By Jennifer Mora

Seyfarth Synopsis: Given this recent New Mexico medical marijuana law change discussed here, employers in all jurisdictions should review their current policies and practices addressing “weed at work” and continue to monitor developments in this evolving area of law.

Although New Mexico has had a medical marijuana law in place since 2007, it did not contain protections for job applicants and employees. However, all of that changed on April 4, 2019 when New Mexico Governor Grisham signed Senate Bill 406, which amends the Lynn and Erin Compassionate Use Act (the “Act”) to include changes that will impact New Mexico employers and their consideration and treatment of individuals using medical marijuana.

In addition to expanding the types of conditions for which an individual can use medical marijuana, employers now are prohibited from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the Act, including declining to hire, terminating, or taking any other adverse action against an individual because he or she is using medical marijuana or received a recommendation for such use by a provider.

There are some exceptions. Specifically, the employment protections do not apply:

  • If the employer would lose monetary or other licensing-related benefits under federal laws or regulations if it hires or employs individuals who use marijuana or test positive for marijuana.
  • If the employee will work in a “safety-sensitive position,” defined to mean “a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”
  • To employees who use or are impaired by medical marijuana while working, during “hours of employment,” or on premises. Indeed, the law is clear that employers can take adverse action against an employee for using or being impaired by marijuana “on the premises of the place of employment or during the hours of employment.”

Unlike a few other medical marijuana laws, SB 406 says nothing about what, if anything, an employer can do if an applicant or employee tests positive for marijuana. Moreover, while employers can take action against employees impaired by marijuana while working, on premises or during working hours, the law provides no clarity as to what it means for an employee to be “impaired by” marijuana. New Mexico employers will now need to consider how best to respond when a medical marijuana user tests positive for the drug.

More states are enacting medical marijuana laws with provisions protecting applicants and employees, and while the initial trend in the courts favored employers, courts have started issuing employee-friendly decisions addressing existing laws. The laws and court decisions are making it particularly challenging, yet critically important, for employers to stay ahead of this fast-moving trend and avoid being a test case in their state. This is especially true now that applicants and employees are bringing claims under state disability discrimination laws rather than medical marijuana laws. Employers in all jurisdictions should review their current policies and practices addressing “weed at work” and continue to monitor developments in this evolving area of law.

By Paul CutroneSam Witton and Sarah Goodhew

Seyfarth Synopsis: This morning we feature a blog from our colleagues at Seyfarth Shaw Australia, which provides updates and insights on workplace issues, employment law and health and safety, from Seyfarth Shaw Australia’s team of local and international experts.

Our clients care deeply about innovation and technology. We know this from our engagement with clients including discussions triggered by reflecting on the findings of the CSIRO’s Workplace Safety Futures report.

Our clients care about “machines” (including “robots”, artificial intelligence, biometrics and the harnessing of big data) being developed as a result of innovation and technology because of the unprecedented efficiencies and improvements in safety they unlock.

These benefits come with a potentially profound human cost. Depending on which research you turn to, the predictions are that between 9 and 50 per cent of jobs will be replaced by machines in the next decade.

This rapid pace of change has caused leading scholars to argue that some, if not a large majority of humans face a fate worse than redundancy: complete irrelevance.

The jobs of the future will involve “caring” and other “soft” skills machines can’t replicate  

This sobering thought caused us to reflect on what the skills of the future should be to counter this impending irrelevance. The current thinking from some quarters (including most Governments in the Western world) is that science, technology, engineering and mathematics are the subjects of the “future” and that we should be teaching more students these subjects in our schools, technical colleges and universities.

Cybersecurity and understanding the potential vulnerabilities of machines and how to fix them is one growth area. Estimates are a near 40 per cent uplift in the number of people needed with these skills in the next decade.

At the same time, leaders of businesses are arguing that one of the hardest skills to recruit for is the ability of candidates to write and speak publicly to communicate ideas clearly. Chairman and CEO of Goldman Sachs, David Solomon, has said that “[h]ow you communicate with other people, how you interact with other people, how you express yourself will have a huge impact on your success”.

The bigger question though is how we, as a society, prepare for the future?

Embedded in this question are further intrinsic questions around what it is that machines cannot do, or what it is that machines cannot do better than humans? An understanding of the answers to these questions is necessary if we attempt to protect ourselves from redundancy and, worse still, irrelevance.

It’s heartening to hear that across all reports that communication skills remain valuable in the “new world” of work.  This is good news for lawyers and many professions.

