Monthly Archives: April 2013

April 25, 2013

BUZZ KILL: Employee Legally Fired For Off-Duty Marijuana Use

The Colorado Court of Appeals issued a precedent-setting decision today upholding an employee’s firing for off-duty marijuana use. Citing federal law, the court held that using pot during non-working hours is not “lawful activity” under the state’s lawful off-duty activity statute. The decision provides the first direct guidance on terminating workers for off-duty marijuana use since Amendment 64 legalized the drug’s use and possession last November.

The case involved a quadriplegic employee licensed to use pot under the state’s medical marijuana amendment. The company terminated his employment after he tested positive for drugs in violation of company policy. The terminated worker claimed that he used the drug within the limits of his license, had never smoked on his employer’s premises, and had never been under the drug’s influence at work.

In the lawsuit, the terminated worker claimed that the company’s actions violated Colorado’s lawful off-duty activity statute, which prohibits termination for any “lawful activity” conducted off an employer’s premises during nonworking hours. Before today, Colorado courts had never squarely addressed whether the statute prohibits termination for off-duty marijuana use, when it is permitted under Colorado law.

Invoking a dictionary definition of the term “lawful,” the Court of Appeals held that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Because marijuana use remains illegal under federal law, termination for off-duty pot-smoking does not violate the statute. The court also noted that its interpretation maintained the “balance between employer and employee rights” reflected elsewhere in Colorado law.

The decision is hugely important for Colorado employers. Amendment 64, like the medical marijuana amendment before it, did not require employers to “permit or accommodate” pot use, and expressly permitted policies restricting such use. But before today, courts had never previously decided whether state or federal law defines “lawful activity” under the statute.

The decision may not be the final word. Further appeal to the Colorado Supreme Court is possible, and other legal theories based on disability and similar laws remain untested. But for now, the decision provides the best guidance yet on terminating marijuana users, suggesting that courts will protect employers’ rights to enforce drug policies notwithstanding Colorado’s legalization of marijuana. It further reinforces the importance of employers defining illegal drugs as those prohibited under both state and federal law in drug policies.

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.

April 25, 2013

Tips for Complying with Utah’s Internet Employment Privacy Act

By Elizabeth Dunning

Effective May 14, 2013, Utah employers may not request employees or applicants to disclose information related to their personal Internet accounts. The Internet Employment Privacy Act(IEPA), recently signed into law by Utah Governor Gary R. Herbert, prohibits employers from asking an employee or applicant to reveal a username or password that allows access to the individual’s personal Internet account. In addition, employers may not penalize or discriminate against an employee or applicant for failing to disclose a username or password. A similar restriction applies to higher educational institutions through passage of the Internet Postsecondary Institution Privacy Act.

With enactment of the IEPA, Utah becomes the fifth state to pass legislation that limits an employer’s access to social media accounts, joining California, Illinois, Maryland and Michigan. New Mexico passed a similar law shortly after Utah and New Jersey’s law passed the legislature and is awaiting the governor’s signature. A bill introduced in February in the U.S. House of Representatives called the Social Networking Online Protection Act (H.R. 537) is stuck in committee.

Public Online Accounts Are Fair Game under the IEPA

The IEPA does not restrict or prohibit employers from viewing or using online information about employees and applicants that the employer can obtain without the employee’s username or password. Any online information that is available to the public may be accessed and viewed by employers without violating the IEPA. Consequently, individuals who set privacy settings on their online accounts to allow “public” access effectively opt themselves out of any protections offered by this new law.

Utah Restriction Applies to Accounts Used Exclusively for Personal Communication

In prohibiting employers from requiring disclosure of online usernames and passwords, the IEPA draws a distinction between personal Internet accounts and those used for business related communications. The law only restricts employer access to personal online accounts that are used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer. It does not, however, restrict access to accounts created, maintained, used or accessed by an employee or applicant for business related communications or for a business purpose of the employer.

In practice, the line between personal and business related accounts may be blurred as many employees use their personal online presence to network and communicate for business reasons. Consider the sales person who uses his or her LinkedIn account to communicate with potential buyers within a particular industry, or the CPA who posts tax reminders on his or her Facebook page. Are those accounts accessible under the IEPA since they are not used “exclusively” for personal communications? A plain reading of the law suggests that may be the case, thereby watering down the potential protections offered by the IEPA to applicants and employees.

