Hostile Work Environment And Diminished Job Performance

By Bryan A. Chapman, Esquire

A hostile work environment is a workplace that is hostile, abusive, and intimidating.  Federal laws prohibit workplace harassment that is based on an employee’s race, sex, religion, national origin, age, or disability. 

In Amirmokri v. Baltimore Gas & Electric Co., 60 F3d 1126 (4th. Cir. 1995), based on evidence that Amirmokri was called names including “the ayatollah,” “the local terrorist,” and “camel jockey,” the Fourth Circuit Court of Appeals allowed the case to go to trial on the issue of hostile environment harassment.  The Court focused on evidence that Amirmokri’s supervisor had intentionally embarrassed him by assigning him impossible tasks and telling co-workers that he was incompetent, which may have negatively affected both his performance and its evaluation.

Working in a hostile work environment can result in diminished job performance.  In Weiss v. United States, 595 F.Supp. 1050 (1984), a Virginia federal court stated, “…an employer cannot use an employee’s diminished work performance as a legitimate basis for removal where the diminution is the direct result of the employer’s discriminatory behavior.” Henson v. City of Dundee, 682 F.2d 897, 910 (5th Cir.1982); DeGrace v. Rumsfeld, 614 F.2d 796, 804 (1st Cir.1980).

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Cat’s Paw Theory: “Boss set me up!”

By Bryan A. Chapman, Esquire

The Cat’s Paw theory applies to some discrimination and retaliation cases.  If an employee’s supervisor, who is both biased and untruthful, convinces the employer to take an adverse action (i.e. termination, demotion, denial of promotion, suspension, etc.) against the employee, the employer could be found liable for discrimination or retaliation under the Cat’s Paw theory.  Staub v. Proctor Hospital, 562 U.S. 411 (2011)

The U.S. Supreme Court, in Staub v. Proctor Hospital, 562 U.S. 411 (2011), defined an employer’s liability under the Cat’s Paw theory:

  1. a non-decision maker, who is the employee’s supervisor, is motivated by discriminatory (or retaliatory) intent;
  2. the biased non-decision maker performs an act intended to cause the employee to suffer an adverse employment action (i.e. termination, demotion, denial of promotion, suspension, etc.); and,
  3. the biased non-decision maker’s act is a proximate cause of the adverse action.

The term Cat’s Paw comes from a French fable.  A monkey and a cat are sitting in front of a fire.  Chestnuts are roasting in the fire and the monkey wants a chestnut.  So, the monkey convinces the cat to fetch a chestnut out of the fire.  The cat fetches a chestnut but burns his paw in the process.  Meanwhile, the monkey eats the chestnut.

An employer can be found liable for discrimination or retaliation, even if the decision maker is not biased.  Liability can be established if the decision maker relies on a non-decision maker who is biased and untruthful.

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“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

By Bryan A. Chapman, Esquire

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance.  Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.

However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation.  A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee.  This can raise suspicion and expose an employer to liability.

“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action.  For instance, an employer can “paper” an employee’s personnel file by the following methods:

  • An employer may hold the employee to a higher standard than “similarly situated employees”.
  • An employer may scrutinize an employee.
  • An employer may singled out the employee for criticism or disciplinary action.
  • An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
  • An employer may solicit criticism of the employee from their co-workers and supervisors.
  • An employer may incite the employee’s co-workers and supervisors against them.
  • An employer may deliberately give the employee false write-ups and negative job performance evaluations.

Employers can use “papering” to cover-up discrimination and retaliation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)

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COVID-19: Employment Discrimination

By Bryan A. Chapman, Esquire

In the spring of 2020, COVID-19 caused massive disruption in the United States. Within a few months, millions of workers became unemployed due to COVID-19 related layoffs. According to the U.S. Labor Department figures, in April 2020, the number of unemployment workers exceeded those of the Great Depression, and Hispanics and African Americans workers were especially impacted. COVID-19 related layoffs disproportionately affected older and disabled workers.

