2018 labor relations & employment law seminar€¦ · 15/06/2018 · damages in employment...

2018 Labor Relations & Employment Law Seminar

June 15, 2018

Kutak Rock, Omaha, NE

This page intentionally left blank.

The NSBA Labor Relations & Employment Law Section presents

2018 Labor Relations & Employment Law Seminar

9:00 am 2018 Updates and Insights on Recent Employment-Based Immigration Changes Clete Samson, Kutak Rock LLP

This presentation will discuss recent immigra-tion reform impacting clients, including how to handle employees with expiring work authoriza-tion as a result of DACA and TPS terminations; ICE’s increased worksite and I-9 enforcement measures; and USCIS’ increased scrutiny of H1B visa petitions.

9:30 am Damages in Employment Cases in Nebraska Patrick Barrett, Fraser Stryker PC LLOVince Powers, Powers Law

This presentation will discuss evaluating dam-ages in employment cases in Nebraska, includ-ing available damages under state and federal law, calculating pecuniary and non-pecuniary losses, establishing evidentiary support for emo-tional distress damages, when to use an offer of judgment, evaluating damages in arbitration verses litigation, trial strategies for supporting or defending damages, and the role of a damages valuation expert.

10:30 am Break

10:45 am Medicinal Marijuana Laws: When and How Employers Must AccommodateJohn Dunn, Koley Jessen PC LLO

This presentation will address the changing landscape faced by multi-state clients as a result of the growth in state medical marijuana laws. This presentation will also provide an analysis of the varying level of employee protections for the use of medicinal marijuana under the states’ differing statutory approaches and how clients may be required to adapt.

11:15 am A New Generation of Harassment Prevention – Trends and Strategy for Building a Harassment Prevention Program in the Wake of WeinsteinAllison Balus, Baird Holm LLPScott S. Moore, Baird Holm LLP

This presentation will provide lessons for law-yers as a result of the post-Weinstein reckoning, including changing the culture of sexual harass-ment and addressing confidentiality concerns and challenges arising from technology.

11:45 am Break

12:00 pm Unions in the WorkplaceJohn Corrigan, Dowd Howard & Corrigan LLCRoss Gardner, Jackson Lewis PCJohn Hewitt, Cline Williams Wright Johnson & Oldfather LLPDalton Tietjen, Tietjen Simon & Boyle

This panel discussion will provide attorneys with diverse perspectives from attorneys who represent clients on both sides of the labor aisle. The panel will discuss unions in the workplace, including the strategies that impact negotiations, elections, strikes, arbitrations, grievances, and right of entry, as well as recent decisions from the Labor Board on matters of interest.

1:00 pm Adjourn

Friday, June 15, 20189:00 am - 1:00 pm

Kutak Rock LLP1650 Farnam Street, Omaha

NE MCLE Accreditation#157020 (Regular/live)

#157019 (Distance learning)3.5 CLE hours

IA MCLE Accreditation#295897 (Regular/live)#295879 (Live webcast)

3.5 CLE hours

Attend live or via live webcast

$227 - Regular registration$175 - NSBA dues-paying

memberFree - Law students

www.nebar.com

Faculty Bios

Clete Samson, Kutak Rock LLP: Clete Samson is of counsel in the firm’s Omaha office. He focuses his practice in immigration law, worksite compliance, employment law, and litigation. Having previously served for seven years as a federal trial attorney for the U.S. Department of Homeland Security, Mr. Samson has extensive knowledge of the Immigration and Nationality Act and the Immigration Reform and Control Act of 1986, including the proper preparation and maintenance of the Form I-9, the civil penalties for improper compliance, the civil and criminal penalties for hiring and employing individuals without employment authorization, worksite enforcement and other related issues. Mr. Samson also has experience in P-1B visas for internationally recognized entertainment groups performing in the United States. He has been a frequent presenter on a variety of immigration and worksite compliance issues.

Mr. Samson provides clients with key preventative advice to help them avoid liability associated with improper I-9 compliance; and if there has been an action filed by a governmental agency, he represents clients to ensure the government action is lawful and the matter is resolved fairly and expeditiously. Mr. Samson also has extensive knowledge in the areas of immigration removal and custody proceedings, criminal/immigration matters, and visa compliance. His experience includes commercial litigation. Mr. Samson received his Juris Doctor from Arizona State University College of Law.

Vince Powers, Powers Law: Vince Powers is the founder of the firm with over 30 years of experience. He specializes in personal injury and employment litigation for plaintiffs, including discrimination, harassment, retaliation cases, whistleblower, First Amendment, and wage and hour litigation. Mr. Powers received his Juris Doctor from the University of Nebraska College of Law.

Patrick Barrett, Fraser Stryker PC LLO: Patrick Barrett joined Fraser Stryker in 2008 after practicing labor and employment law with another Omaha law firm for 25 years. Mr. Barrett has represented both private and public-sector clients with respect to labor and employment matters, collective bargaining, EEO/affirmative action matters, Fair Labor Standards Act and Occupational Safety and Health matters. Mr. Barrett has represented the Firm's clients in a wide variety of proceedings, including federal court and agency proceedings involving employment, and civil rights and labor law litigation as well as state court and state agency actions, including jury trials and appellate work. Mr. Barrett drafts employment contracts including such provisions as noncompetition, nondisclosure and confidentiality provisions.

Mr. Barrett also advises management on various issues, including, but not limited to, hiring, workplace investigations, discipline, terminations, leave of absence issues, human resource policies and procedures, wage and hour issues, traditional labor issues, and other various state and federal laws. Mr. Barrett speaks regularly to management groups on various employment related issues and provides employer training on maintaining nonunion status, anti-harassment and anti-discrimination laws. Mr. Barrett received his Juris Doctor from the University of Nebraska College of Law.

John Dunn, Koley Jessen PC LLO: John Dunn is an associate with Koley Jessen who works with clients to quickly resolve employment-related problems and develop practices to prevent problems in the future. He has experience assisting clients in a variety of employment contexts, including responding to governmental audits, charges of discrimination, as well as various stages of employment-based litigation. Mr. Dunn received his Juris Doctor from Creighton University School of Law.

Allison Balus, Baird Holm LLP: Allison D. Balus primarily represents management clients in federal and state court employment litigation and arbitration. She has substantial experience defending wage and hour collective and class actions, including successes at the class certification, trial, and appellate levels. Her experience also includes federal court jury and bench trials in Title VII, ADA, ADEA, and whistleblower cases. She represents employers in the retail, food processing, health care, manufacturing, marketing, professional staffing, and fast-food industries, among others. In addition, Ms. Balus defends employers against charges of discrimination before state and federal agencies, and counsels and advocates for employers on a range of employment issues, including drafting and enforcing non-compete agreements, compliance with state and federal employment laws, and responding to civil subpoenas. Ms. Balus’ practice also includes Fair Housing counseling and litigation. She represents property managers, developers, builders, design professionals, and non-profit organizations in all aspects of fair housing and public accommodation law. In addition, she provides Fair Housing training, as well as training on Affordable Rural Multi-Family Housing and the Section 3560 regulations, to property owners and managers across the country. Ms. Balus received her Juris Doctor from the Georgetown University Law Center.

