order bride
  5. Employee was playing a video game on their cell phone while sitting in a bathroom stall
  6. Employee was drinking vodka while watching Netflix
  7. Employee was sabotaging another employee’s car tires
  8. Employee was sleeping on the CEO’s couch
  9. Employee was writing negative posts about the company on social media
  10. Employee was sending inappropriate pictures to other employees
  11. Employee was searching Google images for “cute kittens”
  12. Employee was making a model plane
  13. Employee was flying drones around the office, and
  14. Employee was printing pictures of animals, naming them after employees and hanging them in the work area.

Less unconventional distractions

Thanks to smartphones, chatty co-workers and never-ending Twitter feeds, the obstacles that get in the way of actual work are seemingly endless, the survey indicated. Asked to name the biggest productivity killers in the workplace, employers cited the following:

  • Cell phones/texting: 52%
  • The Internet: 44%
  • Gossip: 37%
  • Social media: 36%
  • Email: 31%
  • Co-workers dropping by: 27%
  • Meetings: 26%
  • Smoke breaks/snack breaks: 27%
  • Noisy co-workers: 17%, and
  • Sitting in a cubicle: 10%.

The Consequences

With so many distractions around, it’s almost surprising any work gets done at all – and sometimes it doesn’t. Survey respondents listed  negative consequences for their organizations, including:

  • Compromised quality of work: 45%
  • Lower morale because other workers have to pick up the slack: 30%
  • Negative impact of boss/employee relationship: 25%
  • Missed deadlines: 24%, and
  • Loss in revenue: 21%.

Not too many surprises there.

OT lawsuits: When signed time sheets aren’t enough to protect you

When is asking employees to sign off on their time sheets before they’re submitted to Payroll for processing not enough to protect you from an overtime lawsuit? When this happens. 

Here’s when you can get nailed: A manager knows or should’ve known that an employee worked more hours than he or she claimed to have worked.

A recent lawsuit shows just how hard it can be to defeat employees’ claims that they weren’t paid proper overtime.

Never spoke up

Meet Jose Garcia and Raymond Sutton, two employees for SAR Food of Ohio, which runs several Japanese restaurants — under the names Sarku Japan and Sakkio Japan — that are located in shopping center food courts.

Both workers sued SAR. They claimed that despite their initial acknowledgement/certification that the work hours they were paid for were correct, they actually weren’t paid for all the time they’d worked.

SAR posted employees’ work schedules at the beginning of every work week. Often times, the schedules called for employees to work more than 40 hours in a week — and there was no dispute that when employees’ schedules and subsequent payroll submissions indicated that they’d worked overtime, they were paid for the time indicated.

But Garcia and Sutton claimed they frequently worked beyond their scheduled shifts and didn’t claim the additional hours on the payroll submissions. Garcia and Sutton gave several reasons for not claiming the additional hours — including not wanting “to seem petty,” feeling “intimidated” and not thinking it was worth pointing it out.

‘But our managers knew’

The court, however, appeared to give little weight to the flimsy reasons Garcia and Sutton gave for not speaking up about their hours.

Instead, it decided to focus on a bigger fish: The fact that their managers may have known they were working undocumented hours.

Garcia and Sutton painted a picture in which it appeared as though they worked side-by-side with their managers, and their managers had a pretty good idea of the true hours the pair worked.

SAR moved for summary judgment in an attempt to get the workers’ lawsuit thrown out. It said that they were given multiple opportunities to inform management that their time sheets were inaccurate and claim the additional work hours (again, there was no despite that SAR paid employees for all the hours they claimed).

On top of that, SAR pointed out that every paystub issued to the workers said “Any questions concerning your pay, please call … Sarku Japan Payroll Department.”

But in the end the court said that didn’t matter.

‘What would a jury say?’

The court said the plaintiffs’ testimony presented evidence that “could allow a reasonable jury to conclude that the store supervisors were aware that Plaintiffs were working after their scheduled shifts, but nonetheless knowingly submitted time sheets indicating that no such work occurred.”

Bottom line: The lawsuit was allowed to proceed.

But what about Garcia and Sutton, weren’t they culpable for failing to point out the unpaid hours? Not if management knew they weren’t paid for time they’d put in, according to the court.

The reason the court gave:

“If an employer with knowledge of uncompensated time could evade FLSA liability where the employee failed to follow procedures, an employer and employee could effectively contract around the FLSA by contriving for the employee to simply not report all time he worked.”

