Obama Fair Pay and Safe Workplaces Executive Order for Federal Contractors Dead! By Debbi Cohen

Yesterday, President Trump signed a joint resolution of disapproval under the Congressional Review Act (CRA) blocking the rule implementing President Obama’s Executive Order 13673 – “Fair Pay and Safe Workplaces” or as it is commonly known, the “Blacklisting Rule” – effectively killing it in its entirety.

As a reminder, under some of its more onerous elements, E.O. 13673, which was issued on July 31, 2014, would have required that companies bidding on federal contracts valued at over $500,000 would have had to indicate at the initial bid submission stage whether they had had any “administrative merits determinations, arbitral awards or decisions, or civil judgments” rendered against them during the preceding three-years for violations of specified federal labor and employment laws and/or their “equivalent state laws.” The information disclosed would then have been used by contracting officers, in consultation with an agency’s “labor compliance advisor,” (“ALCA”) to determine whether the bidder had a satisfactory record of integrity and business ethics to obtain the federal contract being sought. It also required contractors to provide employees with specific information regarding exempt status and overtime on their paychecks, required specific notices to independent contractors, and prohibited pre-dispute arbitration agreements.

In October 2016, a federal court in Texas temporarily blocked the “blacklisting” elements of the EO but not the other requirements, which would have arguably still placed significant administrative obligations on federal contractors. The resolution of disapproval (H.J. Res. 37) passed by both Houses of Congress and which was signed by the President yesterday states as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation (published at 81 Fed. Reg. 58562 (August 25, 2016)), and such rule shall have no force or effect."

Under the CRA, any rule set aside by this mechanism cannot be “reissued in substantially the same form.” Thus, President Trump’s signature yesterday effectively killed E.O. 13673.

Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Legal Notice and Disclaimer

Employers Must Use New I-9 Form Starting January 22, 2017: by Debbi M. Cohen

Last November, the US Citizenship and Immigration Services (USCIS) issued a revised version of its Employment Eligibility Verification Form I-9. By January 22, 2017, all employers must use only this version, which is dated November 14, 2016. Prior versions of the Form I-9 will be invalid for use after January 22, 2017.

Most of the changes to the Form were intended to simplify its completion via computer and to minimize completion errors. However, the Form can still be printed and completed by hand. A copy of the new Form I-9 can be obtained here.

Debbi M. Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Texas Court Stops US DOL Again – Eastern District Enjoins Overtime Rule Only Days Before Scheduled Effective Date, by Debbi M. Cohen*

In case you missed it while taking a little break for the Thanksgiving holiday, on November 22, 2016, the United States District Court for the Eastern District of Texas gave employers, business groups, states, and other interested parties the relief they had sought from imminent implementation of the US Department of Labor’s (DOL’s) new overtime rule when it temporarily stopped the new rule from taking effect as scheduled on December 1. As discussed in previous blog posts, the new Fair Labor Standard Act (FLSA) “white collar” overtime rule would have more than doubled the salary threshold for exempt status under the FLSA overtime pay exemption. The rule had been challenged in two lawsuits consolidated before the court. In granting the Plaintiffs’ requested relief, the judge stated, "A preliminary injunction preserves the status quo while the court determines the department's authority to make the final rule as well as the final rule's validity."

The temporary injunction is national in scope, blocking the new overtime rule from going into effect anywhere. In granting the temporary injunction, the judge indicated in his opinion his belief that the Plaintiffs in this case are likely to prevail on the merits. Of course, the DOL is likely to appeal the court’s decision and to continue to pursue its position on the merits in the lower court so the judge’s decision at this point is not final. Nonetheless, it may be a while before another decision is made.

What this means for employers is that, for now, the existing “white collar” overtime rule that has been in place since 2004 will remain in place, including the current lower salary threshold combined with a duties test. In the meantime, employers who were in the process of changing their pay practices in time for the December 1 implementation deadline of the new rule may find themselves between a rock and a hard place wondering whether to continue with pay changes or to revert to past practices. The court’s decision does not require employers who have already reclassified employees or made salary increases in anticipation of compliance with the higher threshold levels of the new rule to revert to the current rule. Employers generally also cannot recoup payments made to employees in anticipation of the required changes. Further, for those employers who have not yet implemented changes, while changes may no longer be legally mandated, at this late date, it may be prudent to consider what communications have already been made to employees, what other employers are doing and whether additional changes to your practices will have employee relations or administrative consequences. For specific questions about your own compliance efforts in light of this new development, consult counsel.

