Articles Posted in Public Sector Employment Law

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A December 2016 decision reached by an Administrative Law Judge in New Jersey may have implications for employers in other states where medical marijuana is legal. With the current trend toward legalization of marijuana, it’s only logical for entrepreneurs to consult with attorneys about how these laws might affect them.

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The current case involved Andrew Watson, a lumber company employee who injured his hand on-the-job. Initially, Watson’s doctors prescribed Percocet to manage his chronic pain. His doctor then recommended that he try medical marijuana. Watson legally purchased medical marijuana, and submitted a claim to his employer’s worker’s compensation insurance. An ounce of medical marijuana costs an average of $489 in New Jersey, which is one of the most expensive prices in the U.S. The insurer refused compensation.

Nonetheless, Watson found that the marijuana helped manage his chronic pain effectively and with fewer side effects than the opiates. He took his case to court so that he could continue with the treatment and have the expenses reimbursed by his employer’s worker’s compensation coverage.

After considering the situation, Judge Ingrid French ruled that Watson’s use of medical marijuana is appropriate and that the insurer should pay for the associated expenses. She notes in her decision that “the effects of the marijuana … is not as debilitating as the effects of the Percocet.” Additionally, French found that Watson had “achieved a greater level of functionality,” because of the medical marijuana use and that “his approach to his pain management needs (is) cautious, mature …”

She went on to say that whether or not medicinal marijuana is used is a matter that should be reserved for doctors and patients in states where its use is legal. While some employers expressed concern over the outcome, others say that it likely will not affect them. That’s because the requirements for qualifying for medical marijuana are so stringent in New Jersey. This, coupled with the relatively limited chances of a worker also qualifying for a worker’s compensation claim, keeps them optimistic.

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With the passage of Proposition 64 in November, California became one of a handful of states to legalize the use of recreational marijuana. Many residents are thrilled with the outcome, but the new law is leaving employers wondering what their rights are.

Marijuana-legalization-94540729-001The good news is that the authors of Proposition 64 foresaw that marijuana legalization might pose a problem to numerous industries. That’s why there is a provision in the law that explicitly maintains the employer’s right to prohibit the use and possession of marijuana, particularly on any work sites. Accordingly, any company is perfectly within its rights to keep their drug-free workplace policies on track, though it does make sense to ensure that everything is in order.

Now is the perfect time to meet with an employment attorney to make certain that an existing company drug policy is sufficiently broad. If a drug policy is not already in place, then it is definitely time to craft one, a project that takes time and considerable legal expertise. Under the new law, employers are still permitted to require pre-employment drug tests, and they maintain the right to not hire candidates who test positive for marijuana. Even if the drug was obtained and used legally, the employer does not have to accept such use among their prospective employees. However, it is critical that any pre-employment drug screenings are conducted fairly and impartially, without any discriminatory element.

Under California’s new law, employers are also permitted to conduct drug tests among existing employees. Once again, it is crucial that this be done in a non-discriminatory manner. Moreover, companies may want to review their written drug policies with all employees to make it clear that marijuana use is not appropriate or acceptable. Management may also need to sit down with human resources staff to ensure that they are ready to field questions from employees.

California’s revolutionary Proposition 64 may have made recreational marijuana use legal, but it still allows employers to make important safety decisions. If you have any questions about how California’s new recreational marijuana law will affect you and/or your employees, feel free to contact me, attorney Rich Oppenheim at 818-461-8500. You may also use the form on the right side of this page.

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One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we welcome and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney“. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

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Longtime educator Alan Cohen has sued his former employer after being fired. Cohen was employed for 13 months by Speyer Legacy School, which advertises itself as an institution for intellectually gifted children in grades kindergarten through eighth grade. The exclusive private school charges students approximately $40,000 per year to attend.

you are fired 2Cohen spent 20 years working for New York City’s Department of Education before becoming the head of the lower school at the prestigious Portledge School. He made the move to Speyer where he was named the Assistant Head of the school as well as the Head of the lower school. Things appeared to go well. Teachers, administrators, parents and students all took to Cohen. Then, the school’s newly appointed Head Dr. Barbara Tischler told Cohen about another faculty member who was asking questions about Cohen’s sexuality.

Cohen, who happens to be gay, quickly discovered that his sexual orientation was a hot topic of conversation among faculty, administrators and board members. One board member even tried to set up Cohen on a blind date with one of her male friends. Additionally, Dr. Tischler asked Cohen if he could give advice to another administrator at the school. The other administrator was a lesbian, and there was widespread feeling among members of the board that her masculine dress and appearance would render her unsuitable for the Dean of Admissions position.

