Former Sales Executive Obtains $11.6 Million Verdict in Wrongful Termination Lawsuit

September 12, 2014

teamwork-294584_640.pngA former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company's Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff's direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.

Continue reading "Former Sales Executive Obtains $11.6 Million Verdict in Wrongful Termination Lawsuit" »

Workers in Wage-Theft Lawsuit Obtain $21 Million Settlement from Walmart Service Contractor

September 11, 2014

Modern_warehouse_with_pallet_rack_storage_system.jpgA group of workers in several warehouses owned by Walmart recently settled a lawsuit against the company that operates the warehouses under a contract with the retailer. The settlement includes $21 million in back pay, interest, and penalties, and that amount will reportedly be the sole responsibility of the contractor. The plaintiffs initially sued the contractor and several affiliated companies for alleged violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and California labor statutes. The court granted their motion to amend their complaint to include Walmart itself under the theory that the contractors and it were joint employers of the plaintiffs. Carrillo, et al v. Schneider Logistics, Inc., et al, No. 2:11-cv-08557, third am. complaint (C.D. Cal., Jan. 11, 2013).

The plaintiffs worked in warehouses owned by Walmart in Eastvale, California at various times between approximately January 2003 and February 2012, according to their most recent complaint. Schneider Logistics, Inc. and several other businesses had contracts with Walmart to provide warehousing, trucking, and other services at the warehouses. The plaintiffs were employees of one or more of the contractors, in the sense that they received paychecks and other features of employment from one or more of those companies.

The allegations against the defendants included dangerous working conditions, minimum wage violations, and failure to pay overtime. The plaintiffs further alleged that the defendants failed to keep accurate payroll records, and even falsified records, in an effort to conceal wage violations and unlawfully withhold earnings from workers. In October 2011, the initial group of plaintiffs filed the lawsuit on behalf of themselves and more than 200 other workers who consented to suit under the FLSA. 29 U.S.C. § 216(b).

Continue reading "Workers in Wage-Theft Lawsuit Obtain $21 Million Settlement from Walmart Service Contractor" »

City Ordinances Limit Employers' Ability to Refuse to Hire Applicants Based on Criminal History

September 10, 2014

checkbox_checked.pngAs many as one in four Americans has a criminal record that could turn up during a job search. Lack of employment opportunities is a substantial factor in the difficulty people with criminal history face, including an estimated recidivism rate of 70 percent. We, as a society, are nowhere near consensus on whether the primary purpose of our criminal justice system is punishment or rehabilitation. What seems clear, however, is that barriers preventing people with criminal records from getting jobs, particularly when an applicant's criminal record has no rational relationship to the job in question, make reentry into society all the more difficult. Cities and states around the country, including two New Jersey cities, have enacted laws limiting when employers may ask about or consider criminal history.

The "Ban the Box" campaign promotes laws that prohibit employers from asking about criminal history during the initial phase of the job application process. The campaign's name refers to the checkbox for criminal history found on many job applications. Federal anti-discrimination law does not expressly prohibit discrimination based on criminal history, and consideration of prior convictions might be necessary for certain jobs. The Equal Employment Opportunity Commission (EEOC) has held, however, that use of criminal history in employment decisions may violate Title VII of the Civil Rights Act of 1964 in other ways, such as if it results in disparate treatment of employees or job applicants based on race or other protected categories.

The first statewide law prohibiting employment discrimination based on criminal history was adopted in Hawaii. An employer may ask about criminal history if it "bears a rational relationship to the duties and responsibilities of the position," but only after extending a "conditional offer of employment." HI Rev. Stat. § 378-2.5. As of May 2014, 11 more states have enacted similar laws. At least 66 local jurisdictions have also enacted ban-the-box ordinances, including New Jersey's own Newark and Atlantic City.

