Marijuana and Employment Rights - Hearsay Radio Interview Video

Attorneys Kimberlie Ryan and Holli Hartman presented a Point/Counterpoint interview on Law Week Colorado's Hearsay Radio about Colorado Amendment 64 rights and workplace issues.  Kim primarily represents workers, and Holli represents employers.  They both were appointed by the Governor’s office to serve on the AMENDMENT 64 IMPLEMENTATION TASK FORCE’S TAX FUNDING CIVIL LAW WORK GROUP based on their expertise and experience as employment lawyers.

Some of the topics explored by the attorneys and reporters James Carlson and David Forster include:

*  Background about the Colorado Amendment 64 Implementation Task Force and the Civil Law Tax Funding Work Group

*  Questions about possible legislation impacting worker rights and employer drug-testing policies

*  Highlights of pending court cases in Colorado state and federal courts for medical marijuana patients

*  Differences between Colorado's Amendment 20 medical marijuana cases and Amendment 64 adult use cases

* Potential legal challenges facing employers who wrongfully terminate their employees for exercising their Colorado state Constitutional rights, and employer arguments for zero-tolerance drug policies

The video/audio of the radio show can be viewed here.

The interview is approximately 35 minutes, with one commercial break at 20.  The interview was conducted on March 8, 2013.

Kimberlie Ryan
Ryan Law Firm, LLC

Scary 911 Call from California Independent Living Facility

A scary 911 call from an independent living facility in California documents the efforts of an operator to get help for an 87-year old woman who apparently needed CPR in an emergency situation. Attorney Kim Ryan spoke to 9NEWS about the case.

Someone identifying herself as a nurse told the 911 operator "we cannot do CPR at this facility," despite the operator's pleas that she at least get a passerby to help or the woman could die. No one performed CPR in time, and the elderly woman died. Reportedly, the elderly woman did not have a "Do Not Resuscitate" or "DNR" directive in place, and she likely would have wanted someone to try to help in her time of need.

The facility supports the nurse's decision not to perform CPR, apparently based on the facility's policy that the staff does not render emergency medical aid. Under the policy, staff can only request professional assistance and wait for help in the case of an emergency. Presumably, the policy was in effect in an effort to limit potential financial exposure if something went wrong in administering CPR. (Not very comforting is it?!).

Questions in this kind of a case arise as to whether the facility or nurse would have a legal duty to render aid, and also whether there is any legal protection for someone who renders aid, in case something goes wrong while aid is being provided.

Generally there is no legal duty for an individual to render assistance in an emergency, unless there is a special relationship that would require it. Some people are afraid that if they help, they could be sued.

Colorado has a so-called "Good Samaritan" law.

This means that if an individual renders emergency assistance in good faith to someone who is not her medical patient (and for no compensation), the “Good Samaritan” generally will be immune from civil liability from any damages caused by rendering the assistance, unless she renders aid in a way that was grossly negligent or willfully harmful. Under that law, the employer of the individual rendering assistance would also be immune from civil liability if the individual met the criteria for immunity under the statute. (If things go wrong, a lawsuit could still be filed, but the "Good Samaritan" defense could be asserted).

Even so, Colorado nursing homes and resident care facilities are subject to state and federal laws and regulations. The regulations require nursing homes to have procedures for emergency situations, and the regulations set forth standards of care.

Currently an elder abuse bill is pending before the Colorado legislature that would require nursing homes, nurses, and others to report abuse of anyone over the age of 70 to law enforcement within 24 hours. The bill addresses caretaker neglect, so it potentially could be relevant in a case like this.

Colorado Nursing home residents also have certain rights spelled out in the Resident’s Bill of Rights and the Colorado Code of Regulations.

Be sure to read the fine print in all documents provided by independent living facilities and nursing homes. If you have any questions about their policies be sure to get answers before moving in.

More information about Colorado nursing homes and nursing care facilities requirements and complaint procedures can be found at the Colorado Department of Public Health and Environment.

Kimberlie Ryan
Ryan Law Firm, LLC

FBI Sexting Revelations and Employer Monitoring

Sexting can happen in any large organization. This, according to an FBI response to NBC after disciplinary documents revealed last week that FBI employees used government-issued smart phones to access porn and send sexually explicit messages. Attorney Kim Ryan joined 9NEWS at 8AM to explain how these issues impact Colorado workplaces.

Some people have become so comfortable with communication technologies they forget they are creating an electronic footprint that may become permanent record. One report shows that nearly 1 in 5 Americans surveyed admits to having used a smart phone for sexting.

Many employers are taking workplace sexting seriously. According to some estimates, more than 80% of employers now monitor employees’ use of company computers and smart phones, up from 30% just a few years ago.