The court also said SAP and its managers, “cannot sit back and accept the benefits [of Garcia and Sutton’s work] without compensating for them.”

The ruling closely mirrors another ruling earlier this summer in which a court allowed an employee’s unpaid overtime claims to proceed based solely on his testimony that he’d worked overtime and hadn’t been compensated for it. (In fact, the Garcia v. SAR court cited this case in its ruling).

In that case, the court asked itself the very straightforward question:

“Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment?”

The answer: Yes.

What can employers do?

Both of these rulings set a high bar employers have to meet to get employees’ unfair pay claims thrown out of court.

So, naturally, the best thing for employers to do is avoid the courtroom altogether.

There are two steps you can take to do this:

  • Step 1: Tell your managers that they cannot turn a blind eye to the hours employees work — no matter the hours an employee signs off on having worked. Managers should be reviewing time cards and engaging employees in conversations if they believe time cards are inaccurate.
  • Step 2: Discipline employees for performing unauthorized work or failing to follow your procedures when it comes to reporting work time. As long as employees are paid for all the hours they work, it’s within your rights to punish workers for these actions.

10 dumbest mistakes employees make when planning for retirement

Granted, it’s not your responsibility to make sure employees have a smart retirement planning strategy. But if you provide a company sponsored retirement plan, you’re the first place employees will look for guidance. And here’s a list of common mistakes that will be a healthy addition to your communication materials.  

The 10 worst retirement planning mistakes employees tend to make:

1. Not eliminating debt

Car loans, personal loans, credit care bills — get rid of ’em. These quickly eat into savings.

And aside from the principal itself, it’s easy to overlook the damage the interest on these loans can do to retirement readiness.

The best plan of attack for employees is to try to enter retirement with no debt and a relatively new car that’s paid off and can last for years after they stop working.

2. Underestimating health costs and inflation

According to U.S. News and World Report, a typical 65-year-old married couple without any chronic medical conditions will need $197,000 to cover out-of-pocket health care expenses in retirement. And that number can balloon to close to $350,000 when you take into account inflation and the potential need for nursing home care.

In addition, a separate study by the Mount Sinai School of Medicine found that those on Medicare spend an average of $38,688 in out-of-pocket costs during the last five years of their lives.

Bottom line: If near-retirees think insurance will shield them from big-ticket expenses, they’re likely in for a rude awakening.

3. Saving at the default level

The most common default contribution level for a company sponsored 401k is 3%, and many employees think that’s enough. It isn’t.

The most common school of thought among financial advisors: Individuals making $50,000 or less should be saving at least 10% of their pre-tax income — and that’s if there’s a company match involved.

A more ideal retirement planning strategy would be for employees to set their contribution rate at or near 10% and try to increase it by at least 1% every year.

4. Forgetting about a previous 401k

Changing jobs can be a hectic time. In the midst of learning new skills, working with new people and possibly even moving, it’s easy for employees to forget about that 401k they left at a previous employer.

The danger in that is the investments in an old account may reach a point where they no longer meet an individual’s investment goals. Then when it comes time to withdraw, the account’s a little smaller than it could (or should) be. If management of the plan changes hands, the funds could be turned into conservative investments or cash options where they fail to keep up with inflation.

5. Bailing on stocks after a bad quarter

When it comes to investing in the stock market, which a lot of company sponsored 401ks do, it can be tempting to pull investments when the stock market appears to be on the downswing.

This can be a dangerous approach, especially for young investors who are likely robbing themselves of the opportunity to buy cheap and let those investments grow when the market rebounds.

On the other hand, older workers who aren’t as likely to be able to withstand a downturn in the market will want to think about selling high when the market is up and putting their money in something less risky than stocks — even if it doesn’t have the same growth potential.

6. Playing catch-up

Employees who don’t start saving in their twenties and thirties because they think they can make up for it later in their careers — when hopefully they’re making more money — are shooting themsleves in the foot in two ways:

  • They’re robbing themselves of the potential returns they would’ve gotten on money invested earlier, and
  • They’re exposing themselves to more risk by investing aggressively later in their lives.

7. Not having any insured income

If employees fail to select some type of guaranteed payout option — like an annuity — they risk running out of savings before the end of their lives.

Sure, annuities can’t guarantee employees can maintain a high standard of living, but they can at least guarantee retirees will always have some income.

8. Thinking traditional retirement savings is enough

While saving in an annuity, 401k or some other tax-advantaged plan is obviously great, employees also need to focus on establishing a healthy savings account — or some type of rainy day fund.

