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Washington ®

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What’s Inside

Part of your Washington Employment Law Service

Michael T. Reynvaan, Nancy Williams, Editors Perkins Coie LLP

Vol. 17, No. 9 October 2010

Discrimination

Ninth Circuit addresses sign language interpreters as accommodations ................... 2

Sex Discrimination

Airline fires men for harassment but not women  is there liability? ............... 4

Contractors

Financial reform law has hidden diversity requirements for contractors . ...................... 5

Drug Use

What you need to know about growing number of medical marijuana laws ...................... 6

Hiring

State supreme court will hear case of woman not hired for medical marijuana use . ....... 7

On HRhero.com Discrimination The American workforce is becoming more diverse, with people from all walks of life. It’s important to know the discrimination laws that protect your workers. At www.HRhero.com, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy  Harassment and/or Discrimination, www. HRhero.com/lc/ policies/204.html • HR Sample Policy  Respectful Workplace, www.HRhero.com/lc/ policies/220.html © M. Lee Smith Publishers LLC

termination

status wd, term, pubp, ulp, supiss, nlra, nlrb

State court no place for supervisor’s wrongful discharge claim Washington law allows claims for wrongful discharge in violation of public policy, and Washington public policy favors employees’ rights to organize labor unions. So a supervisor discharged for refusing to fire union supporters can file a wrongful discharge claim under state law, right? Wrong, says the Washington Court of Appeals.

Supervisor fired for not firing union supporters Jerry Kilb worked as a supervisor for First Student Transportation. He alleged that in 2007, after First Student bus drivers voted against unionization, “management presented him with a list of drivers perceived to be prounion and instructed him to fire them as soon as possible.” Kilb was fired in October after refusing to fire any of the drivers. In his lawsuit, Kilb alleged that First Student discharged him for refusing to fire the prounion employees. He sued for wrongful discharge in violation of Washington public policy. He pointed to RCW 49.32.020, which spells out Washington’s public policy — specifically, that employees “shall be free from interference, restraint, or coercion . . . in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections.”

Courts agree: no claim in state court Both the trial court and the court of appeals rejected Kilb’s claim based on a principle of federal labor law known as the “Garmon preemption,” which occurs when a claim is based on conduct that’s arguably subject to the National Labor Relations Act (NLRA). Preempted claims can be asserted only in the appropriate federal forum — i.e., before the National Labor Relations Board (NLRB) — not in state court. The court of appeals acknowledged that as a supervisor, Kilb wasn’t covered by the NLRA. Thus, if he had been fired for doing something that the NLRA clearly doesn’t protect — like trying to form a union of supervisors — his claim might not have been preempted. But when a supervisor is fired for failing to commit unfair labor practices, the termination is inextricably intertwined with rights that the NLRA protects and conduct that it prohibits. State-law claims based on a termination under those circumstances are therefore preempted. Kilb’s other arguments against preemption also failed. First, he argued that his state-law claim differed from any claim that he could have asserted before the NLRB. But the question, said the court, was whether the claims stemmed from the same facts or conduct, which they did. Second, Kilb argued that

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Washington Employment Law Letter because the NLRA doesn’t protect supervisors, the firing of a supervisor is only a “peripheral concern” of the Act. If he were correct, the Garmon preemption wouldn’t apply. However, the court held that discharging a supervisor for refusing to commit unfair labor practices is a central concern of the NLRA because of the effect that such discharges may have on nonsupervisory employees, whose rights the NLRA does protect. Finally, the court rejected Kilb’s argument that the Garmon preemption didn’t apply because of the so-called “local concern” exception, which holds that Congress didn’t intend for the NLRA to preempt matters of deepseated local concern. The exception, said the court, can’t be read so broadly as to exempt from federal preemption matters that are central to national labor relations policy. Kilb v. First Student Transp., LLC, No. 39564-9-II (Wn. Ct. App., Aug. 3, 2010).