Scott S. Moore, Baird Holm LLP: Scott S. Moore regularly represents employers in various industries with respect to labor relations and employment matters, including personnel policies and decisions, labor negotiations, preventive planning, immigration, workplace investigations, workplace safety, equal opportunity, and the defense of employment-related claims. He has represented employers on labor and employment matters throughout the United States and was previously Vice President of Human Resources for a New York Stock Exchange organization. Mr. Moore received his Juris Doctor from the University of Nebraska College of Law.

John Hewitt, Cline Williams Wright Johnson & Oldfather LLP: John Hewitt represents public and private employers in labor and employment matters, including collective bargaining, arbitration, affirmative action, Wage and Hour, OSHA, and fair employment practice proceedings before federal and state courts and agencies and the Nebraska Commission of Industrial Relations. Mr. Hewitt served as the Chair of the Board of the Alegent Creighton Health System and representshealth care providers on a variety of issues including nonprofit governance and executive compensation. Mr. Hewitt also represents print and broadcast media on First Amendment, open meetings and public record issues. Mr. Hewitt received his Juris Doctor from the University of Nebraska College of Law.

Ross Gardner, Jackson Lewis PC: Ross M. Gardner is a Principal in the Omaha, Nebraska, office of Jackson Lewis PC. He represents management in all aspects of traditional labor law and employment litigation. Mr. Gardner’s practice is focused primarily on labor relations issues. Mr. Gardner has provided legal advice to clients in more than 60 union campaigns, in addition to defending employers in more than 100 cases before the National Labor Relations Board and over 40 labor arbitrations. Mr. Gardner has extensive experience in other areas of traditional labor law as well, including collective bargaining negotiations, desktop advice, and Section 301 lawsuits. Mr. Gardner’s practice also includes a significant amount of management training, with a special emphasis on labor relations and maintaining an issue-free work environment. In addition, Mr. Gardner has experience in various areas of employment litigation, including wrongful termination, employment discrimination, retaliation cases and breach of employment contracts. Mr. Gardner regularly advises clients on employee discipline, layoffs, reductions in force, human resource policies, non-compete issues and restrictive covenants, leave management and disability matters. Mr. Gardner received his Juris Doctor from the University of Nebraska College of Law.

John Corrigan, Dowd Howard & Corrigan LLC: John Corrigan has been practicing in Nebraska since September of 1997. His practice areas include Workers' Compensation, Personal Injury and Labor and Employment Law. John has represented several Fire Fighter's Union Locals, the Nebraska Association of Professional Fire Fighters and several Police labor organizations. He has successfully litigated jury cases in both State and Federal Courts and has successfully argued appeals before the Nebraska Court of Appeals, the Nebraska Supreme Court and the United States Court of Appeals for the Eighth Circuit. Mr. Corrigan received his Juris Doctor from Creighton University School of Law.

Dalton Tietjen, Tietjen Simon & Boyle: Dalton Tietjen is a founding partner of Tietjen Simon & Boyle and has been practicing labor and employment law for over 30 years, primarily representing public sector labor unions. Mr. Tietjen received his Juris Doctor from the University of Nebraska College of Law.

2018 Updates and Insights on Recent Employment-Based

Immigration Changes Clete Samson

Kutak Rock, LLP

June 15, 2018

Kutak Rock, LLP, Omaha, NE

1

2018 Updates and Insights on Recent Employment-Based Immigration ChangesClete P. Samson

Recent Changes for Employees with TPS• TPS – immigration program that allows FN to remain in US after catastrophic event happened in their home

countries (natural disaster, war, epidemic).

• TPS program has been routinely extended for close to 20 years. Most TPS beneficiaries have been in the US for 20 years or more, arrived as children, and have US children.

• Five leading industries that are most reliant on workers with TPS:

• Construction (51,700), food and restaurants (32,400), landscaping or nursery (15,800), child care (10,000), grocery stores (9,200),

• Trump Administration recently ended TPS protections for immigrants from six countries.

• Nepal (9,000), El Salvador (200,000), Haiti (50,000), Honduras (57,000), Sudan (1,000), Nicaragua (5,300)

• TPS recipients who aren’t eligible for other relief will lose their ability to work in US on the effective date of the termination.

• Review Form I‐9s to determine work authorization dates.

• Check TPS termination dates.

Current Status for Employees with DACA• DACA – Deferred Action for Childhood Arrivals

• Program currently provides work authorization and protection from deportation to 800,000 individuals

• DACA Code on EAD= C33

• Trump Administration’s attempt to end DACA program in September 2017 met with resistance in the form of numerous lawsuits.

• January 2018 – Federal District Judge in San Francisco stays decision to end DACA (based on flawed legal premise) and forces DHS to continue to accept DACA renewal applications (but not new applications)

• DC and NY courts also blocked attempt to end DACA. DC court gave DHS 90 days to come up with legal rationale for ending DACA.

• DHS is still accepting DACA renewal applications, but not new applications

• If DACA status expired on or after Sept. 5, 2016, employee can file a renewal request.

• Important for employers to advise employees with DACA that renewal applications should be filed as soon as possible because of current uncertainty.

2

Recent Surge in Worksite Enforcement

• From Oct. 1, 2017, through May 4, 2018‐ ICE HSI opened 3,510 worksite investigations; initiated 2,282 I‐9 audits; and made 594 criminal and 610 administrative worksite‐related arrests

• By comparison, for fiscal year 2017 (October 2016 to September 2017) – HSI opened 1,716 worksite investigations; initiated 1,360 I‐9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

• Outgoing ICE Director Thomas Homan has repeatedly stated: Worksite Enforcement Actions will increase “by four to five times.”

• Homan also stated: "Not only are we going to prosecute the employers that hire illegal workers, we're going to detain and remove the illegal alien workers."