Continue reading "City Ordinances Limit Employers' Ability to Refuse to Hire Applicants Based on Criminal History" »

Department of Labor Data Identify Employers with Most Wage Law Violations, Demonstrate Difficulties of Enforcement in "Fissured Workplaces"

September 9, 2014

Subway_restaurant_Pittsfield_Township_Michigan.JPGFast food franchises top the list of wage and hour violators for the past thirteen years, according to a CNN analysis of data obtained from the Wage and Hour Division (WHD) of the federal Department of Labor (DOL). CNN identified Subway, McDonald's, and Dunkin' Donuts as the franchises with the most investigations, violations, and fines from 2000 to 2013. All three of these companies are franchises with thousands of locations around the country, meaning that the parent companies are not responsible for employment matters at many individual restaurants. Franchisees, independent businesses that operate one or more restaurants under a franchise agreement with a parent company, are usually the ones held liable for wage violations. The system of allowing hundreds or thousands of small businesses to operate individual franchises is part of what is sometimes called the "fissured workplace," which makes widespread enforcement of minimum wage and other employment laws difficult.

The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., requires payment of a minimum wage, currently $7.25 per hour, to employees. States and cities may set the minimum wage at a higher rate. Employers must pay hourly workers time-and-a-half for overtime, generally defined as more than forty hours in a week. Common violations include requiring additional, unpaid work from employees, such as time spent changing into or out of work uniforms or equipment. When added to paid hours, this additional time may reduce an employee's effective hourly rate below minimum wage. The WHD investigates alleged violations of these wage laws, and employees may bring lawsuits to recover back pay and other damages.

Subway has more than 26,000 locations in the U.S., the most of any fast food franchise. CNN's analysis of the WHD data found more than 1,100 investigations of Subway franchisees from 2000 to 2013, which identified about 17,000 violations of the FLSA and resulted in employee reimbursements of over $3.8 million. Common violations included requiring deduction of a thirty-minute lunch break, regardless of whether the employee took a break, and refusing to pay employees for required closing procedures.

Continue reading "Department of Labor Data Identify Employers with Most Wage Law Violations, Demonstrate Difficulties of Enforcement in "Fissured Workplaces"" »

Current and Former NFL Cheerleaders Sue Teams for Wage Violations

September 9, 2014

Service_members_unfurl_flag_at_NY_Jets_first_home_game_at_new_Meadowlands_Stadium.jpgFormer cheerleaders for the National Football League (NFL) have filed multiple lawsuits in New Jersey, New York, California, Ohio, and Florida for alleged violations of state and federal wage laws. Allegations include unpaid work, misclassification as independent contractors, and minimum wage violations. A report by Amanda Hess in Slate notes that cheerleading for professional football began as a volunteer activity, at a time when no one made much money from the sport. While players and coaches have significantly increased their income, cheerleaders are still paid almost as though they were volunteers.

A former Oakland Raiders cheerleader, who goes by Lacy T. in her complaint, filed the first lawsuit, Lacy T. v. The Oakland Raiders, et al, No. RG14710815, complaint (Cal. Super. Ct., Alameda Co., Jan. 22, 2014). She worked as a "Raiderette" during the 2013-14 football season and allegedly received $125 per game no matter how many hours she worked. She also claimed that cheerleaders do not receive any pay until the end of the Raiders' season in January. Her lawsuit identified a class of cheerleaders employed as Raiderettes from January 22, 2010 to the present, and asserted causes of action for violations of minimum wage, overtime, and other provisions of the California Labor Code.

The U.S. Department of Labor found in March that the team is a "seasonal" employer, and therefore is exempt from federal minimum wage laws. California labor law, however, does not have this exemption. A second lawsuit against the team, Caitlin Y., et al v. The National Football League, et al, No. RG14727746, complaint (Cal. Super. Ct., Alameda Co., Jun. 4, 2014), makes similar wage-related allegations, but also claims sexual harassment and other unlawful practices.

Continue reading "Current and Former NFL Cheerleaders Sue Teams for Wage Violations" »

Wrongful Termination May Expose Employers to Defamation Claims

July 22, 2014

Censored_section_of_Green_Illusions_by_Ozzie_Zehner.jpgFederal, state, and local employment statutes prohibit employers from discriminating based on certain protected categories, such as race, sex, or religion. In some situations, an employer may want to fire an employee, but lacks a non-discriminatory basis for doing so. If that employer makes a false statement regarding the employee as a pretext or justification for termination, the employer could be liable for defamation if the statement was made to the public. Defamation law allows an individual to recover damages for false statements, made with knowledge of their falsity, that cause actual harm.

