On February 28, 2019, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its seventeenth annual Hot Topics in Employment Law seminar to an audience of nearly four hundred clients and friends from throughout Maryland and beyond. Topics covered included workplace sexual harassment a year into the #MeToo movement; the complex interplay of leave requirements under the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), the Maryland Sick and Safe Leave Act, and the top 10 labor & employment issues to watch in 2019. In addition, Maria Salacuse, Supervisory Trial Attorney for the Equal Employment Opportunity Commission (EEOC), provided insight into the EEOC’s priorities for the coming year. Here are some highlights:
EEOC Outlook
2018 saw a 50% rise in suits by the EEOC alleging sexual harassment. Ms. Salacuse reported that the EEOC filed 199 lawsuits in 2018. In the Baltimore office, the lawsuits filed included more ADA claims than any other type of claim. Ms. Salacuse noted a victory for the EEOC in the Fourth Circuit Court of Appeals where an employer refused to respond to a charge because the charging parties were undocumented. Her message to employers was clear – it is the EEOC’s position that employees are protected under Title VII regardless of their documentation status.
Medical Marijuana
Medical marijuana is likely to be an issue employers will encounter more and more in the coming years. The current state of the law in Maryland, Virginia and DC is that employers generally are not required to accommodate medical marijuana use, although change may be on the horizon through legislation or court decisions. If an employee with a medical marijuana license is terminated for failing a drug test, employers may need more than just the positive drug test to successfully defend against a claim of discrimination under their state’s medical marijuana law. In Whitmire v. Wal-Mart Stores, Inc., a federal district court in Arizona gave employers elsewhere cause for concern in granting summary judgment to the employee claiming discrimination under the Arizona Medical Marijuana Act where no evidence other than a positive drug test supported the employer’s decision to terminate her. The lesson from Whitmire is that employers should document evidence of the employee’s actual impairment at work to support a termination decision based on a failed drug test.
#Me2.0: MeToo a Year Later
A year into the #MeToo movement, there are no signs that the focus on sexual harassment in the workplace is letting up. Since 2009 the number of EEOC sexual harassment charges had steadily declined for a decade, but in 2018 there was a sharp uptick from 6718 charges filed nationwide in FY2017 to 7632 filed in FY2018. States are enacting legislation to curtail restrictions on raising sexual harassment claims, including bans on mandatory arbitration in several states. In Maryland, the Disclosing Sexual Harassment in the Workplace Act of 2018 (Md. Code Lab. And Empl. 3-715), prohibits the waiver of any “substantive or procedural right” associated with a future claim of sexual harassment. This is generally assumed to include any mandatory arbitration requirement. The law requires employers with 50 or more employees to report data about sexual harassment claims and settlements on a 2020 survey. Other states – including California, New York, Tennessee, and Washington – have passed laws restricting or even prohibiting employers from imposing confidentiality requirements on employees regarding sexual harassment claims, and there have been other state and local laws requiring employers to provide sexual harassment training. Given this climate, employers should assess their sexual harassment policies to ensure compliance with new legislation and regularly check to determine whether any of the stream of new state and local laws impact them.
The Many Layers of Leave Laws
Making sense of leave requirements under the ADA, FMLA and state or local paid sick/family leave laws can be maddening for employers. Here again, employers can take pro-active steps to support employees and protect themselves if claims should arise. Even if an employee does not request FMLA, if he or she is showing signs of dealing with a medical issue such as frequently missing work for illness or mentioning a medical condition a family member is dealing with, employers can initiate the conversation to explain the employee’s rights under FMLA. The same goes for initiating the interactive process under the ADA. Accurate documentation of any discussion related to the employee’s leave is key. Certainly, leave policies should be reviewed to confirm that they comport with state and local laws where the employee works.
Additional topics covered at the seminar included updates on immigration and benefits law, the increasing activity in non-competition and non-solicitation regulation, data privacy, the shifting landscape of joint employment, and protections for whistleblower activity.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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