Preparing for Legalized Marijuana in Illinois

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This summer, Governor J.B. Pritzker signed into law the Cannabis Regulation and Tax Act (the “Cannabis Act”), which takes effect January 1, 2020. Employers may want to take a look at their policies and procedures as they relate to drug testing their candidates and employees and how they discipline employees who test positive for cannabis.

The Cannabis Act provides that individuals who are 21 years of age or older may lawfully possess, consume, use, purchase, obtain, and transport cannabis for personal use. Notably, however, cannabis continues to be illegal under federal law. While the Cannabis Act legalizes recreational marijuana use, it explicitly allows employers to do the following in order to maintain a safe drug-free workplace:

  • Enforce zero-tolerance or drug-free workplace policies;
  • Implement and enforce employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, provided that the policy is applied in a non-discriminatory manner; and
  • Prohibit employees from being under the influence or using cannabis in the workplace (this applies to the employer’s premises, including any building, real property, and parking area under the control of the employer, as well as employer vehicles), while performing job duties or while on-call.

Despite these explicitly employer-friendly provisions, the Cannabis Act makes disciplining employees for marijuana-use tricky. Specifically, before disciplining an employee that is perceived to be under the influence or impaired by cannabis, the Cannabis Act states employers must have a “good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s job performance.”  The Cannabis Act specifies this burden may be met by changes in the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in an injury to the employee or others. The Cannabis Act also requires that employers “afford the employee a reasonable opportunity to contest the basis of the determination.”

Perhaps the most complex portion of the Cannabis Act is that it amends the Illinois Right to Privacy in the Workplace Act (“IRPWA”), which prohibits employers from discriminating against employees for their off-duty (legal) behavior. Now, pursuant to the Cannabis Act’s amendment, those behaviors include use of cannabis. Under the IRPWA, employees may file a private right of action and be entitled to not only damages, but also recovery for statutory penalties, attorneys’ fees and costs, where an employer takes adverse action for the employee’s off-duty and off-premise cannabis use.

The reason this poses a particular challenge for employers is because there are no existing drug tests that can test when someone last used marijuana. For example, a positive marijuana test may only mean that the employee used marijuana while off-duty and off-premises days (or weeks) ago – not that the employee used (or is impaired) while at work. Or it could mean the employee is still impaired. There’s no way to know solely based off a cannabis test.

Best Practices for Employers to Put into Effect Now

In preparation, employers should consider taking the following actions now:

  • Review existing drug testing policies, update policies accordingly and train managers and supervisors regarding any policy changes.
  • Develop discipline policies specifically for cannabis use and train managers and supervisors on the appropriate grounds for discipline and procedural requirements for discipline.
  • Develop specific procedures for documenting concerns that an employee is under the influence of cannabis.
  • Train managers and supervisors on the specific cannabis use/impairment symptoms referenced in the Cannabis Act and how to document those observations in order to provide evidentiary support of “good faith.”
  • Review/revise policies with respect to pre-employment applicant drug testing.

Illinois Strengthens Equal Pay Protections

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Illinois has joined the growing list of states implementing requirements intended to avoid pay discrimination. These requirements, which are effective September 29, 2019, include a new salary history ban, a lessening of the evidentiary burden to prove pay discrimination, strengthened anti-retaliation provisions, and additional damages available to employees.  Employers need to act quickly to ensure that candidates aren’t asked about compensation history, and otherwise comply with these new standards.

The 2019 Amendments to the Illinois Equal Pay Act prohibit Illinois employers from:

  • Screening job applicants based on their salary history
  • Requesting or requiring salary history
  • Otherwise requesting or requiring applicable to disclose salary history information
  • Seeking an applicant’s salary history information from current or former employers (unless it is public record).
  • Considering or relying on compensation history voluntarily provided (without prompting) in deciding whether to offer employment , in making an offer of compensation, or in determining future compensation.

The Amendments make clear that employers may engage in discussions with applicants about their expectations with respect to compensation and benefits, but it’s critical that those conversations are forward – not historically – focused.

The amended IL EPA also makes it easier for employees to prove claims of pay discrimination – both because it expands the group of individuals the employee can compare herself to in making her claim, and because it narrows the grounds on which an employer can justify a difference in pay.