Some companies routinely observe employee emails and Internet use and even can track employee key strokes on company computers.

As justifications for monitoring, companies cite enforcement of workplace harassment policies, productivity, and protection of trade secrets. Companies also may have to turn over electronically stored information on computers and phones to their lawyers or their opponents’ attorneys when involved in lawsuits. This can be powerful evidence of companies’ efforts to comply with their obligations under anti-discrimination laws.

Generally, private companies have a legal right to engage in monitoring of company computer and phone systems, as long as they have given employees advance notice that workers do not have an expectation of privacy in the company systems. Government employers may search employee text messages as long as they comply with Constitutional rights to privacy, according to a recent U.S. Supreme Court sexting case.

Before engaging in monitoring, employers should have “Computer, Phone and Internet Usage” policies in place outlining the rules for employee use of company computers and smart phones. Companies should regularly update these policies with legal counsel to account for new and evolving technologies and uses, such as Twitter, Skype and social media, and they should clearly communicate the policies to employees.

If employers discover that company computers or phones are being used to harass other employees or engage in unprofessional conduct, they may discipline workers for violations of company policies, as the FBI reportedly did in this case when it suspended workers after discovering the sexting violations.

But grey areas may exist when it comes to employees’ private computers, smart phones, and social media, particularly when they are used off-duty with other employees for personal matters that are not clearly work related.

Currently, a privacy bill is pending in the Colorado legislature to prohibit employers from requiring disclosure of employee or applicant passwords to private electronic communication devices. It does not prohibit employer monitoring of publicly available information. It does not specifically prohibit employers from disciplining employees for postings on their own social media sites, although other state laws, such as the Colorado Lawful Off-Duty Conduct Act, may protect such postings depending on the circumstances.

Employees who believe they have been subjected to workplace sexual harassment by text messages or social media posts should consult with an experienced civil rights employment lawyer to discuss options for resolution.

Employers and workers alike should remember that every keystroke may be recorded, and they should carefully consider potential consequences before hitting the send button.

Kimberlie Ryan
Ryan Law Firm, LLC

Colorado Workplace Gun Bans

Colorado concealed carry statutes currently allow private employers to ban guns at the workplace.

Although the Colorado Supreme Court recently overturned the CU ban of guns on campus, that case was decided on narrow legal grounds and does not directly impact private employer bans.

While it is possible that the statute or an employer policy could be challenged, perhaps on state or federal Constitutional grounds, I have not found a published Colorado case testing such a ban by a private employer.

Courts in other states have found in favor of employers where workers brought wrongful discharge cases after they were fired for bringing guns to work. At the same time, some other states have passed or are considering so-called "take your gun to work" laws, which prohibit total gun bans by employers.

The tension between workplace violence policies and individual gun rights likely will be part of the state and national dialogue on gun restrictions.

While I could foresee a legal challenge to employer gun bans here, whether it would be successful in court is an open question that undoubtedly would be highly controversial regardless of the outcome.

Employers should review their weapons policies and any workplace violence policies they may have in place, and clearly communicate any such policies to their employees.

Top 5 Myths About the Drug-Free Workplace Act

Headlines screamed across the country when Colorado became the first state to recognize the Constitutional right to use marijuana for any reason by adults ages 21 and older.

One headline reported a CEO’s panic that “legal pot will make it hard to hire, devastate the economy.”  This CEO claimed that “if you sell to the federal government or state government, you are required to certify that you have a drug-free workplace,” so “if you smoke pot, I still can’t hire you.”

These statements confirm a fundamental misunderstanding of the federal Drug-Free Workplace Act of 1988 (DFWA), and such proclamations perpetuate unfounded myths about this law.

Myths like these could deprive unwitting employers of excellent employees – and might give rise to legal claims against companies that violate workers’ rights.  Due to space constraints this article is limited to a discussion of the DFWA, so let’s get to it and set the record straight.

Before we get to the myths and the realities, a brief background on the DFWA is in order.  President Reagan signed the Drug-Free Workplace Act nearly 25 years ago in 1988. 

The Act defines a “drug-free workplace” as a site for the performance of work done by a federal contractor or grantee in connection with a specific federal contract or grant at which employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of any controlled substance.  At this time “controlled substance” still includes marijuana.  But that is not the end of the analysis.

By definition, the DFWA limits the “workplace” to the work site for certain “covered” employers and by its terms does not include any other location where work for the contract is not performed. It does not allow employers to prohibit the use of marijuana completely, and it does not apply to all employers or employees.  Now to the myths.

