CALIFORNIA LABOR AGENCIES:

FEDERAL LABOR AGENCIES:

  • Fair Employment & Housing Commission
  • Department of Fair Employment & Housing
  • Labor & Workforce Development Agency
  • ​Department of Industrial Relations
  • Employment Development Department
  • ​Unemployment Insurance Appeals Board
  • CAL-OSHA
  • ​Division of Labor Standards Enforcement
  • Division of Workers' Compensation
  • Division of Occupational Safety & Health
  • U.S Commission on Civil Rights
  • U.S. Department of Justice
  • U.S. Department of Labor
  • OSHA
  • Employee Benefits Security Administration (EBSA)
  • U.S. Equal Opportunity Employment Commission (EEOC)
  • ​Internal Revenue Service (IRS)

Many workplace lawsuits are the result of the wrongful termination of an employee. Wrongful termination occurs when a worker is fired or laid off unlawfully. 

A Maze of Employment Agencies Can Result in Multiple Entities Bringing Actions Against Your Business  

The complex web of governmental agencies and the numerous regulations to be followed can make any employers head spin. The Cannabis Industry in California has to follow the statutory requirements as other licensed industries. It is even more important for Cannabis business to be licensed by the State of California to have the protection under the Rohrabacher–Farr amendment. Cannabis companies are not immune to the potential employment litigation. 
Medical cannabis is still an illegal substance under the federal Controlled Substance Act. (“CSA”). The U.S. Supreme Court failed to create an exception for medical cannabis. Under the American with Disabilities Act (“ADA”) it is clear that the employer does not have a duty to provide reasonable accommodations to a registered medical cannabis user, it is no clear under the MHRA as discussed above. Federal law requires drug and alcohol testing of safety-sensitive transportation employees in some business segments. The Department of Transportations regulations do not recognize medical cannabis as an appropriate medical reason for a transportation employee’s positive drug test even when it is legal under state law. If employees are employed in an industry subject to the Department of Transportation drug testing, then they can be subject to adverse action. The Ninth Circuit has addressed this issue within the context of the ADA’s prohibition on discrimination in the provision of public services, holding that the ADA does not protect individuals who use marijuana for medical purposes or require accommodation of such use. The Ninth Circuit reasoned that, because the ADA expressly excludes from its definition of “qualified individual with a disability” those individuals who currently engage in the illegal use of drugs, and because marijuana remains an illegal drug under the federal law, the ADA does not protect individuals who are using marijuana for medical purposes, even when such use is lawful under state law.

​Employers in states with medical-marijuana statutes may also question whether they may be subject to discrimination claims by employees who use medical marijuana while off duty and away from work under state statutes that protect employees’ rights to engage in certain off-duty activities. A number of states, including Illinois, Minnesota, Colorado, and Nevada, to name a few, have “lawful products” or “lawful activities” statutes that protect employees’ rights to engage in the use or non-use of a “lawful product” or to participate in “lawful activities” away from the workplace during non-working hours. The issue that arises when these lawful-product or lawful-activities statutes intersect with state medical-marijuana statutes is whether “lawful activity” or “lawful product” refers to those products or activities that are lawful under state law, federal law, or both.

​Another important issue that may arise with respect to terminating employees who use marijuana for medical purposes pursuant to state medical-marijuana laws is whether an employer can be held liable for a claim for wrongful termination in violation of public policy when the employee is terminated for failing a drug test or for some other reason related to his or her use of medical marijuana. Could a common-law claim for wrongful discharge provide employees an alternative to the statutory claims under state and federal fair-employment laws that a number of courts have already rejected?

A number of states that have adopted the employment-at-will doctrine still recognize a narrow “public policy exception” to the general rule that employers have the right to terminate an employee at any time and for any reason, with or without cause or notice. This narrow public-policy exception prohibits an employer from terminating an employee when termination would violate a clearly established public policy. Although the standard for establishing the “public policy” exception differs from state to state, an employee must generally be able to point to a clear and well-established public policy of the state, which typically must be reflected in the state constitution, statutes, or administrative code. The question is whether state medical-marijuana statutes create or provide a clearly established public policy that could serve as the basis for a wrongful termination claim when an employee who uses medical marijuana pursuant to that state statute is terminated because he or she fails an employer’s mandatory drug test or uses, possesses, or is under the influence of marijuana in the workplace. 

  • Examples of Complaints Employers Should Anticipate
  • Workplace Injuries
  • Repetitive Injuries (an example is trimmers)
  • Sexual Harassment
  • Discrimination
  • Intoxicated Employees (both alcohol and drugs)
  • Workplace Violence and Physical Altercations
  • Termination of Employees With Unacceptable Attitude Towards Customers and/or Other Employees​

Discrimination:

One of the most common workplace lawsuits is discrimination. Discrimination in the workplace is a violation of several state and federal laws including, the Civil Rights Act and the Americans With Disabilities Act. Discrimination involves unfair tr​eatment because of a distinguishing characteristic such as gender, race, religious background or disability. The Equal Employment Opportunity Commission receives and investigates discrimination cases and provides workers with the resources to file a discrimination lawsuit against an employer.

