Monthly Archives: January 2014

January 30, 2014

Firing for Off-Duty Medical Marijuana Use to be Reviewed by Colorado Supreme Court

By Emily Hobbs-Wright 

The Colorado Supreme Court announced that it will review last year’s lower court decision that upheld the termination of an employee who tested positive for marijuana but was unimpaired at work following his off-duty marijuana use for medical reasons.  As we previously wrote on this blog (see this post), last April, the Colorado Court of Appeals ruled that using pot during non-working hours is not a “lawful activity” under the state’s lawful off-duty activity statute (C.R.S. §24-34-402.5).  Coats v. Dish Network LLC, 2013 COA 62. The Court of Appeals reached its decision by relying on the fact that marijuana use remains illegal under federal law and therefore, medical marijuana use, though legal in Colorado, was not “lawful” for purposes of the Colorado lawful off-duty activity statute. 

The Colorado Supreme Court will review two questions: 

1. Whether the Lawful Activities Statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance; and 

2. Whether Colorado’s Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state.  

Over the next few months, the parties will submit written briefs to the Court presenting their positions on these two questions.  With the importance of this case for both Colorado businesses and the marijuana industry, watch for additional groups to ask permission to submit briefs advocating their respective viewpoints.   Though the case before the Colorado Supreme Court deals with medical marijuana, the Court’s decision could establish precedent that would apply to the legal use of recreational marijuana.  We will watch this case very closely and will report on any new developments as they occur.

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January 27, 2014

Union Membership: By the Numbers – 2013

By Jeffrey T. Johnson 

The results are in.  For 2013, the percentage of union members in the private sector ticked up slightly, to 6.7%.  The percentage for 2012 was 6.6%.  The total number of union members working in the private sector rose from 7.0 million in 2012 to 7.3 million in 2013. 

Numbers for the public sector dipped slightly from 2012, with 35.9 percent of public sector employees reported to be union members in 2012 and 35.3 percent in 2013. The total number of public sector union members remained relatively flat, with 7.2 million union members in 2013, down just over 100,000 members from 2012. 

In analyzing the data provided by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), the trend in both percentage and total number of union members has been a steady downward one.  For example, in 2005, 7.8% of private sector employees were union members.  In 2005, 15.7 million workers (private and public) were union members; in 2013, only 14.5 million. 

The BLS report breaks down the union membership data by many categories, including by state, gender, age, industry, and occupation.  It also provides comparative earnings information.  Here are some highlights: 

  • Men had a higher union membership rate (11.9%) than women (10.5%).
  • The age category with the highest percentage of union members was age 55-64 (14.3%).
  • The occupations with the highest percentage of private sector union members were protective service occupations (35.3%), utilities (25.6%), and transportation and warehousing (19.6%)
  • New York continues to have the highest union membership rate (24.4%), while North Carolina had the lowest rate (3.0%).  

Statistics for 2013 union membership in the primary states served by Holland & Hart’s offices were as follows: 

  • Nevada – 14.6% unionized, total of 169,000 members
  • Montana – 13.0% unionized, total of 52,000 members
  • Colorado – 7.6% unionized, total of 171,000 members
  • New Mexico – 6.2% unionized, total of 751,000 members
  • Wyoming – 5.7% unionized, total of 15,000 members
  • Idaho – 4.7% unionized, total of 29,000 members
  • Utah – 3.9% unionized, total of 49,000 members 

Note:  Above figures are private and public sectors combined

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January 21, 2014

Requiring Exempt Employees to Work Certain Hours

ClocksBy Joanna Vilos 

You likely know that salaried exempt employees aren’t eligible for overtime pay.  But did you know that you can require an exempt employee to work specific hours and track his or her hours worked?  Under the Fair Labor Standards Act, employers may require exempt employees to comply with scheduling and tracking procedures, such as working certain days and times, being available by telephone, email or text and recording hours worked. 

Why would you want exempt employees to comply with scheduling and time-keeping policies?  For  a variety of reasons, including ensuring that exempt decision-makers are available to address operational concerns throughout the day, for client billing purposes, to determine employees’ eligibility or accrual of certain benefits, etc. Depending on the nature of your business, you may want only certain exempt employees to work set hours or track their time, so it need not be a requirement for every exempt employee at your company.  Just be careful not to impose these requirements on an employee or group of employees for discriminatory or retaliatory reasons. 

The sticky issue is what you may legally do with time and attendance information related to your exempt employees. Say, for example, you would like your exempt managers to work set hours from 8:00 am until 5:00 pm.  What should you do if a manager continually rolls into the office at 9:00 am?  Or what happens if a manager fails to keep track of her work time?  

