To Discipline or Not to Discipline: What to Do With Illinois’ New Pot Law?

Employers in Illinois will face a conundrum come January 1, 2020. Illinois legislature recently passed some of the most expansive marijuana laws that the United States has seen to date. The Cannabis Regulation and Tax Act (the “Act”) legalizes marijuana, making it a “lawful product” under the Illinois Right to Privacy in the Workplace Act which prohibits discrimination against employees for using lawful products. It raises the question of when disciplining an employee for marijuana use is acceptable compared to when the discipline may cross the line into prohibited discrimination.

The Act explicitly grants employers the right to maintain a drug-free workplace. Section 10-50 states in part:

• Employers may adopt reasonable zero tolerance or drug free workplace policies (the Act allows employers to define the extent of the “workplace” while providing guidelines of what shall standardly be considered part of the workplace).
• Employers are not required to allow an employee to use marijuana at work or while on call (the Act defines “on call” as when an employee is scheduled with at least 24 hours’ notice to be on standby or otherwise responsible for performing work-related tasks).
• Employers may adopt employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call. These employment policies may not be applied in a way that discriminates against employees for their use of marijuana outside the workplace.
• Employers may discipline their employees for using marijuana at work, possessing marijuana at work, or being under the influence of marijuana at work.

Continue reading »

#SocialMediaAsEvidence

Social media has officially taken over our lives. The statistics only confirm this fact. There are 2.3 billion active social media users across the world. Any given internet user has an average of five social media accounts. Facebook has over 1.71 billion users, YouTube has over 1 billion users, and WhatsApp has 900 million users. Every day, there are 60 billion messages sent through Facebook messenger and Whats-App. Three hundred hours of videos are uploaded on YouTube every minute. Snapchat users watch 6 billion videos on average a day.

It is clear that an individual’s accounts contain a plethora of intimate, personal details meant to be shared exclusively with friends or a fan base. But this begs the question, with this personal nature of social media, what can be excluded from court? The answer: potentially none of it. Continue reading »

UPDATE: Salaries Speak Louder than Words

Equal Pay Day was celebrated this month on April 2, 2019. This date symbolizes how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not stationary. In fact, the date occurs seventeen days earlier than it did in 2005. While there is a lot to celebrate with that achievement, there is still a long way to go to completely close the gender wage gap.

In fact, the Supreme Court recently faced the opportunity to potentially close this wage gap even further when it granted cert to Rizo v. Yovino. See Katherine Flett’s blog post titled “Salaries Speak Louder than Words” for more discussion on the case. In Rizo, the Ninth Circuit sitting en banc found that the use of salary history to establish a starting salary violated the Equal Pay Act, as it perpetuated the discriminatory nature of women historically being underpaid in almost all sectors of employment. Thus, reliance on prior pay could no longer be considered as an affirmative defense under the Act’s fourth catchall exception, “any other factor other than sex.” Continue reading »

#MeToo Movement Spurs a 50 Percent Increase in EEOC Sexual Harassment Lawsuits

It comes as no surprise that one year after the rise of the #MeToo movement, more women are not just speaking up about sexual harassment in the workplace, but they are taking action in the courthouse.

According to a recent Equal Employment Opportunity Commission (EEOC) press release, the EEOC has already filed 66 harassment lawsuits in 2018, including 41 specifically citing sexual harassment – a 50 percent increase over 2017.

The EEOC also reported that it recovered almost $70 million for the victims of sexual harassment through administrative enforcement and litigation in 2018, up from $47.5 million in 2017. Interestingly, the overall number of discrimination charges are down, but charges for sexual harassment are up.

Victoria Lipnic, acting chair of the agency, commented during an interview with The Washington Post that she believe the increase is a result of the #MeToo movement, saying “This stuff happens everywhere. If you don’t address it in your workplace, you could find yourself on the receiving end of a federal enforcement [action].” Continue reading »

Employers With Arbitration Clauses Win – Part Two: Factors Employers Should Consider When Determining Whether to Incorporate an Employee Arbitration Program

One of the many employment-related decisions a company must make is whether it wishes to require employees to give up their rights to file an employment action in court, and instead to require employees to use arbitration.

In Part One, we discussed how employers can require employees to arbitrate claims on an individual basis. This much-anticipated U.S. Supreme Court decision in Epic Systems Corporation v. Lewis allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

The decision in Epic also added an additional favorable factor to the arbitration choice column. The Court ruled that employers can require employees to arbitrate claims on an individual basis and thus avoid class actions. Epic Systems (which was decided along with two sister cases) involved employees seeking class action litigation, despite having employment contracts with provisions that required individualized arbitration proceedings.

Although Missouri is an employment at will state, employees can sue employers under various state and federal statutes in state or federal court. Some of those statues, for example, the Fair Labor Standards Act, allow class actions. Litigation is very costly and there could always be a runaway jury. Arbitration, on the other hand, is designed to avoid complex and time-consuming litigation and to provide an alternate source of justice. An arbitration could take six months to resolve but the decision will be final and binding and unappealable, while a court proceeding through a jury trial could take 21-41 months and the decision is always appealable. Continue reading »

Employers With Arbitration Clauses Win – Part One: The U.S. Supreme Court Embraces Arbitration Agreements with Class Action Waivers

The U.S. Supreme Court upheld the legality of class action waivers in employee arbitration agreements by issuing a 5-4 decision in Epic Systems Corporation v. Lewis on March 21, 2018.

