Littler’s Workplace Policy Institutes’ State of the States: What a Difference a Month Makes

Nearly all states legislatures are now in session, and the surge of new bills indicates lawmakers are not holding back. Over 1,000 state-level labor and employment-related bills have already been introduced since January 1, 2019. These bills cover a wide range of issues, from arbitration agreements to workplace bullying.

States with pending bills that would impose new salary history restrictions or strengthen current salary history laws

(FL, GA, HI, Il, IA, ME, MS, MO, NH, NY, OR, PA, SC, TN, TX, UT, VA, WA , WV, WY)

States with pending bills that would impose limits on criminal history inquiries

(CO, IN, IA, KY, MI, MS, MT, NE, NH, NM, NY, ND, SC, UT, VA, WV)

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Operators of Online High Schools Settle FTC Charges That They Misled Tens of Thousands of Consumers with Fake Diplomas

Capitol Network Distance Learning Programs and Stepping Stonez Development, LLC, two separate diploma mills, have agreed to settle Federal Trade Commission (FTC) charges that they falsely claimed to be accredited schools. The defendants are banned from marketing or selling any academic degree or certification programs. They also are prohibited from making misrepresentations about any product or service. The FTC alleges that the defendants deceptively claimed that their online “high schools” were accredited and that their diplomas would be accepted by employers, colleges and the armed forces. The defendants face millions of dollars in settlements.

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Albany County Legislature Votes to “Ban the Box” on Job Applications

After a survey conducted by the Center For Law and Justice in Albany revealed that 70 percent of employers would not consider hiring someone with a conviction record, the county took the final step to “ban the box” on county job applications. A 32 to 3 vote allowed legislators to remove the check box appearing on county job applications, which asks about an applicant’s criminal history. In certain cases, however, such as applications for law enforcement, nursing, and probation, federal and state laws must be followed regarding criminal histories.

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District of Columbia Mayor Signs Law Restricting Employers from Using Credit Information in Employment Decisions

Mayor Muriel Bowser signed a bill prohibiting, with limited exceptions, employers’ use of or obtaining a job applicant’s or employee’s credit information for employment purposes. The prohibition does not apply to certain law enforcement and financial positions, among other situations. In the event that an aggrieved applicant or employee elects to file an administrative complaint with the Office of Human Rights, the Commission on Human Rights could impose fines of up to $5,000 for recurring violations. Employers should review their practices to help ensure they comply with the bills and other laws and monitor congressional efforts to regulate the use of credit history information, as well as advisory guidance from the Equal Employment Opportunity Commission (EEOC).

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Massachusetts Employers Beware – Denying an Internal Lateral Transfer Request May Now Constitute an Adverse Employment Action

In late January, the Massachusetts Supreme Judicial Court determined that denying an employee’s request for an internal lateral transfer may constitute an “adverse employment action” where the employee can demonstrate “material differences between [the] two positions in the opportunity for compensation, or in the terms, conditions, or privileges of employment.” State Police Trooper Warren Yee of Yee v. Massachusetts State Police filed the claim after he was denied a request to be transferred to a troop that patrols an area that could offer opportunities for overtime. Seven officers were approved transfer, however, all of whom were white and younger than Yee. Summary judgment was granted to the State Police, reasoning that the plaintiff did not suffer an adverse employment action. On appeal, it is up to the lower court to determine whether “there was a genuine issue of material fact whether the denial of Yee’s request for a lateral transfer was motivated by discriminatory animus.”

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UPS Class Action Says Background Check Practices Violate FCRA

United Parcel Service of America Inc. (UPS) is facing a class action lawsuit after allegedly using background checks to make employment decisions without providing the results to job applicants or employees. This violation of the Fair Credit Reporting Act (FCRA) could mean fines of between $100 and $1,000 per violation for the company. The case was opened when plaintiff John Riley of Florida alleges he was offered a job with UPS, only to be denied employment based on the results of his background check. He claims, however, that he was never provided with any information about the contents of the report.

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Connecticut City Sued for Refusing to Hire Medical Marijuana Using Firefighter

Although Connecticut became the 17^th state in the United States to approve medical marijuana in May 2012, an aspiring firefighter in the city of Bridgeport was denied employment when he disclosed his use of marijuana under a medical marijuana card. James Bulerin III was offered conditional employment as an entry-level firefighter pending his passing of all pre-employment screens. He received a letter denying employment due to the results of a drug test. A lawyer was hired, who filed a discrimination lawsuit against the city, declaring a violation of the state law, House Bill 5389, “An Act Concerning the Palliative Use of Marijuana” (PUMA).

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Another State Finds No Federal Preemption of Its Medical Marijuana Law

A Kraft Heinz employee has been permitted to move forward with discrimination claims arising out of Delaware’s medical marijuana statute, Delaware Medical Marijuana Act (DMMA). The worker, a medical marijuana cardholder, filed the suit after he was fired due to testing positive to marijuana following an accident in the company’s railroad yard. Although marijuana remains an illegal Schedule I substance under the federal Controlled Substances Act (CSA), the court determined that both CSA and DMMA would apply, and relied on the Rhode Island decision in Callaghan v. Darlington Fabrics Corp. As such, the court determined that, because the DMMA has a specific antidiscrimination provision, the Delaware legislature must have intended to permit the employee to sue under the DMMA.

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Employers May Have to Accommodate Medical Marijuana Users Under Some State Laws

Although there are no laws specifically requiring employers to accommodate employees’ use of marijuana for medicinal purposes while at work, employers in some states may not terminate employees for use outside of the workplace, even after a positive drug screen. Thirty-three states and Washington, D.C., now have a comprehensive medical marijuana program, according to the National Conference on State Legislatures. Although it still is considered an illegal drug under the Controlled Substances Act, the current guidelines of the U.S. Department of Justice allows federal prosecutors to decide how and whether to prosecute marijuana-related crimes. In addition, each state offers individual governance regarding the use of medical marijuana and its intersection with employment. In one discrimination case, the court granted summary judgment to the plaintiff, finding that the employer violated Connecticut’s medical marijuana law.

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Walmart Firing Violated Arizona Medical Marijuana Law

A federal judge recently ruled that Walmart discriminated against a worker at an Arizona store when it fired the employee, a medical marijuana cardholder, solely due to a positive drug test. Carol Whitmire, of Whitmire v. WalMart Stores, Inc., obtained the card in 2013. She filed an incident report with Walmart after injuring her wrist while on the job in 2016 and was directed to visit an urgent care clinic. She also was asked to complete a post-accident urine drug test, which yielded positive results. She was suspended and eventually fired, later filing the suit, alleging wrongful termination and/or discrimination against in violation of various state laws.

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Comprehensive Data Privacy Legislation Introduced in Massachusetts – Includes Private Right of Action Without a Need to Prove Harm

A consumer data privacy bill that could become effective in January 2023 has been introduced in Massachusetts that gives consumers the right to sue in the event their personal information or biometric data is improperly collected or distributed or for any other potential violation of the new law. The bill is one of many across the country aimed at regulating data protection issues, including Illinois’s Biometric Information Privacy Act (BIPA) and California’s new California Consumer Privacy Act (CCPA). SD 341 also would impose new compliance obligations on all businesses that collect Massachusetts consumers’ personal information and that meet one of two revenue-related thresholds.

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