If an exempt employee fails to comply with your attendance and time-keeping requirements, you need to treat the violation as a discipline issue, not a pay deduction issue.  Assuming no contractual provisions to the contrary, you’re entitled to discipline exempt employees for their failure to adhere to your company policies.  Discipline may include verbal and/or written warnings, performance improvement plans, and even termination, as warranted by your policies and the circumstances.  You should not, however, tie the payment of an exempt employee’s salary to the number of hours worked in a week.  You also should not dock an exempt employee’s salary for partial day absences.  You may dock pay for a suspension for an infraction of workplace conduct rules involving serious misconduct, such as rules prohibiting sexual harassment, drug use, workplace violence, etc.  However, such unpaid suspensions must be for one or more full days.  This type of unpaid suspension may be made only when the employer is enforcing its written policies that are applicable to all employees. Prorating an exempt employee’s salary based on hours worked or making improper deductions from an exempt employee’s salary will risk the loss of that employee’s exempt status.  

Although not a legal matter, you may want to consider the effect that requiring set hours and tracking daily time will have on your exempt employees and their productivity and morale.  Some professionals and higher level exempt employees may feel micro-managed when their employer sets their work hours and requires daily time-keeping.  Others feel they work around the clock via electronic devices and remote access to email and computer systems so keeping track of total work time may be difficult.  Depending on your corporate culture and the circumstances of your operation, the intangible effect of implementing more oversight of exempt employees’ attendance and time records may be worth further evaluation.

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January 16, 2014

(Un)Happy New Year for NLRB

National_Labor_Relations_Board_logo_-_colorBy Brad Williams 

The National Labor Relations Board began 2014 on a sour note, conceding defeat on its controversial “Poster Rule” and facing skeptical Supreme Court justices in the blockbuster Noel Canning case testing the president’s power to appoint NLRB members under the Constitution’s so-called “Recess Appointments Clause.” 

“Poster Rule” Challenge Dropped 

On January 6, 2014, the NLRB announced that it would not appeal two federal circuit court decisions that had rejected the Board’s controversial “Poster Rule.” The rule, originally issued in 2011 under the NLRB’s long-neglected rulemaking power, required 6 million private employers to post a government-issued notice advising employees of their rights under the National Labor Relations Act. Business groups excoriated the rule as requiring posting of unbalanced information, and as violative of their free speech rights. Two federal circuit courts broadly agreed, holding that the Board lacked authority to issue the rule, and that its enforcement mechanisms were incompatible with the NLRA. 

Although the Board obtained extensions of time in which to appeal these decisions to the Supreme Court, it announced on January 6th that it had “decided not to seek Supreme Court review.” The Board urged that the poster could still be displayed “voluntarily,” but effectively conceded defeat in the litigation. A similar rule issued by the Department of Labor in 2010, and applicable only to federal contractors, remains on the books. However, one of the parties behind the successful challenge to the NLRB’s “Poster Rule” recently filed a lawsuit challenging the DOL’s rule on similar grounds. The DOL has not yet responded in that litigation. 

Skeptical Questioning in Noel Canning  

On January 13, 2014, the NLRB faced skeptical Supreme Court justices in oral argument in the blockbuster Noel Canning case. The case arose from a Board order finding that an employer had violated the NLRA by refusing to sign a collective bargaining agreement after orally agreeing to the contract. The employer, Noel Canning, appealed the Board’s decision to a federal circuit court on the basis that three of the Board’s members had been improperly appointed by President Obama, and that the Board’s unfair labor practice decision was accordingly void. 

The federal circuit court agreed, holding that the Board appointments had violated the Constitution’s so-called “Recess Appointments Clause.” That clause, which has never before been interpreted by the Supreme Court, provides that the president may “fill up all Vacancies that may happen during the Recess of the Senate.” President Obama had appointed the three Board members during a 2012 intra-session break in which the Senate had been convening every three days in pro forma sessions, but had been conducting no business. The federal circuit court held that the Recess Appointments Clause only permits presidential appointments between the Senate’s annual official “sessions,” and only for vacancies that have arisen during these inter-session breaks, not before. Because the federal circuit court found that the Board members’ appointments had been improper, it vacated the NLRB’s decision against Noel Canning. 

On January 13th, the Supreme Court held oral argument in the case which implicates such technical questions as whether presidential recess appointments are only permitted during inter- (as opposed to intra-) session breaks; whether the vacancies must arise during Senate recesses, not before; and whether the Senate is in recess when it conducts pro forma sessions every three days. Practically, these questions address the political struggle between presidents and the Senate over appointments, and threaten to eliminate a workaround presidents have increasingly used to place officials in top positions where their appointments would otherwise be delayed or rejected by the Senate.  

During the oral argument, the justices seemed broadly skeptical of the NLRB’s position that a robust recess appointment power is needed as a “safety valve” to deal with Senate intransigence; that the president (as opposed to the Senate) may decide when the Senate is actually in “recess;” and that a long history of presidential appointments seemingly at odds with the plain text of the Recess Appointments Clause justifies President Obama’s appointments in 2012. In particular, some justices seemed unpersuaded that there was an intelligible “limiting principle” that would permit a president to decide, on his own, whether the Senate was actually in “recess.” For instance, Justice Kennedy raised the prospect of “lunch break” appointments given the NLRB’s position. 