1. Myth #1 – The DFWA applies to all private employers.

Reality:  The DFWA only applies to certain federal contractors and grant recipients.  A company is subject to the Act only if the value of a single contract is more than $100,000, or if it has any federal grant.  Individuals with grants or contracts from any U.S. Federal agency are covered by the Act, regardless of dollar volume.  Last year, only 21.7% of federal contracting dollars went to small businesses.  Unless employers meet the specific requirements for coverage, the DFWA does not apply to them.  The Act does not apply to those that do not have contracts or grants from the federal government, and it does not apply to employees who are not directly engaged in the performance of the covered contract or grant.

2. Myth #2 – The DFWA requires employers to drug test employees. 

Reality: The DFWA does not require or authorize drug testing.  In fact, the legislative history of the Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act, which are very limited as discussed below. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act.

3.  Myth #3 – The DFWA requires employers to fire employees who use marijuana at home as authorized by Colorado Constitutional Amendments 20 and 64.

Nothing in the DFWA requires employers to fire workers for exercising their Constitutional rights to use marijuana while off-duty and outside the workplace.  The law requires only that in case of a conviction for a criminal drug offense resulting from a violation occurring in the workplace, the employer may take one of two types of action. The employer may take disciplinary action, which may be a less severe penalty than termination, or may refer the employee for rehabilitation or drug abuse assistance program. The choice of which basic course to choose, as well as the specific discipline or treatment option, is left to the employer’s discretion and may be made on a case-by-case basis, provided all state and local laws are followed.  “Conviction” is defined by the Act as limited to afinding of guilt, including a plea of no contest, or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or state criminal drug statutes.

4. Myth #4 – The DFWA requires employers to report positive drug tests to the federal government.

The Act does not require employers to report positive drug tests to the federal government.  The only reporting requirement is triggered solely if an employee is convicted of a drug offense occurring at the workplace.

5.  Myth #5 – The DFWA preempts state and local laws.

The requirements of the Act “coexist with state and local law,” according to the United States Department of Labor.  Colorado does not have any state statute governing drug testing in employment, and adults have a Constitutional right to use marijuana in Colorado.  The City of Boulder Ordinance 5195 prohibits employee drug testing except in clear cases of probable cause, and where a written policy has already been provided to the work force.  In general, Colorado employers should update their drug testing policies to account for the Constitutional right, or expect legal challenges.

6.  Bonus Myth #6 – Employers who recognize Colorado’s Constitutional right of employees to use marijuana at home while off duty will automatically lose federal contracts.

Nothing in the DFWA governs the use of marijuana outside of the covered workplace for companies.  A company that is covered by the DFWA will be subject to penalties only if: 1) it fails to implement the six steps required to establish a drug-free workplace; or 2) the head of the agency determines that the company employs a sufficient number of individuals convicted of a criminal drug offense occurring in the workplace to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace.  Even then, the head of the agency may waive any possible penalties in certain circumstances, and violations may not result in contract termination or loss of payments.

What does the DFWA actually require?  Only 6 steps. Covered employers must:

1. Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy. 
2. Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
3. Notify employees that as a condition of employment on a Federal contract or grant, the covered employee must a) abide by the terms of the policy statement; and b) notify the employer within five calendar days if he or she is convicted of a criminal drug violation in the workplace.
4. Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
5. Impose a penalty on – or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.  The “penalty” is up the discretion of the employer, and it may consist of a disciplinary warning – termination of employment is not uniformly mandated to comply with the DFWA.  Employers should evaluate penalties on a case-by-case basis and seek legal counsel to avoid violating state law or the Americans with Disabilities Act in imposing any discipline.
6. Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.

Employers have wasted millions of dollars on ineffective, invasive, and unnecessary drug testing that is not required by the DFWA.  Drug tests cannot show impairment, if any, or even when marijuana use occurred.

Many employers have relied on information provided by drug testing promoters who have an inherent conflict of interest on the topic.  It has long been recognized that widely cited cost estimates of the effects of drug use on U.S. productivity are based on questionable assumptions and weak measures, according to a report of the National Academy of Sciences.  It is a challenge to locate a single case that has imposed liability on a private employer for opting out of drug testing, and despite beliefs to the contrary, the preventative effects of drug testing programs have never been adequately demonstrated.

The use of marijuana is a Constitutional right in Colorado.  Companies should join those employers who are embracing a more sensible approach to drug policies today and seek to understand what the Drug-Free Workplace Act really does – and does not – require. 

Only then can they release the unfounded myths of yesterday and work with their employees for a more productive tomorrow.

Weight Discrimination May Violate the Law

A Texas company recently made headlines when it announced it would not hire overweight workers. Do employees have protections from weight discrimination? Maybe - it depends on the circumstances.

