Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Spring 2021 Employment Law Update

Spring 2021 Employment Law Update (Webinar Recap)

On April 15, 2021, I presented a complimentary “Spring 2021 Employment Law Update” webinar. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Vaccination Issues
  • Federal Labor Law Transitions
  • New York Marijuana Legalization
  • Employment Litigation Trends
  • and More!

Hopefully, we’re nearing workplace recovery from the COVID-19 pandemic. This brings still new challenges, including vaccination questions and concerns. Plus, employment regulations and labor laws continue to shift in many other areas.

What is the Biden Administration up to? New York is also moving forward with more restrictions on employers. Find out how this affects your organization.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch This “Spring 2021 Employment Law Update”

This webinar covers developments at both the federal and state level, with a focus on New York employers. It includes details of new legal restrictions and obligations. But it also goes further to provide insight into what the latest legal changes mean and how they could pose unanticipated challenges.

If you are responsible for employees in New York, then this webinar will give you something to think about and act on the days ahead.

Did you know?:

Washington is pushing changes to help unions organize and represent your employees.

New York employees have the right to smoke marijuana outside of work.

Discrimination charges are likely to rise this year.

Hear about these subjects and more in our Spring 2021 Employment Law Update.

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NLRB Aggressive Enforcement Policy

Acting NLRB GC Announces Aggressive Enforcement Policy

In a memorandum dated March 31, 2021, the Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, proclaimed that the agency would enforce a key federal labor law more ardently than had his predecessor. The subject of the memo itself is telling: “Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines”. This action signals an aggressive enforcement policy against private-sector employers, whether currently unionized or not.

Legal Foundation

Section 7 of the National Labor Relations Act (NLRA) generally provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . .

This provision protects private-sector (e.g., non-governmental) employees whether they belong to a union or not. In addition to permitting unionization, Section 7 prohibits discrimination against employees who work together to improve working conditions.

Increasingly, the National Labor Relations Board has disagreed over the extent of these protections. The divide typically follows the political spectrum. Under a Democratic administration, the NLRB reads Section 7 more expansively in favor of workers. Republican administrations find the protections more limited, recognizing the inherent prerogative of business owners to control their enterprises.

Current NLRB Composition

The National Labor Relations Board “board” itself is comprised of five seats based in Washington, D.C. Each seat has a five-year term, with distinct expiration dates. As a result, control of the NLRB does not automatically shift with a change in presidential administrations.

President Biden entered office with only four of the five NLRB board seats filled. Three members are Republicans who President Donald Trump appointed. As the practice has been to have no more than three of the five seats filled by representatives of the president’s party, the fourth member is Democrat Lauren McFerran. Biden immediately named McFerran the new Chair of the NLRB, but has not yet filled the open seat. Republican William Emanuel’s term will expire on August 27, 2021. It is certain that Biden will not reappoint Emanuel at that time. Barring inability to gain Senate confirmation, both the currently vacant seat and Emanuel’s seat will be filled by Democrats. That will shift the Board to a pro-labor majority for the first time since August 2017.

The Board ultimately sets NLRB policy, primarily through adjudicating cases, but increasingly through formal rulemaking as well. However, it does not have absolute control of the NLRB’s activities. The General Counsel of the NLRB oversees the initial intake of cases and controls the prosecution of unfair labor practices. Accordingly, the GC has a pivotal function in guiding NLRB policy.

Breaking with historical practice, President Biden fired Trump’s Senate-confirmed General Counsel, Peter Robb, on his first day in office. Robb’s term wasn’t set to expire until November. Biden appointed Peter Sung Ohr as Acting GC. He has nominated Jennifer Abruzzo to fill the position on a permanent basis.

“Mutual Aid or Protection”

Reflecting a more aggressive enforcement policy, the Acting GC’s memo suggests an expansive view of what constitutes activities for employees’ “mutual aid or protection”. Indeed, he asserts, “employee advocacy can have the goal of ‘mutual aid or protection’ even when the employees have not explicitly connected their activity to workplace concerns”. In support of that conclusion, the memo references several cases decided by the NLRB when there was a Democratic majority.

