September 24, 2014

Dazed and confused: medical marijuana and the workplace

Posted in Drug and Alcohol Testing, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act, Uncategorized tagged , , at 5:05 pm by Tom Jacobson

Marijuana-leaf_620x414Minnesota’s legalization of medical marijuana is intended to provide relief for patients suffering from a narrow list of qualifying medical conditions. Minnesota employers may, however, feel a bit dazed and confused about its workplace implications. Let’s try to clear that purple haze.

The main thing employers need to know is that the law prohibits them from discriminating in two distinct ways.  First, employers must not discriminate in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s enrollment in the state’s medical marijuana registry program. In other words, employers cannot take adverse action against someone just because he or she is a patient enrolled in the program.

Second, employers must not discriminate against someone who tests positive for cannabis unless the person used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Thus, being on the registry is not permission to show up stoned or light up at work.

It’s important to note that under this new law, these two forms of discrimination are actually permitted if not discriminating would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations. Because of this exception, employers need to take a close look at whether or not they are subject to any federal laws or regulations or licensing restrictions regarding their employees’ marijuana use.

The law also allows a person to present, as part of his or her explanation of a positive test under Minnesota’s Drug and Alcohol Testing in the Workplace Act, verification of his/her enrollment in the state’s patient registry. Although the verification might help explain the positive test, the law does not say that such a verification justifies using, possessing or being impaired by cannabis at the workplace or during work hours. Thus, employers with MDATWA-compliant drug and alcohol testing policies will need to be prepared to address such explanations if provided.

Finally, although the law passed on May 29, 2014, the workplace implications of medical marijuana will not hit until mid-2015. According to the Minnesota Department of Health, patient registrations will not be accepted until May or June of next year, and medical cannabis will not be available until July 1, 2015. Nevertheless, employers should prepare for this by adopting or modifying workplace drug and alcohol policies, including MDATWA-compliant testing policies, to address these issues.

Still confused? Try a bit of Jimi at Woodstock. Then contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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September 12, 2014

FLSA: counting the cost locally

Posted in Exempt/Non-Exempt Employees, Fair Labor Standards Act, Overtime tagged , , , , , , at 11:08 am by Tom Jacobson

time clockA Douglas County, MN employer recently learned a costly lesson when it misunderstood who is and is not exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA).

In this case, an employee was given a “manager” title and paid a fixed salary, but the employee alleged that his duties were primarily custodial and customer service and did not fit within any exemption allowed by the FLSA. Applying the formula set by FLSA regulations, the employee converted his “salary” to an hourly rate ranging from $11.61 to $13.54 with an overtime premium ranging from $5.81 to $6.77 per hour.

Failing to pay an employee an additional $5.81 to $6.77 per hour may not seem like a terribly expensive mistake, but in this case the employee had evidence suggesting that he had worked about 640 hours of unpaid overtime during his last year of employment. This calculated to approximately $3,800.00 of unpaid overtime, but that wasn’t the end of the story. The FLSA also allows an employee to double the amount of unpaid back wages as liquidated damages, so using the employee’s figures, the $3,800.00 became $7,600.00.

To compound the problem, the employee claimed that the employer also withheld $1,300.00 of the his final wages in violation of Minn. Stat. § 181.13, thus triggering the 15 day wage penalty of that statute. This added another $1,700.00 to the employee’s claim.

Because these laws also allow the employee to recoup his attorney’s fees incurred in trying to recover his wages, he tacked them on as well. Those fees exceeded $4,000.00.

Thus, the employee argued that the employer’s $6.00 per hour mistake became a liability exceeding $14,000.00 (excluding the employer’s own attorney’s fees incurred in defending the claim). The case was eventually settled out of court with a confidential agreement between the parties.

The case illustrates how costly it can be when an employer improperly classifies a non-exempt employee as exempt under the FLSA. Simply calling someone a “manager” and paying her a fixed salary does not automatically make her exempt from overtime. This is because exemptions are highly dependent on the employee’s actual duties, not her title and form of pay. And, while an hour of unpaid overtime may not seem like a huge risk, when those hours accumulate over time and are doubled as liquidated damages, a few dollars can quickly become several thousand, especially when attorney’s fees and court costs are added. Moreover, it’s a much greater problem if multiple employees are involved.

For more information about FLSA exemptions, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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