The Citizens Medical Center in Victoria, Texas, announced that it would no longer hire any workers with a Body Mass Index of 35 or more. As examples, this is 210 pounds for someone who is 5’5,” and 245 pounds for someone who is 5’10.” The BMI is calculated based on an individual’s height and weight. The company reportedly enacted the policy due to customer preferences as to the appearance of its workers.

Nearly 37% of adults in this country are considered obese, according to the most recent statistics from the Centers for Disease Control. A recent study at Yale University concluded that workplace discrimination against overweight people, especially women, is as common as racial discrimination. Only one state, Michigan, and six cities grant specific protections to workers based on weight. Colorado has yet to adopt any such express protections.

Although federal law does not specifically include “weight” as a protected category, at least one federal circuit has already recognized that morbid obesity can qualify as a disability under federal anti-discrimination laws, and other courts are beginning to let juries decide if discrimination based on weight related conditions violates the Americans with Disabilities Act (ADA). The ADA also bars discrimination against individuals who are perceived as having a disability. One truck driver won $109,000 in damages after his employer suspended him without pay based on the assumption that his obesity made him unfit to drive a truck.

Additionally, some ADA-recognized disabilities such as depression can cause weight gain. And other disabilities require pharmaceutical drugs that can themselves cause weight gain, including some drugs used to treat conditions such as diabetes, high blood pressure, seizures, migraines, epilepsy, asthma, and depression. In these instances, employers could violate the ADA by taking weight into account in employment decisions if workers are otherwise able to perform the essential functions of their positions.

These kinds of BMI hiring restrictions also could raise claims of sex, race, or age discrimination, since the U.S. Centers for Disease Control reports that the correlation between the BMI and body fat varies by sex, race, and age. If such a BMI hiring policy disproportionately affects one race or gender over another, it could subject the employer to liability for discrimination under other federal civil rights laws.

And BMI alone does not equate to health, according to Yale University’s Rudd Center for Food Policy and Obesity, since normal weight individuals can have high-risk conditions such as high blood pressure or cholesterol, while overweight individuals can have healthy nutritional and behavioral habits. Courts have struck down “customer preferences” as justification for other types of discrimination, such as race, sex, and age biases, and stereotypes about weight are not good indicators of job performance.

Some employers are addressing these issues by using incentives rather than punitive measures, such as adopting employee health contests and other incentive programs. According to one recent study, nearly 60% of responding companies offered wellness and health improvement programs, up from 37% last year.

Employees who believe they have been subjected to weight discrimination should contact competent workers' rights legal counsel and may also consider filing a Charge of Discrimination with the United States Equal Employment Opportunity Commission or state anti-discrimination agency, such as the Colorado Civil Rights Division.

Employers who are considering such a policy should contact legal counsel before enacting such a policy to determine whether the policy would violate the law in their particular circumstances.

Patrol Should Fix Anti-Gay Culture

The Denver Post has some words of advice for the Colorado State Patrol: Fix Colorado State Patrol's anti-gay culture. Rather than simply denying the problem, everyone in the chain of command must work to establish an acceptable climate within the agency.

Colorado State Patrol Cited for Anti-Gay Bias

An administrative law judge ruled on Monday that the Colorado State Patrol violated state law and personnel rules by failing to reinstate a former Captain because he is gay.

In a scathing ruling finding in favor of the former Captain, the judge described the culture of the Colorado State Patrol as “homophobic” and found that the leadership “has permitted this culture to persist unchecked,” even condoning the routine use of anti-gay slurs.

According to the Captain's attorney, Boulder-based Keith Shandalow, the Captain was a 12-year veteran of the Colorado State Patrol who had risen through the ranks establishing an exceptional career, culminating in his appointment to command its policy office. In that role, he was the face of the patrol for the Governor’s Office and the Joint Budget Committee.

Few patrol members achieve such a dramatic rise in prominence, according to the judge, and the former Captain was therefore a “presumptive shoe-in for reinstatement” after he voluntarily left the Patrol to obtain private flight training.

Although his resignation review document had recommended him for rehire, when the Captain sought reinstatement, the Patrol rejected him after a polygraph examiner asked him questions concerning his sexual orientation during a background check. Board policy prohibits polygraph questions pertaining to sexual orientation, and the Captain previously had not disclosed this information, believing it was not relevant to his job performance and fearing retaliation based on the anti-gay culture of the Patrol.

The Commander knew that the examiner had asked prohibited questions about sexual orientation and the Captain’s disclosure, and he ordered a sergeant to obtain support for denying reinstatement based solely on the test results, on an expedited basis. According to the judge, “such an investigation was unprecedented.”

The judge further found the Patrol had conducted a “sham investigation” regarding the polygraph and gave an “incomplete and inaccurate report” that they knew would serve as a core basis for denying reinstatement.