Certain Industries Must be Prepared

History of Worksite Enforcement

• Immigration Reform and Control Act of 1986 (IRCA) – made it unlawful to knowingly hire or continue to employ an unauthorized alien, and required all employers to examine documents from new hires to verify identity and work authorization. Created the I‐9 requirement and employer sanctions

• Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) – further defined what documents are acceptable for employers to review to verify identity and employment authorization

3

ICE’s Worksite Enforcement Strategy

• Criminal prosecutions

• Egregious worksite violators

• Administrative processes to encourage compliance

• Form I‐9 inspections

• Designed to protect and target critical infrastructure sectors

Form I-9 Audits and Related Violations

• Civil / Administrative

• Knowing hire of unauthorized aliens

• Knowingly continued employment of unauthorized aliens

• Verification violators

Knowing Hire of Unauthorized Aliens

• INA Knowingly Hiring Unauthorized Aliens

• INA § 274A(a)(1)(A)

• Employer has an affirmative defense if it complied in good faith with INA § 274A(b) –examined documents and properly completed the Form I‐9

• ICE’s burden to prove the employer had actual or constructive knowledge of the alien’s unauthorized status at the time of hire

• The Code of Federal Regulations defines “knowing” as including not only actual knowledge but also knowledge that fairly may be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition

• Ex. Employee sworn statements

4

Knowingly Continued Employment

• Knowingly Continued Employment of an Unauthorized Alien

• INA § 274A(a)(2)

• No affirmative defense

• Examples of employers acquiring knowledge of the alien’s unauthorized status includes: expired EADs, non‐action in response to Notice of Suspect Document letter, non‐action in response to Social Security No‐Match Letters, etc.

• Child Support collection, tax issues, individual correspondence or calls, anonymous tips

Civil Penalties for Knowingly Employing Unauthorized Workers, Document Fraud and Discrimination

Offense Penalty

1st Level $539 ‐ $4,313

2nd Level $4,313 ‐ $10,781

3rd Level $6,469 ‐ $21,563

*** Fine amounts effective August 1, 2016

***

Form I-9 Paperwork Violations

• Form violations = $216 ‐ $2,156***

• Violation percentage

• Technical vs. Substantive

• Enhancement matrix

*** Fine amounts effective August 1, 2016

5

Pre-Inspection Tips

• Pre‐employment inquiries “Less is more”• Employer should limit information it obtains before actual hiring regarding citizenship status or national origin

• Permissible Inquiries (OSC)

• “Are you authorized to work in the U.S.?”• Impermissible Inquiries

• “Are you a U.S. citizen?”

• I‐9 Problems – duty to investigate suspicious circumstances• An employer is not expected to be an expert, but if an employer has constructive knowledge that an employee is unauthorized to work, it must engage in further inquiry

Form I-9 Retention • Duration:

• Length of employment plus 1 year, or• 3 years• (whichever is later)

• Use of separate files • Production for inspection• Re‐verification• Auditing• Privacy• Purging

• Use 3 separate files• Current Employees – no re‐verification required• Terminated Employees• Employees with expiring work authorization – verification required

What to Expect When Audited by ICE

• Process• ICE serves a Notice of Inspection (NOI) upon the employer – 3 business daysnotice

• Upon 3 days’ prior notice employers are required to make Forms I‐9 available for inspection

• All current employees

• All employees from the previous 3 years

• All employees terminated within the last year

• No subpoena or warrant is required but administrative subpoenas are often included with an NOI requesting further documentation

• After receipt of the I‐9s, ICE agents and auditors conduct a Form I‐9 audit

6

What to Expect During an Audit

• Notice of Suspect Documents• Employee determined unauthorized

• Notice of Discrepancies• HSI unable to determine authorization or identity

What to Expect During an Audit, cont’d

• Notice of Technical Procedural Failures• Errors HSI identifies as correctible

• 10 business days to correct

• Not fined if corrected, but fineable if not timely corrected

What to Expect From an Audit

• Final Actions• Warning Notice

• Notice of Intent to Fine

• Notice of Compliance – this is our goal!

7

Best Practices During an Audit

• Cooperate, cooperate, cooperate

• Negotiation on Scope of Audit

• Review requested I‐9 forms and conduct an aggressive self‐audit before forms are submitted to ICE

• Compile requested documentation

• Copy all submitted forms and documents

You will have three business days to respond

Best Practices Before an Audit

• Train personnel on best practices for preparing Form I‐9s

• Perform annual internal self‐audits

• Ask questions of your immigration counsel on any issues that come up during I‐9 completion

Best Practices for Completion

• Completion by / before first day

• Accept only the documents needed

• Photocopy employee documents used to meet Form I‐9 requirements

• Calendar notification system for re‐verifications and destruction

• Annual Internal Audit

8

Raid Response Plans

• Designate one ICE point person per shift• Determine potential impact if employees are pulled off jobs – where is company most vulnerable to financial impact

• Develop ICE Response Phone Tree• Know pre‐raid signals• Know the difference between raids with or without criminal search warrants

• Know how to handle media inquiries

• Develop Post‐Raid Procedures for contacting employee family members and monitoring impact on your business

Non-Immigrant Visa Overview

• F‐1 – Student visas• Occupational Practical Training (OPT) – 12 months (24 Mo. STEM extension)

• Granted to apply for H‐1B

• H‐1B – Bachelor’s Level Workers• Subject to “Prevailing Wage”

• Capped at 65,000/85,000 per year (demand over 300,000)

• L‐1 – Foreign Affiliate Transfers• Not subject to “Prevailing Wage”

• Qualifying Relationship

• Requires proprietary skill or management experience

H-1B Process Overview

• LCA – Posting• Attestations

• Wage Levels

• Public access file

• Petition• Forms (G‐28, I‐129)

• LCA

• Company Letter of Support

• Supporting Documentation

• Requests for Evidence

9

Developments in the H-1B program

• Higher scrutiny for bachelor degree requirement• Changes to DOL Handbook (Computer Programmer)

• Increased Requests for Evidence for Systems Analysts

• Higher scrutiny of Level 1 wage selection• Software Developer as substitute for Computer Programmer

L-1 Process Overview

• Establish “qualifying” relationship with foreign affiliate

• Identify whether employee manages a process or people, or possesses

“specialized knowledge”

• Specialized knowledge should be proprietary to foreign affiliate, and should be special in some way compared to similar American employees

• Standard is really, “why can’t an American do this job”

• Petition

• Requests for Evidence

Developments in the L-1B program

• Requests for Evidence• Explanation of why individual is unique in company and in industry

• Comparison to similar employees, with credentials

• Breakdown of job duties • Percentage of time

• Which require specialized knowledge

• Differentiation for off‐site employees

10

Proposed Changes to Visa Programs

• April 18, 2017 Executive Order Buy American and Hire American• No changes to visa program

• Requests studies and regulation changes to protect American workers• Likely reform to H‐1B CAP lottery, and prevailing wage requirements

• H‐1B and L‐1 Visa Reform Act of 2017

• High‐Skilled Integrity and Fairness Act of 2017

• Protect and Grow American Jobs Act

H-1B and L-1 Visa Reform Act of 2017

• Status• Senate – Referred to Senate Judiciary Committee January 20.• House – Referred to Subcommittee on Immigration and Border Security March 16.