In short, employers can require employees to arbitrate claims on an individual basis. This much-anticipated decision allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

Brief History of Arbitration Clauses and Class Action Waivers in the Employment Context

The Federal Arbitration Act (“FAA”) was enacted in 1925 in response to hostility toward arbitration agreements. The FAA provides that a written agreement to submit a controversy arising out of the agreement to arbitration is to be enforced unless “grounds exist at law or in equity for the revocation of any contract.” Since the enactment of the FAA, the Supreme Court has consistently recognized the establishment of a federal policy supporting arbitration agreements.

However, in 2012, the National Labor Relations (“NLRB”) found in D.R. Horton, Inc., that mandatory arbitration agreements with class action waivers were violative of employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to self-organize, bargain collectively, and “engage in activities for the purpose of collective bargaining or other mutual aid or protection.” Following the NLRB’s decision, a split among the circuits developed. While the Second, Fifth and Eighth Circuits rejected the NLRB’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the NLRB and refused to enforce employee arbitration agreements with class action waivers.

Epic Systems Corporation v. Lewis

On May 21, 2018, the Supreme Court resolved the circuit split and upheld the use of class action waivers in arbitration agreements in Epic Systems Corp. v. Lewis.  Epic Systems, which was decided along with two sister cases, involved employees seeking class action litigation despite having employment contracts with provisions that required individualized arbitration proceedings. The following are the three key arguments by employees and the Court’s decisions: Continue reading »

Masterpiece Cakeshop: Maintaining the Status Quo

In agreeing to review Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court faced questions involving both constitutional protections for LGBTQ rights and the free exercise of religious beliefs. In the end, the Court followed the facts of this particular case, making a decision that was narrower than anticipated while still upholding both rights.

In 2012, a same-sex couple visited Masterpiece Cakeshop, a custom bakery in Colorado, to order a wedding cake. The shop’s owner, Jack Phillips, refused because of his religious opposition to same-sex marriages, saying that he would make any other kind of cake, such as a birthday cake. At the time, Colorado did not recognize same-sex marriages since the Court had not yet handed down Obergefell v. Hodges. The couple filed suit with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act (CADA). CADA makes it unlawful to discriminate in public accommodations or “place[s] of business engaged in any sales to the public and any place offering services … to the public.” (Colo. Rev. Stat. § 24–34–601(1) (2017)).The Commission determined there was probable cause that discrimination had occurred. Unwilling to ignore his religious beliefs, Phillips stopped selling wedding cakes altogether and his profits fell forty percent. Eventually, Phillips brought his lawsuit to the Supreme Court.

The Court faced two issues: Continue reading »

An Oral Agreement Is Not Worth the Paper It’s Printed On

On June 4, 2018, the U.S. Supreme Court held that an individual’s false oral statement about his assets would not support a finding of fraud under the relevant provision of the U.S. Bankruptcy Code. That provision required the false statement to be in writing if it were to serve as the basis of a fraud claim. (Lamar Archer & Cofrin LLP v. R. Scott Appling, Case Number 16-1215, 584 U.S. ___ (2018), issued on June 4, 2018.)

In this case, Mr. Appling hired a law firm to represent him in some litigation. When he had fallen behind on his legal bill to the extent of some $60,000, the firm threatened to withdraw from the case. He told the firm that he was expecting a tax refund of about $100,000 which would cover that bill and all future fees. Relying on Mr. Appling’s assertion, the law firm continued with the representation.

As you probably have concluded by now, there was no $100,000 refund. It was only $60,000, and Mr. Appling invested it in his business rather than paying his attorneys. Worse, when his attorneys subsequently asked about the refund, Mr. Appling lied and told him that he hadn’t received the refund yet. Continue reading »

Update on the EEOC and the Prohibition of Sexual Orientation and Gender Identity Discrimination

In an article in the inaugural issue of DMPC’s Employment News You Can Use, EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited, we discussed the state of the current contradictory precedent out of the Missouri Courts of Appeals.

As of the date of this post, the uncertainty of whether employment decisions based on sexual orientation are prohibited remains; however, limited movement was made by the Western District’s Court of Appeals when it reversed a summary judgment ruling in Lampley v. Missouri Commission on Human Rights.

Harold Lampley alleged his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division, discriminated against him based on sex because his behavior and appearance contradicted the stereotypes of males held by his employer and managers. Lampley argued that because he did not conform to the stereotype of males, his employer treated him differently from other employees who conformed with gender stereotypes. Lampley postured his sex discrimination case as supported by evidence of sex stereotyping. It is important to note that Lampley brought his lawsuit against his employer for sex discrimination, not discrimination based on sexual orientation. Continue reading »

Should I Employ an Attorney to Assist My Real Estate Business?

Part 12 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

Honestly, it just depends.

For many business owners, employing an attorney may seem like a costly and unnecessary burden. After all, draft formation documents and leases, as well as real estate tips, are available on the internet. No statutory requirement exists in Missouri to employ an attorney to form and operate your business (though, as we discussed in Litigation Considerations, you will likely need to hire an attorney to represent your company in court).

For others, engaging counsel throughout the formation and operation of their company is a critical tool to ensuring the success of their business venture. No attorney can predict, prevent, and avoid all troubles which might affect your business. However, an attorney in the real estate industry (like other industry professionals) may be more likely to identify and help you avoid pitfalls that he or she has seen in past experiences, more knowledgeable as to what tax or management strategy may be best as your company grows, and more apprised of ever changing statutes, regulations and trends. For business owners who see value in those matters, it may make more sense to consult with counsel. Continue reading »