Labor law is its own world This case doesn’t mean it’s OK to fire supervisors who won’t engage in dirty tricks relating to unionization. The court said only that there is a right way and a wrong way to file a claim based on such alleged employer misconduct. But that’s an important lesson in and of itself because it reminds us that special rules — requiring the assistance of experienced counsel — apply to claims involving labor relations. In addition, in referencing Kilb’s possible claims before the NLRB, the opinion reminds

us that an employee need not be in a union — in fact, he need not even be protected by the NLRA — to assert a potential legal claim against his employer. ✤

disability discrimination October Circuit article ada, dh, 9th hcra, jf

Ninth Circuit says failure to provide ASL interpreter revives ADA claim When must you provide an American Sign Language (ASL) interpreter for communications with a deaf worker who is regularly able to do his job without such assistance? A recent decision from the Ninth U.S. Circuit Court of Appeals (which includes Washington) suggests that ASL interpretation should be considered whenever needed to give a deaf worker the same access to general information at the same time as hearing employees.

Deaf employee asks for ASL interpreter Mauricio Centeno, who has been deaf since birth, relies on ASL as his first and primary language. ASL is a visual, three-dimensional, nonlinear language, and its grammar and syntax differ from those of spoken languages, including English. There is no one-to-one correspondence between ASL signs and English words, and Centeno’s understanding of written English is limited, reading and writing at a fourth- or fifth-grade level.

Washington NEWS IN BRIEF L&I extends program helping employers with workers’ comp. The Washington State Department of Labor and Industries (L&I) has announced it will extend its employer assistance program, which offers businesses the opportunity to extend payment of workers’ compensation premiums and in some cases waive penalties and interest on late payments. The program is meant to help companies that have previously had a good history of paying their premiums but are now struggling by freeing up cash for business expenses. “Like families across Washington, businesses have seen incomes drop but still have bills to pay,” Governor Chris Gregoire said in a press release. “When it comes to workers’ compensation, businesses face another challenge: they are undercut by an underground economy in which some businesses operate without legally required protections for their workers, and try to succeed on the backs of honest businesses that follow the law.” State’s workplace fatalities down in 2009. According to the U.S. Bureau of Labor Statistics’ annual Census of Fatal Occupational Injuries, there were 75 deaths in Washington in 2009, down from 83 in 2008. 2

“We know much of this decline is likely due to fewer people working during this economic recession,” L&I Director Judy Schurke said in a press release. “But many industries have also worked hard to improve workplace safety, and L&I has continued to increase its efforts in providing safety and health information to employers.” Businesses urged to “Choose Washington” for beauty and brains. As part of its “Choose Washington” campaign, the Washington State Department of Commerce ran an ad in the September issue of Forbes magazine highlighting the state’s geographic proximity to Asia, its thriving high-tech community, the absence of an income tax, and cheap hydroelectric rates. The ad labels Washington as “the best of both worlds,” offering beauty and brains: “Washington State is more than just a pretty place. Along with all our breathtaking beauty, you’ll discover a highly educated workforce, strong venture capital opportunities and a gateway to global trade markets. It’s easy to see why U.S. News & World Report named Washington State the #1 place to start a business in 2009.” ✤ October 2010