Knowledge of machines + deep understanding of people = recipe to thrive

Perhaps the focus here should be on the things that, for now at least, machines can’t replace. In the main these are the very things that make us human and make us feel. This includes the joy we experience through art, literature, movies, theatre, dance or music. It also includes the empathy we feel that comes from human care and kindness.

Leading organisation are already harnessing “blended” skill sets

Leading organisations with which we work have already recognised the need to combine a knowledge of machines with the “caring” and “feeling” skills, so called “softer” skills, that machines can’t replicate. These organisations seek out and promote, through lifelong learning, essential skills in communication, creativity, innovation and intercultural competency.

The future is impossible to predict with accuracy. One thing though is clear –  the impact of machines on the jobs we have today is inevitable. If we set ourselves on a path to learn only the skills which machines can potentially replace, we set ourselves on a dangerous path.

Based on the inevitability of the machines replacing humans, combined with the focus on the “softer” skills associated with creativity, we are working with our clients to do just that get more creative.

Creativity is not only one of the key skills that will relate to employability in ever increasing ways but we are seeing employees seek out organisations that hold creativity as a core value. Why? They will be sustainable long term. We might care about machines, but as yet they don’t care about us.

By Michael Jacobsen, Christopher DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis:  On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018.  The release arrived a few months later than usual – likely due to the recent government shutdown – but still packed a punch in several respects, including to the back-drop on retaliation and sex discrimination charges in the midst of the #MeToo movement, the number of merits lawsuits filed, and significant monetary recoveries, as well as a reduced charge inventory.  It is a must-read for all employers.

On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018 (available here).  In addition to enforcement and litigation activity, the data breaks down charge statistics by allegation and state – showing which charges are being filed the most and where.  Although the dip in total charges filed certainly stands out, so does the prominence of retaliation and sex discrimination charges in the #MeToo era.  The statistics are somewhat of a “report card” on the Commission’s activities, and also illustrates the continued increase in the number of lawsuits filed by the EEOC overall, as well as the number of systemic lawsuits filed specifically, and touts the substantial monetary recoveries that the EEOC continues to reel in from employers.  The data also mark the EEOC’s accomplishments in reducing its charge inventory.

Charges Are Down Overall

In total, 76,418 charges were filed in FY 2018.  Not only is this down from 84,254 charges in FY 2017, but FY 2018 saw the third fewest charges filed for all fiscal years going back to FY 1997 according to the EEOC’s data, above only FY 2006 (with 75,768 charges) and FY 2005 (75,428).  Further putting FY 2018’s drop to 76,418 charges in perspective, the number of charges filed exceeded 80,000 every other year starting in FY 2007, by 8,000 to 19,000 in most of them.

Consistent with this overall decline, there was a decrease in almost every category of charges in FY 2018 from FY 2017, with the exceptions of some modest increases in Equal Pay Act and genetic information charges at the very bottom of the list.  The category that decreased the most was race, by 3,928 charges – or almost 14% – from FY 2017 to FY 2018.

While generally down, however, these numbers are still sizable.  And outreach to the agency was consistent with prior years, as well, with the EEOC reporting that it addressed 519,000 calls to its toll-free number and more than 200,000 inquiries to its field offices in FY 2018, roughly in the ballpark of 540,000 calls and 155,000 inquiries in FY 2017, respectively.

Texas And Florida Are Still Hot, With California Getting Warmer

Looking at the states where the most charges were filed, the hot spots largely remained the same in FY 2018 as in FY 2017.  In fact, 9 out of the top 10 states in FY 2017 also made the cut for FY 2018, except for Alabama knocking Tennessee out of the number 10 spot. As in FY 2017, Texas (with 7,482 charge receipts) and Florida (with 6,617 charge receipts) were the top two states for charges in FY 2018.

Texas and Florida should come as no surprise, given their relative populations according to the most recent census data (found here). But population is not everything.  For example, Georgia (at number 4) surpasses states with higher populations, and Illinois and Pennsylvania each have more filings than New York.  And, although one might expect California to be number one given that it is the most populous state, its strong state discrimination statute tends to claim charges that may otherwise have been filed with the federal agency.  Nevertheless, while the top 10 list on the whole was fairly static from the prior fiscal year, California was a notable exception, leaping from having the sixth most charges filed in FY 2017 to the third most charges filed in FY 2018.