*Debbi M. Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Voters in 7 States Approve Recreational or Medical Marijuana Use—Is This the Tipping Point for Legalization? By Barbara Johnson

Introduction

On election day, voters in California, Nevada, Maine, and Massachusetts approved the legalization of marijuana for recreational purposes. An additional three states, Florida, Arkansas and North Dakota, approved the legalization
of marijuana for medicinal purposes—a huge victory for the proponents of legalized marijuana. Of all the initiatives up for vote, the initiative in Arizona was the only one rejected by the voters. The most significant victory was the legalization of recreational
use of marijuana in California. There’s an adage that goes, “As California goes, so goes the country”. If that adage proves true, Tuesday’s election is a watershed moment for the legalization movement.

Even though Colorado and Washington voters led the way with the passage of initiatives in November 2012 that legalized the recreational use of marijuana, legalization of marijuana for recreational purposes in California, a state
with the economy of a large industrial country, is a game changer. With legalization in California and other key states, the federal government faces growing pressure to change its stance on marijuana as an illegal drug for which there is no accepted medical use and a high potential for abuse (as defined by the Food & Drug Administration). Under federal law, marijuana is classified as a Schedule I substance, the same as drugs such as heroin and LSD.

In August of 2016, the DEA responded to a petition to remove marijuana from Schedule I. In its response to the petition, the agency stated that there is no accepted medical use for marijuana because "the drug’s chemistry is not
known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available. There is no consensus among qualified experts that marijuana is safe and effective for use in treating a specific, recognized disorder. At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically
evaluate safety and efficacy."

RECREATIONAL MARIJUANA ON 2016 BALLOT: RESULTS

Note: Results in some states have not been certified and are not available through a government source. Politico is used for ballot results in states where results are not available through a government source.

California

Voters in California passed an initiative that will legalize the recreational use of marijuana for adults over the age of 21. The initiative passed[1] by a 56-44 margin.

California has a long history of voting on marijuana reform. The state passed[2]
the country’s first medical marijuana law in 1996. The latest measure, Proposition 64, the Adult Use of Marijuana Act (AUMA),[3] legalizes:
-the possession of 1 ounce of marijuana flower, or up to 8 grams of cannabis

-concentrates for age 21 and older

-cultivation of up to 6 plants

-industrial cultivation of hemp

-taxed and regulated system for a recreational marijuana industry

-Restrictions on marketing to minors, localized tax rates, and restrictions on commercial marijuana operators determined on a county / municipal level.

-systems for reducing sentences and expunging past marijuana convictions

Implications for the Workplace in California

Proposition 64 allows employers to have drug-free workplace policies that prohibit marijuana use by employees. It also allows federally contracted employers to continue complying with federal drug testing requirements without
fear of violating state or federal law. However, the California Constitution protects an employee’s right to privacy and drug testing may not be allowed except for employees in safety sensitive positions.

Nevada

Voters in Nevada passed[4] an initiative (Question 2) that legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed / failed by a 54-46 margin. The state passed medical marijuana (Question 9)[5]
in 2000. The recreational initiative allows for:

-possession of 1 ounce of marijuana,

-a taxed and regulated recreational cannabis industry with tax revenue supporting K-12 education,

-includes a clause that allows anyone who does not live within 25 miles of a marijuana store to grow up to 6 marijuana plants.

Implications for the Workplace in Nevada

Employers may continue to enact and enforce policies that restrict drug use, including marijuana. And this includes drug testing.