According to AARP, when the overall U.S. unemployment rate spiked from 4.4% in March to 14.7% in April, the unemployment rate for women 55 and older rose even more: from 3.3% to 15.5%. The unemployment rate for men 55+ also soared, though a little bit less, from 3.4% to 12.1%.

Some employers see COVID-19 related layoffs as an opportunity to eliminate older workers. To these employers, older workers represent higher salaries and higher expenses due to insurance costs and paid time off due to illness. Some employers may have a similar attitude about disabled workers.

According to a May 2020 Bureau of Labor Statistics (BLS) Jobs Report, the number of working-age people with disabilities who were employed decreased by 950,000 between March and April (from 4,772,000 to 3,827,000), a 20 percent reduction.

Nonetheless, federal workplace anti-discrimination laws still apply. A worker can not be discrimination against and/or harassed based on their race, sex, national origin, religion, age, or disability.

The U.S. Equal Employment Opportunity Commission (EEOC) specifically warned employers about discriminatory layoffs. According to the EEOC, an employer should “review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws”.

COVID-19 layoff can facilitate sexual harassment. Supervisors can use the threat of a COVID-19 related layoff to force subordinates to submit to unwanted sexual advances.

The earliest cases of COVID-19 occurred in China. As a result, Asian and Asian American workers have become targets for workplace discrimination/harassment.

Discrimination

Employers can deliberately use COVID-19 as a pretext to discriminate against and/or harass workers based on their race, sex, national origin, religion, age, or disability. Here are examples of illegal workplace discrimination:

1. you are laid off, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

2. you are denied a promotion or increase in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

3. you are demotion or given a reduction in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

4. you are given an undesirable assignment or shift, while workers of a different race, sex, national origin, religion, age, or without a disability are not; and,

5. you are being verbally or physically harassed, while workers of a different race, sex, national origin, religion, age, or without a disability are not.

Retaliation

Federal workplace anti-discrimination laws also prohibit retaliation. Retaliation occurs when a worker is mistreated because they complained about discrimination. Here are examples of retaliation:

  1. undesirable transfers

2. unwarranted disciplinary action

3. harassment

4. refusal of deserved promotion or pay increase

5. demotion or pay reduction

6. termination of employment

Retaliation occurs when an employer takes an adverse action against a worker that is designed to stop a worker from complaining about discrimination/harassment. The adverse action should occur shortly after the worker complains.

Consult an attorney

If you are a victim of discrimination or retaliation, consult an experienced civil rights attorney.

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Advocating for workers against powerful employers since 1993

Bad Things Happen to Good People.

These are difficult times. You need a passionate lawyer to advise you and stand up for your rights.

What are your rights?

COVID-19 has caused massive layoffs. Nonetheless, anti-discrimination laws still exist and are enforceable. You can’t be discriminated against or harassed because of your race, sex, national origin, religion, age, or disability.

Workplace discrimination and harassment can cause stress, anxiety, depression, and post-traumatic stress disorder (PTSD). It can lead to chronic conditions, such as, high blood pressure and poor blood sugar control.

Doing nothing will harm your health. Taking action can bring relief. 

COVID-19

If you have a underlying health condition, such as, hypertension, diabetes, heart disease, etc., that puts you at greater risk from COVID-19, you have the right to request a reasonable accommodation that reduces your exposure to COVID-19. It’s a matter of life or death.

Call Now 202 508-1499.

Major credit and debit cards are accepted online.

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Avoiding Discrimination in Layoffs or Reductions in Force (RIF)

U.S. Equal Employment Opportunity Commission


Making an Employment Decision?

Before implementing a layoff or reduction in force (RIF), review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws.

  • List the employees who would be laid off or terminated based on your layoff/RIF criteria.
  • Determine whether certain groups of employees are affected more than other groups.
    • For example, to determine whether female employees may be affected more than male employees, compare the percentage of female employees scheduled for layoff/RIF to the percentage of female employees in your workforce.
  • If certain groups of employees are affected more than other groups, determine if you can adjust your layoff/RIF selection criteria to limit the impact on those groups, while still meeting your business’s needs.
    • For example, you decide to lay off the most recently hired employees due to budget constraints. Female employees account for 30% of your workforce and 85% of the employees scheduled for layoff. Determine whether you can adjust your layoff criteria in a way that allows you to meet your financial goals while also reducing the impact on female employees. For example, you might determine whether alternative layoff criteria, such as employees’ profitability, productivity or expertise, would enable you to reach the desired financial outcome and result in the layoff of fewer female employees.