• H‐1B Revisions• Prevailing wage changes to be at least Level 2 or national median wage. • Replace CAP lottery with preference system

• US Masters in STEM field > Level 4 Wage > US Masters in non‐STEM > Level 3 wage > Etc. . . .

• Reduce validity from 6 to 3 years• L‐1 Revisions

• Outsourcing limited to 1 year• Make subject to Prevailing Wage• Make definition of “specialized knowledge” more stringent

High-Skilled Integrity and Fairness Act of 2017

• Status

• House – Referred to Subcommittee on Immigration and Border Security February 8.

• Green Card Revisions

• Changes per‐country allocation of Green Cards – More to China and India

• Permits time at employer to satisfy PERM requirements

• F‐1 visa holders can apply for a Green Card

• H‐1B Revisions

• Increases the number of companies who have to perform recruitment.

• Eliminates Level 1 Prevailing Wage

• Replaces CAP Lottery with wage based preference system (200% of Level 3 ‐ First Preference)

• Do not need to amend with location changes

11

Protect and Grow American Jobs Act

• Status• House – Referred to Subcommittee on Immigration and Border Security January 13, 2017

• House Judiciary Committee approved revised version of bill on November 15, 2017 and referred to House Floor. Not expected to become law.

• H‐1B Revisions• Employer deemed H‐1B dependent if 20% or more of workforce in H‐1B status (up from 15%)

• H‐1B dependent employers required to submit recruitment report• Changes exemptions in LCA attestation from $60,000 to $90,000 plus• Practical effect is increasing the number of H‐1B Dependent employers that must conduct recruitment.

Probable Changes

• Current policy changes to scrutinize low wages and degree requirements

• Restructuring prevailing wage requirements to disincentive H‐1B dependent employers

• Adding a preference system to replace H‐1B Cap lottery

• Adjustment to per country Green Card allocation

Recommendations for Success

• H‐1B• Petition Level 2 wage jobs at a minimum

• Identify potential alternative job codes

• L‐1• Provide comparative support for similar employees

• Include presentations and papers written by employee

Damages in Employment Cases in Nebraska

Vince Powers Powers Law

Patrick Barrett

Fraser Stryker, PC, LLO

June 15, 2018


1

DamagesinEmploymentCasesPat Barrett, Fraser Stryker Vince Powers, Powers Law

Damages and Monetary Relief• MonetaryRelief• Back Pay

• (Title VII, ADAAA, ADEA, EPA, Rehabilitation Act, USERRA, Section 1981 and 1983)

• Elements: (Plaintiff 's Burden) • Wages and Salary• Fringe Benefits• Pre-Judgment Interest• Negative Tax Consequences

• Once plaintiff establishes that unlawful discrimination caused a loss, plaintiff is entitled to back pay. Albermarle PaperCo.v.Moody

• EEOC may seek recovery of back pay even when an employee has signed a mandatory arbitration agreement. EEOCv.WaffleHouse,Inc.

Back-Pay Cont.

• TimeConstraints:• Back-pay liability begins at the point of the employer's illegal

act causing the plaintiff to suffer the economic injury.• Title VII precludes the recovery of damages suffered more than

two years before the plaintiff filed a charge of discrimination with EEOC unless it is an alleged pattern-or-practice claim. 42 U.S.C. §2000e-5(g)(1).

• Sections 1981 and 1983 are subject to statute of limitations under state law.

2

Back-Pay Cont. • TerminationofBack‐pay

• Back-pay liability ends on either the date that judgment is rendered or the date the jury returns it verdict.

• Defendant'sConsiderations:• Mitigation• Reemployment• Unconditional Offer of Reinstatement• After-Acquired Evidence of Employee Misconduct or

Fraud• Average Tenure

Back-Pay Cont. • Back‐PayDefenses• Constructive Discharge • Laches

• Employer may completely avoid back-pay liability if plaintiff: • failed to demonstrate that resignation constituted

constructive discharge; or• failed to timely bring the claim.

Front-Pay• Front‐Pay• Compensation for future effects of discrimination when

reinstatement would be an appropriate, but not feasible, remedy or for the estimated length of the interim period before the plaintiff could return to her former position. Pollardv.E.I.duPontdeNemours&Co.

• Equitable remedy in the Eighth Circuit for the court to decide.• Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 641 (8th Cir. 1997)

• Plaintiff still has a duty to mitigate.

3

Front-Pay Cont. • Front‐PayMaybeAwardedWhen:

• No comparable position is available; • Subsequent working relationship too antagonistic; • Employer has a record of long-term resistance to anti-discrimination efforts, or• Plaintiff is approaching retirement.

• Abuan v.Level3Communications;Whittlesy v.UnionCarbideCorp.

• Relevant Factors to consider in assessing an award of front pay: • work‐life expectancy• salary and benefits at the time of termination• Potential increase in salary through regular promotions and cost‐of‐living

adjustment• reasonable availability of other work opportunities• period within which the plaintiff may become re‐employed with reasonable

efforts• methods to discount any award to net present value

Whittington v. Nordam Group, Inc., 429 F.3d 986, 1000 (10th Cir. 2005).

Compensatory Damages• CompensatoryDamages• Plaintiff must submit proof of actual non-economic injuries

caused by the employer's unlawful conduct. Careyv.Piphus• emotional distress• pain and suffering• harm to reputation

• Plaintiff Considerations for Requesting Compensatory Damages.

• Defendant's Considerations

Pecuniary Damages• PecuniaryDamages• Moving Expenses• Job Search Expenses• Out-of-pocket Costs for Medical Psychological, and/or

Psychiatric Treatment• Physical Therapy Expenses• Other Quantifiable Out-of-Pocket Expenses

4

Punitive DamagesTitle VII, ADA, Sections 1981 and 1983• "Where the employer is found to discriminate the plaintiff with

malice or with reckless indifference." 42 U.S.C. §1981; Smithv.MonsantoCo.

• Not available under Rehabilitation Act

• Plaintiff must:• Successfully impute liability to the employer; and • Show the defendant engaged in discriminatory conduct with the

knowledge that it might in violation of federal anti-discrimination law.