Retaliation Charges Remain In First, With Sex Discrimination A Notable Second

In total, 39,469 retaliation charges were filed with the EEOC in FY 2018.  As has been the case for the past five years, this made retaliation the most frequently filed charge in FY 2018.  Also noteworthy, retaliation charges crept over the 50% marker in FY 2018, continuing a steady annual increase from 42.8% of the total charges filed in FY 2014.

Behind retaliation were sex, disability and race charges, each approximately 32% of the total charges filed with the EEOC.  (As the EEOC notes, the percentages total more than 100 because some charges allege multiple bases.)

Sex discrimination charges (which would include pregnancy discrimination, gender discrimination, and sexual harassment) were particularly notable in that they edged out disability and race charges by a tenth of a percent to claim the number-two spot, after being the fourth most frequently filed charge in FY 2017.  Breaking down the data for sex charges further, there were 7,609 sexual harassment charges filed with the EEOC in FY 2018, making for a sizable jump of 13.6% over the prior fiscal year.

No doubt, these trends in sexual discrimination and retaliation charges were fueled by the “significant impact of the #MeToo movement,” as noted by Acting Chair Victoria A. Lipnic.  Indeed, the EEOC’s commitment in this area has not wavered in light of the increased visibility of workplace sexual harassment resulting high-profile media coverage in 2018.  As reported previously, the 41 sexual harassment lawsuits filed by the EEOC in FY 2018 marked a 5-year high.  And the EEOC also reported a total recovery of $56.6 million for alleged victims of sexual harassment in FY 2018.

EEOC Keeping Its Foot On The Gas

Overall, the statistics show that the EEOC filed 199 merits lawsuits in FY 2018, up from 184 merits lawsuits filed in FY 2017.  While not as dramatic a spike from the year before – in which the EEOC more than doubled the number of merits lawsuits it filed compared to the prior fiscal year – the appreciable growth in FY 2018 on top of that jump should not be overlooked.  The EEOC reports that 117 of those lawsuits were on behalf of individuals, 45 were non-systemic suits with multiple victims, and another 37 were systemic claims.

The EEOC labels a case as “systemic” if it “has a broad impact on an industry, company or geographic area.”  As such, these cases pose heightened exposure.  In terms of percentages, systemic lawsuits accounted for about 18.5% of the total number of filings, which is consistent with prior years (16% of all merits lawsuits in FY 2017 and 20% in FY 2016).  Looking at the numbers, however, the 37 systemic lawsuits filed in FY 2018 was up from 30 that the EEOC filed in FY 2017, 18 in FY 2016 and 16 in FY 2015.  As with the number of merits lawsuits filed, the number of systemic lawsuits may not have risen quite as dramatically as it did in FY 2017.  Nevertheless, employers should pay attention as the number continues to rise in FY 2018 even in the wake FY 2017’s spike.  Clearly, the EEOC is not shying away from pursuing these “bet-the-company” cases.

The EEOC boasted substantial recoveries to boot.   Specifically, the EEOC secured more than half a billion dollars ($505 million) in total relief for alleged discrimination victims in FY 2018.  This marks a substantial increase from $484 million in FY 2017 and $482.1 million in FY 2016.

Bringing Down The Backlog

Another priority of the EEOC in recent years has been reducing the large backlog of pending charges, which had been a longstanding issue for the agency.  In FY 2018, the EEOC resolved 90,558 charges.  This was down from 99,109 charges resolved in FY 2017 and 97,443 charges in FY 2016.  Nevertheless, the EEOC still decreased its charge inventory by 19.5%, to 49,607 in FY 2018, following up on FY 2017, in which the EEOC decreased its charge inventory by 16.2% to 61,621.  Indeed, as Acting Chair Lipnic noted for FY 2018, the data reflected the “lowest inventory of private sector charges in a dozen years.”  The EEOC attributed its success in this area to new strategies for prioritizing charges and resolving them more efficiently, and with the assistance of enhanced technology.

Implications For Employers

Despite the dips in overall charges filed, the EEOC’s enforcement efforts remain robust, and the EEOC continues to get results, as demonstrated by its recovery statistics.  And, by reducing its backlog, the EEOC is freeing up its resources for further enforcement efforts.  As noted in our other reports, clearly the EEOC is aggressively pursuing its strategic goals under the current administration.  Employers should keep an eye on these statistics, especially with retaliation and sex discrimination issues firmly in the forefront.  And, by continuing to set the culture in their workplaces through leadership and accountability, along with sound human resources practices such as sharp written policies, comprehensive training and robust response protocols, employers can guard against these issues, which clearly are not going away.