Washington Employment Law Letter From 2001 until 2009, Centeno worked as a junior clerk in the accounting department at a UPS facility in Gardena, California. He didn’t need an ASL interpreter to satisfactorily perform his routine job duties. But weekly and monthly department meetings posed a greater challenge. Centeno’s supervisors used the meetings to convey information on a variety of topics, such as changes to employee benefits and information about quarterly earnings, vacation and holiday scheduling, new HR policies, and charity drives. The meetings typically lasted from 30 minutes to more than an hour, and UPS didn’t provide ASL interpretation. Centeno’s direct supervisor, Jenny Chan, typically issued a brief written agenda before the meetings. She provided Centeno with further information via e-mail and typewritten notes that she created following the meetings. The notes didn’t capture everything that was discussed at the meetings, hitting just the main points based on Chan’s recollection. Centeno was frustrated by this process because he didn’t receive the same information as other employees and didn’t have the same opportunity to ask questions or offer his ideas. Centeno repeatedly requested that UPS arrange for an ASL interpreter at the meetings. The company denied those requests but agreed in 2004 to have an employee sit beside Centeno at the meetings and make contemporaneous notes of what was being said. This arrangement also missed the mark. Other employees were often brief and cryptic in their note taking, and Centeno still couldn’t understand what was going on. In March 2005, he complained to the Equal Employment Opportunity Commission (EEOC). Coincidentally, in 2005, UPS began having an ASL interpreter at some of Centeno’s department meetings, and by 2006, it was providing interpreters fairly consistently. An EEOC investigator told Centeno he shouldn’t attend meetings if there was no interpreter. When he failed to attend a meeting because of that instruction, he was deemed insubordinate by UPS. In March 2007, Centeno met with HR representatives at UPS, with an ASL interpreter present, to explain his needs. Through the interpreter, he told the company that he was unable to understand some written communications and didn’t know the meaning of some of the English words used in written notes and summaries. He had experienced similar problems when he was told to take online training in Excel and when he was required to review and sign off on UPS’ professional conduct and antiharassment policy. When he had professed not to understand in the past, his supervisors had told him to look up the words in a dictionary. That suggestion was also ineffective. In September 2006, the EEOC filed suit on Centeno’s behalf, alleging violations of the Americans with Disabilities Act (ADA). The trial court concluded that UPS had taken sufficient steps to accommodate Centeno’s October 2010

needs and ruled in the company’s favor without a trial. The EEOC appealed.

There’s an ADA question for trial The ADA prohibits discrimination against qualified individuals relating not only to job basics but also to “all privileges of employment.” Nondiscrimination may in some instances require that the employer provide a reasonable accommodation to the disabled worker unless doing so would pose an undue hardship. The focus of Centeno’s claim was on privileges of the workplace, particularly the right to have access to information on the same basis as other employees. The Ninth Circuit noted that a request for an accommodation triggers an interactive process between the worker and the employer, who must work in good faith to find an accommodation that is both reasonable and effective. The solution may not be exactly what the worker requested so long as it works. In Centeno’s situation, the trial court had concluded that the written summaries and notes that UPS had provided him were sufficient and that an ASL interpreter wasn’t needed. On review, the Most challenges Ninth Circuit disagreed that the sufcan be solved ficiency of the acthrough active commodations could communication, be decided without creative thinking, a trial. Centeno had raised genuine quesand a cooperative tions about the effiapproach. cacy of the notes and other materials he had been given. He had made clear to UPS his difficulties with understanding written communications. And even without those challenges, receiving notes and summaries after the fact precluded his active participation in meetings. Under the circumstances, it was possible that jurors could conclude at trial that UPS had not gone far enough to accommodate Centeno’s needs. Although the company didn’t have to grant his specific requests, the ADA required it to come up with adequate solutions to his communications needs in departmental meetings, training, and written materials. Whether UPS had done enough to satisfy the ADA would need to be determined through a trial. EEOC v. UPS Supply Chain Solutions, Case No. 08-56874 (9th Cir., Aug. 27, 2010).

Bottom line: Find the right solution UPS clearly made a number of efforts to give Centeno access to information at meetings and in written materials. The problem in the end was that those efforts weren’t effective. The ADA requires you to work actively with an employee who needs an accommodation 3


Washington Employment Law Letter and to keep trying until you find something that works. There may be some situations in which a reasonable accommodation isn’t possible, but most challenges can be solved through active communication, creative thinking, and a cooperative approach. D

sex discrimination October 9th Circuit article term, sh,2010 ds, hwe

Ninth Circuit bars discrimination claim of pilots fired for harassment When a chartered aircraft company fired several male pilots because of their sexually offensive comments and conduct, the pilots sued. They claimed female flight attendants, including one who had complained about the pilots, engaged in the same type of sexual activity in the workplace without getting fired. According to the pilots, that amounted to sex discrimination. In a recent decision, the Ninth Circuit disagreed.