In both New Jersey and New York, the elements of a defamation claim are (1) a false statement, (2) unprivileged or unauthorized publication to a third party, (3) negligence with regard to the statement's falsity, and (4) actual harm to the subject of the statement. Lee v. Bankers Trust Co., 166 F.3d 540, 546 (2d. Cir. 1999); Dillon v. City of New York, 261 A.2d 34, 38 (NY App. 1999). "Publication" may include written publication, known as libel, or a verbal statement to one or more people other than the subject, known as slander.

New Jersey, along with many other states, follows the "single publication" rule, meaning that a cause of action for defamation begins to accrue when the statement is first published. Barres v. Holt, Rinehart and Winston, Inc., 74 N.J. 461, 462-63 (1977). This rule generally applies to statements published on the internet. Churchill v. New Jersey, 876 A.2d 311, 319 (NJ App. 2005).

Continue reading "Wrongful Termination May Expose Employers to Defamation Claims" »

Retail Chain Allegedly Fired Gay Male Employees to Cut Costs, According to Lawsuit

July 15, 2014

Home_Depot,_center_aisle,_Natick_MA.jpgA man's lawsuit against his former employer alleges that the company created multiple pretexts ito justify firing him, and that the company discriminated against him because he is homosexual. Housh v. Home Depot USA, Inc., et al, No. 30-2013-00678843, complaint (Cal. Super. Ct., Orange Co., Oct. 1, 2013). The plaintiff further alleges that the company has sought out pretexts for firing other employees who, like the plaintiff, are older gay men. He claims that the company is acting out of concern for supposedly increased costs associated with such employees. The lawsuit asserts a total of 17 causes of action under common law and state statutes, including age discrimination, gender discrimination, wrongful termination, sexual harassment, and retaliation.

The plaintiff began working for the defendant, Home Depot, in 1987, and worked continuously for the company at several California locations for more than 25 years. He states in his complaint that management used a "Value Wheel" to protect employees from discrimination and other improper treatment. Id. at 5. He alleges that the "Value Wheel" and assorted representations made by management in connection with it constituted promises made to induce him and other employees to continue working for the company, including non-discrimination, merit-based pay and promotion, adequate benefits to prepare for retirement, and no retaliation for reporting "illegal and/or improper conduct." Id. at 5-6. The company largely followed these promises, the plaintiff claims, until the 2008 recession.

The real estate recession that began in 2008, according to the plaintiff, had a serious impact on the company's profits and stock price. The plaintiff alleges that the company "set a quota of employees that had to be terminated." Id. at 8. Managers were allegedly instructed to target employees in three categories for termination: "Older/Higher Paid," "Gay Males," and "employees who disclosed improper or illegal conduct." Id. The company's management allegedly believed that benefits for gay male employees were more expensive "because of the HIV and AIDS virus." Id. The plaintiff also claims that the company believed that the passage of California's Domestic Partnership Equality Act in 2011, which requires employers to provide certain forms of coverage for domestic partners, would be financially damaging.

Continue reading "Retail Chain Allegedly Fired Gay Male Employees to Cut Costs, According to Lawsuit" »

Professor, After Denial of Tenure, Alleges Retaliation for Speaking Out in Support of Students' Campaign Against Campus Sexual Assault

July 10, 2014

Harvard_regalia.jpgAn anthropology professor at Harvard University, Kimberly Theidon, has filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging that the university unlawfully retaliated against her by denying her tenure. She has been outspoken about several issues affecting the department and the student body, particularly sexual assault and gender parity, despite alleged warnings from colleagues. Her MCAD complaint alleges that her academic credentials are equal to or stronger than those of tenured professors in the department, and that the denial of tenure was directly related to her advocacy.

Theidon joined the Harvard faculty in 2004. She is a medical anthropologist who focuses on human rights and postwar issues in Latin America. Her book, Entre Prójimos, inspired a 2009 Academy Award-nominated Peruvian film, The Milk of Sorrow. She has written, edited, or contributed to about 70 published works, mostly between 1995 and 2008. She received a teaching appointment in 2008 and has taught 12 courses since then. In addition to her academic work, Theidon has challenged what she describes as disparate treatment of men and women in her department, including gaps in pay. She claims she was discouraged from doing so by a colleague, who would go on to chair her tenure committee, who allegedly told her to be a "dutiful daughter."

