Employment Law This Week®: Cannabis User Protections, WHD Opinion Letters, New Salary History Bans, NYS Anti-Harassment Training Deadline

Episode 143: Monthly Rundown August 2019

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into August 2019. The episode includes:

1. Increased Employee Protections for Cannabis Users

Employment protections for pot users are on the rise. Last month, New Jersey amended its medical marijuana law to provide express protections to employees who use medical marijuana. At the same time, New Jersey’s Supreme Court is considering whether medical marijuana users are entitled to “reasonable accommodations” under the state’s discrimination laws. Meanwhile, New York legislators could not come to agreement on a recreational legalization bill, which likely would have included employment protections, so, instead, they decriminalized possession of less than 2 oz. of marijuana. Look for lawmakers to try to pass additional regulations in the next session. Nevada recently became the first state to outlaw the rejection of applicants who test positive for marijuana, following New York City’s lead. And Illinois is now the eleventh state to legalize recreational marijuana. The new law puts into place the most comprehensive workplace protections for marijuana users.

“Starting January 1, 2020, Illinois residents over 21 years of age are going to be allowed to lawfully possess and purchase up to 30 grams of marijuana flower for their personal consumption. Under Section 10-50, employers are allowed to enforce reasonable drug-free workplace policies and zero-tolerance policies under the act. That means that an employer can actually terminate an employee based on a failed positive drug test. However, we believe this issue is going to be heavily litigated in the courts. Second, under the act, Illinois employers are allowed to make a disciplinary determination or a termination decision based on a good-faith finding of impairment. However, employers should note that if they are going to discipline an employee based on impairment, they must allow that employee an opportunity to contest the impairment decision.” —, Associate, Epstein Becker Green

2. First Opinion Letters Released Under New Wage and Hour Leadership

After a two-month hiatus, the Wage and Hour Division (WHD) of the U.S. Department of Labor has released a series of opinion letters. They are the first such letters issued under the new leadership at the WHD. As always, the letters address specific questions submitted by the public, but they can apply more broadly. Addressed in this series are the following: calculating overtime pay for nondiscretionary bonuses, applying overtime exemptions to paralegals, and rounding hours worked under the Service Contract Act.

Click here for more information: https://www.ebglaw.com/eltw143-wh

3. New Jersey and Illinois Enact Salary History Inquiry Bans

Illinois and New Jersey ban salary history inquiries statewide. This adds two large states to the growing number of jurisdictions using salary history inquiry bans to try and address the gender pay gap. The laws make it illegal for employers to screen applicants based on their salary history. The Illinois law will take effect on September 29, 2019, and the New Jersey law takes effect on January 1, 2020.

Click here for more information: https://www.ebglaw.com/news/new-jersey-becomes-the-latest-state-to-enact-a-ban-on-salary-history-inquiries/

4. Deadline for New York State Anti-Harassment Training Approaches

A heads-up for New York employers—the deadline for training New York employees on preventing sexual harassment and discrimination is October 9. All New York-based employees must be trained, regardless of the size of the employer’s New York workforce. And there are additional requirements for New York City employers. Visit https://www.ebglaw.com/oct9 for more information.

5. Tip of the Week

Lenora Billings-Harris, Diversity Strategist for Ubuntu Global, shares some tips on disrupting bias with teams and clients:

“Research repeatedly shows that organizations with diverse and inclusive workforce environments outperform their competition. Inclusion is the challenging part of the equation because of the impact of unconscious or implicit bias. Here are a few actions I invite you to practice with teams and with clients: Ask team members for their ideas before you mention yours. Invite the introverts to share. Be mindful of your unconscious non-verbals, such as eye contact and use of devices when others are talking. Ask for feedback specifically regarding the team process. You can’t control the behavior of clients, so here are a few tips to ensure your team members are heard regardless of titles, tenure, age, gender, or ethnicity: Before launching into the focus of the meeting, inform your client of the wealth of talent on your team as you introduce each person. Help the client understand the expertise among all present. Disrupting bias enables diversity of thought, which serves our organizations and our clients.”

Stay tuned for further developments that may affect your business.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns. Follow us on LinkedInFacebookYouTube, Instagram, and Twitter and subscribe for email notifications.

Trouble accessing the show? Please contact [email protected] and mention whether you were at home or working within a corporate network. We'd also love your suggestions for topics and guests!

EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C.

This Employment Law This Week® episode was also featured in “Cannabis Users Get Workplace Protection,” on TLNT, a resource for news, analysis and opinion on the business of HR for human resource and talent management leaders and professionals.