This process can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

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Laid off? These are the legal rights that can protect you

Get some answers to your questions about employment law, wrongful termination, severance, and more.

Source: Monster

Dawn Papandrea, Monster contributorLaid off? These are the legal rights that can protect you

Understand what your legal rights are when you’ve been laid off.

In most cases when people are laid off, they are so shocked or emotional about the experience that they aren’t sure what to do, what their rights are, or if they might even have a legal basis to sue. As a result, they end up walking away, no questions asked—sometimes with severance pay, sometimes with nothing at all.

If you’ve been laid off, step one is to breathe. You have every right to feel stunned.

“Most employees start jobs and no one ever thinks about what’s going to happen in the event of termination,” says Christopher Davis, managing partner of Law Office of Christopher Q. Davis, based in New York.

So would you know what to do if your boss called you in to have the layoff talk tomorrow? Here’s what employment law experts say you should know.

What laws protect you during a layoff?

The default in virtually all employment situations is “at will” employment, says Marc Siegel, founder and managing partner of Chicago-based Siegel & Dolan, mediator, and arbitrator. “That means an employer can terminate you for any reason, or no reason at all, as long as it’s not discriminatory.”

If you’re in a protected class based on your age, sex, national origin, religion, or race, or if you have a disability, and you can prove that you were laid off because of it, then you might have a case.

Without getting too deep into legal jargon, here’s a quick look at some of the federal discrimination laws that cover workers.

If you’re over 40: The Age Discrimination in Employment Act (ADEA) of 1967 protects workers 40 and older. In addition, if you’re in that age category and you’re part of a group layoff, you’re also protected by the Older Workers Benefit Protection Act. This gives you 21 days to consider any severance offer, and another seven days to revoke your agreement.

If you’re part of a minority group: Title VII of the Civil Rights Act of 1964 prohibits companies from making employment decisions based on race/color, religion, sex, pregnancy or national origin.

If you have a disability: The Americans with Disability Act (ADA) of 1990 prohibits employment discrimination against those with disabilities.

Just suspecting your affiliation with one of these groups prompted your layoff isn’t enough to bring a claim, says Davis. “You have to prove ‘disparate impact discrimination,’ which involves some quick math. Has the company put a larger number of members of a protected category into the group of people being terminated?” says Davis.  

Other potentially illegal reasons for a layoff include:

If the employer violates public policy: For example, if an employee files a workman’s compensation claim or reports an illegal or unethical behavior, and then a couple of months later is terminated, that worker might be able to prove that the layoff was done in retaliation, says Siegel.

Read up on federal whistleblower laws, as well as those in your state, if you find yourself in this situation, says Davis.

If you have to take care of a family member who is ill: The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 work weeks unpaid (26 if the care is for a service member), job-protected leave for specified family and medical reasons with continuation of group health insurance coverage.

If your employer is large: The Worker Adjustment and Retraining Notification (WARN) Act sets rules for notifying workers about large layoffs and plant closures. You must receive a written notice 60 days before the date of a mass layoff. If not, you may be able to seek damages for back pay and benefits for up to 60 days. In some states like New York, employers have to give 90 days notice.

If you think you were laid off because of any of the above reasons, consult with a local attorney to help you decide if legal action is warranted. You may also contact the Equal Opportunity Employment Commission (EEOC) to file a complaint.

What can you expect in severance?

Questions of legality aside, you might be wondering if you’re entitled to severance, and if it’s worth negotiating for a better package. First off, know that an employer is not obligated to give severance at all. “Some companies offer severance as a matter of company policy,” says Davis, “but it is discretionary.”

In larger companies, severance plans may be based on a set, standard formula, says Siegel. “Generally, you’ll see offers of one to four weeks of pay per year of service, and it’s capped at a certain number of weeks,” he adds.

