Smoking 2 joints for your back pain may get you fired

Gary Ross had a doctor's prescription to marijuana for his chronic back pain, pursuant to the Marijuana Compassionate Use Act of 1996.

In 2001, Ragingwire Telecommunications offered Ross a job as a lead systems administrator as long as he passed a drug test.

Ross failed the drug test when it showed positive results for THC, the active chemical in marijuana. Subsequently, Ragingwire terminated Ross' employment based on the results of the drug test.

Ross sued Ragingwire for disability discrimination, on the grounds that marijuana use is a reasonable accommodation for back pain, as well as for wrongful termination in violation of public policy and breach of implied contract that required terminated based on good cause.

On September 7, 2005, the Court of Appeals held that an employer need not accommodate a disability by allowing an employee to use a drug that is illegal under federal if not state law. It also held that there was good cause to terminate Ross' employment.

"If the pink slip doesn't fit,
get redressed!"
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Employers may no longer be allowed to buy their violations of the FMLA through severance packages

Employers commonly include waivers of Family and Medical Leave Act (FMLA) claims in their employees' general release and severance agreements. The agreements usually do not refer to the FMLA by name, but instead include catch-all provisions releasing claims arising under any other federal, state, or local law.

In May 2003, Barbara Taylor brought a lawsuit against her employer who argued that Taylor had waived her FMLA claims when she signed a general release and severance agreement in exchange for a $12,000 severance package.

The 4th Circuit held that the plain language of the FMLA prohibited the waiver or release of all FMLA claims, whether prospective or retrospective.

The Court made an exception that a waiver of FMLA claims could be made under DOL or court supervision.

Employers may still include specific statutes in the release provisions of a severance agreement but, in doing so, risk excluding other important statutes from its coverage.

Other Circuits (not including the 5th, which has taken the opposite position) and the Supreme Court have yet to decide whether they will adopt the reasoning of Taylor.


"If the pink slip doesn't fit,
get redressed!"
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Labor violations in unregulated industries

Nannies, housecleaners, and caretakers all work in a largely unregulated industry - no contracts, timecards or other detailed records.

On its face, the industry seems mutual for both employees and employers.

The employees are generally flexible and willing to work cheaply.

The employers are ready to hire these employees.

Both reap the benefit of not paying tax.

However, workers have few protections and labor violations are very common. Workers are hesitant to come out against their employers because of their financial status and their fear of getting deported.

More and more workers (most of whom are women) are slowly confronting employers, filing wage claims, forming collectives, and pushing for legislation to guarantee more rights.

Rick Oltman, Western field director for the Federation of American Immigration Reform, says that the fact that many undocumented workers are willing to bring their cases to the attention of state officials "shows that they have no fear of our government enforcing our immigration laws."

Under the law, even undocumented workers are entitled to earn minimum wage ($6.75 an hour) and overtime pay. They also have the right to receive rest and meal breaks.

"If the pink slip doesn't fit,
get redressed!"
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Plain Janes need not apply

A Harrah bartender named Darlene Jesperson was fired from her job in 2000 for refusing to comply with the company's “Beverage Department Image Transformation” program which required all female beverage servers to (1) wear stockings and nail polish, (2) wear their hair “teased, curled, or styled", (3) wear makeup, including foundation/concealer and/or face powder, blush, mascara, and lip color, but did not provide male beverage servers with any such stringent grooming requirements.

Jespersen filed suit against Harrah's alleging that the makeup requirement for female beverage servers constituted disparate treatment sex discrimination.

In December 2004, Darlene Jespersen's case was dismissed by a three-judge panel of the U.S. 9th Circuit Court of Appeals, which affirmed the district court ruling and held that Harrah's appearance standards did not constitute sex discrimination as the appearance standards imposed equal burdens on both sexes.

Aside from cutting their fingernails and keeping their hair short, the only "stringent" requirement for male beverage servers was that they be prohibited from wearing makeup.

The current law is that employers cannot impose a greater burden on one sex than the other when it comes to appearance standards.

Jespersen contended that the makeup requirement imposes “innumerable” tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time.

The court held that there was no evidence to support the contention and refused to allow the case to go to a jury under a theory that a jury could apply simple common sense without specific supporting evidence.