Cohen brought his concerns over the focus on his sexual orientation to Tischler, but to no avail. In April 2016, Cohen was informed that his contract was not going to be renewed.

Cohen has gone on to find employment at the Harvard Graduate School of Education. A married, heterosexual woman now holds his old job at Speyer. Nonetheless, Cohen’s experiences at the exclusive school suggest an atmosphere of discrimination that violates both state and federal law. Situations like this remind employers how important it is to work with an employment law attorney to avoid  discriminatory actions.

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Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and the California Business Litigation blog  wish all of our clients, friends, business associates and blog readers a very safe and extremely fun 4th of July Holiday!

In observance of Independence Day our office will be closed Monday July 4th.

Enjoy your holiday, stay cool and keep your pets indoors!

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Home improvement retail giant Lowe’s has agreed to pay an $8.6 million settlement to disabled workers that the company fired. The agreement was reached after the federal government’s Equal Employment Opportunity Commission filed a lawsuit against the company in California.

Gardne center worker in a wheelchair holding a flower pot in a greenhouse

The settlement money will be distributed to former Lowe’s employees who were fired from the company between January 1, 2004 and May 13, 2010. Eligible employees were terminated after exceeding the company’s 180-day or 240-day medical leave policy. All of the affected employees were either disabled, “regarded as” disabled or were associated with someone who was disabled.

While Lowe’s stipulated a maximum leave policy of either 180 days or 240 days, officials with the EEOC argued that the policy was not in line with the Americans with Disabilities Act, or ADA. In fact, the EEOC charged that Lowe’s “engaged in a pattern and practice of discrimination” against employees who were disabled. Moreover, the lawsuit argued that Lowe’s routinely failed to provide adequate accommodations for disabled workers.

Also as a part of the settlement agreement, Lowe’s is required to hire ADA consultants who can help to reshape the company’s leave policies and assist them to address accommodation issues. Lowe’s will be required to create a system for recording and tracking employee requests for accommodation and how those requests are dealt with. Additionally, staff and management members across the company will be asked to undergo training related to ADA issues.

Lowe’s executives argue that they revamped their leave policies and more closely examined their compliance with ADA in 2010. Nonetheless, they agreed to this settlement to further the effort to comply with all facets of the ADA.

Lowe’s situation acts as an important lesson to other employers who are not sure if they are in compliance with all applicable aspects of ADA. Hiring a consultant or seeking legal advice before a serious problem arises is the best way to avoid a costly lawsuit from the EEOC or a former employee. Proactive measures toward offering accommodations and not violating ADA medical leave policies are important for any company that is seeking long-term success.

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Megan Messina, a 42 year-old executive at Bank of America, is suing her employer for gender discrimination and whistleblower retaliation. The complaint was filed in a Manhattan federal court in May of 2016.

Gender%20Discrimination%20105366239-001.jpgMessina began working at Bank of America in 2007. Before that, she spent a decade at Salomon Smith Barney. Her education and experience enabled her to attain a position as the co-head of the structured credit products division. The complaint alleges that Messina was treated unfairly by Bank of America from the beginning of her employment. In particular, her complaint outlines the interview she had with her supervisor when she was promoted to her current position.

She alleges that the supervisor asked her questions about the color of her eyes and whether or not she dyed her hair during the meeting. Moreover, Messina points out that while her male co-head met with the supervisor up to three times a day, she met with him exactly twice in her entire tenure. The complaint also argues that Messina was not included in important department emails and meetings, despite the fact that surveys showed she was outperforming many of her male co-workers.

Messina compares her own pay to that of her departmental co-workers, all of whom are male. In particular, she notes her $1.5 million 2015 bonus, comparing it to the $5.5 million received by the male co-head of her department. The complaint also details several department business deals that may have run afoul of the law. When Messina brought these matters to the attention of supervisors, she was essentially told not to rock the boat. Ultimately, she was forced by the bank to take a leave of absence.

Messina’s case illustrates important points that employers must be aware of. It’s sensible to treat all allegations of wrongdoing seriously. Moreover, it’s important to be proactive when it comes to matters of equal treatment and compensation. Doing so can prevent an employer from occupying a similar position to the one in which Bank of America now finds itself.
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Now is an excellent time for employers to assess their compensation policies. That’s because the New Year activated California’s Fair Pay Act. Analysts say it’s one of the country’s toughest equal pay laws, and the consequences are serious for companies that are found to be in violation.