By Kristina M. Launey and Minh N. Vu

Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard University is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.

By Sam Witton, Paul Cutrone, and Sarah Goodhew

It is widely proclaimed that we are in the midst of the “Fourth Industrial Revolution” (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator’s view you believe.

For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the ‘gigification’ of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.

Regional trends that are responding to the 4IR

The 4IR is shaping workplace laws. Working across regions we see examples that point to trends in laws responding to the new world of work arrangements such as non-traditional labour models. As an example, recent amendments to the Occupational Safety and Health Act in Korea have expanded the scope of statutory protections to “persons providing labour” (as opposed to “employees”) and introduce an obligation on franchisors to take preventive measures for workplace accidents suffered by franchisees and their workers.

Positive regional trends can be seen in how workers are protected by existing laws. The latest amendment to the Law of the People’s Republic of China on the Prevention and Control of Occupational Diseases on 4 November 2017 and recent cases indicate a trend in Beijing and Shanghai that the enforcement of health and safety at work is in focus, more comprehensive and increasingly strict.

Australian Governments are grappling with the challenge of laws that are responsive to the 4IR with recommendations to review Work Health and Safety Laws to deal with new and emerging business models, industries and hazards.

Rising issues of sexual harassment and workplace psychological health – a focus for regulators

Laws continue to be tested against the explosion in reporting of workplace sexual harassment, with calls for Workplace Health and Safety laws to specifically include sexual harassment as a risk that must be eliminated or minimised by duty holders. Regulators are encouraging anonymous whistleblowing to facilitate investigation.

We are also expecting more regulator activity in relation to workplace psychological health.

Exploring ‘megatrends’ for the future will help us prepare for change

It is more important than ever to understand the risks associated with the constant change in workplaces.

The Workplace Safety Futures report recently prepared by the Australian Commonwealth Scientific and Industrial Research Organization has identified the following six megatrends for workplaces over the next 20 years:

 Each megatrend presents both risks and opportunities but all are predicted to re-shape workplace health and safety. Business will need to grapple with these changes to ensure they continue to meet their legal obligations through what promises to be a period of rapid and potentially radical change.

By Christine Hendrickson and Annette Tyman

Synopsis: Seyfarth’s Pay Equity Group is pleased to release two reference guides: the 2019 Developments in Pay Equity Litigation Report and the 3rd Annual 50-State Pay Equity Desktop Reference.

Today, April 2, 2019, is Equal Pay Day. As we reflect on the developments in equal pay laws and litigation in the past year, we continue to see a legal landscape that is rapidly evolving.

As our colleague, Camille Olson, testified in February on the Paycheck Fairness Act (H.R. 7) before the U.S. House Education & Labor Committee’s Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections, which passed out of the U.S. House of Representatives last week, equal pay is an area of the law where employers have led “by proactively evaluating and modifying their pay practices, policies, and procedures, through voluntary compensation reviews and implementing educational programs to ensure compliance with the law.” We are proud to partner with you in these efforts.

Looking back at 2018 and forward to 2019 and beyond, we see four key trends:

  • A Push Towards Even Greater Transparency: In 2019, we are seeing employers even more willing to be transparent about pay and an increased appetite for additional data and metrics. Specifically, we are seeing additional requests for not just “pay gap” information but information about median pay and unadjusted pays statistics. Employers are weighing voluntary or mandatory (like in the U.K.) disclosures about pay. This raises additional concerns and, at the same time, provides additional opportunities. We expect this trend to continue. We discussed this on our webinar today, and we look forward to sharing more information about the how employers can evaluate if they have a pay gap or a gap in the data that explains how employees are paid. Watch this space.
  • The Possibility of Pay Data Collection by the EEOC: On March 4, 2019, the U.S. District for the District of Columbia issued an opinion vacating a stay of the EEOC’s collection of pay data as part of the EEO-1 Report filing. The pay data collection requirement was indefinitely stayed by Office of Management and Budget (“OMB”) in part because of questions around the EEOC’s burden estimates. The National Women’s Law Center and the Labor Counsel for Latin American Advancement filed suit challenging OMB’s decision. We are now waiting for clarification from EEOC of the timeline by which employers with more than 100 employees must provide pay data and hours worked for all employees. The impact of this development on the employer community cannot be understated and we are closely following these developments and will be in touch with guidance, if and when the EEO-1 pay data collection is required.
  • The Continued Passage of New, More Stringent Pay Laws: Since the beginning of 2018, we saw new equal pay laws passed in Illinois, New Jersey, and Washington state. Laws banning employers from asking candidates for employment about prior salary continues to be another trend. Salary history ban laws have been enacted in 7 states, 1 territory, and 7 cities, and several other counties and states are considering similar salary history bans. The 3rd Annual 50-State Pay Equity Desktop Reference outlines these changes at the state-level.
  • More Litigation: Not surprisingly, concurrent with these new laws and developments, the Seyfarth Pay Equity and Complex Litigation Groups have seen an increased interest by the plaintiff’s bar in litigation under the federal Equal Pay Act and analogous state laws. The primary targets for this new wave of litigation have been the health, legal and tech industries. Those cases are already generating new and intriguing law that has the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The 2019 edition of the Developments in Pay Equity Litigation Report outlines these cases and trends.

