Best Practices for Best Employers ™ How to Become a Best Workplace Starting Today! EAMWORK • EMPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUN LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION • INSPIRATION • TEAMWOR MPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUNITY • LEADERS EAM • VALUES • VISION • MOTIVATION • INSPIRATION • TEAMWORK • EMPOWERM INNOVATION • SUCCESS • SOLUTION • OPPORTUNITY • LEADERSHIP • TEAM • VALU VISION • MOTIVATION • INSPIRATION • TEAMWORK • EMPOWERMENT • INNOVATI SUCCESS • SOLUTION • OPPORTUNITY • LEADERSHIP • TEAM • VALUES • VISION • OTIVATION • INSPIRATION • TEAMWORK • EMPOWERMENT • INNOVATION • SUCC SOLUTION • OPPORTUNITY • LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION NSPIRATION • TEAMWORK • EMPOWERMENT • INNOVATION • SUCCESS • SOLUTIO PPORTUNITY • LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION • INSPIRATIO EAMWORK • EMPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUN LEADERSHIP • TEAM • VALUES • VISION • MOTIVATION • INSPIRATION • TEAMWOR MPOWERMENT • INNOVATION • SUCCESS • SOLUTION • OPPORTUNITY • LEADERS EAM • VALUES • VISION • MOTIVATION • INSPIRATION • September 9, 2014 Lawyers for Employers® Dear Colleagues: Being a “Best Workplace” can be hard work. Lane Powell; Puget Sound Business Journal; Lake Washington Human Resource Association; and Parker Smith & Feek have joined forces to help your business become a “Best Workplace.” D. Michael Reilly Director of Labor and Employment and Employee Benefits Practice Group — Lane Powell PC We invite you to join us for our 32nd Annual Labor and Employment “Best Practices For Best Employers™” Seminar at the beautiful Motif Seattle. Small- and large-business owners, senior corporate executives, corporate counsel and human resource professionals will receive cutting-edge guidance on quick-changing employment laws. This seminar sold out last year, so early registration is encouraged. Being caught unaware of big changes in employment laws can hurt your business. We are here to help. You will receive thoughtful insights from experienced speakers on new developments in federal, state and local laws that will directly impact your company. Some new developments include: • • • • • Nancy Kasmar President — Lake Washington Human Resource Association The impact of the new recreational marijuana law in the workplace; Changing employee benefits, given the U.S. Supreme Court’s Hobby Lobby decision; Seattle’s new $15 minimum wage law; New ways to address disability and pregnancy discrimination in light of recent Equal Employment Opportunity Commission guidance; and How the National Labor Relations Board is affecting non-union companies. You will also hear discussions on important topics that affect your business, including: • Mental disabilities in the workplace and how employers should address day-to-day events, and short- and long-term disability; • How employers can benefit from employees with mobile technology and also understand the business risks if not handled appropriately; and • How to address the continued surge in workplace retaliation and whistleblowing. Lane Powell is the “Lawyers for Employers” firm that helps emerging and established businesses navigate the employment landscape throughout the Pacific Northwest. Lake Washington Human Resource Association is the “Super-Mega Chapter” of the Society for Human Resource Management, and has a long history of providing thoughtful insights to current employment issues facing businesses. Parker, Smith & Feek is one of the 100 largest insurance brokerage firms in the nation and is dedicated to protecting their clients’ assets. We look forward to seeing you on September 9! Edward G. Rhone, CPCU, AIC Principal, Claims Manager — Parker, Smith & Feek For more information or to register for our upcoming 32nd Annual Labor and Employment “Best Practices For Best Employers™” Seminar, please visit our website at www.lanepowell.com. Lawyers for Employers® Seattle’s New Minimum Wage: Some Myths and Facts By Laura T. Morse Laura T. Morse is Chair of Lane Powell’s Labor and Employment Practice Group. Laura advises employers of all sizes, from Fortune 500 companies to local startups, in navigating complex employment issues. Laura has an active litigation practice and has achieved winning dismissals for employers on a variety of claims in both state and federal court. She also focuses her practice on helping employers avoid litigation, giving guidance on handbooks, leave questions and providing training on ever-changing employment laws. Laura has a Yellow Belt certification in Legal Lean Sigma® and Project Management. Laura can be reached at [email protected] or 206.223.7063. I n a vote heard across the country, the Seattle City Council unanimously voted on June 2 to raise the minimum wage for workers in the City of Seattle. Washington state already had the highest statewide minimum wage at $9.32 (by comparison, the federal minimum wage is $7.25 an hour). Seattle’s increase put the city in the spotlight in the Wall Street Journal, the New York Times and Fox News, to name just a few. The “what ifs” swirled around the heated negotiations that led up to the Council’s vote. What if the increase would push employers to cut jobs, thereby doing a disservice to the very employees the law was meant to benefit? What if the people who chose to come to Seattle to find higher-wage jobs that might not exist, would weigh further on the City’s already burdened social services system? What if paying a higher