According to the Acting GC, mutual aid or protection can extend to “employees’ political and social justice advocacy”. Among other examples, the memo points to “protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids” as conduct he would find protected by the NLRA because “the employees’ conduct . . . concerned issues within their employer’s control, like . . . willingness to hire immigrants.”

On such issues, the Acting GC effectively sets aside the views of the sitting NLRB majority: “I look forward to robustly enforcing the Act’s provisions that protect employees’ Section 7 rights with full knowledge that recent decisions issued by the current Board have restricted those protections”. The memo suggests that the NLRB will pursue cases falling in the gaps of the current majority’s reasoning regarding Section 7 rights, rather than directly rejecting it. However, there is much reason to be suspicious of that supposed distinction.

“Inherently Concerted”

After acknowledging that “[p]rotected, concerted activity . . . begins with a conversation among employees,” the Acting GC’s memo asserts that “contemplation of group action may be indicative of concerted activity, [but] it is not a required element.” He argues that certain issues “are pivotal” to employees’ common interests such that any group discussions about them are “inherently concerted,” again citing a case decided by a Democratic majority. Despite emphasizing “inherently concerted” to be a “settled doctrine,” the Acting GC concedes, “it remains better articulated as an alternative argument in cases where concert may be proven by traditional means.”

The memo further recognizes that the Board has only found discussions to be inherently concerted when they involve “certain vital categories of workplace life”. These categories primarily include wages and compensation. But the Acting GC suggests that discussions of work schedules, job security, workplace health and safety, and racial discrimination (presumably among others) may also qualify. In conclusion, the Acting GC reports that: “In the future, I will be considering these and other appropriate applications of the inherently concerted doctrine in suitable cases.”

Employers Be Warned

It is not surprising that Biden’s NLRB General Counsel will follow a more aggressive enforcement policy. Yet, it is noteworthy that the Acting GC has blatantly announced his intention to begin doing so before his permanent replacement is confirmed. He also does so under a Republican Board majority that will remain in place for several more months.

Expect the NLRB’s regional offices to pursue more cases against employers now to line them up for a new Board majority toward the end of the year. This approach will expedite the predictable shift in labor policy to favor unions and employees more than was the case under the Trump administration.

Companies should be cautious before disciplining employees for any activities that may run afoul of the aggressive enforcement policy reflected in the Acting GC’s memorandum. Management should work with experienced labor counsel to balance the risks in such scenarios.

Despite current favorable Trump-era precedents, employers might also consider reviewing their policies and procedures that may come under renewed NLRB scrutiny. Examples include social media policies, confidentiality policies, work rules, and investigation procedures. Employers facing or anticipating unionizing campaigns should prioritize such a review. Arguably-minor unfair labor practice allegations can have a significant adverse impact on businesses as fodder for organizing efforts.

 

Click here to download a copy of this March 31, 2021 Acting GC memorandum.

 

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New York Law Protects Employee Marijuana Use

New York Law Protects Employee Marijuana Use

On March 31, 2021, New York Governor Andrew Cuomo signed the “Marihuana Regulation and Taxation Act” into law. This action immediately decriminalizes many instances of adult possession and use of cannabis products, including marijuana, statewide. It will eventually lead to the legal sale of marijuana through licensed dispensaries. Among the immediate impacts, now New York law protects employee marijuana use.

Legalization of Adult Recreational Marijuana Use

The extensive Marihuana Regulation and Taxation Act begins a complex process of legalizing the sale of cannabis for adult consumption in New York. Selling marijuana, except as licensed to certified medical marijuana patients, will remain illegal until sometime in 2021. However, New Yorkers aged 21 and up can immediately begin to use marijuana without violating state law.