All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2019.

Christine Hendrickson and Annette Tyman co-chair the Seyfarth’s Pay Equity Group. For 20 years, Seyfarth’s Pay Equity Group has lead the legal industry in fair pay analysis, thought leadership, and client advocacy.

 

By Minh N. Vu

Seyfarth Synopsis:  Domino’s Likely to File Petition for Certiorari from Ninth Circuit’s Ruling in Robles v. Domino’s.

As we reported, the Ninth Circuit held in January that a blind plaintiff could move forward with his ADA Title III lawsuit against Domino’s Pizza for having an allegedly inaccessible website and mobile app.  The court determined that allowing the claim to move forward was not a violation of Domino’s due process rights, even though the ADA and its regulations contain no definition of, or technical specifications for, “accessible” public accommodations websites.

We believe Domino’s will be petitioning the U.S. Supreme Court for certiorari because on March 6, 2019, it requested a sixty-day extension of time to file said petition.  The request was filed by a newly-engaged Supreme Court specialist which further confirms our conclusion that a petition will be filed.  Justice Kagan granted the request, and Domino’s Petition for Certiorari is due on June 14, 2019.

There is a lot at stake with this petition.  Congress and the DOJ have taken no action to stop the tsunami of lawsuits against thousands of businesses about their allegedly inaccessible websites.  A Supreme Court decision could put an end to the litigation frenzy and provide some relief for businesses.

Stay tuned for updates on this exciting development.

Edited by Kristina M. Launey

 

By Sara Eber Fowler, Rhandi Childress Anderson, and Erin Dougherty Foley

Seyfarth Synopsis: The Department of Labor issues an opinion letter clarifying that employers must promptly designate FMLA leave, regardless of the availability of paid leave.

What if an employee wanted to say “no thank you” to their FMLA rights, use their other available leave, thereby saving their FMLA time for later and get extra (protected) time off – can they do that?

That used to be an easy “no”– if an eligible employee gave notice of a need for leave for an FMLA-qualifying reason, employers were obligated to designate the time off as FMLA. But in 2014, the Ninth Circuit issued a surprising decision in Escriba v. Foster Poultry Farms, Inc., holding that employees can decline to take FMLA leave, even when their need for leave is for FMLA-qualified reasons. The Ninth Circuit departed from prevailing precedent and created a gray area for employers as to whether they could – or should – involuntarily place employees on FMLA leave when they decline FMLA rights. In the years since, no other Circuits have followed Escriba.

On March 14, 2019, the Department of Labor (“DOL”) issued an Opinion Letter directly rejecting the Escriba decision, reiterating the prevailing view that employers cannot delay designating leave as FMLA leave, where it otherwise qualifies, even if an employee asks.

The question presented to the DOL was whether an employer could allow employees to exhaust some or all available paid leave before designating leave as FMLA, even when the reason for leave is clearly FMLA-qualifying. In no uncertain terms, the DOL rejected this practice. Once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave, 29 C.F.R. § 825.220(d). In other words, contrary to Escriba, employee preferences are irrelevant and employer compliance is mandatory. When an employer has enough information to determine whether a leave request is for an FMLA-qualifying reason, the employer must follow the FMLA regulations and designate the leave accordingly.

The DOL further reiterated that this does not prevent employers from permitting or requiring that employees substitute available paid leave to cover otherwise unpaid FMLA leave. However, FMLA runs concurrently with any paid leave, and employers cannot expand an employee’s 12-week (or 26-week) FMLA entitlement.