wage would infuse more money into the Seattle economy, which would ultimately benefit employers paying the increased wage? What if paying a “living wage,” as the proponents characterized the increase, would reduce the reliance on social services and state benefits? When Seattle Mayor Ed Murray signed the ordinance into law on June 3, the discussion changed from “what if ” to “we will have to see.” The constitutionality of the new law has already been challenged. An association of franchisors and franchisees and four of its members filed suit against the City in June. Under the law, franchisees are required to count all employees of its franchisor’s brand (for example, counting all McDonald’s employees nationwide even if the Seattle franchisor only employs 10 people). The group argues that this requirement unfairly discriminates against franchisees, who are otherwise small-business owners. On August 6, the group asked the court to immediately block implementation of the ordinance. Even if successful, however, such a ruling would only apply to franchisees. Forward Seattle, a local organization opposing the wage increase, sought unsuccessfully to get the issue on the November ballot for a vote by the people. Consequently, employers should begin planning for the implementation of the new law, which sees the first wage increase go into effect on April 1, 2015. As employers have started this process, there have been some misunderstandings about the new law, several of which are addressed below. MYTH: The minimum wage in Seattle is now $15. FACT: The minimum wage will increase incrementally, and it will not reach $15 until 2017 (and only then for some employers who do not pay employee medical benefits). The minimum wage is set to increase over a period of years. The increase will affect larger and smaller employers differently. Employers with more than 500 employees in the U.S. are Schedule 1 employers. The wage rate for a Schedule 1 employer’s employee varies depending on whether the employer pays toward the employee’s medical benefits. Employers with 500 employees or fewer in the U.S. are Schedule 2 employers. (Franchisees count employees a little differently, as further detailed in the ordinance. As discussed above, this is currently subject to a legal challenge.) The rate increases applied to Schedule 2 employers depend on a number of variables. Schedule 2 employers can also pay a minimum compensation rate rather than a minimum wage; the former of which can include tips and payments toward the employee’s medical benefits. However, no Schedule 2 employer will reach a $15 minimum wage rate until 2021. MYTH: Employers can now count tips toward the employee’s minimum wage rate. FACT: As noted above, only Schedule 2 employers can take tips into account in calculating an employee’s minimum compensation rate. In an attempt to assuage concerns of smaller employers, the new law permits Schedule 2 employers to count tips toward an employee’s minimum compensation rate. Attempts to exclude tips altogether failed. MYTH: Schedule 1 employers that offer their employees medical benefits can apply the lower rate increase, even if the employee does not enroll in the employer’s plan. FACT: The letter of the law requires actual payment toward the employee’s medical benefits. SMC 14.19.030 looks to the individual employee and provides: “Schedule 1 employers that pay toward an individual employee’s medical benefits plan shall pay the employee an hourly minimum wage as follows . . . .” (Emphasis added.) The City of Seattle may issue further guidance, but as the law currently reads, the employer must actually make payments and not just offer benefits. These are just a few common misunderstandings about the new minimum wage law. Given the complexity of the ordinance, employers should act now to familiarize themselves with the nuances of the law and determine how the law will apply to them. Given the maze of variables, it may affect employer policies, such as paying toward medical benefits. Employers should contact legal counsel with any questions. Interesting Facts... Gov. Jay Inslee has announced his renewed focus on raising the state-wide minimum wage. Although Seattle is the first major American city to pass a $15 minimum wage law, San Francisco has put a similar measure on the ballot for the November 2014 election. For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com. Lawyers for Employers® What Does the Recent Hobby Lobby Decision Mean for Washington Employers By D. Michael Reilly D. Michael Reilly is a nationally recognized employment attorney, recently recognized as one of “The Nation’s Top 100 Most Powerful Employment Attorneys” by Human Resource Executive. He advises employers in all employment matters, and represents employers in litigation, including ERISA and non-ERISA employee benefit litigation. He has successfully tried over 75 jury trials, arbitrations and bench trials, including retaliation and Sarbanes-Oxley claims. Mike can be reached at [email protected] or 206.223.7051. Y ou already know that the U.S. Supreme Court issued a 5-4 decision in the Hobby Lobby case. You may have heard a lot of commentary about the decision. BUT — What does it mean for Washington state employers? 1. What was the controversy before the Supreme Court that affected employers? The Affordable Care Act (ACA) and its regulations generally require employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” Unless an exception is applicable, the regulations issued for the ACA mandated that employers cover 20 methods of contraception approved by the Food and Drug Administration. 