Flight attendant reports offensive conduct The story began when Robin McCrea, a female flight attendant for Executive Jet Management, Inc., reported to her supervisor that three male pilots had created a sexually hostile environment. According to McCrea, pilots Gregory Hawn, Michael Prince, and Aric Aldrich engaged in sexualized banter, crude jokes, and the sharing of crude and/or pornographic e-mails and websites. Her complaint came on the heels of a training seminar during which she claimed the pilots had behaved badly. She requested a transfer away from the Arizona base at which she and the pilots were located. Executive Jet’s chief pilot interviewed the three pilots. His report reflects that Prince and Aldrich were shocked by McCrea’s accusations because she had participated in and often encouraged just the kind of banter and joking she complained about. The chief pilot’s report also indicated that McCrea was viewed as shorttempered and negative, she had been flustered during the recent training, and her allegations may have been motivated by her desire for a transfer. Just over a week after her initial complaint, McCrea faxed a 12-page letter to the company’s HR director detailing concerns about what happened at the training seminar and additional information about the pilots’ offensive conduct. At this point, Executive Jet retained an independent investigator to look into the matter. The investigator was able to confirm some of the pilot conduct reported by McCrea. But many specifics were unconfirmed, denied, or cast by witnesses in a different light, suggesting that McCrea may have participated in or even instigated some of the incidents. The 4

investigator concluded that the company would have to sort out the facts from the fiction and “sift the wheat from the [chaff]” of McCrea’s complaint. After reviewing the report, Executive Jet fired Hawn, Prince, and Aldrich. The three pilots sued for sex discrimination, but the trial court threw out the claims without a trial. They then appealed.

Pilots cry foul, claim discrimination To establish the initial elements of their claim, the pilots had to show that they were members of a protected group (i.e., men), they were qualified for and satisfactorily performed their jobs, they suffered an adverse employment action, and “similarly situated” individuals outside their group (i.e., women) were treated more favorably. The Ninth Circuit’s review focused on the question of whether similarly situated individuals received more favorable treatment than the pilots. The pilots contended that their sexual banter and joking were no different from or more serious than similar comments and conduct by female flight attendants, including McCrea herself. Yet the flight attendants weren’t fired. According to the pilots, that was evidence of sex discrimination. The trial judge had concluded that the pilots couldn’t compare their situation to that of the flight attendants because (1) they didn’t have the same supervisor and (2) there had been no complaints about the flight attendants’ conduct. On appeal, the Ninth Circuit disagreed with the trial judge’s conclusion that the lack of a common supervisor meant the flight attendants weren’t similarly situated with the pilots. The court said the inquiry should be broader and, based on specific facts, should consider whether the individuals had similar jobs and displayed similar conduct. Although a shared supervisor might be an important fact in some cases, it wouldn’t be determinative. The Ninth Circuit also noted that in this particular situation, the decision to fire the pilots (and presumably the decision not to fire the flight attendants) had been made by Executive Jet’s president, making the lack of an immediate supervisor in common unimportant. But the Ninth Circuit did agree with the second basis on which the trial judge had concluded that the pilots weren’t similarly situated with the flight attendants. Although the pilots pointed to the investigator’s findings that McCrea had participated in raunchy behavior, no one had complained about it. The investigator confirmed some of McCrea’s reports about the pilots, including Hawn’s pinching of her buttocks, Prince’s forwarding of obscene e-mail messages, and Aldrich’s calling the lead flight attendant a “fat cow.” Those activities and others had resulted in a hostile work environment complaint. By contrast, there was no evidence that sexual banter by the flight attendants had offended or been unwelcome to the pilots. That meant the pilots and the flight attendants weren’t “similarly situated.” October 2010


Washington Employment Law Letter The Ninth Circuit affirmed the trial court’s dismissal of the pilots’ sex discrimination complaint. Hawn v. Executive Jet Management, Inc., Case No. 08-15903 (9th Cir., Aug. 16, 2010).