The New York penal law is immediately amended to expressly declare the following “lawful” for people aged 21 or older:

  • Possessing, displaying, purchasing, obtaining, or transporting up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
  • Transferring, without compensation, to a person 21 years of age or older, up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
  • Using, smoking, ingesting, or consuming cannabis or concentrated cannabis (unless otherwise prohibited by state law).
  • Possessing, using, displaying, purchasing, manufacturing, transporting, or giving to any person 21 years of age or older cannabis paraphernalia or concentrated cannabis paraphernalia.
  • Assisting another person who is 21 years of age or older, or allowing property to be used, in any lawful acts listed above.

There are some restrictions on marijuana use, such as smoking or vaping it in most public places and automobiles.

Protections for Employee Marijuana Use

New York Labor Law has long protected employees’ off-duty conduct, including lawful use of consumable products. For example, employers usually cannot prohibit employees from smoking tobacco or drinking alcohol outside of work. The Marihuana Regulation and Taxation Act amends the existing protections to address employee marijuana use.

Section 201-d of the New York Labor Law now specifically protects an employee from job discrimination based on the “legal use of consumable products, including cannabis in accordance with state law.” The protection extends to use that is all of the following: (a) outside of work hours, (b) off the employer’s premise, and (c) without the use of the employer’s equipment or other property.

“Cannabis” means “all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

Limits on Employee Cannabis Protections

Notwithstanding the new state law, marijuana remains a controlled substance (i.e., illegal drug) under federal law.  And the Legislature seemingly acknowledges that marijuana can have a behavioral impact on individuals who consume it. The New York Marihuana Regulation and Taxation Act attempts to address those realities with potential exceptions to the Labor Law protections for employee cannabis use.

An employer does not violate section 201-d of the Labor Law based on employee cannabis use when:

  • The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
  • The employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligations to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
  • The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Unfortunately, these exceptions are relatively vague in light of the situations employers are likely to face. For example, few, if any, other laws expressly prohibit an employer from employing someone who consumes marijuana outside of work. And it is practically difficult to measure whether someone is sufficiently impaired by cannabis while working.

Under the New York medical marijuana law, the federal Drug-Free Workplace Act has been referenced as a potential barrier to some employees using marijuana for medicinal purposes. However, there are still open questions as to that law’s relevance on the subject, including recreational marijuana consumption.

Employer Next Steps

The legalization of marijuana use (with limits) and the protections for employee marijuana use are effective immediately. Accordingly, all New York employers should consider taking the following actions.

Review Drug Use Policy

Do you have a policy that includes marijuana or other cannabis products as prohibited substances? If so, you may want to remove that reference or limit it to workplace use and impairment.

Modify Drug Testing Procedures

Pre-employment drug testing for marijuana is probably now unwise in almost all cases. It may be federally mandated for some categories of employees, such as those in the transportation industry. But, for most workers, a positive marijuana test would only provide employers with information that they should not be using as the basis for hiring decisions.

Drug testing for marijuana during employment will also now be problematic. Because of how long the drug can stay in one’s system, a positive test will often not guarantee workplace use or impairment. Employers will likely need to rely on personal observations to prove these unprotected scenarios.

Train Supervisors

Remember that employers may still discipline employees for using or possessing marijuana at work or working under the influence of cannabis if it negatively affects performance or safety. Employers with concerns about this occurring need to ensure supervisors are both aware of the legal restrictions and understand the visible symptoms that may demonstrate impairment.

Discussion of marijuana use by employees will likely become more prevalent in the workplace with the new legal protections. Employers may choose to restrict this subject in some cases. But, either way, knowledge of employees’ use generally cannot be used against them. Supervisors should avoid inquiring into this subject so that employees otherwise disciplined will not point to this factor as an alleged basis of discrimination.

Stay Informed

We are at the very beginning of understanding what legal recreational use of marijuana will mean for New York workplaces. Additional regulations may be on the way. And we’ll gain a better understanding of how various constituents will handle the employee marijuana use protections over time.

 

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