In May 2005, the court reversed the ruling and ordered the case to be reheard by an 11-judge panel.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Hybrid category of gender discrimination and harassment created by the 9th Circuit

From Law.com:

You don't have to be a groper, lecher or explicit misogynist to get sued for sex-based harassment, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Friday.

The opinion, in a case originating at an Alaska teachers union, said that Thomas Harvey, a manager accused of "shouting, 'screaming,' foul language, invading employees' personal space ... and [making] threatening gestures" may be sued for gender-based discrimination under Title VII of the Civil Rights Act of 1964, even though his acts were not overtly motivated by the victims' gender.

"We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees," wrote Senior Judge Alfred Goodwin in a unanimous decision.

"If the pink slip doesn't fit,
get redressed!" Click to see my wardrobe of remedies.

Katrina Takes A Swipe at Lady Justice

The following is a report from:
Professor Michelle Ghetti
Southern University Law Center
Baton Rouge, LA 70813

5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their offices, their libraries, their computers with all information thereon, their client files - possibly their clients, as one attorney who e-mailed me noted. As I mentioned before, they are scattered from Florida to Arizona and have nothing to return to. Their children's schools are gone and, optimistically, the school systems in 8 parishes/counties won't be re-opened until after December. They must re-locate their lives.

Our state supreme court is under some water - with all appellate files and evidence folders/boxes along with it. The 5th Circuit Court of Appeals building is under some water - with the same effect. Right now there may only be 3-4 feet of standing water but, if you think about it, most files are kept in the basements or lower floors of courthouses. What effect will that have on the lives of citizens and lawyers throughout this state and this area of the country? And on the law?

The city and district courts in as many as 8 parishes/counties are under water, as well as 3 of our circuit courts - with evidence/files at each of them ruined. The law enforcement offices in those areas are under water - again, with evidence ruined. 6,000 prisoners in 2 prisons and one juvenile facility are having to be securely relocated. We already have over-crowding at most Louisiana prisons and juvenile facilities. What effect will this have? And what happens when the evidence in their cases has been destroyed? Will the guilty be released upon the communities? Will the innocent not be able to prove their innocence?

Our state bar offices are under water. Our state disciplinary offices are under water - again with evidence ruined. Our state disciplinary offices are located on Veteran's Blvd. in Metairie. Those of you who have been watching the news, they continue to show Veteran's Blvd. It's the shot with the destroyed Target store and shopping center under water and that looks like a long canal. Our Committee on Bar Admissions is located there and would have been housing the bar exams which have been turned in from the recent July bar exam (this is one time I'll pray the examiners were late in turning them in - we were set to meet in 2 weeks to go over the results). Will all of those new graduates have to retake the bar exam?

Two of the 4 law schools in Louisiana are located in New Orleans (Loyola and Tulane - the 2 private ones that students have already paid about $8,000+ for this semester to attend). Another 1,000+ lawyers-to-be whose lives have been detoured. I've contacted professors at both schools but they can't reach anyone at those schools and don't know the amount of damage they've taken. Certainly, at least, this semester is over. I'm trying to reach the Chancellor's at Southern and LSU here in Baton Rouge to see if there's anything we can do to take in the students and/or the professors. I think I mentioned before, students from out of state have been stranded at at least 2 of the other universities in New Orleans - they're moving up floor after floor as the water rises. Our local news station received a call from some medical students at Tulane Medical Center who were now on the 5th floor of the dormitories as the water had risen.&nbs p; One of them had had a heart attack and they had no medical supplies and couldn't reach anyone - 911 was busy, local law enforcement couldn't be reached, they were going through the phone book and reached a news station 90 miles away!! It took the station almost 45 minutes to finally find someone with FEMA to try to get in to them!!

And, then, there are the clients whose files are lost, whose cases are stymied. Their lives, too, are derailed. Of course, the vast majority live in the area and that's the least of their worries. But, the New Orleans firms also have a large national and international client base. For example, I received an e-mail from one attorney friend who I work with on some crucial domestic violence (spousal and child) cases around the nation - those clients could be seriously impacted by the loss, even temporarily, of their attorney - and he can't get to them and is having difficulty contacting the many courts around the nation where his cases are pending. Large corporate clients may have their files blowing in the wind where the high rise buildings had windows blown out.