In 2013, a mostly anonymous group of Harvard students, who were the victims of sexual assault, challenged the university's response to sexual assault on campus. Theidon spoke out in support of the students, particularly in comments to an article they wrote in the Harvard Crimson newspaper. She claims that the same colleague who told her to be a "dutiful daughter" advised her to keep quiet on this issue as well, specifically mentioning her pending tenure. The tenure committee denied her tenure in May 2013.

Continue reading "Professor, After Denial of Tenure, Alleges Retaliation for Speaking Out in Support of Students' Campaign Against Campus Sexual Assault" »

New York City Teacher's Petition for Reinstatement Claims Retaliation, Wrongful Termination

July 9, 2014

6180201424_a58c1f5d26_z.jpgA gym teacher at a Bronx school filed a petition in the Supreme Court for New York County challenging her "unsatisfactory" job performance rating and subsequent termination. Gaylardo v. City of New York, et al, No. 14/100400, verif. pet. (N.Y. Sup. Ct., N.Y. Co., Apr. 8, 2014). She alleged that she received an "unsatisfactory" rating based on statements made by a teacher who sought to retaliate against her for rejecting the teacher's sexual overtures. While her petition included allegations of a sexual nature, the key legal issue involved wrongful termination. The case nevertheless sparked a substantial amount of media coverage, demonstrating the difficulty of asserting such claims in any sort of public forum. Several weeks after filing the petition, she reportedly dropped the case, at least partly due to the publicity.

The petitioner began working for the New York City Department of Education (DOE) as a physical education teacher in 2008, according to her petition. She began working at Riverdale/Kingsbridge Academy (RKA), a middle school and high school in the Bronx, in the fall of 2011.

During the summer of 2013, she claimed that the DOE's Special Commissioner of Investigation (SCI) contacted her regarding her relationship with a student. She eventually learned that the SCI had searched both her and the student's phone records and found more than 1,000 text messages sent between them during a one-month period in early 2013. The petitioner denied any impropriety, explaining that the student played three sports and sought her advice on "juggling the sports and her school schedule." Pet. at 4. The student and the student's parents reportedly corroborated the petitioner's statements. SCI issued a report in September 2013 with no specific findings of misconduct. The petitioner alleged that the DOE terminated her in December 2013 based on that report.

Continue reading "New York City Teacher's Petition for Reinstatement Claims Retaliation, Wrongful Termination" »

Plaintiff in Employment Discrimination Lawsuit Alleges that Employer Fired Him Because of Religion

July 8, 2014

4583558728_7108caa14c_z.jpgA former marketing director for a wireless telecommunications company has filed suit against his former employer for religious discrimination. Mindrup v. Goodman Networks, Inc., No. 4:14-cv-00157, complaint (E.D. Tex., Mar. 20, 2014). He alleges that, after working for the company for years, he was terminated one day after he refused to comply with instructions from a superior that, he claims, violated his sincerely-held religious beliefs. Because the plaintiff alleges that the violations were intentional, he is seeking punitive damages along with lost wages and other damages.

The plaintiff worked for the defendant as Director of Marketing Communications. Part of his job was to send out a daily email message to employees entitled "The Morning Coffee," which he states that he did for about six years. He alleges that one of the company's co-founders, who was also a corporate director and officer, instructed him on March 14, 2012 to begin adding Bible quotes to "The Morning Coffee" the following day. The plaintiff, who is a practicing Buddhist, claims that he believed this would not only go against his own religious beliefs, but might offend other employees.

The following day, the plaintiff claims that he emailed the co-founder to decline the instruction, adding that he had "always taken great care to avoid any quotes that would offend others" or his own beliefs. Id. at 4. The co-founder allegedly responded with an email saying "I respect your beliefs." Id. The plaintiff then claims that the co-founder fired him "in an after-hours telephone call" the next day, March 16, "without any warning or progressive discipline," because of his refusal to put Bible verses in the daily email message. Id.