The other aspect of the severance besides what you’ll be paid is what rights you’re giving up. “If you’re getting a severance, it could be that the company is trying to discourage you from consulting with a lawyer,” says Davis. Once you sign the agreement, you give up your right to sue. “That’s valuable to a company because they don’t want to have to pay lawyers or pay settlements or judgments.”

Also, be very careful about covenants that follow you, says Siegel. “If there are any post-employment restrictions about soliciting customers or working for competitors, sometimes the amounts they’re paying you might not be worth it,” he says.

Similar to a salary negotiation, you don’t necessarily have to take the first offer when you’re handed a severance. “There could be room to negotiate your severance. Every agreement isn’t just a goodwill gesture,” says Davis. “Companies do pay out more if there are legitimate legal claims, so always run it by a lawyer.”

In fact, coming away with a better severance is often a person’s best recourse rather than suing, since doing the latter can take years and require a lot of legal fees.

Under what circumstances should you sue? 

If you think you have a good case, you could go ahead and sue your employer, but bear in mind that it’s an arduous process, says Siegel. Ask yourself these questions:

What type of claim do I have, and is it worth fighting?

Of all the potential claims, Siegel finds that Family Medical Leave cases tend to be easiest to win, assuming you have good evidence. “Everyone knows someone who’s been sick, so juries are more sympathetic,” he says. In addition, the standard of proof in such cases is more lenient than in other cases.

Take age discrimination cases, for instance. Those require the higher “but for” standard of proof, says Siegel. In other words, you have to prove that “but for” your age, you would not have been terminated. Also, in age cases, even if you do win, don’t expect large payouts. The ADEA doesn’t allow for emotional distress damages or punitive damages, says Siegel.

With racial and sexual discrimination cases, the burden of proof is slightly less stringent—you just have to show race/sex was one factor in the discharge, says Siegel. The challenge is trying to get a unanimous jury to agree. If you can, though, you may win compensatory and punitive damages (which are allowed), says Siegel, especially in states like California where damages are uncapped.

How big of a layoff is it?

The more people that are being let go, the harder it’s going to be hard to show you were being targeted unless you have some pretty good evidence,” says Siegel. Unfortunately, he adds, sometimes companies use a mass layoff to let a ‘red flag’ person go—whether it’s a 65-year-old, a member of a minority group who is likely to claim discrimination, or a person who filed a sexual harassment complaint. “When they are let go with everyone else, it’s much harder to prove discrimination,” says Siegel.

Where do you live?

Depending on your state’s laws, you might have an easier time of winning a case. Siegel says generally speaking, states such as Illinois, New York, and California have stronger employee protections. Read up on your state’s labor laws via the Department of Labor’s website.

Ultimately, consulting with an attorney can help you determine whether your layoff appears to be legal or illegal, but only you can determine whether the cost of going after your former employer is worth the time and effort.

Now that you have a better understanding of your rights, should the day come when you’re laid off, you won’t be so caught off guard and will be in a better position to negotiate. If you think you might have a legal claim, be sure to work with an employment lawyer to help you walk away with a better severance or, if warranted, pursue a lawsuit.

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When You Can Sue an Employer for Wrongful Termination

Disappointed Businesswoman Standing With Cardboard Box in Office
•••

BY JEN HUBLEY LUCKWALDT 

April 24, 2019

If you’ve recently been terminated for cause, you may be wondering whether your employer was within their rights to fire you—or whether your dismissal constitutes wrongful termination. And, if it turns out you were fired illegally, your next question will probably be whether you can—and should—sue.

What Doesn’t Count as Wrongful Termination

The majority of workers in the United States are employed at will, which means that their employers can fire them for any reason, or no reason at all, provided that the reason isn’t discriminatory. (More on that in a minute.)

  • This means that it’s usually legal for your employer to terminate your employment unexpectedly, without advanced warning, and to decline to provide a reason for your termination.

In fact, many employers choose to offer as little notice or explanation as possible, even going so far as to characterize the termination as a layoff, rather than take the risk of violating the law by providing a reason that later turns out to be discriminatory.