Punitive Damages Cont. • Plaintiff does not need to show the employer engaged in

egregious or outrageous acts. • Kolstad v.Am.DentalAss'n

• Reasonableness of Punitive Damages Award Depends on:• Degree of reprehensibility of defendant's conduct;• Disparity between harm suffered and damage award; and• Difference between damages awarded in this case and

comparable cases.• StateFarmMut.Auto.Ins.Co.v.Campbell

Damages and Title VII• TitleVII:• Compensatory Damages & Punitive Damages

• Future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other nonpecuniary losses• 42 U.S.C. §1981a(b)(3)

• Statutory Limits:• $50,000 for employers of 15 to 100 employees;• $100,000 for employers of 101 to 200 employees;• $200,000 for employers of 201 to 500 employees;• $300,000 for employers with 501+ employees

• 42 USC 1981a(b)(3)

5

Damages and Federal Law• Sections1981&1983• Compensatory & Punitive Damages Smithv.Wade• No statutory caps 42 U.S.C. §1981a(b)(4)

• TheADEA&theEPA• Liquidated damages are considered either compensatory or

punitive. Sheav.Galazi Lumber&Constr.Co.• Available up to the amount of back pay for willful violation of

the EPA or ADEA. TransWorldAirlines,Inc.v.Thurston

Damages and Federal Law• ADEA:• Court must award liquidated damages once plaintiff

establishes employer's willful violations. Tylerv.UnionOilCo.ofCal• Pecuniary damages are awarded only for benefits connected

with the job. Collazo v.Nicholson

• EPA:• No liquidated damages if employer can prove that its act or

omission was in good faith and had reasonable grounds to believe it did not violate EPA. Brinkley‐Obu v.HughesTraining,Inc.

• Can awarded damages for mental and emotion distress for violation of anti-retaliation provisions. Moorev.Freeman

ADAAA

Allows compensatory and punitive damages unless employer has made a good faith effort to reasonably accommodate the employee with disabilities in consultation with the employee seeking the accommodation– even if unsuccessful. 42 U.S.C. §12117(a); 42 U.S.C. §1981a(a)(3)

6

Defenses• Mixed-Motive Defense: (compensatory and punitive)

• Same action would have been taken regarding plaintiff 's employment even in absence of discriminatory motive.

• Good-Faith Defense: (punitive) • Good faith effort to comply with anti-discrimination laws.

• Kolstad v.Am.DentalAss'n

• Due Process Concerns:(punitive) • Ratio of amount of compensatory to punitive damages is more

than a single digit. • StateFarmMut.Auto.Ins.Co.v.Campbell

Injunctive and Affirmative Relief

• InjunctiveandAffirmativeRelief• Title VII, ADEA, ADA, Rehabilitation Act

• Height and weight requirements, scored tests, educational requirements, age limits, etc.

• Employer may avoid entry of injunctive relief by establishing that further noncompliance is unlikely. EEOCv.HaciendaHotel• Discrimination ceased well before the entry of judgment;

• Dolev.ShenandoahBaptistChurch

• Plaintiff or the perpetrator is no longer employed by the defendant and is unlikely to be reinstated; or• Cardenasv.Massey

• Injunctive relief is unnecessary to prevent future noncompliance.• UnitedStatesv.Gregory

Injunctive and Affirmative Relief Cont.

• Make-Whole Remedies• Restore plaintiff to position (as close as possible) he or she

would have been in absent the discrimination. AlbemarlePaperCo.v.Moody

• Hiring, transfer, promotion, reinstatement, retroactive seniority, tenure, restoration of benefits, salary adjustment, expunging adverse material from personnel files, letters of commendation, and reasonable accommodation. • Malarkeyv.Texaco,Inc.;Ralphv.LucentTechs.,Inc.;Hartmen v.Duffey;InreRanAm.WorldAirwaysInc.;Harrisonv.Dole;EEOCv.Rath PackingCo.

7

Injunctive and Affirmative Relief Cont.

• Preliminary injunctive relief may be ordered to preserve the status quo pending the outcome of litigation.

• Permanent injunctive relief may be ordered to prevent further violations.

• Plaintiff must show:• Strong likelihood of success on the merits;• Presence of irreparable injury to the plaintiff; • Harm to others; and• Whether the public interest will be furthered by issuing an

injunction.

Experts and Damages Valuation

F.R.E.702TestimonybyExperts:If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify... if:

(1): The testimony is based upon sufficient facts or data;(2): The testimony is the product of reliable principles and methods; and(3) The witness has applied the principles and methods reliably to the facts of the case.

DAUBERT: Reliability and Relevance + Other Factors

Kumho and Non-Scientific Experts

CommonAdmissibilityFactors:1. Whether the expert's field is a "well accepted body of learning"

with reasonably defined standards;2. Whether the expert's theory or technique can be or has been

tested;3. Whether the theory or technique has been subjected to peer

review and publication;4. The known or potential error rate of the theory or technique;5. General acceptance of the theory or technique within the

relative scientific community;6. The nonjudicial uses made of the theory or technique;7. The extent to which the technique relies upon the subjective

interpretation of the expert; and8. The expert's credibility to the extent it effects reliability.

- Kumho TireCo.v.Carmichael

8

Common Employment Law Experts

1. Statisticians and Economists2. Medical and Mental Health Experts3. Mitigation Experts4. Employer Practices and Policies Experts5. Forensic Vocational Experts6. Harassment and Cultural Experts

Experts and Employment Cases Generally

• Economic Experts:• Calculate the economic damages allegedly lost by plaintiff• Economists and accountants allowed to testify as to:

• front pay, back pay, present value of future earnings and benefits, tax effects of lump sum receipts

• Statisticians: • Testify about:

• Alleged "correlations" between protected category and adverse treatment. • Whether certain minority groups failed a standardized employment

test at a disproportionate rate;• Whether pattern of employees chosen for a reduction in force suggests

discrimination; or • Increasing use of psychological and psychiatric experts on stereotyping

biases in the work place.


• Vocational Experts: • Testify about:

• Plaintiff 's employability to aid the fact finder in determining if the plaintiff has properly tried to/has mitigate damages

• Loss of earning capacity• Vocational loss• Workforce limitations• Vocational disability

• Class Certification Stage:• Sociologists

9


• Soft Disciplines and Human Resource Experts: • HR Sexual Harassment Liability:

• Evidence that the company maintained and enforced a reasonable anti-harassment policy.

• Establishing the employer acted appropriately in responding to any employee's complaint of harassment.

• Soft Disciplines such as Sociology and Psychology:• Problems with objective analyses and Daubert Motions• Operation of stereotypes in the workplace• Corporate culture and particular biases• Employment practices to mitigate stereotypes

Emotional Distress Damages and Experts

• DamagesforEmotionalDistress:• Must be supported by competent evidence of genuine injury;

medical evidence not necessary. Heatonv.Weitz Co.• Plaintiff 's testimony alone may be sufficient to prove

emotional distress. • As amount of damages sought increases, the evidentiary

threshold becomes more difficult to meet. Bryantv.AikenReg'l Med.Ctrs.Inc.;Annis v.Cnty.ofWestchester

• Who should be the expert?• Friends and family members • Treating professional

• Psychologist, psychiatrist, treating physician, forensic psychologist

Emotional Distress Cont.• MotionsRelatedtoRule35Examinations:• Stipulation that no claim is being made for mental and

emotional distress over and above that usually associated with the physical injuries claimed or that there is no ongoing severe emotional distress.

• Stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.

• Motions to quash over-broad subpoenas for employment and mental health records

• Motions in Limine to exclude or limit experts and their reports

10

Experts and Punitive Damages• Publicly Traded Company• Financial reports okay

• Privately Held Company• Forensic accountant, economist, or other financial expert

Experts and Injunctive and Declaratory Relief

• Social psychologists and sociologists have been studying the kinds of remedies and programs that have been put in place in many workplaces.

Offers of Judgment• Federal Rule of Civil Procedure 68• Imposes a price on a party's refusal to accept a reasonable

offer.• If the judgment that the offeree finally obtains is not more

favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

• Can speed up settlement process which results in economic savings to the parties.

• Most effective when made early in the litigation.

11

Offers of Judgment Cont. • Offers of Judgment rarely made in federal civil rights and

employment discrimination actions.• Defense Counsel is confident he or she will prevail on the merits.

• Generally, in employment cases, if ultimate judgment is less than offer, plaintiff 's attorneys fees and costs are cut off at the time the offer is rejected.

Offers and Judgment Cont.• Ensure claim can be quantified.• Ensure offer is for complete relief.• Leave offer open.• Don't just offer Judgment.

• Move for entry• Confession

• Evaluate best means to make payment.

EMPLOYMENT LAW: DAMAGES

Kathleen M. Neary

Powers Law

411 South 13th St., Ste. 300

Lincoln, NE 68508

402 474 8000

[email protected]

I. TITLE VII The term Title VII refers to Title VII of the Civil Rights Act of 1964, 42

U.S.C. Section 2000e, et seq. as amended. Title VII was enacted to protect

2

employees from adverse employment actions based on race, color, sex, religion

or national origin.

42 U.S.C. Sec. 2000e-2(a) provides: It shall be unlawful employment practice for an employer to: (1) fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileged of employment because of such individual’s race, color religion, sex or national origin; or (2) to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect that individual’s status as an employee, because of such individual’s race, color, religion, sex or national origin. Damages Available under Title VII: 1) Declaratory and Injunctive Relief; 2) Lost wages and value of job related benefits;

3) Compensatory damages; 4) Hiring and/or Reinstatement; 5) Promotion; 6) Nominal damages; 7) Front pay and value of job related benefits; 8) Prejudgment interest on back pay; 9) Punitive damages (but not against the government or a political subdivision) 10) Attorney’s fees and costs Important Notes about Damages:

3

• An employee must make reasonable attempts to mitigate his/her damages;

(it is the defendant’s burden to prove failure to mitigate) * Front pay should not be awarded unless reinstatement is impracticable or impossible. Philipp v. ANR Freight Sys., Inc., 61 F.3d 669 (8th Cir. 1995)

• Unemployment compensation benefits, private insurance benefits and disability benefits are not an offset to lost wages (see narrative below)

• Compensatory and punitive damages under federal law are capped as follows:

Employers with 15-100 employees, the limit is $50,000; Employers with 101-200 employees, the limit is $ 100,000; Employers with 201-500 employees, the limit is $ 200,000; Employers with more than 500 employees, the limit is $ 300,000.

• Nebraska Law: There are no caps on damages under the Nebraska Fair Employment Practices Act (NFEPA; Neb. Rev. Stat. §48-1101 et.seq.)

• Punitive damages are not available under the NFEPA II. Age Discrimination (ADEA) * Age Discrimination in Employment Act of 1967 of 1967 (ADEA; 29 U.S.C. Sec. 621 et seq.) (applies to applicants or employees age 40 or older) provides: (1) It is unlawful for employer to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, privileges of employment because of such individual’s age; (2) It is unlawful to limit, segregate or classify employees in any

why which would deprive or tend to deprive any individual of

4

employment opportunities or otherwise adversely affect his status as an employee because if such individual’s age; (3) It is unlawful for an employer to retaliate against any

employee who has opposed unlawful practices, participated in investigations, proceedings or litigation Damages Available under ADEA: 1) Declaratory and Injunctive Relief; 2) Lost Wages and value of job related benefits; 3) Hiring and/or Reinstatement; 5) Nominal damages; 6) Front pay and value of job related benefits; 7) Prejudgment interest on back pay; 8) Liquidated damages for willful or reckless conduct (equal to the amount of back pay awarded the victim);

9) Attorney’s fees and costs. Note: “Under the ADEA the district court must tailor the remedy to make the injured party whole. Brooks v. Woodline Motor Freight, Inc. 852 F.2d 061 (8th Cir. 1988) “Front pay is an equitable issue for the court’s determination.” Newhouse v. McCormick & Co., Inc. 110 F.3d 635 (8th Cir. 1997). III. Equal Pay Act of 1963 (EPA; 29 U.S.C. Sec. 206(d))

The EPA, which is part of the Fair Labors Standards Act, as amended, provides: (d) No employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of

the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and

5

responsibility and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit systems; (iii) a system which measures earnings by quantity or quality of production or (iv) a

differential based on any other factor other than sex and an employer who is in violation of this subsection shall not (in order to comply with this subsection) reduce the wages rate of any employee Damages Available under the EPA: 1) Declaratory and Injunctive Relief; 2) Lost Wages and value of job related benefits; 3) Nominal damages; 4) Interest on back pay; 5) Liquidated damages for willful or reckless conduct (equal to the amount of back pay awarded the victim); 6) Attorney’s fees and costs.

IV. Damages Available under the Americans with Disabilities Amendments Act (ADAAA)

• Americans with Disabilities Amendments Act of 2008

(Amended numerous sections of the Americans with Disabilities Act of 1990; 42 U.S.C. Sec. 12101 et. seq.) The ADAAA provides:

“No covered entity shall discriminate against a qualified individual with a disability because of a disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privilege of employment.”

The ADAAA amended the Americans with Disabilities Act of 1990 (ADA) to make it easier for persons with disabilities to bring actions against their employer for disability discrimination and/or reasonable accommodation claims. The Act prohibits employment discrimination on the basis of disability against qualified individuals with disabilities. An

individual is considered to have a disability if he or she (1) has a

6

physical or mental impairment which substantially limits one or more of that person’s major life activities, (2) has a record of such impairment or (3) is regarded by the employer as having such an impairment.

(The definition of disability in the Act shall be construed in favor of broad coverage…) The ADAAA also protects any qualified individual, whether or not that individual has a disability, from discrimination because that person is know to have an association or relationship with an individual with a known disability. (See 29 CFR 1630.2 and 1630.3) Then ADAAA also requires an employer to make a reasonable accommodation for an individual’s disability unless the accommodation would impose an undue hardship on the employer. Damages Available under the ADAAA: 1) Declaratory and Injunctive Relief; 2) Lost Wages and value of job related benefits;

3) Compensatory damages; 4) Hiring and/or Reinstatement; 5) Promotion 6) Nominal damages; 7) Front pay and value of job related benefits; 8) Prejudgment interest on back pay; 9) Punitive damages (but not against the government or a political subdivision) 10) Attorney’s fees and costs Note: Caps on punitive and compensatory damages as referenced in Title VII section above also apply to ADAAA cases. Nebraska disability law does not cap damages.