The agencies subject to these requirements include: •

the departmental offices of the U.S. Department of the Treasury;

Don’t wait for a complaint to address sexual banter

the Federal Deposit Insurance Corporation;

the Federal Housing Finance Agency;

all of the Federal Reserve banks;

As the court noted in this case, it makes a legal difference whether sexual joking and banter in the workplace are welcomed by or offensive to employees. That difference meant this employer had a defense to the pilots’ sex discrimination claim. But it’s difficult to know whether such conduct is truly welcomed and enjoyed by affected workers. And it’s easy for a worker who seemed to willingly participate to claim after the fact that she was offended. If you become aware of inappropriate sexual communications or conduct in your workplace, it’s a good idea to address the situation immediately, regardless of whether an employee has complained. It’s risky business not to act based on an impression that the conduct is welcomed by all.

the Board of Governors of the Federal Reserve System;

the National Credit Union Administration;

the Office of the Comptroller of the Currency;

the Securities and Exchange Commission; and

the Bureau of Consumer Financial Protection established by the legislation.

You can catch up on the latest court cases involving sexual harassment in the subscribers’ area of www.HRhero.com, the website for Washington Employment Law Letter. Just log in and use the HR Answer Engine to search for articles from our 50 Employment Law Letters. Need help? Call customer service at (800) 274-6774. ✤

government contractors October 2010 federal article. leg, gc, ds, drace, term

Financial reform’s hidden surprise: diversity requirements The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Barack Obama signed it into law on July 21. However, many employers probably don’t realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.

Office of Minority and Women Inclusion The federal financial regulatory agencies affected by the legislation will have to establish an Office of Minority and Women Inclusion. According to the legislation, each office is “responsible for all matters of the agency relating to diversity in management, employment, and business activities.” Each agency must establish an office no later than six months after the date of the bill’s enactment, and each agency administrator (head of the agency) will appoint an office director. October 2010

Office functions for:

Standards. Office directors must develop standards

(1) equal employment opportunity and the gender, racial, and ethnic diversity of the agency’s workforce and senior management; (2) the increased participation of businesses owned by minorities and women in the agency’s programs and contracts; and (3) evaluation of the diversity policies and practices of entities that are regulated by the agency. Directors must also advise the agency administrator regarding the impact of the agency’s policies and regulations on businesses owned by minorities and women. Additionally, office directors must develop and implement standards and procedures to make sure the agency fairly includes and uses minorities, women, and businesses owned by minorities and women in all of its activities and business. That includes procurement, insurance, and all kinds of contracts. Contracts. The agency’s procedures for reviewing and evaluating contract proposals and for hiring service providers must include “a component that gives consideration to the diversity of the applicant.” Additionally, contractors doing business with the agencies must submit a written statement that they will make sure (to the maximum extent possible) that they (and their subcontractors, if applicable) fairly include women and minorities in their workforce. Termination. If a director determines that an agency contractor (or subcontractor) didn’t make “a good-faith effort” to include women and minorities in its workforce, the director will recommend contract termination to the agency administrator. After the administrator receives such a recommendation, she can: (1) terminate the contract; 5


Washington Employment Law Letter (2) refer the issue to the Office of Federal Contract Compliance Programs (OFCCP); or (3) take other appropriate action.

Affected employers Employers that deal with the above agencies may be affected by these new diversity requirements. According to the legislation, these requirements apply to the following service providers: • financial institutions; • investment banking firms; • mortgage banking firms; • asset management firms; • brokers; • dealers; • financial services entities; • underwriters; • accountants; • investment consultants; and • providers of legal services. Additionally, the term “contracts” includes “all contracts for all business and activities of an agency, at all levels, including contracts for the issuance or guarantee of any debt, equity, or security, the sale of assets, the management of the assets of the agency, the making of equity investments by the agency, and the implementation by the agency of programs to address economic recovery.”