2. What was the employer’s position that created the lawsuit? Hobby Lobby, a privately held corporation, agreed to cover 16 out of 20 different contraceptive methods. However, it refused to cover four of the 20 contraceptive methods that may prevent an already fertilized egg from developing any further, contending it violated religious beliefs. Hobby Lobby’s refusal to cover four contraceptive methods meant it could be fined $1.3 million a day, or $475 million a year, under the ACA. 3. What did the Supreme Court decide? The Supreme Court majority opinion concluded that the Religious Freedom Restoration Act of 1993 (RFRA) did not prevent Hobby Lobby from refusing to provide these four types of contraception. The ACA provides for exemptions from the contraceptive mandate for “religious employers” and certain religious nonprofit organizations. The majority concluded that owners of for-profit, privately held corporations with five or fewer shareholders do not forfeit all RFRA protection when they operate their business in the manner required by their religious beliefs. 4. What does the decision mean for Washington employers? More court decisions regarding how the ACA applies to employers are coming. They will further define the ACA and how employers and employees will be affected by this law. For example, nonprofit religious organizations that object to covering birth control, such as some Catholic charities or universities, can elect instead to have their insurer or third-party administrator pay for the workers’ contraceptive coverage. However, that work-around is being litigated and the outcome is unclear. For now, consider these predictions: • Expect some closely held for-profit corporations, sole proprietorships and other associations and nonprofit corporations to file lawsuits seeking to opt out of the ACA contraceptive coverage mandate. Many more regulations will be issued that will affect how employers adapt to the ACA. And, as grandfathered plans are phased out and premiums continue to rise, companies will likely decide to challenge certain provisions. Companies may try to use the decision to deny qualified retirement plan protections to an employee’s same-sex spouse, based on religious objections to that marriage. The majority opinion in Hobby Lobby warns, however, that the decision does not protect employers who illegally discriminate against employees. • Companies trying to opt out of certain contraceptive coverage will have to prove a history of religiously motivated decisions in their business. An employer could seek a declaratory judgment on the issue. Expect the Department of Health and Human Services to issue guidance providing for-profit corporations with an accommodation similar to that provided for nonprofit religious organizations. An accommodation would likely be limited to only those contraceptives that the owners oppose for religious reasons, such as the four contraceptives challenged in Hobby Lobby, and will likely require that a corporation’s owner(s) certify religious objections to those contraceptives. • New rules posted July 24 by the U.S. departments of Health, Labor and the Treasury are the first regulatory response to the decision from the court. The document orders companies to give employees a summary of any changes to their health benefits. • Expect that more female employees may receive a second ID card in the mail that can only be used for contraceptive coverage provided by the ACA that is paid for by the insurance company and not the employer. • Expect health insurance companies to continue to offer group health insurance products that automatically include no-cost contraceptives for plan participants and beneficiaries. These products probably will not allow employers to exclude certain contraceptive services, even if the employer has religious objections to a plan that covers such services. It is uncertain how employers, especially those with fully insured group health plans and who have religious objections to the contraceptive mandate, will actually avail themselves of the Hobby Lobby decision. • Expect legislative proposals from Congress, with no immediate effect. Sens. Mark Udall (D-CO) and Patty Murray (D-WA) recently introduced legislation that would make it clear that no federal law permits for-profit employers to refuse to comply with the ACA contraceptive mandate for any reason, including religious beliefs. It is doubtful this legislation will move very quickly. Interesting Fact... Over 100 lawsuits by for-profit companies and over 40 lawsuits by nonprofit entities have been filed in federal court challenging the Affordable Care Act’s birth control coverage benefit. The Hobby Lobby decision applies to “closely held” for-profit businesses, which make up over 90 percent of all American businesses. For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com. Lawyers for Employers® How to Handle Mental Disabilities in the Workplace Without Losing Your Mind Katheryn Bradley defends employers in employment litigation, and devotes a substantial part of her practice counseling managers and human resource professionals on the best practices of managing leave and navigating through the interactive process of accommodating disabled employees. She also prepares executive employment agreements, effective covenants not to compete, and trade secrets and intellectual property agreements. Katheryn can be