Fair%20Pay%2070618813-001.jpgThe new legislation was signed in October 2015 by Governor Jerry Brown. It’s essentially an amendment to the state’s existing fair pay laws, which have been in place for several decades. Federal laws also ensure equal pay for workers regardless of gender or other characteristics. However, this new legislation puts more of the onus on employers to ensure that they are fairly paying employees.

Democratic state senator Hannah-Beth Jackson introduced the bill earlier in 2015 in the wake of actress Patricia Arquette’s Oscar acceptance speech that called for an end to the gender pay gap. A key component of the new law is the requirement for employers to be able to prove that they are paying employees of both sexes the same compensation for “substantially similar work.” The law asks employers to look beyond titles, assessing actual duties performed and responsibilities assumed, when settling questions of pay. If disparities exist between the compensation for male and female workers who perform substantially similar work, then the employer must be able to articulate a non-gender based reason why the disparity exists.

Employers can use distinctions like seniority and merit to justify offering higher compensation to men when compared to women in a similar role. It is advisable for employers to assess and document such decisions in case questions or disputes arise at a later date. Similarly, the new law is forcing many employers to dig deep into company archives to assess the current salaries of employees and decide whether or not such disparities already exist.

While a full-scale, company-wide audit of employee compensation is neither easy nor inexpensive, it is far preferable to being made the subject of a class-action lawsuit. Employers may want to contact employment law attorneys to learn more about how to protect themselves in light of the new fair pay law.

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An Allegiant Airlines pilot has been fired after an incident at the St. Petersburg/Clearwater International Airport. Allegiant claims that the pilot endangered all passengers and crew aboard a flight while the pilot contends that he was acting in the interest of everyone’s safety. A lawsuit recently filed by the pilot may decide which party has the law on their side.

Fired%2053061626-001.jpgPilot Jason Kinzer had been working for Allegiant for three years, having been promoted to pilot in December 2014. Since that time, he maintained a clean record without any safety violations. In June, he was piloting a twin-engine MD-80 out of the St. Petersburg/Clearwater airport. Nearly 150 passengers and crew members were on board. It wasn’t long after takeoff that Kinzer received a phone call from one of the flight attendants. Kinzer described her as being frantic. It seemed that several passengers were smelling smoke in the cabin.

Thinking quickly, Kinzer turned the plane around and made an uneventful landing at the airport they had just left. Emergency personnel met the plane on the runway, quickly confirming that one of the engines was on fire. Kinzer ordered the evacuation of the aircraft. Inflatable slides were deployed and everyone left the plane. However, before the evacuation took place, Kinzer received a strange transmission over the radio from an unidentified person who suggested that evacuation was unnecessary. Kinzer asked who was speaking but did not receive a reply. The evacuation commenced. However, four passengers were injured while leaving the aircraft via the slide.

Kinzer waited for several weeks while Allegiant investigated the incident. Eventually, he received a telephone call telling him that he was being terminated for putting the lives of the passengers in jeopardy unnecessarily. Allegiant’s officials didn’t believe the evacuation was warranted, especially in view of the injuries sustained by the four passengers.

It is likely that the lawsuit may bring to light some additional information which might help better understand Allegiant’s actions in this matter.
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The NLRB handed down a decision that appears to be a win for employers. In the case of Shore Point Distribution Co., the NLRB found that there was no wrongdoing on the part of the employer when they installed a GPS tracking device in an employee’s work truck. The device helped the employer prove that the employee was stealing time and was instrumental in the employee’s dismissal.

GPS%20navigation%2085141634-001.jpgShore Point became suspicious of the employee, a route driver for the beverage distribution company, who seemed to take significantly longer on his routes than other drivers. Suspecting that the employee was stealing time, the employer hired a private investigator to follow the driver. Shore Point’s employees are unionized. A bargaining agreement allowed the employer to engage a private investigator for this purpose. However, Shore Point went further by installing a GPS tracker in the driver’s work truck.

The use of GPS devices is not specifically included in the existing bargaining agreement. This became a point of contention between Shore Point and the union, with the union arguing that the employer should have bargained for the right to install the GPS unit. On the surface, it looked as though the NLRB might agree with the union. However, they went the other way.

The NLRB found that the GPS was only used by the private investigator once to locate the employee when he temporarily lost sight of the truck. Because this use did not seem to materially affect the conditions of employment, the NLRB argued that Shore Point did not have to bargain for the right to install and use the device.

This decision seems like a win for employers, but it still makes a great deal of sense to proceed with caution before installing GPS devices on company vehicles.
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