Bottom line: Unless you have an employment contract or collective bargaining agreement that mandates a certain amount of notice, it’s legal for your employer to fire you without notice.

They are also not obligated to provide you with an opportunity to correct issues pertaining to your work performance before terminating your employment. (Although again, as a matter of company policy, many employers will create a standard process for termination that includes a performance improvement plan, both to minimize the chances of legal hassles and to maintain good morale among the staff.)

Examples of Wrongful Termination

Per federal law, it’s illegal for employers to discriminate in hiring, firing or promotion on the basis of:

  • Sex or Gender
  • Race or Color
  • Religion
  • National Origin
  • Disability
  • Pregnancy
  • Age (over 40, per federal law, although some states offer protections for workers younger than age 40)
  • Genetic Information

Workers can also sue or file a complaint with the Equal Employment Opportunity Commission if they are sexually harassed at work, fired for being a whistleblower, subject to constructive discharge (aka forced to resign), or made to endure a hostile work environment.

Questions to Ask Yourself Before Suing

1. Do you feel that the termination was based on discrimination? If so, you will likely have to file a charge of discrimination with the EEOC before filing a job discrimination lawsuit against your former employer. (The exception: violations of the Equal Pay Act do not require you to file a charge, provided that you file your suit within two years of the pay discrimination.) Keep in mind that you have a limited amount of time in which to file—generally, 180 days from the time of the incident, although local laws may extend this deadline to 300 days. For more information, see the EEOC’s page on filing a discrimination charge.

2. What’s your goal in suing (and is it realistic?) Do you want money, a change in behavior, or just the satisfaction of knowing that they didn’t get away with it, scot-free? It’s important to know what your goals are before you get embroiled in a long legal process. Consult with an employment attorney early on, to figure out whether your goals are reasonable. 

3. Are you willing to invest time and money in pursuing your case? Unless you’re able to find an employment attorney to take your case pro bono, suing is expensive. It can cost thousands of dollars to take a suit to trial. To make matters worse, employers typically have in-house lawyers at the ready to wear you down with delays and postponements. On the other hand, many lawful termination lawsuits never reach trial, often because employers choose to settle. Think about how much time, money, and effort you can afford to put into the process before you proceed.

How to Move on After Being Fired

Regardless of whether you choose to sue for wrongful termination, you’ll need a plan for moving forward after being fired. That means knowing your rights as a (former) employee, including when and where to pick up your final paycheck, whether you’re entitled to pay for accrued vacation and sick time, what will happen with your health care benefits, retirement plan, any stock options and more.

HR will be able to assist you with these questions, as well as inform you about how the company plans to characterize the dismissal. It’s in your best interests to find out now before future employers call asking to verify your employment history.

Don’t assume that they’ll say the worst: many organizations have a policy of confirming no more than job title and dates of employment. You may even be entitled to unemployment benefits, depending. You won’t know until you ask.

Looking toward the future, practice answering interview questions about the termination, and gather references from contacts to bolster your candidacy for jobs. Don’t let this reversal stand in the way of your success. Many famous and influential people were fired before making their mark on the world, including Steve Jobs, Oprah Winfrey, and Thomas Edison. 

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Do Employees Have Any Protections From Being Laid Off?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

While employers are generally free to conduct layoffs at any time, even at-will employees have some protections.

In the United States, employers have a great deal of leeway in conducting layoffs. This doesn’t mean every layoff is legal, however. Employers may not discriminate based on certain protected characteristics in deciding who loses their jobs, for example. Employers also may not lay off an employee if it would violate an employment contract. And, larger employers may have to give employees notice of a layoff in advance.

Employers Must Not Discriminate in Layoffs

Most employees in this country work at will, which means they can quit or be fired at any time, with or without cause, as long as the employer doesn’t fire them for an illegal reason. One illegal reason is discrimination based on a characteristic protected under federal or state law, such as race, national origin, or gender. Employers that use the layoff process to discriminate against employees based on a protected trait can be sued.