Continue reading "Plaintiff in Employment Discrimination Lawsuit Alleges that Employer Fired Him Because of Religion" »

Teacher Sues New York School, Alleging Discrimination and Firing Based on Age, Marital Status, Sex, and Sexual Orientation

July 7, 2014

Trinity_School_139_W91_St_jeh.jpgA former coach and physical education teacher has filed suit against his former employer, alleging that he faced unlawful discrimination and was fired in retaliation for speaking out. Kenney v. Trinity School, et al, No. 161600/2013, complaint (NY Sup. Ct., NY Co., Dec. 17, 2013). This case might seem unusual because the plaintiff is a married, heterosexual male with children who alleges that his supervisor, an unmarried homosexual female, discriminated against him based on sexual orientation and marital status. He is asserting causes of action under the New York State Human Rights Law (NYSHRL), NY Exec. L. § 296, and the New York City Human Rights Law (NYCHRL), NYC Admin. Code § 8-107.

According to his complaint, the plaintiff was hired in 1997 to work on a contract basis at the Trinity School in Manhattan. His contract was renewed annually for sixteen years. He claims that he had a good employment record and generally got along with administrators, teachers, and staff at the school. This changed, he claims, when "a homosexual, single, female administrator with no children" became his supervisor. Kenney, complaint at 3. The supervisor allegedly discriminated against him because he is a fifty year-old married man with children.

While the plaintiff had previously received positive reviews on his work, he claims that the new supervisor routinely "berated and reprimanded" him. Id. She also allegedly gave preferential treatment to a younger, unmarried female teacher who did not have children, as well as other similarly-situated employees. The plaintiff claims that the supervisor assigned him work duties that exceeded the requirements of his contract, and refused to take his family responsibilities into account in planning for school activities. He claims that younger, unmarried teachers were not required to perform additional duties.

Continue reading "Teacher Sues New York School, Alleging Discrimination and Firing Based on Age, Marital Status, Sex, and Sexual Orientation" »

Former Post-Doctoral Student Files Lawsuit Against University, Supervisor, and Fellow, Alleging Sabotage of Experiment and Hostile Work Environment

July 7, 2014

Zebrafisch.jpgA former postdoctoral researcher at Yale University in New Haven, Connecticut has filed a lawsuit alleging breach of contract against the university and her former supervisor, along with several tort claims. Koziol v. Yale University, et al, No. NNH-CV14-6045144-S, complaint (Conn. Sup. Ct., New Haven, Feb. 24, 2014). The plaintiff alleges that a postdoctoral fellow, also named as a defendant, tampered with her experiments, and that her supervisor and the university retaliated against her after she reported the misconduct and the fellow was disciplined.

The plaintiff was a postdoctoral researcher at the Yale School of Medicine when the acts described in her complaint occurred. She received a three-year research grant in 2010, and was offered a postdoctoral fellowship position by Antonio Giraldez, an associate professor of genetics at Yale, in April 2011. The one-year fellowship was renewable annually up to four years. The plaintiff alleges that her acceptance of this position created a contract between her, Giraldez, and Yale. She began working at Yale on June 1, 2011.

Giraldez's lab provided her with zebrafish for use in her experiments. Beginning in July 2011, her experiments began failing because her fish kept dying for unknown reasons. She obtained approval fto install a hidden camera in the lab in January 2012. Camra footage reportedly showed that another postdoctoral fellow, Polloneal Jymmiel Ocbina, had been poisoning her fish. Ocbina reportedly admitted to the sabotage, and either resigned or was fired in March 2012.

Continue reading "Former Post-Doctoral Student Files Lawsuit Against University, Supervisor, and Fellow, Alleging Sabotage of Experiment and Hostile Work Environment" »

Investigating Employees' Work Eligibility May Violate Anti-Discrimination Laws, Warns Justice Department

May 21, 2014

US_Permanent_Resident_Card_2010-05-11.JPGFederal immigration law requires employers to verify the employment eligibility of their workers. It also, however, prohibits them from discriminating on the basis of national origin or citizenship status, provided that the employee is not an undocumented immigrant. The Department of Justice (DOJ), through its Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, recently offered guidance for employers regarding internal audits or other inquiries into employees' work eligibility beyond that required by law. Any sort of employment eligibility verification policies applied unevenly or inconsistently could lead to liability under federal immigration law.

Employers are prohibited from employing unauthorized workers, and are required to verify that all employees and new hires are authorized to work in the United States. 8 U.S.C. § 1324a. Knowingly hiring or employing an unauthorized worker, which could be an undocumented immigrant or someone with a visa that does not allow employment, could result in civil or criminal penalties. Immigration authorities have created Form I-9, the Employment Eligibility Verification form, to enable employers to verify work authorization. An employee or new hire must present certain documents establishing their identity and their employment authorization. The employer is only required to examine the employee's document and attest that it "reasonably appears on its face to be genuine." Id. at § 1324a(b)(1)(A).