​​Harassment:

Victims of harassment in the workplace often file lawsuits against their employers. Harassment may come from a manager or supervisor, a co-worker, contract employee or a client or customer. Harassment is often of a sexual nature such as inappropriate comments or touching, but the harassment may also involve workplace violence or bullying. Employees might file a lawsuit if the employer was aware of the situation and failed to remedy the harassing behavior.
Workplace Injury:

Some employers face lawsuits due to workplace injuries. Work-related injuries are very common. According to the Bureau of Labor Statistics, more than 3.2 million work-related injuries and illnesses were reported in 2009. Employers purchase liability and worker's compensation insurance to pay expenses of a employee injured on the job. Employers are usually sued if they challenge a worker's compensation claim or if the employer's negligence or intentional action led to the worker's injury.

Wrongful Termination:

Many workplace lawsuits are the result of the wrongful termination of an employee. Wrongful termination occurs when a worker is fired or laid off unlawfully. For example, if a manager fires an employee as retaliation because the worker filed a legitimate complaint, this is considered wrongful termination. Victims who file suit for wrongful termination may collect compensation including lost wages and possibly punitive damages if the situation is severe.

How to Avoid Lawsuits

​To avoid legal trouble, familiarize yourself with federally protected categories, rights and activities recognized by federal labor and employment law, including: Title VII of the Civil Rights Act of 1964: Prohibits discrimination due to race, color, religion, sex and national original. It also includes the Pregnancy Discrimination Act (PDA), which forbids discrimination based on pregnancy, childbirth or related medical conditions. Equal Pay Act (EPA): Prohibits gender-based pay discrimination between men and women performing similar roles. This law includes employers who are covered by the federal Fair Labor Standards Act (FLSA). Family and Medical Leave Act (FMLA): Prohibits discrimination against pregnant women and parents, as well as employees with serious health conditions. Age Discrimination in Employment Act (ADEA): Prohibits discrimination against employees age 40 and older. Americans with Disabilities Act (ADA) and ADA Amendments Act (ADAAA): Prohibits discrimination against qualified employees or job applicants due to a disability, association with someone disabled or because the employer sees an employee as disabled, even if he or she actually is not. Genetic Information Non-Discrimination Act (GINA): Prohibits employers, employment agencies, and labor unions from discriminating employees based on genetic information.

​Practice Better HR

What can you do right away to ensure that your organization doesn't break these laws? Take proactive steps to eliminate unlawful bias in decisions and processes and eliminate harassment.  Here are some specific tips:

Hiring: Eliminate considerations that have nothing to do with competence. Also, make sure your hiring documents are legal and that your interviewers are aware of what can and cannot be asked of a job candidate.

Work Environment: Make clear what is appropriate activity by enacting a company-wide program that will educate everyone on what is acceptable and unacceptable workplace behavior. Also, create an environment in which employees feel free to raise concerns regarding possible discriminatory behavior and are confident that those concerns will be addressed.

Harassment prevention: Take appropriate steps to prevent harassment. Establish an effective complaint or grievance process, provide anti-harassment training to managers and employees, and take immediate and appropriate action when an employee complains. California requires that all harassment claims be investigated, documented and the actions taken to resolve the harassment claim. 

Dismissals: As with hiring, eliminate considerations that have nothing to do with competence.  Also, make sure your communications and documentation are appropriate and clear.  Assume that whatever you say can and will be used against you.

Education: Keep up on the latest changes in employment law.

Our Approach

The swift and just resolution of employment-related disputes is critical for employees and employers alike. Our have the resources and contacts to bring experienced litigation attorneys that have successfully represented employers in a broad range of employment law disputes in state and federal courts, including those involving:

  • Employment contracts
  • Discrimination
  • Wrongful termination
  • Noncompete agreements
  • Severance agreements

Safeguarding Employers from Liability

When disputes arise, it is crucial for employers to resolve issues as quickly as possible to limit costs and avoid distractions. Our lawyers work with businesses, from small to large, to ensure they are in compliance with employment laws and to achieve a swift resolution of employment-related disputes. We always work toward an efficient and pragmatic resolution to facilitate the resumption of business as usual.

Can I Claim all Workers are Independent Contractors?

The short answer is NO. Approximately 21% of all persons employed in California are now classified as "independent Contractors". The California Employment Development Department is striking back against a wide swatch of companies and business for classifying employees as independent contractors. The test under California Law is similar but different from the test under Federal Law. It is critical you understand the differences and a review be performed of your workforce to determine if they are employees or independent contractors. Click on this Link for the California Employee Development Department "Employment Determination Guide" that provides a lot of great guidance to determine if a person is an employee or an independent contractor.   ​The State of California has an excellent guide entitled "California Employer's Guide (DE 44)". It is important every cannabis business read and understand the contents of this guide.  It is also important that every California cannabis employer be familiar with, file and pay payroll taxes. California requires that employers with 10 or more employees are now required to electronically submit employment tax returns, wage reports, and payroll tax deposits to the Employment Development Department. Beginning January 1, 2018, all remaining employers will be subject to this mandate. Click here for the related link.