reached at [email protected] or 206.223.7399. By Katheryn Bradley and Craig A. Day C onsider this scenario: In your role as a human resources director, an accounting manager visits you to report that her boss is having an affair with her husband and that they are plotting to kill her or fire her, or both. She offers no proof whatsoever, but she demands that you immediately fire her boss or she will report it to Jesse Jones at KING 5 News. Do you have a modern-day Don Quixote in your workplace? If so, what are your legal obligations? This situation may seem far-fetched, but in fact, mental illness is more prevalent than you may think. A 2011 national survey by the federal government reported that one in five American adults, or 45.6 million people, suffered from mental illness in the prior year. Your accounting manager may suffer from a diagnosable psychopathological condition known as Othello syndrome, in which a person holds a strong delusional belief that their spouse is being unfaithful without having any significant proof to back up their claim. What obligations do you now have under workplace laws? Craig A. Day focuses his practice on ERISA-related matters, employee benefits issues and executive compensation. He has extensive experience in ERISA issues related to qualified and nonqualified retirement plans and employee welfare benefit plans, including medical, dental, vision, life insurance and short- and long-term disability plans. He also advises clients on issues related to the Patient Protection and Affordable Care Act. Craig can be reached at [email protected] or 206.654.7819. Washington state anti-discrimination laws protect any person with a diagnosable disability. The Americans with Disabilities Act (ADA), the federal anti-discrimination law, as amended, also provides broad protection for mental illness. Your task therefore becomes determining whether the disability can be reasonably accommodated without imposing an undue hardship on the company’s operations, or whether the employee is a direct safety threat to herself or others. This undoubtedly will require you to seek help from a medical professional trained in mental illness. Accommodations can include granting leaves of absence. Paid or unpaid leave can enable employees to recover and seek treatment. When disabilities involve chronic conditions, an employee may require further accommodation to continue working. Resources are available to employers to help identify reasonable accommodations for challenging mental conditions. For example, the federally-funded Job Accommodation Network suggests that employees with disabilities that affect concentration, including depression, Attention Deficit Hyperactivity Disorder or short-term memory loss can be provided tape recorders, photographs, checklists, written procedures or other visual aids to assist in their work. Employees with other psychiatric disabilities can be accommodated through physical means. For example, an employee with social anxiety could potentially be accommodated by providing higher cubical walls. At the other end of the spectrum, a reasonable accommodation could stretch as far as job restructuring or removing marginal functions of an employee’s position. Although an employer never needs to reassign essential functions, reassigning marginal functions may allow a disabled employee to better focus on work. With that being said, it is worth remembering that an employer is not required to promote an employee as a reasonable accommodation, and that moving an employee to a different position is a last resort only if no other reasonable accommodation can be found. Accommodating a mentally disabled employee is a delicate matter. An employer must walk a tightrope between maintaining the employee’s dignity and ensuring the workplace remains safe and productive. Sometimes this will require the employer to remove or even terminate an employee’s employment. Each situation requires a case-by-case analysis, and before disciplining an employee with a mental disability, legal counsel should be consulted. An employer should also keep in mind that an employee may be covered by disability discrimination laws, but its short- and longterm disability policies and other benefit plans may use a different definition of disability, so plans must be reviewed independently. Interesting Fact... People with mental disorders identify employment discrimination as one of their most frequent stigma experiences. For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com. Lawyers for Employers® Employment Unplugged: The Effects of Mobile Technology on the Employment Relationship By Jacob M. Downs and Kelly M. Lipscomb W Jacob M. Downs focuses his practice on employment and business litigation, and represents many national and northwest companies in both state and federal court, as well as in private arbitration. Additionally, he has obtained favorable jury verdicts and arbitration decisions for his clients in cases involving discrimination, harassment, breach of contract, trade secrets and tortious interference. Jake combines his trial counsel experience with his leadership skills as a former captain in the United States Army. Jake has a Yellow Belt certification in Legal Lean Sigma® and Project Management. He can be reached at [email protected] lanepowell.com or 206.223.7397. ithout question, mobile technology is now a fundamental part of our lives and it is here to stay. As a testament to this new reality, it is startling to learn that in 2013 