Maine

Voters in Maine passed[6] an initiative (Question 1) that legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed by a 50.15-49.85 margin. Under the law, Maine’s Department of Agriculture, Conservation and Forestry is responsible for regulating and controlling the cultivation, manufacture, distribution and sale of marijuana in the state

The new law legalizes:

-the possession of up to 2 1/2 ounces of marijuana,

-the possession, cultivation and transportation of up to 6 flowering marijuana plants, 12 immature marijuana plants and unlimited seedlings, and possession of all the marijuana produced by the marijuana plants at that person’s residence.

Implications for the Workplace in Maine

The amendment for MRSA §2454(3) adds: "A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside
of the school's, employer's or landlord's property."

This amendment may restrict pre-employment drug testing for marijuana. The law specifically allows employers to have workplace policies that restrict employee marijuana use.

Arizona

Voters in Arizona failed to pass[7] an initiative (Prop 205) that would have legalized the recreational use of marijuana for adults over the age of 21. The initiative failed by a 52-48 margin. Medical marijuana is already available for almost 100,000 cardholders; however, recreational marijuana is still illegal.

The Legalization and Regulation of Marijuana Act (Proposition 205) initiative would have legalized:

-the possession of up to 1 ounce of marijuana,

-a taxed and regulated recreational cannabis industry,

-adults over 21 would have been able to grow up 6 marijuana plants in an enclosed, locked space within their homes and possess the marijuana produced by those plants in the location where it was grown,

-A limit of the total marijuana plants grown in a single residence would have been limited at 12,

-The creation of a new agency called the Department of Marijuana Licenses and Control for oversight of the marijuana industry

Massachusetts

Voters in Massachusetts passed[8] an initiative (Question 4) which legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed by a 54-46 margin. The Question 4 initiative regulates and taxes marijuana for recreational use like alcohol.

The initiative legalizes:

-possession up to 1 ounce of marijuana outside of an individual’s residence,

-possession of up to 10 ounces of marijuana in an enclosed, locked space within their residences,

-growing up to 6 marijuana plants in an enclosed, locked space within their residences and possess the marijuana produced by those plants in the location where it was grown. No more than 12 total marijuana plants can be grown in a single residence.

Implications for the Workplace in Massachusetts

The law does not mention drug testing, but it does state that it does not affect employer's authority to enact workplace policies.

MEDICAL MARIJUANA 2016 BALLOT RESULTS

Florida

Voters in Florida passed[9] an initiative (Amendment 2) that legalizes the medical use of marijuana. The initiative passed by a 71-29 margin. Previously, a medical marijuana initiative in Florida had been defeated by a 2% margin in 2014.

The 2016 Amendment 2 initiative legalizes:

-the medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician,

-allows caregivers to assist patients’ medical use of marijuana,

-Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers.

Implications for the Workplace in Florida

Amendment 2 restricts on-site marijuana use at work, and it is unclear how this law will affect drug testing programs.

Arkansas

Arkansas had two competing proposals: The Arkansas Medical Cannabis Act (Issue 7) and the Arkansas Medical Marijuana Amendment (Issue 6). Issue 7 was struck from the ballot on October 27th, 2016 by the Arkansas Supreme Court due
to invalid signatures. Voters in Arkansas passed Initiative 6, legalizing the medical use of marijuana. Issue 6 passed by a 53-37 margin. Issue 6 makes repeal of the law impossible as it is a state constitutional amendment. It legalizes medical cannabis under guidance of a physician. The program under the control of Arkansas Alcoholic Beverage Control and a new medical marijuana commission.

Implications for the Workplace in Arkansas

Issue 6 states "An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual's past or present status as
a qualifying patient or designated caregiver" (Sec. 3). This provision will likely create require employers to be able to demonstrate an employee is impaired before terminating or disciplining an employee for testing positive for marijuana.

Montana

Voters in Montana passed[10] an initiative (I-182) that further reduced restrictions on the medical use of marijuana. The initiative passed by a 58-42 margin.

Montana reinstated its medical marijuana laws through I-182. The initiative allows patients to access and use marijuana for several debilitating illnesses. Medical marijuana was originally made legal in 2004 in the state. However, legislative restrictions made implementation of the law a challenge.

