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Advocacy & Compliance News

Legal Watch - June 3, 2015
June 3, 2015

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP


EEOC Files Disability Claim for Epileptic Nurse Fired for Using Medical Marijuana

The EEOC successfully defended a motion for summary judgement and will proceed to a jury trial under the Americans with Disabilities Act in a case involving a nurse who suffered from epilepsy (EEOC v. Pines of Clarkson (2015 BL 123878, ED Mich., No. 13-14076, 4/29/15)). The EEOC alleges the nurse was fired because of her epilepsy, which is a disability covered under the ADA. Her nursing home employer alleges that the nurse was fired not because of her epilepsy but because she tested positive for marijuana use in the company’s initial drug test.

While the use of medical marijuana is lawful in Michigan (where the nurse was employed), the federal appeals court with jurisdiction over Michigan had ruled previously that the state law allowing medical marijuana use does not restrict a private employer from firing an employee for marijuana use (Casias v. Walmart Stores (695 F.3rd 428, 6th Cir. 2012)). After the nurse tested positive for marijuana during her first week of employment, she met with her supervisors and advised them that she used medical marijuana as a result of her epilepsy. The supervisors questioned her on her epilepsy and later terminated her employment.

The court ruled in favor of the EEOC, directing the case to go to a jury trial over whether the employer’s stated reason for termination — failure of a drug test — was a pretext for the real reason for her termination — her protected disability, epilepsy. In arriving at its decision, the court cited the employer’s slightly shifting explanation as to the reason for termination as justifying a jury trial. The court summarized that the employer stated in its position statement to the EEOC that the nurse was terminated for failure to disclose the use of medical marijuana prior to the drug test. This differed slightly from the employer’s summary judgment papers in which it stated that the nurse was fired for failing the drug test.


Court of Appeals Rules Sexual Harassment/Rape Claim Not Subject to Mandatory Arbitration

The Ohio court of appeals struck down a standard mandatory arbitration agreement signed by an employee as “unconscionable,” holding it related to matters outside the scope of employment (Arnold v. Burger King (2015 BL 125643, Ohio Ct App., No. 101465, 4/30/15)). The provision was a standard JAMS provision stating that “any and all disputes, claims or controversies for monetary or equitable relief arising out of or relating to employment” are subject to mandatory arbitration. The agreement also stated that it applied to “all claims or controversies relating to events outside the scope of employment.”

The plaintiff alleged that she was raped by her supervisor at work as she was cleaning the restrooms (which was part of her job responsibilities). The plaintiff alleged that her supervisor followed her into the restroom, grabbed her, “pushed her against the door and forced her to give him oral sex.” She sued in Ohio state court alleging sexual harassment, assault, intentional tort and emotional distress. The defendant employer filed a motion to dismiss and compel arbitration pursuant to the agreement the plaintiff signed.

The court of appeals wrote that it is ordinarily not within an arbitrator’s purview to determine whether one employee was raped by another. The parties were of uneven bargaining power, which the court concluded led to the decision to hold the mandatory arbitration agreement unenforceable because it is unconscionable. The court also recognized as unfair the fact that the arbitration agreement required the employee to pay an arbitration filing fee, whereas if the employee sued in court all she would have had to do was hire an attorney on a contingency fee basis.


Montana Limits Employer Access to Social Media Accounts

Montana became the 20th state to limit private employer access to personal social media accounts of employees and job applicants. Montana is the second state in 2015 to enact a social media password privacy bill, following Virginia’s action earlier this year. The Montana statute is effective immediately. Under the statute, employers cannot require that current or prospective employees share their log-in credentials or divulge any communication made through their social media accounts, and employers are also barred from retaliating against current or prospective employees who refuse to share this information. The law does allow an employer to request the log-in information in a workplace misconduct situation or if confidential or proprietary information is shared with an employee.


New York City Bars Private Employer Use of Credit Checks

New York City’s mayor recently signed a local law barring all private employers in the city from discriminating against current or prospective employees on the basis of their credit history. There are exceptions to the law for law enforcement positions, other positions involving a high level of public trust or access to sensitive information, and to employers conducting a credit history check pursuant to federal or state laws or regulations.


Lesley University Adjuncts Ratify SEIU Collective Bargaining Agreement, Webster University Adjuncts Reject Representation

Adjunct professors at Lesley University in Cambridge, Massachusetts, recently ratified a new labor contract. Of the 700-member adjunct professor bargaining unit at Lesley University, roughly half submitted votes, with 96 percent in favor of contract ratification. According to SEIU Local 509 representatives who negotiated the new contract, approximately 80 percent of adjuncts will receive a 33 percent wage increase over the three-year term of the contract. The remaining professors will receive a 13 to 18 percent raise over the three-year term, according to the union. The university spoke positively of the negotiation and new agreement.

Elsewhere, adjunct faculty at Webster University in St Louis, Missouri, voted against representation by SEIU Local 1 by a vote of 268 to 212 in an election supervised by the NLRB. There were an additional 53 challenged ballots, according to the NLRB. Adjunct faculty at Washington University in St. Louis voted in favor of SEIU Local 1 representation in January 2015, becoming the only institution in the area with union-organized adjunct faculty.


U.S. Court of Appeals Rules Tenure-Track Professor Has No Property Interest in the “Opportunity to Satisfy Tenure Criteria” and Dismisses Due Process Claim

The U.S. Court of Appeals for the Fifth Circuit recently dismissed a fired tenure-track professor’s claim of due process denial, holding that the professor has no property interest in the “opportunity to satisfy tenure criteria” Klingler v. University of Southern Mississippi (2015 BL 136255, 5th Cir., No. 14-60007, unpublished 5/11/15)). The professor was on an annual contract that had to be renewed each year. He argued that his termination denied him his right to satisfy tenure criteria. Moreover, he claimed that he must be afforded due process before his constitutionally protected property interest is eliminated by his termination.

The university defended by arguing that the professor had no constitutionally protected property interest in the “opportunity to satisfy tenure criteria” and that this is not the same as the termination of a tenured professor, which would accord the professor due process rights. The court of appeals agreed with the university. The university terminated the professor after he violated the university’s ban on contacting students after he had been accused of making threatening comments toward a student who had criticized his classroom conduct.