Another officer gave untruthful testimony at a hearing, which he ultimately admitted was false when confronted later. The Commander also “neglected and refused to use reasonable diligence and care in exercising his pivotal role” in denying reinstatement, according to filings.

In February 2010, the Patrol had reinstated another trooper who had failed the drug portion of the polygraph and had hired a new trooper and a Homeland Security employee who had significant reactions to the polygraph.

The Captain’s career at the Patrol was exemplary, according to the judge’s order. Ten weeks before considering his reinstatement request, the Chief had publically commended the Captain’s distinguished career at his going-away party.

The judge found that a reasonable Commander considering the reinstatement of a former Captain with his distinctive record would not so flagrantly disregard Patrol hiring practices and governing hiring standards.

After being denied reinstatement, the Captain was shunned by other troopers, dropped as a friend on Facebook, false rumors were spread about him, and when he saw other troopers at a local restaurant they refused to acknowledge him or speak to him.

The Colorado State Patrol’s decision to deny the reinstatement request violated the Colorado Anti-Discrimination Act and State Personnel Board Rule 9-3, both of which prohibit Colorado state agencies from refusing to hire any person because of his or her sexual orientation.

Finding significant legal violations, the judge wrote that “the anti-gay culture in the Patrol is well-documented in this case.” For example, during a Training Academy, another captain had made fun of homosexuals by using an offensive stereotype, which the judge said “evinces the depth of anti-gay culture permeating the organization at the command level.” The clear presumption of all captains and others in the training was that it was acceptable to publicly denigrate homosexuality at the highest level of the organization, according to the judge. The Commander responded to the incident by issuing a memo reminding the captains to be professional at all times.

The appropriate response would have been to address the behavior specifically, require training at all levels in prevention of a hostile work environment for gay members, and stating his zero tolerance for violations of the Patrol policy and state law barring discrimination on the basis of sexual orientation, according to the judge.

There are no openly gay members of the Patrol, according to the order in this case. Since the Captain would have been the first and only known openly gay male employed at the State Patrol, the judge found “this bare statistic reflects a general policy and practice with respect to minority (here, gay) employment as one of silence and exclusion.”

Concluding that reinstatement is not a viable option, the judge found that the Patrol has not trained its members to treat gay men with respect and dignity and it has not enforced its anti-discrimination policy with respect to gay men. Therefore, returning the former Captain as a trooper could subject him to an “unacceptable level of personal and professional risk as a result of his protected status.”

The Colorado State Patrol denied wrongdoing and claimed it had legitimate business reasons for denying reinstatement.

Remedial orders in this case require the Patrol to incorporate sexual orientation training into all existing diversity trainings immediately, and to designate a command-level point of contact for gay patrol members who will function in a support and resource role.

The judge also took the unusual step in a case like this of awarding the former Captain’s attorneys’ fees for the Captain’s attorney, finding the Patrol acted in “bad faith.”

Attorney Shandalow says that "the State Patrol continues to incur attorneys’ fees and costs at the taxpayer’s expense in its vain attempt to justify its unjustifiable acts. Those individuals within the State Patrol who are responsible for the wrongs done to my client should be held accountable. If the State Patrol is truly willing to change its culture, it can start by doing right by my client and holding those who did him wrong accountable."

The Attorney General’s Office may appeal the decision within 20 days. If the Personnel Board affirms the award of attorneys’ fees, a hearing will be set to determine the amount.

Kimberlie Ryan Appointed to Governor's Marijuana Advisory Group

1/23/2013

Kimberlie Ryan Appointed to Governor Hickenlooper’s Amendment 64 Implementation Task Force Work Group for Legalized Adult-Use Marijuana

DENVER, January 23, 2013— Kimberlie Ryan was appointed to Gov. John Hickenlooper’s Amendment 64 Implementation Task Force Work Group, as part of the Tax, Civil Law, Funding and Resource Issues group.

The Task Force was charged with developing recommendations to the legislature for the regulatory scheme that will govern the implementation of Amendment 64, which legalized marijuana for adult use in Colorado in 2012.

The Tax, Civil Law, Funding and Resource Issues working group was one of five subcommittees created to advise the 24-member task force on specific issues.

The group addressed banking law, the effect of the amendment on public and private employers and employees, the revenue to fund the state’s regulatory scheme, and the constitutionality of the tax mandate.

Ryan, a civil rights lawyer who represents workers and employers in employment-law matters, was selected to as a member the working group to advise and vote on all matters. She has extensive knowledge of the law in this area and speaks and writes frequently about Colorado’s medical marijuana laws and the workplace.