Takeaway for Employers     

For most employers around the country, the DOL’s opinion letter simply serves as a reminder of what has long been considered best practice in designating FMLA leave. For employers with operations in the Ninth Circuit, though Escriba has not been overruled, the opinion provides a solid foundation to designate qualifying leave as FMLA, regardless of employee preference. And of course, there is nothing preventing employers from having more generous leave policies (paid or unpaid), with time off beyond the FMLA’s 12-week/26-week allotment. They key is, such additional leave is not FMLA (or FMLA protected).

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

By Liz Watson and Kristen Peters

Seyfarth Synopsis: It is important for companies to investigate internal sexual harassment complaints and take prompt, appropriate corrective action. This post provides a six-step roadmap of best practices for handling sexual harassment complaints.

  1.  Plan Ahead
  • Maintain compliant harassment policies, provide regular harassment training covering all required topics (Seyfarth can help), and communicate the procedure for reporting complaints.
  • Determine in advance who will oversee the process for handling complaints.
  • Have a crisis management team in place in advance (generally legal, human resources, IT, and communications or public relations).
  • Identify and train internal investigators so they know how to conduct an investigation.
  1.   Initial Steps After Receiving A Complaint
  • Determine whether there is a need to conduct a formal investigation and, if so, the appropriate scope of the investigation.
  • Consider whether to place the accused on paid administrative leave pending the investigation. Some factors to consider include whether the accused poses a potential safety risk and whether having the accused in the workplace may intimidate witnesses or otherwise impede the investigation.
  • Take appropriate interim steps to prevent harassment and retaliation. For example, it may be appropriate to separate the accused and the complainant, instruct the accused not to communicate with the complainant, or to place an upcoming performance review on hold pending the conclusion of the investigation.
  • Determine who will conduct the investigation. Choose the investigator carefully, as that person may need to testify in any legal proceeding.
    • Investigators must be free from actual or apparent bias or conflict of interest. For example, an investigator should not investigate the conduct of the investigator’s superiors or friends.
    • Determine whether to retain an outside investigator. Consider whether the investigator needs a particular expertise.
    • Evaluate whether to retain a lawyer to conduct the investigation and whether the investigation will be covered by attorney-client or attorney work product privileges. The company can decide later whether to waive a privilege and rely on the investigation as part of a litigation defense.
  • Preserve evidence that may be relevant to the investigation. The evidence may include emails, texts, and internal messages. Involve IT as necessary.
  • Develop a public relations strategy if there may be potential media coverage or publicity.
  1.   The Investigation Process
  • Conduct investigations promptly. If there was misconduct, it should be corrected as soon as possible.
  • Determine an investigation plan, but remain flexible. The number of witnesses interviewed and documents reviewed should be appropriate to the situation. Facilitate the investigator’s access to the relevant witnesses and the documents.
  • An investigation is a fact-finding mission. The investigator should approach the investigation with an open mind.
  • Consider the order in which witnesses are interviewed and what information to share with witnesses. Generally a best practice is to interview the complainant first and the accused last. Witnesses should be told that the company will maintain confidentiality consistent with the need to investigate.
  • Prepare notes contemporaneously or soon after the interviews. Document key quotes and any admissions made. Be thoughtful about your notes, as they may be discoverable if the matter results in litigation. Decide whether to have the witnesses submit or sign statements.
  1.   Reporting the Findings
  • Determine whether a written report is necessary for all or parts of the investigation and, if so, what level of detail is appropriate for the report.
  1.  Determine Who Will Decide and Take Appropriate Corrective Action
  • Generally the decision-makers should not be lawyers.
  • Corrective action may include, for example, discipline, coaching, further training, and other steps to prevent future harassment and retaliation.
  1.   Close Outs And Other Follow Up After The Investigation
  • Inform employees involved with the investigation that the investigation has concluded and that the company has taken appropriate action. The company may not be able to share more information due to privacy concerns.
  • Instruct employees to report any further concerns through the appropriate complaint channels.
  • Remind them that company prohibits retaliation. Instruct employees to report any retaliation promptly.

Workplace Solutions: While is there is no “right way” to conduct an investigation, all investigations should (1) start with an investigation plan that may include interviewing the material witnesses and reviewing key documents, (2) be conducted as promptly as reasonably possible, (3) be conducted by a trained, impartial investigator, (4) be documented appropriately, (5) be followed by appropriate corrective action and steps to prevent harassment and retaliation, and (6) appropriately inform employees when the investigation has closed.

