In Noffsinger v. SSC Niantic Operating Company LLC, a Connecticut federal judge stated that no federal law prohibits off-work hours use of medical marijuana, as protected under the states’ Palliative User of Marijuana Act (PUMA). There, an applicant advised the employer during the pre-hire process that she used medical marijuana, as permitted under PUMA, at night during off-work hours to treat post-traumatic stress disorder. After testing positive for cannabis in her pre-employment drug test, the employer rescinded the offer of employment. The federal district court rejected the employer’s zero-tolerance drug policy in favor of PUMA’s protections, stating that the federal Drug Free Workplace Act (DFWA) only prohibits use and possession of illegal drugs while at work. Finally, although not expressly provided in the act, the court stated that PUMA implies a cause of action for discrimination. Otherwise, PUMA “would have no practical effect, because the law does not provide for any other enforcement mechanism.”
Westchester County, NY Enacts New Sick Leave Law
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All Employers with Employees in Westchester County
EFFECTIVE
April 10, 2019
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On October 12, 2018, Westchester County adopted the Earned Sick Leave Law (ESLL) requiring private employers with 5 or more employees (or one or more domestic workers) to provide paid sick leave, and employers with 4 or less employees to provide unpaid sick leave. Key portions of the ESLL are described as follows:
November Updates
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Varies
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Varies
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Read more
IMPORTANT: Updated Pre-Adverse Action Notice for Applicants and Employees!
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All Employers
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September 21, 2018
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The federal Consumer Financial Protection Bureau (CFPB) recently issued an updated version of “A Summary of Your Rights Under the Fair Credit Reporting Act” (Summary) that includes a new notice to consumers about their right to implement a free “security freeze” under certain circumstances, preventing consumer reporting agencies from disclosing the contents of a consumer report. Although the Summary has been updated with this new notice, “security freezes” do not apply to any person “using the information for employment … or background screening purposes.”
Voluntary Participation in Employer-Sponsored “Wellness Activities” is Not Compensable Time
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August 28, 2018
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The U.S. Department of Labor (DOL) recently issued an opinion letter stating that employers are not required to pay employees for time spent voluntarily attending certain wellness program-related activities, including health-based biometric screenings and benefit fairs.
FDIC Loosens Restrictions on Hiring Bank Personnel with Criminal Histories
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All Employers in the Banking Industry
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September 6, 2018
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The Federal Deposit Insurance Corporation (FDIC) recently released revised guidelines easing hiring requirements for banking industry employers. Historically, Section 19 of the Federal Deposit Insurance Act (the Act) prohibited employers in the banking industry, with FDIC-insured designation, from hiring individuals with certain criminal convictions – namely, convictions pertaining to crimes of dishonesty, breach of trust, money laundering, or individuals who accepted entry into a pretrial diversion program in connection with prosecution for similar types of offenses. According to the FDIC, the changes were made in an attempt to lower the number of individuals precluded from employment in the banking industry who have minor offenses and are currently considered to be of low risk.
Can Applicants Sue Over the Pre-Adverse Action Notice Requirement?
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All Employers with Employees in AR, DE, IA, MN, MO, NE, ND, NJ, PA, SD
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September 6, 2018 and September 10, 2018
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(888) 378-2456
Several Court of Appeal cases have come down recently on whether or not an applicant can sue an employer for failing to provide a pre-adverse action notice as required under the Fair Credit Reporting Act (FCRA). There is a split in the courts between the Ninth Circuit (applicants cannot sue) and Seventh Circuit (applicants can sue). More recently, the Third Circuit issued its own ruling.
Ninth Circuit: Requiring Applicant to Pay for Pre-Hire Medical Testing Violated ADA
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Employers with 15 or more AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees
EFFECTIVE
August 29, 2018
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(888) 378-2456
The Ninth Circuit Court of Appeal recently stated that an employer violated the Americans with Disabilities Act (ADA) by requiring a job applicant to obtain, and pay for, additional medical testing as part of a condition of employment.
Ninth Circuit: California State Law Governs Employment Classification of Truck Drivers
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Employers with CA Employees in the Motor Carrier Industry
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September 10, 2018
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(888) 378-2456
In California Trucking Association v. Su, the Ninth Circuit stated that the Federal Aviation Administration Authorization Act (FAAAA) did not preempt California’s Labor Commissioner from using a state common law test to determine whether truck drivers are misclassified as independent contractors, because the test used is not related to prices, routes, or services. There, the California Trucking Association (CTA) filed suit against the Labor Commissioner claiming that owner-operator truck drivers are independent contractors, and asked the court for a declaration that federal law preempted the Commissioner from using the state’s standard.
California: New Employment Laws Coming in 2019
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All Employers with CA Employees
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January 1, 2019, unless noted otherwise
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Governor Brown recently signed numerous employment-related bills, impacting various industries and employment practices; among these are a package of bills following the #MeToo movement. The below list summarizes some key bills.
Connecticut: Employees Have Medical Marijuana Protection for Use During Off-Work Hours
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All Employers with CT Employees
EFFECTIVE
September 5, 2018
QUESTIONS?
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(888) 378-2456
In Noffsinger v. SSC Niantic Operating Company LLC, a Connecticut federal judge stated that no federal law prohibits off-work hours use of medical marijuana, as protected under the states’ Palliative User of Marijuana Act (PUMA). There, an applicant advised the employer during the pre-hire process that she used medical marijuana, as permitted under PUMA, at night during off-work hours to treat post-traumatic stress disorder. After testing positive for cannabis in her pre-employment drug test, the employer rescinded the offer of employment. The federal district court rejected the employer’s zero-tolerance drug policy in favor of PUMA’s protections, stating that the federal Drug Free Workplace Act (DFWA) only prohibits use and possession of illegal drugs while at work. Finally, although not expressly provided in the act, the court stated that PUMA implies a cause of action for discrimination. Otherwise, PUMA “would have no practical effect, because the law does not provide for any other enforcement mechanism.”
Action Items
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
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