For example, if an employer uses a layoff as a pretext to get rid of most of its female employees, that would be illegal. Whether the job action is called a termination or a layoff, it is illegal to make job decisions based on protected characteristics.

Employment Contracts May Offer Protections

Some employees have written employment agreements that guarantee continued employment for a period of time, such as one year. If you have a contract like this and you are laid off for reasons that aren’t stated in the contract, you might have a legal claim for breach of contract.

Even if you don’t have an individual employment contract, you might have other contractual protection against layoffs. If you are a union member, your collective bargaining agreement might spell out the circumstances in which you can be laid off, or the process that your employer must follow in deciding which employees lose their jobs. Talk to your union representative to find out.

In addition to the right to notice under the WARN Act and similar state laws, you have the right to any severance promised in your employer’s policies, your employee handbook, or your employment contract.

Federal Law Requires Advance Notice of Mass Layoffs

The federal Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more employees to give at least 60 days’ notice before conducting a mass layoff: a reduction in force in which at least 500 employees at a single job site will lose their jobs, or in which 50 to 499 employees lose their jobs if they make up at least one-third of the employer’s work force.

Employers must also give 60 days’ notice of plant closings: the shutdown of a single employment site, operating unit, or facility, in which at least 50 employees lose their jobs.

The WARN Act requires only that employers give notice; it doesn’t protect employees from layoffs, nor does it require employers to pay any severance. Some states have similar laws requiring notice, and a few require employers to pay a small amount of severance.

Your Rights in a Layoff

Even if you don’t have the right to keep your job, you might still have certain rights in a layoff. In addition to the right to notice under the WARN Act and similar state laws, you have the right to any severance promised in your employer’s policies, your employee handbook, or your employment contract. For example, if your employee handbook states that employees who are terminated will receive severance of one week’s pay for every year of employment, you are entitled to that severance pay when you are laid off.

In addition, you have the right to receive your final paycheck relatively quickly after you lose your job. Some states, such as California, require employers to provide the final paycheck immediately upon termination. Other states give employers more time: For example, Vermont requires payment within 72 hours, while New York requires payment by the next regularly scheduled payday.

You may also have the right to continue your group health insurance plan under the federal COBRA law.

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“Can I Be Fired for Using Medical Marijuana?”

By Bryan A. Chapman, Esquire

Medical marijuana use is legal in approximately 33 states and the District of Columbia. In the District of Columbia, a licensed physician can recommend medical marijuana for conditions, such as: HIV, AIDS, cancer, glaucoma, conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis; patients undergoing chemotherapy or radiotherapy, using azidothymidine or protease inhibitors, decompensated cirrhosis, Lou Gehrig’s disease, Cachexia or wasting syndrome, Alzheimer’s Disease, and seizure disorders.

ISSUE:

In a state or locality where medical marijuana use is legal, can a registered medical marijuana user, with a recommendation from a licensed physician, be fired from their job for using medical marijuana during off hours to treat a debilitating medical condition? The answer is complicated.

 CURRENT STATUS:

State and local laws concerning the protection of registered medical marijuana users are quickly evolving across the country.  The trend is to give registered medical marijuana users greater protection against being terminated by their employers.  A registered medical marijuana user who is using medical marijuana to treat a debilitating medical condition may be entitled to a reasonable accommodation under some state and local laws.

 WHAT EMPLOYEES NEED TO KNOW ABOUT D.C.’S MEDICAL MARIJUANA LAWS.

As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users.  Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.

The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”

The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

Act Number A23-0114 specifically protects District of Columbia government employees but it does not protect District of Columbia private sector employees.  Nationally, state and local laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.

In the past, an employer could terminate an employee who tested positive for marijuana.  However, the current trend, in the law, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in localities and states where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users. 

Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users.  Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”) Furthermore, the Americans with Disability Act (ADA) does not protect medical marijuana users from termination by their employers either.

However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether the District of Columbia court, D.C. Superior Court, would determine that private sector District of Columbia employees, who are medical marijuana users, have similar protection. Filing a disability claim under the D.C. Human Rights Act may be the test.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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