Marijuana in the Workplace and Proposition 19; Stray Discriminatory Comments by Rank and File Employees Can Harm Employers
The Goldstein Law Firm
September 2010 Newsletter
“Marijuana in the Workplace and Proposition 19; Stray Discriminatory Comments by Rank and File Employees Can Harm Employers; and EEOC Goes After Employers Who Use Criminal and Credit Records To Disproportionately Disqualify Minority Job Applicants”
By: Charles H. Goldstein, Esq.
I. Will Employers Want to Continue To Do Business in a State Where Employees Can Come to Work Reeking of Marijuana?
In 1996 the voters of California passed Proposition 215, the Compassionate Use Act which was originally intended to permit people with serious and often painful illnesses, such as cancer and AIDS, to use cannabis to alleviate their pain.
Since the law’s passage, the law has been used to allow people with almost any ailment or no ailment at all, to find a friendly doctor who will give them permission to secure a medical marijuana card that allows them to purchase marijuana at a “clinic”. This has lead to the large scale establishment of marijuana “clinics” in some cities such as San Francisco, and has even prompted the Oakland City Council to recently pass an ordinance which now permits the growing and processing of marijuana on a large scale basis.
Proposition 19, which is on the November 2010 Ballot seeks to legalize the cultivation, processing, transportation, distribution, and sale of marijuana for personal use in California. The justification for the passage of Proposition 19 is that it will help raise municipal revenues for cash starved government and will permit law enforcement to spend more of its resources dealing with more serious criminal matters than “pot” busts. However, voter passage of Proposition 19 in November would create serious safety problems in the workplace and would be another reason for employers not to create jobs in California or to move their operations to other states. What problems could arise in the workplace from legalizing the use of limited amounts of marijuana?
Proposition 19 leaves the employment law issue of whether employers must allow marijuana smoking at work and who will pay for marijuana related workplace accidents – up in the air. In addition, an employer would not be able to take action against a marijuana user unless the employer could prove that the employee was actually impaired as a result of the use of marijuana. At present, if an employer has reasonable suspicion to believe that the employee is under the influence of illegal drugs, the employer can direct the employee to be tested and if the substance is found by the test, disciplined up to, and including terminated from employment.
Under Proposition 19’s “actual impairment test”, an employer could not use drug tests to find that an employee should have been removed from the job because they were actually impaired. Instead of preventing accidents by employees who are marijuana users, employers would have to wait until an accident occurs to determine whether the employee’s marijuana use caused the employee’s actual impairment. In addition, it is almost axiomatic that increases in workplace drug use will accompany Proposition 19’s passage and will reduce employee productivity, increase the use of sick time away from work, and sharply increase the cost of health insurance, worker’s compensation, and general liability insurance for employers.
II. Sticks and Stones Will Break Your Bones, But Stray Comments by Rank and File Employees Can Also Harm Employers
In Reid v. Goggle, the California Supreme Court recently held that in an age discrimination suit, discriminatory comments by co-workers who were not decision makers could be used to show discriminatory intent. In this case, comments were made by non-decision makers that the plaintiff, Reid was “slow,” “fuzzy”, “sluggish”, lethargic,” did not display a sense of urgency”, and “lacked energy” and his ideas were “obsolete” and “too old to matter”. Other statements were made around the time of his termination that he was not a “cultural fit” and that he was an “old man” and “an old fuddy-duddy” and a coworker joked that his office placard should be in “LP” instead of a “CD”.
This is a significant deviation from existing federal law which holds that stray remarks and statements by decision makers unrelated to the decisional process in which discrimination is claimed, cannot satisfy an employee’s evidentiary burden of showing discriminatory intent. Now, under the Court’s Google holding evidence of stray remarks is admissible and must be considered along with the “totality of the circumstances” of the case and each trial court must determine whether the plaintiff (employee) has presented enough evidence of discrimination to necessitate a trial on the merits.
Plaintiff’s lawyers now believe that based on Reid v. Google, all they have to do to beat an employer’s motion for summary judgment in a discrimination action is to come up with some stray discriminatory comments made by rank and file employees. However, fair minded judges and arbitrators will still look at the totality of the circumstances to decide whether the plaintiff has raised issues of disputed material facts that merit the case continuing to trial.
III. EEOC Goes After Employers Who Use Criminal and Credit Records To Disproportionately Disqualify African-Americans and Hispanic Job Applicants
Many employers routinely run background checks on job candidates that they plan to hire and prospective job candidates are asked to consent to the employer taking this action. Information provided in a background check can be very useful in determining whether you want to hire a particular job candidate. For instance, if you find that a job candidate was convicted of driving while under the influence, you might not want to hire this person for a position that requires driving a vehicle. What if you learned that a person who will be in a position to make or influence financial decisions, or who will be writing and signing checks on your behalf, has filed for bankruptcy or is continuously behind in paying their bills? Wouldn’t this information give you pause as to whether you really want to hire this person?
While information that you learn in a background check can be useful to confirm or disprove what a job candidate has told you in an interview or in their employment application and resume, an employer still has to be careful not to screen out qualified applicants merely based on a background check for the following reasons:
1. The information you learn in a background check may be inaccurate. E.g. There may be many employees with the same name as the job applicant and the background check was inaccurate.
2. If you use background checks that have a disparate impact on minority job candidates, your organization could be sued for discrimination. The US. Equal Employment Opportunity Commission has recently filed lawsuits against some major employers who routinely utilize background checks that disparately impact minority job candidates and prevented them from being hired. The EEOC found that Hispanic and African American job candidates were more likely to have criminal records and poor financial records that should not disqualify them from being hired for positions that would not give them access to company funds or assets.
3. Take steps to confirm through an independent source, if possible, any information that you obtain from a background check to determine that it actually relates to the job candidate that you are considering and not another person. You should confirm the accuracy of the information with the job candidate and ask them to tell you their side of the story.
4. Make certain that the impact of your background checks is not to exclude qualified minority candidates.
5. Make certain that you can justify your use of information from a background check to disqualify a job candidate based on legitimate non-discriminatory business reasons.
6. When in doubt about what action to take based on a background check consult your employment counsel
IV. The Goldstein Law Firm’s 34th Annual Labor & Employment Law Seminar
The Goldstein Law Firm will hold its 34th Annual Labor & Employment Law Seminar on Thursday, October 7, 2010 at the Cerritos Center for the Performing Arts from 8:00 am to noon. Breakfast will be served before we discuss the legal issues facing employers and the cost effective ways that employers can successfully minimize their chances of being sued, and/or successfully defend themselves against employment lawsuits and/or administrative complaints.
If you wish to attend and bring guests, please fill out the Registration Form and fax it back to our office.
The Goldstein Law Firm
8912 Burton Way
Beverly Hills, California 90211
Telephone: (310) 553-4746
Facsimile: (310) 282-8070