”It is critical that lawmakers fully honor the Colorado Constitution." Ryan said. "Adults in Colorado have a Colorado Constitutional right to use marijuana, whether for medical treatments, health benefits, spiritual or religious rites, creative and artistic inspiration, recreation with friends, or other personal choices." Ryan added, "Any laws and regulations implementing Amendment 64 must be carefully considered in light of the purposes of legalization in Colorado.”

Ms. Ryan is the founding member of Ryan Law Firm, LLC. Her practice focuses on civil rights employment litigation. She represents clients involving discrimination, harassment and retaliation litigation, wrongful discharge, wage and hour claims and compliance, terminations and reductions in force, non-competition agreements and the protection of trade secrets, family leave issues, Americans with Disabilities Act enforcement, compensation and executive agreements, employment collective actions, whistleblower actions and employee policy handbook advising and drafting.

About Ryan Law Firm, LLC
Founded in 1998, Ryan Law Firm, LLC is among the nation's dedicated civil rights employment boutique law practices, delivering the highest quality legal counsel on the most complex and critical issues facing clients today. The firm is based in Denver, Colorado. For more information, please visit www.KimberlieRyan.com

Sexual orientation protected at Department of Labor

The U.S. Department of Labor announced last week its full commitment to implementing equal employment opportunity policies for all department employees and applicants, providing protections for various protected classes, including sexual orientation, which traditionally has had few express protections under federal law.

According to the DOL, the policies ensure equal protections for all employees and applicants regardless of race; color; religion; national origin; sex, including pregnancy and gender identity; age; disability, whether physical or mental; genetic information; status as a parent; sexual orientation; or other non-merit factor.

New, robust statements signed by Secretary Solis include updated policies on prohibiting discrimination on the basis of sex, including gender identity and pregnancy, according to the DOL.

"I am expressing my personal commitment to ensure that the U.S. Department of Labor is a model workplace, free from unlawful discrimination and harassment, which fosters a work environment that fully utilizes the capabilities of every employee," said Secretary Solis. "It is my goal that we achieve and maintain a high-quality, diverse workforce at all organizational levels throughout the department."

The Labor Department is required to issue annual written policy statements expressing the secretary's commitment to equal employment opportunity and a workplace free of discriminatory harassment, pursuant to 29 Code of Federal Regulations Part 1614, Federal Sector Equal Employment Opportunity, and the U.S. Equal Employment Opportunity Commission's Management Directive 715. The EEOC's directive identifies minimum requirements for the policy statements.

The statements issued by Secretary Solis articulate stronger protections and establish responsibilities to ensure meaningful adherence to equal employment opportunity throughout the department. They have been disseminated to all current employees and will be disseminated to new employees during orientation as well as to employees who are promoted into supervisory ranks.

The department's policies on equal employment opportunity and harassing conduct in the workplace can be viewed here and here.

English-Only Language Bans Scrutinized

Language bans at work may be a subterfuge for national origin discrimination, according to Stuart J. Ishimaru, a Commissioner of the Equal Employment Opportunity Commission ("EEOC").

While speaking at an American Bar Association meeting recently, Commissioner Ishimaru raised concerns that language bans at work may discriminate against workers based on their place of birth, native language, culture, or ancestry.

He supports close scrutiny of so-called English-only work rules. Based on the EEOC's examination of current trends in workplaces across the country, he noted that these claims may be increasing as tensions over immigration debates continue to escalate.

Discrimination based on a person's accent also is considered by the EEOC as a "hot topic" nationally. At the same time, "political forces" have attempted to cut funding to the EEOC, targeting these particular language claims, according to Commissioner Ishimaru. These politics are just dirty and mean.

Commissioner Ishimaru observed the rising numbers of workers in American workplaces who speak languages other than English. Yet many employers are responding not with measures to promote inclusion and understanding, but by adopting policies that illegally seek to ban or limit languages.

Fear and prejudice too often motivate language bans at work. Those who claim that such bans and restrictions are intended to "promote harmony" and "cooperation" among employees should evaluate the negative impact these divisive and hurtful policies have on the souls of the workers, and ultimately on the companies' bottom lines.

The denigration is obvious in many work sites where the rules are implemented in demeaning and humiliating ways.

For example, in a lawsuit I handled against the Colorado Central Station Casino, the sworn deposition testimony of several workers confirmed that they were told that they could not speak Spanish on their break time, during lunch, or even to give directions to workers hired by the casino before they had learned English. These new immigrants were afraid to say a word and performed arduous physical housekeeping tasks in complete isolation and utter silence.

Get in the closet. When the bi-lingual supervisors asked how they should give instructions to these workers, management told them that if they "had" to speak Spanish they had better do it in the janitor's closet, according to the testimony of several workers.

Used their skills. In an ironic twist, the testimony revealed that the company nevertheless required bi-lingual workers to perform an additional service when the bosses needed it - to translate for Spanish-speaking customers - for no additional compensation or even a bit of gratitude.

Language bans hurt. Employers would be wise to recognize the talents and skills of their workers and help stop the fear and bigotry promoted by "us-them" language bans.

A path toward understanding. Some enlightened and proactive companies offer voluntary language classes in Spanish and English to immigrants and natives as part of their benefit plans. Some even compensate their workers for time spent in the classes! This develops their workers' skills and is a step toward creating true cooperation.

As one of my favorite law professors used to say - a word to the wise on that score should be sufficient - promote harmony through understanding and education. Silence the language bans.

Innocent Positives: Patients Fired for Medical Marijuana Treatments

Here's the link to an article I wrote for Kush Magazine, Innocent Positives: Patients Fired for Medical Marijuana Treatments. Check out page 103.

Medical Marijuana and Colorado Unemployment Benefits

Employees who are fired for exercising their Colorado Constitutional rights to treat their debilitating medical conditions with medicinal marijuana should not be penalized by the State that authorizes medical use under the Colorado Medical Marijuana Registry Program.

Yet, the State of Colorado Industrial Claims Appeals Office is depriving some patients of unemployment benefits after they are wrongfully fired and seek unemployment insurance, which is designed to help workers who are fired through no fault of their own.

Here's a news clip that may be of interest from an interview with 9News this morning. What do you think?

Does the Constitution Apply to Corporations?

What do you think?

Employers and Medical Marijuana

Employers should follow the lead of the federal Veteran's Administration.

This month the VA announced that it will draw a "clear distinction between the use of illegal drugs and legal medical marijuana."

The VA will not penalize medical marijuana patients who are treating validly under their states' laws.

Similarly, employers should revise their workplace drug policies to make a clear distinction between the use of legal medical marijuana and illegal drugs with no legitimate medical purposes. They should distinguish between treatments and abuse.

Some managers are being forced by corporate headquarters to fire workers who treat at home with medical marijuana, when they know that these workers have been stellar performers with absolutely no problems at work.

Employers are losing valuable employees because of their outdated "zero tolerance" drug policies that fail to account for legitimate medical treatments.

These unenlightened policies are based on false information from outdated stereotypes of medical marijuana that ignored the scientific proof that marijuana is safe and beneficial and treats a multitude of illnesses and pain.

Recent studies confirm that marijuana is a safer alternative to some of the pharmaceuticals that produce horrific side effects, often far worse than the original disease. Yet some employers are stuck in the old mentality that falsely lumped medical marijuana in with narcotics as an unsafe treatment, or worse yet, just a drug to be abused.

It is unethical to deprive patients of very beneficial medical treatments based on the fear of abuse. Any drug can be abused. Would it be logical to deprive people of prescription medications since they can be abused? Would it be right to deprive them of their jobs?

Employers can step up now and follow the lead of the VA in recognizing the difference between state-sanctioned medical marijuana treatments and illicit drugs. State-sanctioned medical marijuana should be treated as other medical treatments, and should not be used to deprive good workers of their livelihoods.

VA Recognizes Legal Medical Marijuana

The federal Veteran's Administration will not penalize Veterans for using medical marijuana by depriving them of other necessary medicines, according to a July letter issued by the US Department of Veteran Affairs Under Secretary for Health Robert Petzel, M.D.

Testing positive for marijuana would not preclude a Veteran from receiving other medications for pain management in a Department of Veterans Affairs (VA) facility, if a Veteran obtains and uses medical marijuana in a manner consistent with state law.

The authorized use of medical marijuana should not be defined as "illegal drug use," according to the VA Under Secretary.

"Standard pain management agreements should draw a clear distinction between the use of illegal drugs, and legal medical marijuana," says Under Secretary Pelzel.

The VA further instructs that the individual health care provider retains the discretion to prescribe, or not prescribe, opioids in conjunction with medical marijuana. The health care provider has the authority to determine the medications on clinical grounds.

The Veteran would need to inform his provider of the use of medical marijuana, and of any other non-VA prescribed medications he or she is taking to ensure that all medications, including opioids, are prescribed in a safe manner, according to Under Secretary Dr. Pelzel.

The provider will take the use of medical marijuana into account in all prescribing decisions, just as the provider would for any other medication, according to the VA.

"This is a case-by-case decision, based upon the provider's judgment, and the needs of the patient."

The VA is right about one thing - medical marijuana patients should not be treated as criminals, nor should they be deprived of their medically necessary treatments.

This guidance is important because it reaffirms that at least one administration within the federal government recognizes that medical marijuana, when used validly under state law, is a medical decision best left to the physician and the patient and should not be treated as a criminal matter. It is a health care decision.

Colorado Constitutional Rights to Medical Marijuana

The Colorado Constitution provides positive rights to citizens, which include affirmative defenses to prosecution under state laws for qualified use of medical marijuana. The rights guaranteed by the Colorado Constitution are much more expansive than just affirmative defenses, as I read the Constitution.


The Colorado Constitution guarantees positive rights to medical marijuana by providing the following rights:

1. Right to medical use of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

2. Right to acquisition of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

3. Right to possession of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

4. Right to production of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

5. Right to transportation of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

6. Right to medical use of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

7. Right to acquisition of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

8. Right to production of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

9. Right to transportation of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

10. Rights to possess, acquire, possess, produce, transport up to 2 ounces of marijuana by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

11. Rights to possess, acquire, possess, produce, transport up to 6 plants by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

12. Right to acquisition of marijuana paraphernalia by caregivers for patients under the age of 18. COLO. CONST. art XVIII, § 14, 6; 6(i)

13. Right to protection of physician rights or privileges for acts authorized by Constitution. COLO. CONST. art XVIII, § 14, 2(c)

14. Right of physicians to advise a patient about risks and benefits of use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

15. Right of physicians to advise a patient that she might benefit from medical use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

16. Rights of physicians to provide medical documentation to patient for acquisition of medical registry card. COLO. CONST. art XVIII, § 14, 2(c); 2(b)(1); 3(1)

17. Rights to protections for property interests of a property owner for property seized by law enforcement. COLO. CONST. art XVIII, § 14, 2(e)

18. Rights to immediate return of patient or caregiver property after seizure upon described conditions. COLO. CONST. art XVIII, § 14, 2(e)

19. Right to assert affirmative defense for qualified patients from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(b)

20. Right to assert affirmative defense for physicians from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(c)

21. Right to confidential registry maintained by state health agency. COLO. CONST. art XVIII, § 14, 3

22. Right to participation in Colorado Medical Marijuana Registry program. COLO. CONST. art XVIII, § 14, 3(c), 8(9)

23. Right to obtain registry ID Card from state health agency on demonstration of qualification. COLO. CONST. art XVIII, § 14, 3(c)

24. Right to timely action by state health agency. COLO. CONST. art XVIII, § 14, 3(d)

25. Right of citizens to automatic participation in Medical Marijuana Registry on expiration of 35 days of application in absence of notification of denial of application. COLO. CONST. art XVIII, § 14, 3(d)

26. Right of primary caregiver to control acquisition of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

27. Right of primary caregiver to control frequency of use of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

28. Right of primary caregiver to control dosage of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

29. Right of patients to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

30. Right of physicians to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

31. Implied rights to accommodation of medical use of marijuana outside of the workplace. COLO. CONST. art XVIII, § 14, 10(c)

Additional rights affirmatively granted to primary caregivers via affirmative defense:

32. Right of primacy care-giver to engage in medical use of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f)

33. Right of primary care-giver to assist in acquisition of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

34. Right of primary care-giver to assist in possession of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

35. Right of primary caregiver to assist in production of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

36. Right of primary caregiver to assist in transportation of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

37. Right of primary caregiver to assert an affirmative defense to prosecution. COLO. CONST. art XVIII, § 14, 2(b).

This makes Colorado unique among the states passing medical marijuana statutes.

These are Constitutional rights.

Marijuana use remains illegal under federal law at this time.

This is provided for educational and informational use only and does not constitute legal advice in any particular situation. Every circumstance is different. If you have questions about your particular situation, you may wish to consider retaining legal counsel.

Can You Be Fired for Blogging?

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Hooter's Sued for Tips and Breaks

The New York Times reports on a lawsuit against Hooter's by a young mother who says "she was shocked not by the randy customers, the short-shorts and the plunging necklines, but because she says she spent her own money for her uniforms, worked long shifts without breaks and did not get her share of tips." Wage and hour laws may provide some relief - or not - depending on whether she can prove her case. If the claims are true, do you think workers should have to pay for their uniforms? Read more of the New York Times article by Malia Wollan.

Waiting to Exhale: Medical Marijuana and Workers' Rights

Do you think medical marijuana patients should be forced to choose between their medicine and their livelihoods?

Here's a blurb from Alicia McNally's article in Law Week Colorado, covering a presentation I recently gave to the Colorado Bar Association, along with Chuck Passaglia. . .

DENVER — According to Chuck Passaglia of Littleton-based Employment Law Solutions, a positive drug test for marijuana isn’t sufficient evidence of whether an employee is “under the influence” on the job. . . . read the rest of the article:

“Positive Drug Test Doesn’t Prove Jack” For Employees With Medical Marijuana