Edited By: Coby Turner

By Jay Connolly & Aaron Belzer

As cannabis growers and retailers struggle with the complex and onerous regulatory scheme governing California’s emerging legal marijuana marketplace, they may be excused for overlooking the requirements of California Safe Drinking Water and Toxic Enforcement Act of 1986—more commonly known as Proposition 65.  Neither the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), nor its implementing regulations, reference or suggest that cannabis growers or retailers are subject to Proposition 65.  Yet, Proposition 65 plainly applies to cannabis and cannabis products, and ignorance of its requirements can prove costly to fledgling and established cannabis businesses alike.

Proposition 65 requires California to publish and update annually a list of chemicals known to the State to cause cancer, birth defects or other reproductive harm (the “Listed Chemicals”).  It further requires businesses to provide “clear and reasonable” warnings to California residents before exposing them to one or more of the over 900 Listed Chemicals above the established regulatory “safe harbor” levels.  Such exposures can be from consumer products, in workplaces or in the environment and therefore require different types of warnings.

Proposition 65 is enforced entirely through litigation; it vests the Attorney General with primary enforcement responsibility, but also allows any individual or organization “acting in the public interest” to sue a business for purported violations, and seek penalties of up to $2,500 per violation per day.  Because private enforcers can potentially recover their attorney fees and 25% of any penalties assessed, Proposition 65 has spawned a cottage industry for “bounty hunter” plaintiffs who pursue costly enforcement actions against unwary businesses that fail to warn of potential exposures to even trace amounts of a Listed Chemical.

Cannabis and cannabis products are not immune from these enforcement actions.  Since California added “marijuana smoke” as a Listed Chemical in 2009, cannabis and cannabis products have become notable targets for enforcement—a trend that has only increased since California passed Proposition 64 legalizing recreational marijuana use effective January 1, 2018.  Over the past four years, for example, private enforcers have issued over 800 Proposition 65 notices of violation to cannabis businesses alleging violations of Proposition 65’s warning requirements.  And while “marijuana smoke” is an obvious target for enforcement, other Listed Chemicals commonly found in both edible or smokable cannabis products, including “beta-Myrcene” and “isoprene” (common hydrocarbons found in cannabis plant oils), and “Myclobutanil,” and “Carbaryl” (pesticides and fungicides used to grow cannabis plants), can also be targets for enforcement.

To avoid becoming a target for enforcement, prospective and licensed cannabis businesses should add Proposition 65 to their legal and regulatory compliance checklist.  To that end, the Proposition 65 regulations clarify the relative warning responsibilities between product manufacturers, producers, packagers, importers, suppliers, distributors (“Upstream Entity(ies)”) and retail sellers of consumer products.  Specifically, the regulations require Upstream Entities subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials for retail sellers to display and maintain.

A retail seller, in turn, is independently responsible for providing a Proposition 65 warning only when: (1) it sells the product under its own (or an affiliate’s) brand or trademark; (2) it introduces or creates the Listed Chemical in the product itself; (3) it fails to display or obscures the product warning provided by an Upstream Entity; or (4) it has “actual knowledge” of the potential exposure and an Upstream Entity cannot be readily compelled to provide the warning (a potential “gotcha” situation).

The regulations also provide specific, detailed non-mandatory guidance for the content of Proposition 65 warnings for a wide variety of exposures, including consumer product exposures, occupational exposures, and environmental exposures.  The regulations further provide additional non-mandatory guidance for the method by which a business may provide the warning for various exposure types—whether resulting from the acquisition, purchase, storage, consumption or use of a consumer product, or from contact with an environmental source, such as ambient air.

Although businesses are not required to use the warning content or methods set forth in the regulations, doing so is the only way in which to ensure compliance with Proposition 65.  And while Proposition 65 may not be as complex as the MAUCRSA and its implementing regulations, Proposition 65 is sufficiently complex and nuanced that cannabis businesses should carefully review their requirements, determine their warning obligations, and develop and implement a reasonable and practical compliance plan.  Indeed, as many cannabis operators have already discovered, one ignores Proposition 65 at one’s own peril.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is a partner in the firm’s Los Angeles office.  They regularly represent and advise clients in Proposition 65 matters and developments.  If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at jconnolly@seyfarth.com or Aaron Belzer at abelzer@seyfarth.com