This will make sure a large expense — like a car or medical procedure — doesn’t wipe out the retirement savings they’ve been planning to pull from in the years ahead.

Employees don’t want to have to tap their 401k every time an unexpected expense pops up. That reduces the pool of money they’ve hopefully built a budget around.

9. Withdrawing funds too soon

As we just stated, it’s important to have some sort of rainy day fund so employees’ 401ks don’t become their go-to spot for a bailout.

Pulling money out of a 401k before age 59-and-a-half is bad on two fronts:

  • The money gets taxed in the bracket they’re in now (which may be higher than the bracket they’d fall into in retirement), and
  • It can get hit with a 10% early distribution penalty.

10. Collecting social security early

If possible, employees want to try to do without Social Security until their “full retirement age” — which is the age at which a person becomes eligible to receive unreduced retirement benefits. An employee’s full retirement age is dependent upon the year they were born.

If an employee elects to collect benefits before their full retirement age, their benefits will be paid out at a reduced rate for the remainder of their life.

For example, if a retiree elects to receive Social Security benefits at age 62 (the earliest allowed), and their full retirement age is 67 (which is the case for anyone born after 1960), their monthly payment is reduced by 30%. That will add up over the years.

Supreme Court upholds Obamacare again … but why?

Once again the Supreme Court has ruled in favor of the Affordable Care Act (ACA) — and upheld a component that’s become an essential part of the law. So now HR pros can start worrying about the upcoming Obamacare compliance challenges without any major distractions.

The Supreme Court case, King v. Burwell, is an appeal of a July ruling from the 4th Circuit Court of Appeals, which upheld the law’s subsidies.

Had the subsidies been struck down by the High Court, millions of Americans could’ve lost the tax subsidies that allowed them purchase affordable coverage under the health reform law.

In fact,  USA TODAY reported that more than 5 million Americans would be affected if the subsidies are struck down.

How affected? Those subsidies have reduced monthly insurance premiums by 76% (the average monthly premium dropped from $346 to just $82) for those who qualify, according to federal officials.

How we got here

The entire case essentially hinged on one phrase in the health reform law, which says that subsidies — in the form of tax credits — would be offered in health insurance exchanges “established by the state.”

But more than 30 states passed on setting up their own exchanges, so the feds stepped in to do so.

Four Virginia residents — the original plaintiffs in the case — claim that the subsidies are illegal in the states where only federal exchanges have been established.

‘Inartful drafting’

With its ruling, the Supreme Court essentially said that the subsidies should be available to all eligible Americans regardless of whether they live in states that have set up their own health insurance exchanges.

In the ruling, Chief Justice John G. Roberts, Jr. did acknowledge that the specific language in the Affordable Care Act was confusing and problematic. As Roberts put it, the law:

“contains more than a few examples of inartful drafting … Congress wrote key parts of the act behind closed doors, rather than through the traditional legislative process.”

Despite the language, Roberts said the intent of law was clear and that:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Maintains status quo

So where does this leave employers. According to Buck Consultants global practice leader Tami Simon:

“The ruling will not have a significant impact on employers and the human resources department. It maintains the status quo for time being.”

And for employers, the status quo is finding ways to comply with the many complex Obamacare regs, such as:

  • The reporting requirement (2016), and
  • The Cadillac Tax (2018).

‘You can’t fire me, I’m on FMLA’: Was mistake-prone worker correct?

As you know, taking FMLA leave can’t completely shield an employee from termination, especially when the person’s performance warrants him or her being fired. But the FMLA very much complicates the matter. So what do you need to be able to safely let under-performing FMLA-takers go? 

Answer: Documented evidence that the employee isn’t meeting performance standards.

A recent lawsuit in which the employer’s decision to terminate an employee on intermittent FMLA leave was upheld by a federal appeals court provides a good example of when it’s permissible — and what it takes — to safely let these kinds of workers go.

Multiple stints of FMLA

Elizabeth Burciaga sued her employer, Ravago Americas LLC for FMLA retaliation after she was terminated following several FMLA-related absences.

Burciaga was a customer service representative, who was responsible for contacting sales representatives and customers, receiving and processing orders, scheduling shipments, and resolving customer issues.

She’d been at Ravago for five years, and was considered one of Ravago’s more experienced customer service representatives.

Earlier on in her employment with Ravago, Burciaga had taken FMLA leave on two separate occasions for the birth of her children.

Then, about year after her last leave, she requested intermittent FMLA leave to help care for her son. Her request was granted, and she took several days off on a somewhat sporadic basis to care for her son.