I woke up this morning to the picture of Veteran's Blvd which made me think of my students who just took the bar. My thoughts wandered from there to the effect on the Disciplinary Offices. Then my thoughts continued on. I'm sure I'm still missing a big part of the future picture. It's just devastating. Can you imagine something of this dimension in your state?


"If the pink slip doesn't fit,
get redressed!"
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Chaplains to the rescue

Employees are generally urged to deal with workplace stress “on their own”, but how many of us have to deal with even more stress at home because of our spouse, kids, in-laws, household duties, etc.? Don’t many of us attempt to be superhuman both in the workplace and with our family without healthily confiding our stresses and problems to a third person? Or what about those of us who are facing financial, emotional, or other types of crises and need someone to turn to? Wouldn’t it be nice if there were a source of guidance at work that would be both accessible and eager to help?

Some corporations have hired chaplains to help guide employees through their various problems. Seeking a chaplain's help is completely voluntary. They cater to employees of any or no religion. Employees can now turn to these chaplains (who employees seem to prefer over HR) instead of quitting, suing the company, or creating problems with other employees, thus benefiting the corporation in the long run.

You can read more about corporate chaplains and their success stories here.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Blogged and Frogged:

I wish to be the first to present a new term to the lexicon of blogging: "frogged". Frogged is the equivalent of being fired because of online activities. Specifically, it includes a "frogging" for "blogging". The term has support from incidents like those of employee Mark Jen at Google. The balance of this post is taken from CNet.com News at CNet:

On Jan. 28, 2005, I was terminated from Google," Jen wrote on his blog, Ninetyninezeros. "Either directly or indirectly, my blog was the reason. This came as a great shock to me because two days ago we had looked at my blog and removed all inappropriate content...If I was told to shut down this blog, I would have."

Jen's departure came just 11 days after he joined Google as part of a wave of new hires and began recording his impressions of his new employer, including criticisms, in his blog.

Jen is just the latest employee to lose his job after a clash with management over public Web postings. Other examples include a Delta Air Lines flight attendant who was fired after posting photos of herself in uniform on her blog; a Microsoft contractor who took some pictures of Apple G5 computers being unloaded onto the software company's campus and posted them to his blog; and a Friendster employee who was let go over her Troutgirl blog.

The employee blog issue is doubly sensitive for Google, which became a prominent booster of blogging through its acquisition of Web logging pioneer Pyra Labs in February 2003. The company also has made a point of putting ethics before profits in its business operations, suggesting it holds itself to a higher standard of care for customers and employees.

Despite expressing shock over the dismissal, Jen wrote that he could "see where Google is coming from."

But Jen said that he disagreed with Google's decision, arguing that it is out of step with a trend that will likely grow only more powerful over time.

"I think blogging is the next big thing on the Internet...Corporations should embrace this technology just like the ones before it," he wrote. "Companies that are confident in their offerings should let employees spread the word. In today's age of information overload, blogging is quickly emerging as the fastest and most cost-effective method of marketing."

Google declined to comment, other than to reiterate its earlier statement that Jen is no longer a Google employee.

Blog at your own risk, legal expert says
Christopher Cobey, senior counsel at Littler Mendelson in San Jose, Calif., said that incidents involving blogging aren't really novel. Rather, he said, they simply extend legal concepts and issues that have been on the table since computers and the Internet first entered the workplace.

"This is an outgrowth of the continuing evolution of technology, from Internet access and use of computers at work, to similar problems we've seen with Web sites and e-mail," he said. "What it really comes down to is how people are using them, what they're using them for and how it's affecting their job."

Previous Next Employers have considerable leeway to discipline employees over any public expression touching on the company's business or reputation, Cobey said. Workers in states governed by at-will employment laws, including California, are most at risk. But even workers covered by collective-bargaining agreements could run afoul of an employer's right to protect the company's public image, if they criticize the company or disclose confidential information.

Anonymity offers little protection if a blogger's identity is uncovered in a state with at-will employment, Cobey said. Nor are bloggers protected simply by conducting their activities from home on their own time, rather than at work during office hours, he said.

"Employers in at-will states have very wide latitude" to fire workers, he said. "Is it always fair or nice? No. Is it lawful? Yes."




"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.