What you need to know If you’re a federal contractor, subcontractor, or serv­ ice provider for one of the federal agencies listed above or you expect to become involved with one of those agencies, you may be facing more regulatory review of your organization’s employment practices. However, exactly what these regulations will entail isn’t clear yet since each agency’s office will develop its own standards. Even though the agencies haven’t yet developed the new standards, if you think you may be subject to this legislation, it’s a good idea to start planning ahead. More specifically, you should: • Determine whether your current contracts, subcontracts, or service agreements would cause you to fall under the legislation. • Review your current diversity programs and practices. • Review the OFCCP’s standards and determine how your organization’s practices and programs compare (since many speculate the new standards will be similar to OFCCP standards). • Decide whether you think you will need to implement new diversity programs and practices to comply with the new standards. D 6

drug use

October 2010 article du, dt, leg, el,federal ada, hcra, os, jri, jrd

Baked but not fired? Medical marijuana laws create uncertainty for your policies The debate over the legalization of marijuana for medical purposes is far from a new one, yet it has seen a recent surge of interest, raising policy and liability questions for employers across the country. Ever since California legalized the use of marijuana for medicinal purposes in 1996, a steady stream of states has followed suit. Fourteen states and the District of Columbia have now legalized the use of marijuana for medicinal purposes.

How do the laws work? Though there have been efforts to pass national medical marijuana legislation, the possession, sale, and recreational use of marijuana remain illegal under the federal Controlled Substances Act. So how do state medical marijuana laws reconcile the illegality of the substance? Medical mariIn general, court juana legislation gendecisions tend to erally removes state rule in favor of criminal penalties for the use, possesemployers that sion, and cultivation enforce drug-free of marijuana for paworkplace policies. tients with a recommendation or referral from their physician. Typically, the physician must indicate that the patient will benefit in some way from the use of marijuana for the treatment of specified conditions, which may include illnesses such as cancer, HIV/ AIDS, epilepsy, multiple sclerosis, and glaucoma. Additionally, the federal government recently changed its long-standing policy of prosecuting users of marijuana. In October 2009, the Obama administration announced that it would no longer pursue medical marijuana users and distributors in states where it is legal, so long as they comply with applicable state laws. Medical marijuana laws vary in specifying how the marijuana can be dispensed to a qualified patient or caregiver. In some states, certified and licensed dispensing centers are the only legally authorized providers of marijuana, while other states allow patients to grow, cultivate, and consume their own marijuana. Many of those states have now created state-run registries that require qualified patients to register and receive special identification cards denoting their medical need. Other states require only that patients possess written documentation from their physicians. All states limit the amount of marijuana that can be grown or possessed during a given time. October 2010


Washington Employment Law Letter

States’ laws and their impact Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law, joining Maine, Rhode Island, and Vermont on the East Coast. Alaska, California, Colorado, Hawaii, Michigan, Montana, Nevada, New Mexico, Oregon, and Washington round out the other states where medical marijuana is legal. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so). Last year, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana. In the meantime, existing laws continue to be interpreted and modified through legislative action or court decisions. The laws of the states in which you operate should be carefully examined for guidance. Some states, such as Colorado, have specifically stated that nothing in the medical marijuana law requires an employer to accommodate the use of medical marijuana in the workplace. In such states, it may be clear that employers can prevent employees from using marijuana at work, but it may not be clear whether employees are protected when they come to work with marijuana in their systems or when they test positive in a drug test. Other states have taken the opposite approach, specifically prohibiting employers from disciplining or terminating employees based on their medical marijuana use. Again, it isn’t always clear whether these laws apply to both on- and off-duty use.

Further legal issues, from ADA accommodation to safety Legal questions also arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don’t need to make such accommodations. Because the ADA doesn’t require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment. Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating October 2010

heavy equipment, machinery, or motor vehicles as part of their job duties. Therefore, several state medical marijuana laws specifically prohibit the operation, navigation, or actual physical control of a motor vehicle, aircraft, or motorboat while under the influence of medical marijuana.