A decision in the Noel Canning case is expected by this June. The Supreme Court might avoid some of the case’s stickier questions, including whether the legal acts of improperly appointed officials dating back to the Washington administration are somehow void, by deciding the case on the narrow question of whether recess appointments are proper when the Senate is convening every three days in pro forma sessions. Curtailment of the president’s recess appointment power will have limited short-term effects following the Senate’s elimination of the filibuster for most presidential appointments last November. That change made President Obama’s need for the power far less pressing because Democrats currently control the Senate. However, any curtailment of the power is likely to have significant longer-term effects, particularly when different parties once again control the Senate and the presidency. 

Of course, should the recess appointment power be significantly curtailed come this June, future presidents may still always fall back on that old constitutional standby: “Advice and Consent of the Senate.”

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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January 7, 2014

Idaho Basketball Coach Fired For Posting Breast-Holding Picture on Facebook Should Be Reinstated, Says Grievance Panel

By Scott Randolph 

Posting family reunion pictures on your Facebook page seems like a pretty benign thing to do.  For Pocatello High School’s girls basketball coach Laraine Cook, however, one reunion picture showing her boyfriend touching her clothed breast cost her her job.  Although Cook removed the photo within 24-48 hours of it being posted on Facebook, the school district fired her.  Cook filed a grievance and a three-member grievance panel (Panel) recently concluded that Cook’s firing was unduly harsh and unfair, recommending that Cook be reinstated as head basketball coach and a substitute teacher.  In re Cook, Pocatello Sch. Dist. Grievance Panel, No. 14-03, 12/23/13. 

Photo Was a “Misstep” in Judgment But Not Immoral or Indecent 

Cook worked as a substitute teacher with the Pocatello School District and as head coach for the girls high school basketball team.  Her boyfriend was the high school’s football coach.  After both attended Cook’s family reunion in the summer of 2013, Cook posted numerous photos from the reunion on her public Facebook page.  In one photo, Cook and her boyfriend stood by a lake wearing bathing suits.  Each had one arm around the other’s waist and her boyfriend’s other hand rested on Cook’s breast.  

After the Pocatello High School Athletic Director and Assistant Principal saw the photo, they told Cook’s boyfriend to tell Cook that “it was not a good idea to post such a photo.”  A number of Pocatello High School students were Facebook “friends” with Cook.  After being informed of the Athletic Director’s concerns, Cook immediately removed the picture from her Facebook page.  A few months later, administrators for the school district became aware of the photo.  Despite the lack of any prior performance or disciplinary issues with Cook, the school district fired her.  The district also reported Cook to the Idaho State Department of Education Professional Standards Commission for posting “a picture of a sexual nature on a social media website.”  Although the football coach was also in the photo, the school district did not terminate his employment but according to reports, “reprimanded” him. 

The Panel deciding Cook’s grievance looked at whether the school district’s decision to fire her was a violation of school district policy or whether the decision was unfair.  The Panel decided that Cook’s conduct was not in any way immoral or indecent or a violation of the Code of Ethics for Professional Educators.  It instead determined that Cook’s decision to post the photo on her public Facebook page that students could access was a “misstep in professional judgment and inappropriate” and contrary to the best interests of the school district.  The panel therefore concluded that Cook was properly subject to discipline under the district’s corrective disciplinary policy.  The Panel decided, however, that termination of employment was not warranted in Cook’s case as she removed the photo when the issue was brought to her attention, expressed sincere regret and had no prior performance problems.  The Panel deemed Cook’s firing as unduly harsh and unfair. 

The Panel concluded that a fair resolution would be to reinstate Cook as a substitute teacher for the district and to hire her as the head girls basketball coach at the high school for the 2014-15 season.  The Panel further recommended that its decision be provided to the Professional Standards Commission in support of Cook.  Finally, because the school district lacked a social media policy, the panel found that the district should adopt a policy and instruct employees about the standards of conduct related to the use of social media to help alleviate any confusion about what was acceptable or not. 

Will Panel’s Reinstatement Decision Stand? 

Will Cook actually be reinstated in time to coach this season?  It depends.  The Pocatello School District Board of Trustees has the ability to overturn the Panel’s decision at its next regularly scheduled public meeting.  Either party then has forty-two (42) days after the filing of the board’s decision to appeal to the district court in Bannock County.  Stay tuned to see if the reinstatement decision stands and Cook returns to coach this year. 

Does the Panel’s Decision Offer Lessons for Employers? 

Employers should consider what lessons they may learn from this much-publicized personnel decision.  First and foremost, employers should consider adopting a social media policy that spells out what is acceptable (or not) and the potential consequences for violating the policy.  Employers that have a progressive discipline policy must take that policy into account when making employment related decisions based upon employees’ violation of the standards of the organization.  Finally, employers should take into account all the circumstances when making employment decisions, such as past performance, the employee’s willingness to accept responsibility, and any efforts to mitigate a questionable social media post.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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