UPDATES FOR CALIFORNIA EMPLOYERS – MARCH 2014
Is Gossip Allowed?
Water cooler talk, i.e. office gossip, has been a seemingly timeless thorn in many employers’ sides, particularly because of the decrease in worker productivity that such gossip can cause. As such, some employers–with Section 7 rights being the furthest thing from their mind–have tried to limit such non-productive time by adopting policies aimed at curbing such behavior. Expanding on the recent line of cases that have challenged various employee handbook policies (e.g. confidentiality, social media), a National Labor Relations Board Administrative Law Judge recently held in Laurus Technical Institute v. Henderson that a for-profit technical school’s “No Gossip Policy” violated the National Labor Relations Act. The Judge also held that an employee’s termination under the policy violated the Act.
What to Expect When Employees are Expecting
Some changes have been made in California law to the benefit of employees who go out on maternity leave. Before, an employee returning from leave could be returned to a similar or equivalent position. Now, the returning employee must be given back her exact same position that she had before the leave. This is the rule unless the employee cannot be returned to her exact same position for reasons unrelated to the leave, like layoff, plant closure or job elimination. If the exact same position is not available and there is no comparable job available on the return date of the employee, the employer has to keep looking for 60 days and notify the employee if one becomes available. This creates a new ongoing obligation on the employer that did not exist prior to these regulations.
The new laws also list additional ways in which a woman disabled by pregnancy may be accommodated while working, including a transfer, a place to sit and additional restroom breaks. They also remind us that a pregnancy-related disability is no different than any other disability when it comes to an employer’s obligation to engage in the good faith interactive process. Reasonable accommodation does not, however, even under the new regulations, require an employer to create a new position that does not exist, terminate another employee or violate a collective bargaining agreement. But, it may require the creation of a light duty position if that’s how the company handles other disabilities or workplace injuries.
Workplace Drug Testing
California labor employment law allows an employer to test a prospective employee after a job offer is tendered but before the employee goes on the payroll.
According to the Americans with Disabilities Act (ADA), an applicant or employee who is taking medication for a disability is protected, so if an applicant’s drug test is positive and turned down, and the medication was legally prescribed for a disability, the company could be liable - unless the medication is medical marijuana. But in the state of California, the jury is still out when it comes to pot. California’s “compassionate use” law allows residents to use marijuana for medical purposes, as long as they have a doctor’s written authorization to use marijuana. A patient who has a valid prescription may not be prosecuted under state law for crimes relating to the use, possession or cultivation of a certain amount of marijuana. But this is the gray area: California’s Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability.
Recently, a California man was fired after testing positive for marijuana, despite the fact that he had a prescription for the drug. The man filed a wrongful termination claim against the company, but the California Court ruled that the company was justified in firing him because it is against federal law to possess or use marijuana despite state rules allowing him to do so. An appeals court upheld the ruling. The man’s case is now before the California Supreme Court.