Ravago never expressed any concerns about Burciaga taking leave.

Mistakes crept in

During the time she was approved for intermittent leave, Burciaga began making mistakes.

Examples:

  • Burciaga entered an order for 15,000 pounds of material when the customer ordered 22,500 pounds of material
  • She submitted and shipped material under the wrong customer number
  • She shipped the wrong material to a customer, and
  • She shipped the wrong material to a customer again.

A logistics coordinator was able to catch and correct some of these mistakes before customers or the company was affected. But, after being approached by Burciaga’s manager, the logistic coordinator informed him that Burciaga “habitually made shipping errors.”

Her manager then took the matter to upper management, explaining that someone with Burciaga’s experience shouldn’t be making those kinds of mistakes.

Burciaga was terminated. She was told the company couldn’t tolerate continued shipping errors because they could hurt the company’s reputation.

She then sued for FMLA retaliation.

Retaliation a form of discrimination

The court in this case said FMLA retaliation essentially amounts to discrimination — in which an employer takes an adverse action against an employee for exercising a right.

So the employer had to prove it had a nondiscriminatory reason for firing Burciaga.

After reviewing the company’s documentation, which clearly outlined the mistakes she’d made, the court sided with Ravago and dismissed Burciaga’s lawsuit.

When she balked, the court said Burciaga failed to create a “causal connection” between her FMLA leave and her firing.

Three things the employer had in its favor:

  • It had already allowed Burciaga take FMLA leave in the past with no problems
  • Not once was her FMLA leave brought up in the discussions around her work performance or termination, and
  • It had undisputed evidence that Burciaga was making mistakes that could damage the company’s reputation.

All three factors weighed heavily in the court’s ruling that no connection existed between her FMLA leave and her termination.

DOL issues new OT rules: What you need to know, what they’ll cost

The wait is finally over. The DOL just released its proposed revisions to the FLSA overtime exemption rules. Now you can start prepping for the fallout, which will be dramatic. 

For months, the DOL’s been teasing us with promises that the proposed rule changes would be revealed soon. Labor Secretary Thomas Perez even joked the agency was “working overtime” to get the revisions on the table.

Well, all the speculation came to a screeching halt on Monday, when a President Obama-bylined column was published by The Huffington Post, providing a sneak peek at the rules. Hours later, the official Notice of Proposed Rulemaking was available on the DOL’s website.

We’ve gathered the pertinent facts from the 295-page long notice here for you.

Here’s what you need to know:

  • The new pay threshold is much higher than anticipated. As you know, the current minimum salary a worker has to be paid to be exempt from overtime is $455 per week or $23,660 per year. Well, under the proposed rules, it would jump to $970 a week or $50,440 per year. That’s significantly higher than the $42,000 mark those on Capitol Hill had been teasing. The DOL calculated that $50,440 would equal the 40% percentile of weekly earnings for full-time salaried workers.
  • The highly compensated employee threshold will also climb. The total annual compensation requirement needed to exempt highly compensated employees would climb to $122,148 from 100,000 — or the 90th percentile of salaried workers’ weekly earnings.
  • The salary thresholds will automatically increase. For the first time ever the salary thresholds will be tied to an automatic-escalator. The DOL is proposing using one of two different methodologies to do this — either keeping the levels chained to the 40th and 90th percentiles of earnings, or adjusting the amounts based on changes in inflation by tying them to the Consumer Price Index.
  • No changes to the duties tests have been proposed. The DOL hasn’t suggested changing the executive, administrative, professional, computer or outside sales duties tests (see them here) as of yet. However, the agency is seeking comments on whether they should be changed and whether they’re working to screen out employees who are not bona fide white collar exempt employees. Early indicators were that the DOL would look to adopt a California-style rule in which employees would be required to spend more than 50% of their time performing exempt duties to be classified as exempt.
  • Bonuses aren’t part of the salary calculation. As of now, the DOL says discretionary bonuses won’t count toward a person’s salary — but that could change depending on the comments the agency receives. Currently, such bonuses are only included in calculating total compensation under the highly compensated employee test. That’s not set to change. But the DOL said some stakeholders are asking for broader inclusion of bonuses in salary calculations.
  • The rules will — most likely — take effect in 2016. We don’t have a definitive timeline for implementation of the rule changes, but it’s a safe bet they won’t kick in until at least 2016. The proposed rules haven’t been published in the Federal Register yet. But once they are, an official public comment period will be set. The DOL will then review the comments and make changes to the proposed rules if it’s deemed necessary. At that point, the rules will be re-released in their final form, and an effective date will be announced.