the number of iPhone sales significantly outpaced the number of babies born worldwide! Consequently, fewer and fewer areas of our lives are free from intrusion by mobile technology — including the workplace. Mobile technology is now used at almost every step of the employment relationship. Many employers now recruit employees using social media, and some employers are even requiring employees to use company-created apps to submit applications. Employees are increasingly using their personal and company-owned devices to work outside of the workplace. While there is certainly value in having a workforce available wherever and whenever, employers should be keenly aware of the issues regarding employee privacy, cybersecurity and data ownership. Employee Recruiting and Applicant Screening LinkedIn is just one of dozens of apps through which potential employees can pursue employment opportunities. At an Equal Employment Opportunity Commission (EEOC) meeting in March, the Society for Human Resource Management reported that 77 percent of companies surveyed stated that they use social media networking sites to recruit candidates. In fact, some employers are taking it to the next level by creating their own networks and mobile apps. For example, online shoe retailer, Zappos, now requires employees to become a “Corporate Insider” through the Zappos Web page before the employee can be considered for a job. Kelly M. Lipscomb focuses her practice in the areas of labor and employment law and business litigation. She has represented employment clients in arbitration proceedings and collective bargaining, and advises them in all phases of labor and employment matters, including wage and hour; FMLA; and sex, race and disability discrimination issues. Kelly also represents national companies in claims involving consumer banking laws. She can be reached at [email protected] or 206.223.7078. While this new method of recruiting has benefits, employers should be aware of the drawbacks of gaining too much information about applicants. If an applicant’s protected classifications are revealed through his or her social media account, knowledge and consideration of such characteristics may be imputed to an employer who views the account during the hiring process. For example, the University of Kentucky was recently sued for failing to hire an astronomer after the university found the applicant’s personal website where he had posted a religious article. (Gaskell v. University of Kentucky, CIV.A. 09244-KSF, 2010 WL 4867630 (E.D. Ky. Nov. 23, 2010).) The university’s reasoning for the decision was because of the applicant being “potentially evangelical” and the potential unwanted publicity that might come with hiring him. Pre-employment probing through social media, while great for gathering detailed information about how an applicant will fit with the company culture, has significant risks that employers should be mindful of before employing such a practice. Workplace Technology Practices and Policies Gartner, Inc. researchers predict that by 2017 half of employers will require their employees to use their own mobile device for work purposes. The benefits of having employees use their own device are convincing more and more employers to adopt these practices. But, employers must still be aware of the security and privacy issues associated with having a “bring your own device” (BYOD) practice. In drafting a BYOD policy, employers should keep in mind the following questions: • What types of devices will the employer support or require, and who will pay for the plans? • How are employees’ privacy and data ownership rights going to be protected? • What device-monitoring and data protection software should the employer use to protect itself from employee misdeeds or when a device is lost? Protecting Data When a Device is Lost or the Employee Leaves the Company It is important that employers monitor and regulate not only how an employee uses a device, but also the device itself. In response to the high rate of lost and stolen smartphones, many products now exist to mitigate the damage caused by such misfortune. For example, apps are available that will “wipe” the data on a lost device. Employers should also have strong password policies in place and employ encryption where necessary. When developing mobile device policies, consider the following: • Who owns what data on employee-owned and company-owned devices? • How may an employee retrieve personal data on a company-owned device before surrendering the device? The risks posed by mobile device data breaches are big business. According to InfoWorld, in the first three months of 2014, 4,238,983 records related to personal information were compromised due to cyberattacks, stolen laptops and failures to encrypt data. The Ponemon Institute reported that in 2014, companies spent approximately $3.5 million per breach in recovery efforts. Considering the significant financial impact even one breach can have on a company, employers would be well-advised to invest the resources in preventing such breaches before they happen. Interesting Fact... A global survey of CIOs by research company Gartner, Inc., suggests that 38 percent of companies expect to stop providing devices to workers by 2016. For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com. Lawyers for Employers® Reefer Madness: Marijuana and the Workplace By Michael B. Harrington Michael B. Harrington has over 20 years of experience representing employers facing claims of