Hunton Employment & Labor Perspectives

Voters in Michigan, Utah and Missouri passed marijuana-related ballot measures in the November 2018 elections.  Michigan, which legalized medical marijuana in 2008, became the tenth state to legalize recreational use of marijuana.  Utah voters agreed to institute a formal structured medical marijuana program, greatly expanding the scope of the state’s existing medical marijuana law, and Missouri voters for the first time authorized the state to create a system of licensed marijuana dispensaries for medical purposes. Each of these measures recognizes that marijuana remains a controlled substance, and illegal, under federal law, and that authorized users, growers, physicians, and any others who properly support or participate in these programs will be shielded from liability only under state law.

The U.S. District Court for the Northern District of California is a popular venue for class action lawsuits.  As of November 1, 2018, it is also the first to require parties settling such lawsuits to make broad public disclosures regarding the settlements.

The U.S. Supreme Court held yesterday that the Age Discrimination in Employment Act (ADEA) applies to state and local government employers, regardless of their size.  In doing so, the Court unanimously adopted the Ninth Circuit’s reading of the statute when four other Circuits held the opposing position.

In the wake of the #MeToo movement, many state legislatures have begun to take action to provide greater protections for victims of sexual harassment and make it easier for them to make complaints in the workplace.  For example, in California, AB 2770 amends Civil Code Section 47 to protect alleged victims of sexual harassment by a co-worker in making complaints to the employer without the fear of being found liable for defaming the alleged harasser.  It similarly protects employers when making statements to interested parties (such as the Department of Fair Employment and Housing and/or Equal Employment Opportunity Commission) concerning the complaints of sexual harassment.  In both instances, however, the statements and/or complaints are only protected from liability for defamation if they are made without malice and based upon credible evidence.

In a new class action filed recently against a hospital housekeeping company, employees allege their employer’s fingerprint scanning time-tracking system runs afoul of privacy laws.  The Pennsylvania-based company Xanitos Inc. now faces the lawsuit in federal court in Illinois, claiming the company violated the state’s Biometric Information Privacy Act (BIPA).

It’s now officially public: under the National Labor Relations Board’s (NLRB)  General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation.  Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith.

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

The EEOC recently released a report highlighting the Commission’s efforts to combat sexual harassment in the past year.  The report, which includes preliminary data for the fiscal year ending on September 30, 2018, illustrates that the Commission has been, in the EEOC’s words, “vigorously enforcing the law” in the wake of the #MeToo movement.

The combination of a quirky procedural posture and broad language used by the Supreme Court in 1941 have left Home Depot trapped in a North Carolina state court defending against a class action, despite the removal provisions of the Class Action Fairness Act.  On September 27, 2018, the Supreme Court granted certiorari to decide whether CAFA authorizes removal of class action counterclaims when its requirements are otherwise met.

According to the National Human Trafficking Hotline, California has had the highest number of reported cases of human trafficking in the country over the last six years, followed by Texas and Florida.  Human trafficking victims include men and women, adults and children, and foreign nationals and United States citizens. Recent studies indicate that hotels and motels are common locations for sex trafficking.

In light of these startling statistics, now is a good time for employers to become informed about new legislation associated with human trafficking crimes and to implement or update their anti-human trafficking policies and practices.