Finally, the Amendments beef up the Illinois Equal Pay Act’s retaliation provisions.  The IL EPA previously provided that Illinois employers should not interfere with, restrain or retaliate against employees who wish to inquire about, disclose, compare or discuss their wages or the wages of other employees.  The Amendments go even further though – prohibiting employers from requiring an employee to sign an agreement that would prohibit them from disclosing or discussing their pay information.

Employees bringing claims under the IL Equal Pay Act will still have five years to bring their claims, and they will still be entitled to recover the entire amount of any underpayment with interest.  But under the Amendments, they will now also have the opportunity to seek compensatory damages in certain situations, as well as punitive damages, injunctive relief and attorneys’ fees.

Illinois employers need to take immediate action to ensure that those involved in the hiring process do not inadvertently violate the new salary history ban.  We recommend implementing a policy that requires that only one or two set individuals are authorized to discuss money with candidates, and that those individuals be trained to only ask about expectations, not salary history.  In addition, in light of the soon-to-be reduced standards for proving pay discrimination, Illinois employers should consider conducting a self-audit to identify – and resolve – any pay inequality before a claim arises.

DOL Finds Gig-Workers Not Protected By FLSA

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Last week, the Department of Labor issued an opinion letter finding that that at least some gig-economy workers can be properly classified as independent contractors — not employees — and thus are not covered by the federal Fair Labor Standards Act (FLSA). This opinion letter is in stark contrast to the DOL’s prior position and to other decisions regarding the proper classification of gig-workers. You can read more about the Department of Labor’s recent opinion letter here.

DOJ arguing ACA unconstitutional…. but employers need to stay the course (at least for now)

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The Department of Justice has reversed its previous stance and is now taking the position that the Affordable Care Act (ACA) is unconstitutional and should be struck down.  The future of the ACA — including the provisions that impact employers — is likely to be heard by the U.S. Supreme Court.  Read more about this decision here.  For now, though, employers must continue to comply with the ACA.

Facebook move highlights risk of discrimination claims when targeting employment ads

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Last week, Facebook agreed to withhold a wide array of detailed demographic information — including gender, age and zip codes (which are often used to determine race)  from advertisers when they market, among other things, job opportunities.  You can read more about Facebook’s move here.

Although these claims involve Facebook, employers advertising job opportunities on other online platforms should be careful not to target employment ads to specific demographics that could be seen as discriminatory.

Senators thinking about national standards for non-competes?

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For years, academics have debated the impact of post-employment non-competes on the economy and workforce. Apparently taking interest in this issue, earlier this month a bipartisan group of United States Senators, including Senator Marco Rubio of Florida, wrote to the United States Government Accountability Office asking it to review and report on non-competes, including how prevalent they are, how they’re used in low-wage fields, the impact of the workforce and economy (including innovation), and actions states have taken to limit the use of non-competes. A copy of the letter can be found here.

Non-competes, non-solicits and similar agreements continue to be viewed with great scrutiny.  It is important to review these types of agreements frequently to comport with changing legal standards.

DOL Issues New Proposed Minimum Salary Threshold

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The Department of Labor has (finally) issued its new proposed overtime rule — which sets the minimum salary for an employee to be eligible for the white collar exemptions at $35,308.  You can read more about this development here.  This is significantly higher than the $23,660 that is currently in place but much lower than the $47,476 that the Obama administration tried to implement in 2016.

It’s important to remember that salary is only the first step in the analysis.  Even if an employee is paid a salary over the minimum, the employer still needs to establish that the employee satisfies the job duties requirements to be classified as exempt.

 

Google stops requiring arbitration of employment claims

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It was less than a year ago that the Supreme Court ruled that employees could be required to individually arbitrate claims (and waive their right to participate in a class action), but arbitration agreements aren’t a silver bullet.  In fact, some employers are responding to local legislation and employee resistance by pulling back from arbitration requirements.

Just last week, Google responded to employee protests and announced that it would no longer require its workers to arbitrate employment related claims.  Read more about Google’s decision here.

Whether or not employee arbitration agreements make sense is a very company-specific decision.  Think carefully about what you’re trying to accomplish with these agreements and talk to your legal counsel about the risks and benefits.

4th Circuit Finds “Sleep to the Top” Rumors Can Create Hostile Work Environment Based on Gender

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Last week a federal appellate court found that rumors about a female employee “sleeping her way to the top” could create a hostile work environment based on gender.  You can read more about the decision here.

Many are viewing this case as another instance of #Metoo impacting the workplace.  If you haven’t recently conducted anti-harassment training, now is the time to get it on the calendar!