employment discrimination, retaliation, workplace harassment, wage and hour issues, and collective bargaining. He counsels employers on leaves of absence, disabilities and reasonable accommodations, non-competition and trade secret disputes, employment contracts, reductions in force and severance arrangements. Mike served two terms as chair of the Washington State Bar Association’s Labor and Employment Law Section. He can be reached at [email protected] or 206.223.7050. O n November 6, 2012, Washington state became a national trailblazer when voters approved I-502, an initiative that legalized the recreational use of marijuana (Colorado passed a similar law the same day). Since December 6, 2012, Washington state law has allowed adults over the age of 21 to possess one ounce of marijuana. And as of July 8, 2014, adults of the legal age have been able to purchase marijuana in state-approved retail stores. However, employees shouldn’t break out the Doritos® just yet — employers still have the ability to enforce wellwritten substance-abuse policies. The Facts About Washington’s Marijuana Law Medical Marijuana: The following health care providers can prescribe marijuana: •Medical doctors (MD); •Physician assistants (PA); •Osteopathic physicians (DO); •Osteopathic physician assistants (OA); •Naturopathic physicians (ND); and •Advanced registered nurse practitioners (ARNP). However, it can only be prescribed for terminal or debilitating medical conditions, including cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy, renal failure, glaucoma, debilitating Crohn’s disease and debilitating hepatitis C. Recreational Marijuana: In Washington, individuals that are 21 years of age or older are legally authorized to possess and use: •One ounce of usable marijuana; •16 ounces of marijuana infused product in solid form or 72 ounces of marijuana infused product in liquid form; and •Marijuana-related drug paraphernalia. However, any use of marijuana is still prohibited: •In public or in view of the general public; •At the retail shop(s) where it was purchased; •Most hotels and other accommodations; •Restaurants, lounges, clubs, bars, sports stadiums and concert venues; and •All federal land, including national parks and national forests. What Does I-502 Really Change? There is nothing in the law that protects employee use of marijuana at work, and there is nothing that prohibits an employer from disciplining an employee who shows up for work with the drug in their system. Furthermore, the law does not require employers to change their workplace drug and alcohol policies to accommodate an employee’s use of marijuana (either medical or recreational). In the one case it has decided on this issue, the Washington State Supreme Court (the “Supreme Court”) has ruled that employees can be fired when they violate an employer’s zero-tolerance drug policy. Back in 2011, the Supreme Court provided the public with guidance on this issue in Roe v. TeleTech Customer Care Management. The case involved a woman who worked at a call center. Her job did not include operating heavy equipment or any other task that would raise an on-the-job safety concern, but her company did have a zero-tolerance policy for drugs. After the woman was fired for testing positive for marijuana, she sued her previous employer claiming that she was legally allowed to use the drug under the state’s Medical Use of Marijuana Act. The Supreme Court ruled that employees who legally use medical marijuana can still be fired from their jobs if they violate an employer’s substance-abuse policy. The court noted that there are a lot of reasons why employers have no-tolerance policies for drugs, including workplace safety issues, productivity issues and concerns over an employee’s health or absenteeism. While this case was decided before recreational use was permitted, it was after medical use was legal. There is no reason to believe that recreational use would be permitted any more than medical use. Bottom Line: Employers have legitimate reasons for implementing and applying policies that prohibit employee use of marijuana and other drugs. If employees violate substance-abuse policies, then they can be legally subjected to discipline, including termination. Remember these key points for effective policies: •Clearly state why the policy is being implemented. Your reason can be as simple as being committed to protecting the safety, health and well-being of employees and customers, and recognizing that abuse of alcohol and using drugs compromises this commitment. •Provide a clear description of behaviors that are prohibited. At a minimum, this should include a statement that the “use, possession, transfer or sale of drugs that are illegal under state or federal laws or controlled substances is prohibited.” Try to stay away from basing violations on “being under the influence,” as this unnecessarily complicates matters. •Explain the consequences for violating the policy, and be consistent with other existing policies. •As always, consult with legal counsel to ensure your policy will accomplish your goals and keep you out of court. Interesting Fact... Medical marijuana is legal in 23 states and the District of Columbia. Recreational marijuana is legal in Washington state and Colorado with 15 other states considering marijuana reform bills or ballot initiatives. For more information and to register for our upcoming Annual Labor and Employment Seminar on September 9, please visit our website at www.lanepowell.com.