7

V. 42 U.S.C. § 1981 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce

contracts, to sue, to be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. Damages Available Under 42 U.S.C § 1981

1) Lost Wages and value of job related benefits; 2) Compensatory damages; 3) Hiring and/or Reinstatement; 4) Promotion 5) Nominal damages; 6) Front pay and value of job related benefits; 7) Prejudgment interest on back pay;

8) Punitive damages (but not against the government or a political subdivision) 9) Attorney’s fees and costs Note: This statute applies to non-governmental employers; there is no requirement to exhaust administrative remedies (unlike Title VII), the statute of limitations is 4 years, there is no minimum number of employee requirement (unlike Title VII) and there are no caps

on damages. VI. Genetic Information Nondiscrimination Act of 2008 (Pub..L. 110-233, 122 Stat.881)

(a) The act prohibits discrimination on the basis of genetic information with respect to health insurance and employment. It is unlawful to (1) fail or refuse to hire, discharge any employee or otherwise discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment of the employee because of genetic information with respect to the employee; or (2) limit segregate or classify the employees in any

8

way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee because of genetic information with respect to the employee.

(b) Shall be an unlawful employment practice for an employer to request, require or purchase genetic information with respect to any employee or family member of the employee (numerous exceptions apply) (c ) It is illegal to fire, demote, harass or otherwise retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding or otherwise opposing discrimination Damages Available Under GINA: Same as available under Title VII VII. Family Medical Leave Act (FMLA)

Allows eligible employees to take job-protected leave on an unpaid basis for up to twelve (12) workweeks in any twelve (12) month period because of the birth of a child and to care for that child; because of placement of an adoptive or foster child and to care for that child; because the employees needs to are for a child, spouse or parent with a serious

health condition; or because of an employee’s own serious health condition. Damages Available Under FMLA:

• Lost wages and value of job related benefits;

• cost of care provided by a third party if FMLA leave is denied; (cannot be higher than amount plaintiff would have earned in the 12 week period)

• Liquated damages equal to amount of actual damages shall be awarded by the Court unless the defendant persuades the Court that the violation was in good faith

* attorney’s fees and costs VIII. Damages Available under Nebraska Workers’ Compensation Retaliation Cases

9

• Jackson v. Morris Communications, Corp., 265 Neb. 423 (2003):

Held: an action for retaliatory discharge is allowed when an employee has been discharged for filing a workers’ compensation

claim. The Court’s rationale focused upon the proposition that workers’ compensation laws are firmly entrenched in important public policy purposes and a rule which allows an employer to retaliate against an employee for filing a claim would run contrary to the public policy mandates of the law.

In allowing the public policy exception to the at-will employment

doctrine, the Court specifically held that “[a]lthough you have no right to a tort action, you have a right to a workmen’s compensation claim which, while it may mean less money, is a sure thing. However, if you exercise that right, we will fire you.” (citing, Leach v. Lauhoff Grain Co, 51 Ill. App. 3d 1022 at 1024 (1977).

* Trosper v. Bag ‘N Save, 273 Neb. 855 (2007): Held: adverse employment action short of termination in a work comp retaliation case is actionable. Damages Available:

• Back pay and value of job related benefits;

• Reinstatement or Front Pay;

• Compensatory damages

Note: Consider combining Workers’ Compensation retaliation claims with ADAAA claims to enhance the type and amount of damages available to the client.

IX. OFFSET TO LOST WAGES? The collateral source rule precludes the admission of evidence relating to unemployment and/or workers’ compensation benefits. In Gaworski v. ITT Commercial Finance Corp., Et Al, 17 F.3d 1104

(8th Cir. 1994), an ADEA case, the Court reversed the District Court’s

10

deduction of unemployment compensation benefits paid from the

Plaintiff’s back pay award and held:

It is fundamental that “an employer can not set up in mitigation of damages in a tort action by an injured employee indemnity from a collateral source, such as insurance or compensation or benefits under a Workers’ Compensation Act, even where the defendant has contributed to the fund.” Gaworski at 1112; citing Chicago Great W. Ry. v. Peeler, 140 F2d 865, 868 (8th Cir. 1944). This ‘collateral source rule’ has a long pedigree, but it remains applicable and gains in significance in the context of employment discrimination claims. As we noted in Beshears v. Asbill, 930 F2d 1348 (8th Cir. 1991), because of the collateral source rule ‘[m]ost courts have refused to deduct such benefits as social security and unemployment compensation from ADEA awards., Such a refusal is sensible and in accordance with the purposes of the ADEA.” Gaworski at 1112-1113. The Gaworski Court offered the following explanation:

Backpay awards in discrimination cases serve two functions: they make victimized employees whole for the injuries suffered as a result of the past discrimination, and they deter future discrimination. It is the reasonably certain prospect of a backpay award that ‘provide[s] the spur or catalyst which causes employers and unions to self-examine and self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.’” Gaworski at 1113; citing 422 U.S. at 417-18, 95 S.Ct. at 2371-72 (quoting United States v. N.L. Indus., Inc., 479 F.2d 354, 379 (8th Cir. 1973)). [8] Reducing a backpay award by unemployment benefits paid to the employee, not by the employer, but by a state agency, see NLRB v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 339, 95 L.Ed. 337 (1951), makes it less costly for the employer to wrongfully terminate a protected employee and thus dilutes the prophylactic purposes of a backpay award. See Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 84 (3d Cir. 1983); E.E.O.C. v. Ford Motor Co., 645 F.2d 183, 196 (4th Cir. 1981), rev’d & remanded on other grounds, 458 U.S. 219, 102 S.Ct.

11

3057, 73 L.Ed.2d 721 (1982). Indeed, it leads to a windfall to the employer who committed the illegal discrimination. Hunter v. Allis Chalmers Corp., 797 F.2d 1417, 1429 (7th Cir. 1986); E.E.O.C. v. Sandia Corp., 639

F.2d 600, 626 (10th Cir. 1980). By virtue of state aid provided “to carry out a policy of social betterment for the benefit of the entire state,” and not “to discharge any liability or obligation” of the employer, Gullett Gin. 340 U.S. at 364, 71 S.Ct. at 339, the employer winds up paying less to the employee than it would have had it not illegally terminated him. [9] Gaworski, 17 F.3d at 1113.