Bottom line The good news is that in general, court decisions tend to rule in favor of employers that enforce drugfree workplace policies. Further, it doesn’t appear that state medical marijuana laws give employees a special legal claim to sue for wrongful termination. However, it’s hard to say, in light of recent developments on the state and local levels, whether this trend will continue. You should carefully review your drug policies and make sure they include provisions addressing the issue of medical marijuana use. D

drug use

status du, wd, hiring, dt, pubp

Medical marijuana and Washington employers The Washington State Medical Use of Marijuana Act (MUMA) is found at Chapter 69.51A RCW. Little authoritative guidance exists on how MUMA applies in the workplace. Employers should, however, be aware of a case now pending before the Washington Supreme Court in which an applicant claims she was unlawfully denied employment based on her use of medical marijuana.

Medical marijuana user applies for employment Jane Roe (not her real name) is an authorized user of medical marijuana. TeleTech is “an outsourcing company that provides a full range of front- to back-office outsourced solutions.” TeleTech’s drug policy requires preemployment drug testing and states that applicants with “a confirmed positive drug test result will be ineligible for employment with the company.” TeleTech conditionally hired Roe as a customer service consultant. When the company provided her with a copy of its drug policy, she stated that she was authorized to and did use medical marijuana. Predictably, she failed the test, and TeleTech rescinded its offer of employment.

Two courts reject wrongful discharge claims Roe sued, arguing that the MUMA implicitly prohibits employers from enforcing their drug policies against individuals who use medical marijuana outside the workplace. She further argued that the Act expresses 7


Washington employment law letter Training Calendar Call customer service at (800) 274-6774 or visit us at the websites listed below. FULL-DAY WEB SEMINARS 10-21 “Unionized Employers Virtual Summit: Negotiating CBAs and Mastering Other Labor Challenges,” presented by attorneys James F. Kilcur, Christoper J. Murphy, and Robert C. Nagle. http://store.hrhero.com/unionized 12-15 “Conducting Effective Workplace Investigations Virtual Summit,” presented by attorneys Mark I. Schickman and Kara E. Shea. Watch for details at www.HRhero. com. AUDIO SEMINARS — http://store.hrhero.com/ events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-5 “Independent Contractor or Employee? Avoid the Misclassification Crackdown,” presented by attorney Kara E. Shea. 10-7 “Conducting Firings and Managing Termination Pay: Legal Guidance for Employers,” presented by attorney Brian R. Garrison. 10-12 “High-Performance Performance Reviews: How to Take Employees to the Next Level,” presented by Jay Forte, Humanetrics.

a public policy in favor of protecting medical marijuana use, giving her a claim for wrongful discharge in violation of public policy. The trial court disagreed and dismissed the lawsuit, and the court of appeals affirmed the dismissal. The appellate court first examined the language of the MUMA for indications that Washington voters (who adopted the Act through the initiative process) intended the law to protect employees using medical marijuana from discipline and discharge. The court concluded that the Act was intended to protect medical marijuana users and prescribers from criminal prosecution. The only reference to employment is a statement that “nothing in this chapter requires any accommodation of any medical use of marijuana in any place of employment.” The court said the average informed lay voter wouldn’t have understood that statement to imply that employers had to accommodate off-duty medical marijuana use. It follows that the “public policy” expressed in the MUMA is limited to protection against criminal prosecution and doesn’t extend to the employment context. Roe v. TeleTech Customer Care Mgt. (Colorado), LLC, 152 Wn. App. 388 (2009), review granted, 168 Wn.2d 1025 (2010).

Stay tuned (in) Although two levels of Washington courts have agreed that you have no duty to hire medical marijuana users, the final word will come from the Washington Supreme Court, which has accepted review of the Roe case. Keep your eyes peeled for a decision in the next few months. ✤

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Editorial inquiries should be directed to Michael T. Reynvaan at Perkins Coie LLP, 1201 Third Avenue, 40th Floor, Seattle, WA 98101-3099, (206) 583-8888. Washington EMPLOYMENT LAW LETTER is not intended to be and should not be used as a substitute for specific legal advice since legal opinions may only be given in response to inquiries regarding specific factual situations. If

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Discrimination Discrimination Contractors Perkins Coie LLP is a member of the Employers Counsel Network Hiring Michael T. Reynvaan, Nancy Wi...

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