How many people will be affected?

Based on the Obama Administration’s calculations, only about 8% of workers currently earn less than the existing $23,660 salary threshold. And as the numbers above indicate, cranking the threshold up to $50,440 would put about 40% of workers under the line. According to the DOL, that would extend overtime eligibility to about 4.6 million workers, assuming employers did nothing in reaction to the rule changes.

The White House has also provided a chart of just how many workers in each state would be affected by the rule changes — again, assuming employers stood pat.

How much will it cost?

Now for the cost to employers: The DOL is estimating that the average annualized direct employer costs will total between $239.6 million and $255.3 million per year, depending on the salary threshold auto-escalation method.

In addition to direct costs, the DOL says the rules would transfer between $1.18 billion and $1.27 billion out of employers’ coffers into employees’ paychecks annually — again assuming employers do nothing to adjust to the rules.

As we reported previously, Oxford Economics, a global analytics, forecasting and advisory firm, is predicting that transfer of funds won’t take place. Its researchers believe businesses are likely to make “significant adjustments in the structure of their workplaces to compensate for the billions of dollars of added wages the new regulations would impose.”

Oxford Economics predicts employers will “adjust compensation schemes to ensure they do not absorb additional labor costs.”

To do this, the firm estimates employers would:

  • lower hourly rates of pay
  • cut employee bonuses and benefits so they can increase base salaries above the new threshold, and
  • reduce some workers’ hours to fewer than 40 per week in order to avoid paying overtime.

All of these actions would leave total pay largely unchanged.

But taking these actions would result in exorbitant administrative costs — far outweighing the DOL’s estimates, according to Oxford Economics.

In its report, commissioned by the National Retail Federation, Oxford Economics estimated that raising the salary threshold to $51,000 would cost businesses $874 million in administrative expenditures alone.

And the Employer Policy Hall of Shame’s newest inductee is …

Did this organization really think it could get away with this policy, which should immediately be enshrined in the Employer Policy Hall of Shame? 

United Bible Fellowship Ministries Inc., a Houston-based non-profit organization that provides housing and residential care to disabled clients, had a “no pregnancy in the workplace” policy.

That’s right … if you’re pregnant, you can’t work there. It prohibited the continued employment of any employee who became pregnant and prevented the employment of any pregnant applicant seeking a resource technician position, according to the EEOC, which sued the employer over the policy.

The policy came to the agency’s attention after United Bible fired Sharmira Johnson, a resource technician who provided care to United Bible residents, after she got pregnant. Johnson took her story to the EEOC.

The agency then sued in U.S. district court, claiming the policy violated Title VII of the Civil Right Act, after it tried to reach a pre-litigation settlement.

While admitting that Johnson had performed her job well and had no medical restrictions at the time she was terminated, United Bible said her firing was legal — arguing it ensured her safety, as well as that of her unborn child.

But whether or not the organization was looking out of their safety, basing a decision to terminate solely on an employee’s protected status (pregnancy, disability, age, race, gender, etc.) is illegal under federal law.

The verdict

The court ruled that United Bible had “recklessly failed to comply with Title VII” and awarded Johnson $24,764 in back pay and overtime, as well as $50,000 in punitive damages, according to a statement by the EEOC.

The court went on to say that United Bible failed to show that all, or substantially all, pregnant women would be unable to safely and efficiently perform the duties of a resource technician, the EEOC said.

Adding insult to injury, the court pointed out that United Bible was under a funding contract with the Texas Department of Aging and Disability, which specifically required the organization to comply with all anti-discrimination laws.

Following the trial, EEOC Senior Trial Attorney Claudia Molina-Antanaitis, warned employers that they cannot “impose paternalistic and unsubstantiated views on the alleged dangers of pregnancy to exclude all pregnant women from employment.”

Can you fire medical marijuana users? A definitive answer, finally

It’s about time. Employers have finally been given pretty definitive guidance on how they can enforce their workplace drug policies in the wake of marijuana-friendly changes to state laws.

The Colorado Supreme Court just ruled that federal law supersedes state law — and employers have the right to enforce their policies according to federal law.

Translation: Employers can terminate those who test positive for marijuana on-the-job, even if they smoked pot off-the-job in accordance with their state law.

This is precedent that would likely hold up in states besides Colorado as well.

Currently, more than 20 states allow medical marijuana use, and four states have legalized the drug’s recreational use for adults. The recent changes in states’ laws have left employers in the lurch when it comes to how to create and enforce workplace drug policies effectively.