After analyzing the majority and minority positions by Circuit, the 8th

Circuit held: “Because we believe the majority rule is the more sound position,

we hold that unemployment benefits should not be deducted from awards of

backpay under the ADEA. Unemployment benefits are collateral source

payments that cannot be termed even “partial consideration” for employment.

Gaworski at 1114, citing, Gullett Gin, 340 U.S. at 364, 71 S.Ct. at 339. In

sum, the 8th Circuit has succinctly stated: “We believe that no employer

should benefit because of the state’s beneficence in providing for one of

the employer’s illegally discharged employees.” Gaworski at 1114.

************

Medicinal Marijuana Laws: When and How Employers Must

Accommodate John Dunn

Koley Jessen, PC, LLO

June 15, 2018


1

1

WHEN AND HOW EMPLOYERS MUST ACCOMMODATE

Medicinal Marijuana

2

Medicinal Marijuana - Federal Law Basics

•Marijuana remains a Schedule I drug under theControlled Substances Act.

•The use of medicinal marijuana is not protectedunder the Americans with Disabilities Act.

3

• Thirty‐four states and theDistrict of Columbia allowsome form of medicinalmarijuana.

•Nine of these states and theDistrict of Columbia allowrecreational use ofmarijuana.

By the Numbers

3

2

4

Medicinal Marijuana and Employment

• State laws vary significantly on the question ofemployment protections for medicinal marijuanausers.

• On the issue of accommodation, state lawsgenerally fall into one of three categories.• Even within each of these three categories the lawsdiffer on important issues.

5

As a firm, we are known for our unique

As a firm, we are known for our unique

No Protections

These laws expressly provide that employers are

not required to accommodate an employee’s use of

medicinal marijuana.

These laws either do not address the

employment context or the laws state that

an employer need not accommodate

medicinal marijuana use at work.

These laws expressly require

that employers offer a reasonable

accommodation to employees lawfully

using medicinal marijuana.

5

Employment Protections Open for Debate Anti-Discrimination

Protection

6

• Employers may accommodatemedicinal marijuana use butemployers are also allowed touse zero‐tolerance drug‐freepolicies.

• Examples: Florida, Georgia, and Montana

6

No Employment Protections

3

7

• To the extent these lawsaddress employment, it isusually limited to noting thatemployers do not have toaccommodate the use ofmedicinal marijuana on theemployer’s property.

• State courts have come todifferent results in interpretingthese types of laws.

7

Open for Debate

8

Open for Debate - Illustrative Cases•Barbuto v. Advantage Sales and Marketing, LLC

• Supreme Judicial Court of Massachusetts

•Ross v. RagingWire TeleCommunications, Inc.• Supreme Court of California

•Massachusetts and California laws both:• Stated that an employer was not required to accommodatemedicinal marijuana use on the employer’s property, but

• Was silent on duty to accommodate an employee’s medicinalmarijuana use on employee’s personal time away from work.

9

Barbuto v. Advantage Sales and Marketing

• Supreme Judicial Court of Massachusetts concluded:• Employee had sufficiently alleged she was a “qualifiedhandicapped person” and could state a claim for handicapdiscrimination.

• Federal illegality did not make accommodating medicinalmarijuana use facially unreasonable.

• Employer with drug‐free workplace policy has duty toengage in interactive process with employee.

4

10

Ross v. RagingWire TeleCommunications, Inc.

• Supreme Court of California concluded:• Medicinal marijuana user was not protected underCalifornia Fair Employment and Housing Act (“FEHA”).

• “FEHA does not require employers to accommodate theuse of illegal drugs.”

• California medicinal marijuana law did not “articulate anypolicy concerning marijuana in the employment context ….”

11

Takeaways from Barbuto and Ross•Why did they come out differently?

• California’s statute and Massachusetts’ statute are notcompletely identical.

• There appears to be an increased acceptance of medicinalmarijuana as a means of treatment. For example:

• Ross court discussed the “high potential for abuse, [and] its lack ofany currently accepted medical use in treatment . . .”

• Barbuto court concluded that “[u]nder Massachusetts law . . .medically prescribed marijuana by a qualifying patient is as lawful asthe use and possession of any other prescribed medication.”

12

• Employers are prohibited fromdiscriminating against anemployee based on status as amedicinal marijuana user.

• Employers are not required topermit medicinal marijuana useon employer’s property or duringwork hours.

• Examples: Connecticut, Maine,and Minnesota

12

Anti-Discrimination Protections

5

13

Noffsinger v. SSC Niantic Operating Co. LLC

•U.S. District Court for the District of Connecticut held:• Connecticut medicinal marijuana law was not preemptedby the Controlled Substances Act, the Americans withDisabilities Act, or the Food Drug, and Cosmetic Act.

• No preemption because:• Neither the CSA or the FDCA deals with employment;• States are free to provide greater protections than theADA.

14

Takeaways from Noffsinger•Court disregarded a wide range of preemptionarguments, for example:

• Employer was a nursing home that received federal fundingand thus was subject to a number of specific federalregulations—Court rejected this argument by concludingthat employer did not violate federal law, including the CSA,by employing a medicinal marijuana user.

•Court found an implied right of action in theConnecticut medicinal marijuana law.

15

Federal Contractors and Other Heavily Regulated Industries

• Federal contractors are generally governed by thefederal Drug Free Workplace Act (“DFWA”).

• DFWA imposes certain requirements on federal contractors,including, a good faith effort to maintain a drug free workplace.

• Medicinal marijuana laws can place federal contractors betweena rock and a hard place.

• Employers operating in industries regulated by theDepartment of Transportation will likely have apersuasive preemption argument.

6

16

Questions?

Thank you!

A New Generation of Harassment Prevention – Trends and Strategy

for Building a Harassment Prevention Program in the Wake

of Weinstein Allison Balus

Scott S. Moore

Baird Holm, LLP

June 15, 2018


© 2018 Baird Holm LLP

Harassment in the #MeToo Era

Allison D. BalusScott S. Moore

Strategies for Maintaining a Harassment-Free Workplace in

the Wake of Weinstein


Workplace Dynamics—What is the new state of employment harassment?


Emerging Best Practices—What do we know in 2018 that we didn't know in 1990?



Pitfalls To Successful Policies and Defenses


An Old Problem With New Complications—How have culture changes affected today's harassment complaints?




Immediate Action Items—What should employers be doing now?

Questions?Allison D. Balus

[email protected](402) 636 – 8254

Scott S. [email protected]

(402) 636 – 8315

Unions in the Workplace

John Corrigan Dowd Howard & Corrigan, LLC

Ross Gardner

Jackson Lewis, PC

John Hewitt Cline Williams Wright Johnson & Oldfather, LLP

Dalton Tietjen

Tietgen Simon & Boyle

June 15, 2018


Notes:_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________

_________________________________________________________________________________________