Steps for Complying with the IEPA

Utah employers should review their HR forms, policies and practices to ensure that they do not ask applicants and/or employees to provide a username or password to their personal Internet accounts. Train supervisors and managers not to ask for this information as well. In fact, take the opportunity to remind supervisors and managers not to “friend” subordinates on personal online platforms, such as Facebook. In addition, reinforce that employees and applicants may not be penalized or treated adversely for failing to provide a username or password for personal online accounts.

Remember, too, that even though the IEPA does not prohibit accessing an employee’s or applicant’s public social media accounts, viewing such information creates other risks. Employers may view information regarding the individual’s religion, race, national origin, disability, age, or other protected group status that could give rise to a discrimination claim. Furthermore, online information is unreliable and ever-changing, meaning that employers should not rely on what they see online when making employment decisions. To stay out of trouble, consult with legal counsel before viewing or using social media in the employment context.

For more information about permissible actions and potential damages under the Utah Internet Employment Privacy Act, please see our Client Alert.

April 18, 2013

How a Colorado Bill Could Provide Up to 24 Weeks of FMLA Leave

By Brian Mumaugh

Could Colorado employees be entitled to take up to 24 weeks of job-protected leave every 12 months? Yes, in some circumstances, if the bill recently passed by the Colorado House of Representatives and progressing through the Senate is signed into law. Although greatly downsized from its original form, House Bill 1222 expands the group of family members for whom Colorado employees are entitled to take leave from work under the federal Family and Medical Leave Act (FMLA) to include care for civil union partners and domestic partners. In certain circumstances, this expansion could result in an employee being entitled to 24 weeks of FMLA leave in a given year. Let’s look at what the bill provides.

Leave to Care for Civil Union and Domestic Partners

Colorado employees currently must look to the federal FMLA for job-protected leave benefits. Federal FMLA provides an eligible employee up to 12 weeks of leave during a 12-month period to care for a spouse, child or parent who has a serious health condition. The federal FMLA, however, does not permit leave for an employee to care for his or her civil union partner or domestic partner. If signed into law, House bill 1222, called the Family Care Act, would allow an eligible employee to take leave to care for the employee’s partner in a civil union or the employee’s domestic partner (if the employer recognizes the person as the employee’s domestic partner or the domestic partnership is registered with the municipality or the state, as applicable). The employer would be permitted to require the employee to provide reasonable documentation or a written statement of the family relationship, in accordance with the FMLA. The employer also would be allowed to require the same medical certification as may be required under the FMLA.

“Double Dipping” of FMLA Leave

The bill states that FMLA leave taken by an employee under this new law would run concurrently with leave taken under the FMLA and that the new law would not increase the total amount of leave to which an employee is entitled during a 12-month period. This seems to suggest that “double dipping” would not be permitted. However, federal regulations provide that the FMLA does not supersede any state law that provides greater leave rights than those provided by the FMLA. Further, the regulations state that if state law provides for a certain amount of leave, which may include leave to care for a seriously-ill “spouse equivalent,” and leave was used for that purpose, the employee is still entitled to his or her full FMLA leave entitlement, as the leave used under state law was provided for a purpose not covered by the FMLA. 29 C.F.R. § 825.701(a)(3). On the other hand, if FMLA leave is used first for a purpose that is permitted under both state and federal law and state leave has thereby been exhausted, the employer would not be required to provide any additional leave to care for the “spouse equivalent” during that 12-month period.

What does this mean? It means that the order of state vs. federal leave matters. If leave to care for a seriously-ill civil union partner under state law is requested first, the employee potentially may “double dip” if he or she subsequently requests leave provided under the federal law. This could lead to a total of 24 weeks of leave in a single 12-month period. However, if leave that qualifies under the federal FMLA occurs first and the employee takes the full 12 weeks of leave at that time, no leave is available should the employee need to care for his or her civil union partner or domestic partner under state law.

Next Legislative Steps

Having passed the Colorado House, the Family Care Act moved to the Colorado Senate where it has passed unamended on second reading. The Senate needs to pass the bill on third reading to be sent to Governor John Hickenlooper to be signed into law or vetoed. Rest assured that we will continue to monitor this bill and will pass along updates as warranted.