But the Supreme Court of Colorado is saying employers have the right to create their own drug policies as they see fit.

The closely watched case of Mr. Coats

The question of whether or not employees who use pot legally can be fired for failing an employer’s drug test was brought before the court by Brandon Coats, a former phone operator for Dish Network.

Coats is a Denver native and registered medical marijuana user. He’s also a quadriplegic who uses pot in accordance with Colorado law to treat painful muscle spasms he suffers that stem from a car accident that left him paralyzed and wheelchair-bound.

In 2010, he tested positive for marijuana and was fired by Dish, which claimed that his use of pot, even if consumed legally off the job, violated the company’s zero-tolerance anti-drug policy.

Coats then sued Dish for wrongful termination, claiming Colorado law protects employees from being punished for engaging in lawful activities outside the workplace.

Colorado law says:

An employee cannot be terminated for reasons violating public policy. Examples include discharging an employee for: filing a worker’s compensation claim; bringing or threatening a lawsuit; serving on a jury; engaging in lawful off-duty activities; refusing to commit perjury; whistleblower situations, etc.

Two lower courts had already ruled against Coats, and the state’s highest court upheld those two previous rulings by a vote of 6-0.

Court: A violation of federal law isn’t protected

It ruled that federal law, which still classifies marijuana as an illegal narcotic, trumps Colorado’s statutes. Therefore, pot users aren’t protected by state law.

The exact ruling:

“The supreme court holds that under the plain language of section 24-34-402.5, 14 C.R.S. (2014), Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Pretty clear — employees who violate your drug policies by smoking marijuana can be punished.

Granted, this ruling was made by the Colorado Supreme Court and not the federal Supreme Court, so there’s a chance that other states’ courts may not abide by this decision. But you can bet they’ll look at this as a pretty strong precedent — along with similar rulings handed down in California, Oregon, Montana and Washington.

Bottom line: Employers can feel more comfortable about enforcing their anti-drug policies than they have for the past few years.

It’s also worth noting that the Department of Justice has said it will not prosecute those with debilitating conditions who use medical marijuana in accordance with state laws.

A few outliers

While it stands to reason that other states would use the same reasoning as the Colorado Supreme Court, giving employers freedom to punish pot smokers who fail workplace drug tests, some states have broader employee protections — and how those protections jibe with federal law have yet to be fully flushed out in court.

Laws in Arizona, Delaware and Minnesota, for example, specifically state that employers generally cannot penalize patients for testing positive for marijuana. The saving grace for employers, however, is that each of those states allows employers to punish smokers who are impaired on the job.

Cite: Coats v. Dish Network

Chronic tardiness covered under the ADA? Hey, it could happen

chronic tardiness & ADHD

You know that one irritating guy who’s late for everything? He could be asking for an ADA accommodation soon.  

According to a story from London’s Daily Mail, a man who has been late for everything in his life — from funerals to first dates — recently had his chronic tardiness diagnosed as a medical condition.

His penchant for lateness was diagnosed as a symptom of his Attention-Deficit Hyperactivity Disorder (ADHD) at a hospital in Dundee, Scotland.

Doctors there said the part of Jim Dunbar’s brain that’s involved in his ADHD also makes it difficult for him to judge how long it takes to do things — like get ready to go to work, apparently.

Dunbar said he didn’t mind his story being made public: ‘The reason I want it out in the open is that there has got to be other folk out there with it and they don’t realize that it’s not their fault.

‘I blamed it on myself and thought ‘Why can’t I be on time?’ I lost a lot of jobs. I can understand people’s reaction and why they don’t believe me.”

According to the Daily Mail story, some psychologists believe that chronic lateness could be a symptom of an underlying mood disorder such as depression, and many ADHD sufferers complain they struggle to keep time.

Just a minute …

The Mail did note some skepticism of Dunbar’s diagnosis among the medical community.

Dr. Sheri Jacobson, psychotherapist and director of Harley Therapy Clinic in London, told the newspaper:

The condition isn’t in the DSM5 (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) so I’m not sure you can really call it a condition …

Repeated lateness is usually a symptom of an underlying condition such as ADHD or depression but it can also just be habit.

I think making everyday human behavior into a medical condition is unwise.

We’d certainly agree with Dr. Jacobson. But ADHD can be a disability, correct? And getting to work on time could certainly fall into the category of major life activities.

So when will we see our first disability lawsuit from an employee who’s been axed for showing up late too many times?