Federal immigration law also prohibits most employers from discriminating based on national origin or citizenship status. 8 U.S.C. § 1324b. It is not considered unlawful discrimination under this statute for an employer to prefer equally-qualified U.S. citizens over noncitizens with regard to hiring or recruiting. It is, however, considered unlawful discrimination for an employer to require a noncitizen to provide more or different documents than a citizen to complete Form I-9, or to refuse to accept certain documents that reasonably appear valid solely because the person is not a U.S. citizen. Id. at § 1324b(a)(6).

Continue reading "Investigating Employees' Work Eligibility May Violate Anti-Discrimination Laws, Warns Justice Department" »

Federal Judge Holds that Employment Discrimination Based on Sexual Orientation Is Already Prohibited by Title VII

May 15, 2014

Reading_room,_Library_of_Congress,_Washington,_D.C.,_1901.jpgA U.S. district court judge has ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on certain protected classes, may also apply to discrimination on the basis of sexual orientation. Terveer v. Billington, No. 1:12-cv-01290, mem. op. (D.D.C., Mar. 31, 2014). While many state anti-discrimination statutes expressly include sexual orientation as a protected class, the federal Title VII does not. The judge allowed the case to proceed on the basis of sex discrimination, religious discrimination, and retaliation under Title VII.

The plaintiff was hired in February 2008 to work for the Office of the Inspector General of the Library of Congress. His direct supervisor was, according to the court, "a religious man who was accustomed to making his faith known in the workplace." Id. at 2. The plaintiff became friends with the supervisor and his family. The supervisor's daughter learned that the plaintiff is homosexual in August 2009, after which the supervisor's treatment of the plaintiff changed considerably.

The supervisor allegedly began to give the plaintiff ambiguous instructions for work assignments, assigned him as the sole employee on projects that needed multiple people, and lectured him on the sinful nature of homosexuality. The plaintiff reported his concerns to the next-level supervisor, who allegedly told him the employees have no rights in his opinion. No remedial action was taken. In June 2011, the plaintiff was denied his within-grade pay increase, and the supervisor allegedly subjected him to "hostile and abusive interrogation" when he learned of his intent to appeal the denial. Id. at 6. After taking medical leave twice, the plaintiff alleges that he was constructively discharged in April 2012 because of ongoing discrimination by the two supervisors.

Continue reading "Federal Judge Holds that Employment Discrimination Based on Sexual Orientation Is Already Prohibited by Title VII" »

Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court

May 13, 2014

Discount_Medical_Marijuana_-_2.jpgAn employee who relied on medical marijuana for debilitating pain lost his job after failing a drug test, and his case has raised the difficult question of whether moves towards marijuana decriminalization have changed the legal standards in cases of termination for marijuana use. The employee alleged that the employer violated a statute prohibiting termination for "lawful activity" outside of work, but the Colorado Court of Appeals disagreed in Coats v. DISH Network, L.L.C., 303 P.3d 147 (Col. App. 2013). The state supreme court has agreed to hear the employee's appeal. The question involves both state and federal law, especially now that marijuana is at least partly legal in many states, but still illegal under federal law.

The plaintiff worked as a telephone operator for the satellite television service provider DISH Network. A spinal injury left him quadriplegic, and he obtained a prescription for medical marijuana to treat severe muscle spasms. Despite a good employment record, he was terminated in 2010 after failing a random drug test. He sued DISH, citing a Colorado statute that prohibits termination for "lawful activity off the premises of the employer during nonwork hours." C.R.S. § 24-34-402.5 (PDF file).

Both the trial court and the appellate court ruled that marijuana use outside of work, even with a legal prescription, was not "lawful activity" within the meaning of the state statute. Marijuana use of any kind is still prohibited by federal law. The U.S. Supreme Court held in Gonzales v. Raich, 545 U.S. 1 (2005) that state laws allowing marijuana use do not supersede federal laws prohibiting it. For an activity to be "lawful" in a wrongful termination case, the Colorado court held, "it must be permitted by, and not contrary to, both state and federal law." Coates, 303 P.3d at 151.

Continue reading "Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court" »