The new measure (I-182) repealed former measure SB 423's requirements that medical marijuana providers have no more than three patients and the state review physicians who prescribe marijuana to more than 25 patients per year.
The measure allowed physicians to prescribe marijuana for patients diagnosed with chronic pain or post-traumatic stress disorder (PTSD).

Implications for the Workplace in Montana

The existing medical marijuana law in Montana does not prohibit workplace drug testing and the newly approved initiative does not change existing law in this regard.

North Dakota

A measure in North Dakota (Measure 5) legalized the limited use of medical marijuana. It passed[11] by a 64-36 margin.

The initiative made it legal for North Dakota residents who suffer from one of several debilitating illnesses to use marijuana with a doctor’s permission. They can possess up to 3 ounces of marijuana for medical purposes from either a state-licensed dispensary or a personally grown supply.

Implications for the Workplace in North Dakota

The new law does not mention the workplace or drug testing.

LEGALIZATION OF MARIJUANA AS OF NOVEMBER 12, 2016
*Note: This map does not include states that have allowed limited medical use of CBD oil or states that have decriminalized marijuana. There are variations in the states marked as illegal in the map above.

As this map demonstrates, more than half the states in this country allow individuals to use marijuana for recreational and/or medicinal purposes. Unlike Department of Transportation and the Department of Defense regulations which
call for zero tolerance of marijuana use, the trend is for state laws to require an employer to show that an employee was “impaired” by marijuana before taking an adverse employment action.

Historically, employers have been able to rely upon marijuana’s designation as a Schedule I illegal drug to justify discipline of employees under workplace drug testing programs and courts consistently have sided with employers
in challenges to termination decisions based on positive tests for marijuana. However, it is unlikely that this trend will continue.

This is an ideal time for employers to reexamine their substance abuse policies to ensure the policies conform to state law. The number of employees who are using marijuana in conformance with state law will continue to grow. Employers
should decide how to address this trend. There are several factors to consider, including: is the workforce covered by Department of Transportation regulations, which trump state law? Are employees in safety sensitive positions? What is the effect of the legalization on the employer’s ability to hire and retain qualified employees? Does the employer’s substance abuse policy address the serious implications of prescription drug or opiate abuse?

In the next part of this series, we will continue to explore issues related to the legalization of marijuana, including the challenges of measuring whether an individual is impaired by marijuana, emerging technology to measure
the presence of marijuana, and issues related to possession of marijuana.

References

[1]
http://vote.sos.ca.gov/returns/maps/ballot-measures/prop/64/

[2]
https://www.cdph.ca.gov/programs/MMP/Pages/CompassionateUseact.aspx

[3]
http://voterguide.sos.ca.gov/en/propositions/64/

[4]http://www.politico.com/2016-election/results/map/ballot-measures/nevada/

[5]
http://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/2000.pdf

[6]
http://www.politico.com/2016-election/results/map/ballot-measures/maine/

[7]
http://www.politico.com/2016-election/results/map/ballot-measures/arizona/

[8]
http://www.politico.com/2016-election/results/map/ballot-measures/massachusetts/

[9]
http://www.politico.com/2016-election/results/map/ballot-measures/florida/

[10]
http://mtelectionresults.gov/resultsSW.aspx?type=BQ&map=CTY

[11]
http://www.politico.com/2016-election/results/map/ballot-measures/north-dakota/

Barbara Johnson is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Election Day is Coming – Are You Prepared to Respond to Requests for Time Off for Voting? By Debbi Cohen*

Election Day – November 8 – is quickly approaching. Many states require that employees have reasonable time off work to vote – typically two or three consecutive hours (more in some states) when the polls are open, which could be before or after the employees’ scheduled workday. If employees do not have reasonable time to vote, including either before or after their scheduled workday, employers generally must permit them, upon reasonable advanced notice, to take a reasonable amount of time off from work to vote. Typically, employers may not require employees to use meal or other break times to vote, but if an employee who does not have reasonable time before or after the scheduled workday requests time off to vote, the employee’s supervisor may schedule the employee’s time off at the beginning or end of the workday. The amount of time off that will be considered reasonable will depend upon the circumstances, including the polling hours, distance from work, time of day, business needs and other appropriate factors. Supervisors should inform employees in advance if proof of voting or attempting to vote will be required to substantiate an absence from work, particularly if needed to verify pay status or avoid adverse attendance consequences.

In most states, employers that are required to grant employees time off during the workday to vote do not have to pay employees for the time off. However, in an increasing number of states, if an employee does not have reasonable time, as determined by state law, to vote before or after work, employers must not only grant employees time off to vote, but also cannot withhold pay for the time they are off work or otherwise make a deduction in their pay, thereby essentially making the time off for voting “with pay.” These states include: Alaska, Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming. Of course, employers in these states can require employees fulfill advanced notice requirements for taking leave and provide proof of voting before paying employees.

Finally, there are a few states in which employers are required to grant reasonable voting leave regardless of whether there is reasonable time to vote outside the employee’s scheduled workday, though employees may be required to provide advanced notice, and there are states that are simply ambiguous as to whether employees must be paid when they take time off from work during their scheduled workday to vote, since the state law simply says that employers may not restrain or otherwise interfere with the exercise of voting rights or inflict any injury or loss upon employees for taking a reasonable amount of time to vote. In this regard, some states, again with advanced notice, also may require more than the customary two to three hours of time off, and two states – Minnesota and West Virginia – require employers, upon request, to grant employees time off with pay during the workday regardless of other possible voting opportunities. Consequently, it is critical that managers and supervisors are prepared to respond to employee voting leave requests and know who to contact if they have questions regarding voting leave or employee requests for time off to serve as election judges or to perform other election-related work.

*Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

White House Introduces Worker.Gov, By Debbi Cohen

On October 28, the White House introduced a new website designed to make it easier for employees to learn about their employment rights and, if appropriate, to file charges and complaints against their employers. The new site – Worker.gov – is in beta version and is supposedly designed to improve with use and feedback.

Unlike agency specific websites, employees who visit Worker.gov do not need to know which law they think may have been violated or which agency they think can help them. Instead, they are led through a series of user-friendly questions about their lives and jobs, which direct them down paths to determine whether they need assistance, based on the answers they provide, and in the end, if deemed warranted by the site, they are given the option of filing a charge or complaint with the appropriate agency. The site is a partnership among the U.S. Department of Labor, the National Labor Relations Board, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice.

Information on Worker.gov is provided under broad headings related to equal treatment, “the right to engage with others to improve wages and working conditions,” the right to a safe and healthy work environment, and the right to be paid. According to the DOL’s press release announcing the site, this is “providing workers access to critical information about their rights under the major labor statutes in a way that makes sense to them.” The focus is on the workers’ sense of fairness, rather than on particular laws. Of course, since unfair is not generally unlawful, it remains to be seen what effect, if any, launch of this site will have on the filing or processing of charges and complaints.

Debbi Cohen is Counsel with Benton Potter & Murdock, P.C.
Important Notice and Disclaimer

DOL Issues Final Rule Establishing Paid Sick Leave for Federal Contractors – Are You Ready? By Debbi Cohen

Last week, the U.S. Department of Labor (DOL) published its Final Rule to implement Executive Order (E.O.) 13706, which was signed by President Obama on Labor Day 2015, establishing paid sick leave for Federal Contractors. In short, the Rule will apply to “covered contracts” – defined broadly and with limited exceptions in the Rule – which are newly solicited, awarded outside the solicitation process, renewed, extended, or amended on or after January 1, 2017, and it requires parties that enter into covered contracts with the Federal Government to provide “covered employees” – again, there are limited exclusions, including a temporary exclusion for employees covered by a collective bargaining agreement – with up to 7 days (56 hours) of paid sick leave annually.
Even for those Federal Contractors that already offer paid time off to their existing workforces, now would be a good time to review your policies and procedures to ensure they satisfy the requirements of the E.O. and Final Rule. In addition to specific requirements related to leave accrual rates, certification and use, there are carryover provisions and other stringent administrative obligations, recordkeeping, contract clause and notice requirements, and anti-retaliation prohibitions. For compliance assistance, consult counsel.

Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer