The Effect of Marijuana Legalization on Drug Testing in the Workplace

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In May 2021, New York became the 15th state to legalize adult-use marijuana. But with federal regulations still labelling cannabis a controlled substance, employers and employees may wonder what marijuana legalization means for them. Specifically, you may be asking, can your employer still do marijuana drug testing in the workplace?

New York Follows the Trend of Marijuana Legalization

On March 31, 2021, Governor Andrew Cuomo signed the New York Marijuana Regulation and Taxation Act (MRTA). The law removed marijuana from the state’s controlled substances list and legalized possession and use of set amounts of cannabinoids for adults over age 21. Cuomo had promised to legalize marijuana in his 2021 State of the State agenda. The passage of the MRTA promises to allow New York to follow Colorado, Oregon, and 13 other states, as well as the District of Columbia, in developing a cannabis industry that will result in thousands of new jobs and millions in tax revenue. It also creates new protections for workers across the state.

Federal Marijuana Legalization Lags, Leaving Cannabis a Controlled Substance

But employers may find those protections confusing because marijuana use and possession remain illegal at the federal level. Since the 1970s, the federal government has classified marijuana as a Schedule 1 controlled substance. The Schedule 1 classification means the government maintains there is no safe or medicinal use for the drug and research into its use is strictly regulated.

There have been many attempts to get the federal Food and Drug Administration to reclassify the drug, or to amend the Controlled Substances Act to remove marijuana. Most recently, in May 2021, U.S. House Judiciary Chair Jerry Nadler reintroduced the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act) — a federal marijuana legalization law that would help people convicted of federal drug crimes expunge their convictions, and make recreational use legal nationwide. Still, the federal bill will face steep opposition, leaving no promise of federal decriminalization. And that leaves employers and their employees wondering about how to treat marijuana in the workplace.

Medical Marijuana Use and Disability Discrimination

New York has recognized therapeutic uses of marijuana to treat cancer, HIV/AIDS, and chronic pain since the 2014 Compassionate Care Act was passed. The MRTA expanded the list of eligible medical marijuana conditions to include:

  • Anxiety
  • Insomnia
  • Muscular dystrophy
  • Alzheimers
  • ALS
  • Parkinson’s disease
  • Multiple Sclerosis
  • Spastic spinal cord injury
  • Epilepsy
  • IBS
  • Neuropathy
  • Huntington’s disease
  • PTSD

As of June 2021, there were more than 151,000 certified marijuana patients in New York. Certainly, many of those patients are employed by companies that subject their employees to mandatory or random drug testing. Could they be fired for testing positive for THC when they have a medical marijuana prescription?

The Americans with Disabilities Act (ADA) generally protects against disability discrimination, requiring employers to make reasonable accommodations for workers with disabilities or medical conditions. But, the ADA does not apply to substance dependence disorders. Similarly, federal courts have ruled that the ADA does not require employers to accommodate for a patient’s medical marijuana use.

However, just like with marijuana legalization, state laws can offer protections not available at the federal level. The MRTA says:

“No person, registered organization, licensee or permittee, employees, or their agents shall be subject to arrest, prosecution,  or penalty in any manner, or denied any right  or  privilege,  including but not limited to civil liability or disciplinary action by a business  or occupational or professional licensing board or  office,  solely for  conduct  permitted  under this chapter.”

That includes employers. The law prohibits business owners from disciplining or firing employees for past medical or recreational marijuana use on their own time. It also prevents discrimination against applicants for new positions based on their history of marijuana use. However, employers may still prevent the use of cannabis in the workplace, and may discipline employees who come to work intoxicated, particularly if their condition would affect their safe operation of vehicles or other business equipment.

What Does the MRTA Mean for Drug Testing in the Workplace?

So what about random drug testing at work? Marijuana use is more difficult to test for than, for example, alcohol. When you drink alcohol, your blood alcohol content returns to normal in just a few hours. While the intoxicating effects of cannabis may only last about as long, trace amounts of THC can remain in a person’s blood stream for weeks. That means an employee could use marijuana on Friday night and fail a drug test when they return to work on Monday, or even the Monday after that. That’s why the New York MRTA makes it illegal for employers to include marijuana in their workplace drug testing.

The MRTA will take time to go into full effect. Some believe legal marijuana dispensaries won’t be open to the (non-certified patient) public until December 2022, as the state sorts out various licensing and regulations obstacles. But the protections for New York workers who use marijuana as medicine, or even recreational use begin immediately.

At Eisenberg & Baum, LLP, our New York-based discrimination attorneys represent individuals who face employment consequences for their medical and recreational marijuana use. We understand New York’s new marijuana legalization laws, and know how to use them to protect your job in the face of disability discrimination or anti-marijuana sentiment at work. Contact us today to schedule a consultation.

One Fair Wage Says Darden Restaurants’ Tips Policy Caused Racial and Gender Discrimination

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Can working on tips perpetuate racial or gender discrimination at work? The advocacy group One Fair Wage has filed a lawsuit against industry giant Darden Restaurants arguing that the company’s tips policy caused racial discrimination and sexual harassment by its customers to go unchecked.

Olive Garden Parent Company Comes Under Fire for Discrimination

On April 15, 2021, the non-profit advocacy group One Fair Wage (OFW) filed a discrimination lawsuit against Darden Restaurants, the parent company for popular chains like Olive Garden, LongHorn Steakhouse, and Capital Grille. Darden Restaurant Group owns and controls more than 1,800 chain restaurants, employing 175,000 workers, including thousands who work on tips.

The lawsuit, filed in California’s federal district court, followed on the heels of four separate complaints at the Equal Employment Opportunity Commission (EEOC) on behalf of employees in New York, Washington DC, and California last September. It said that the company’s policies — specifically those related to tipped wages — exposed workers to sexual harassment and racial bias.

One Fair Wage Says Tipping Policy Perpetuated Discrimination

The lawsuit was based on alleged violations of Title VII of the federal Civil Rights Act of 1964, but not necessarily in the way you might expect. The complaint said that Darden’s restaurants used a “subminimum wage” tip policy that caused women and employees of color to be paid less than their white male counterparts. Pam Araiza, a Latina employee in Darden restaurants from 2007 until 2020, is one of the plaintiffs in the lawsuit. She says she was consistently discriminated against and assigned to sections of the restaurant known to generate less in tips:

“Darden pays some of the lowest wages, $2.83 an hour in 40 states. Guests are expected to make up the difference. . . . Managers, hostesses and co-workers have the power to impact your earnings based on tables you are given, deliberately profiling guests based on spending history tied to previous dining, using stereotypes and race as a decision of where they want to put guests. How much you are liked or how you look factors into what you get as well.”

Saru Jayaraman, president and co-founder of One Fair Wage said in a press conference that as the largest member of the National Restaurant Association lobbying group, Darden was responsible for keeping tipped workers’ wages “as inhumanely low as possible.” The complaint alleged:

In addition, the complaint raises concerns about sexual harassment at Darden-owned restaurants. Sexual harassment is rampant in the food industry. According to OFW’s poll of Darden workers, nearly 40% had faced racial or gender discrimination or offensive behavior by a co-worker, manager, or customer. The mandatory subminimum wage policies leave managers little incentive to investigate or respond to sexual harassment claims at work.

When most of an employee’s income is derived from tips, raising concerns about a customer’s treatment means reaching into your own pocket to protect your dignity. With the subminimum wage policies in place at Darden restaurants, many employees can’t afford to stand up for their rights.

Is Darden Restaurant Responsible for Following Federal Tipped Wage Laws?

Still the question remains whether the tipping wage policy in place at Olive Gardens, LongHorn Steakhouses, and other restaurants across the country can truly have created the discrimination alleged by One Fair Wage. The federal Fair Labor Standards Act sets the minimum wage for tipped workers at $2.13 per hour. Employers only have to make up the difference if employees’ tips and their wages add up to less than $7.25 per hour, the normal minimum wage for hourly workers nationwide. Some states have higher minimum wage and tipped wage laws.

Darden’s policy requires that tipped workers be paid the lowest hourly wage allowed by local law. Restaurant managers have no discretion to increase an employee’s wages. One Fair Wage says:

“When a company adopts wage policies or practices like these that result in disparate, negative impacts on the basis of sex and race, and there is no business necessity for  doing so, it engages in illegal employment discrimination under federal law.”

The advocacy group and others like it have been lobbying for increased wages nationwide for years. Together with the Restaurant Opportunities Center, OFW has successfully pushed several states to eliminate tipped wages altogether. Now OFW has taken one of the industry’s heaviest hitters to court to put pressure on restaurant groups to do better by their workers. They argue that Darden Restaurants could have mitigated sexual harassment and racial disparities in tipping by creating pooling tips among restaurant employees or charging customers a standard service fee, rather than allowing them to set their own tips according to  “capricious and emotional” unconscious biases.

Darden Restaurants defended its policy, saying it was following federal and state laws. Rich Jeffers, Senior Communications Director for the restaurant group called Darden “the employer of choice” and boasted a nationwide average tipped wage of more than $20 per hour. However, this is in large part a result of the work of advocacy groups like OFW to raise wage minimums at the state level. The question of whether the company’s tipped wage policy can result in a Title VII violation for race and gender discrimination may be a novel theory to get workers the help they need to be paid fairly, or it may end up being little more than another step in the advocacy group’s lobbying efforts.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how unfair wages can create and perpetuate racial discrimination and sexual harassment at work. If your company isn’t compensating you fairly, or if you are being discriminated against in your shifts or assigned duties, we can help you protect your rights at the EEOC, and in state or federal court. We will meet with you and review your options to get paid fairly for your work. Contact us today to schedule a free consultation.

Diversity in Law Firms: Will We See Progress Without Protests?

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In the summer of 2020, protests erupted across the country in the wake of the killings of George Floyd and Breonna Taylor. The protests drew attention to racial discrimination and the problem of meaningful diversity in every industry, law included. But what has happened to the pledges of Big Law firms to do better in recruiting and promoting black lawyers? Will diversity in law firms continue to improve now that the protests have ended?

Big Law Firms Respond to Black Lives Matter Protests

When Black Lives Matter protesters took to the streets of Minneapolis, New York, and most other large cities across the country, they demanded more from the country’s biggest and most powerful industries. That included law. By early June, more than 70 Big Law firms had issued statements on racial injustice and discrimination. Perhaps the first statement issued was from Skadden Law, which said:

“As a Firm, we cannot fully live up to our core values without ensuring that Skadden continues to be a safe and welcoming place for everyone, while using our platform to combat racism.”

The firm committed to pro bono work and financial contributions to the NAACP Legal Defense Fund. Kim Koopersmith of Akin Gump concluded:

“It is hard not to feel the gulf that exists between the promise of our countries and the reality that continues to exist for people of color. I have no answers, but I do think that it is crucial that we take the time to digest events and reflect on what this says about us and how much more there is to be done to achieve the level of dignity, respect and equality that everyone deserves.”

Here at Eisenberg and Baum, we made a statement of our own, promising to advocate against racial discrimination and to listen to people of color to improve our support of the Black community going forward.

Law Firm Diversity Remains an Elusive Challenge

The drive to publicly denounce racism and support Black Lives Matter was strongest while people were still in the streets protesting. Nearly a year later, one of the police officers involved in his killing is on trial, reminding America that change, especially in the legal world, often takes time. Sometimes when the spotlight turns elsewhere, it can be easy to return to business as usual. Conway Ekpo, in-house counsel at a major Wall Street bank told Bloomberg Law:

“I’m not extremely confident that the Big Law industry will actually work on a diversity pipeline expansion for altruistic reasons. . . . If we want to see a paradigm shift on this issue, clients will have to literally demand that racially diverse lawyers be recruited to work on their matters and promoted at the same rates as their white counterparts.”

The most recent reports on diversity in law firms appear to bear this out. The National Association for Law Placement’s 2020 Report on Diversity in U.S. Law Firms found that only 5% of associate attorneys were Black. At the partner level, that number dropped to just 2%.

This is not a problem that is likely to resolve quickly. The American Bar Association monitors minority enrollment in ABA accredited law schools. In 2019, Black enrollment dropped by more than 4%. Fewer Black law students means the firms like Akin Gump that promised to recruit minority attorneys will have fewer candidates to fill their diversity and inclusion programs.

The disparity is especially profound for Black women, who make up less than 1% of all partners in U.S. law firms in the NALP report. Ernest Greer, co-president of Greenberg Traurig in Atlanta told Bloomberg:

“The Black male has received attention because of George Floyd. . . . The white female has had attention for maybe the last 10 or 15 years. So, what does that mean for the Black female?”

That double-discrimination could even be seen among the protests. While George Floyd’s name became synonymous with the movement, and was featured in federal legislation regulating police, Breonna Taylor needed a separate hashtag #sayhername just to be mentioned among those wrongfully killed by police misconduct.

Black Lawyers Give Justice a Familiar Face

The need for Black and POC attorneys is profound. Minorities are highly over-represented in criminal prosecutions, prisons, and as the victims of workplace discrimination. With few Black attorneys and judges in the courtroom, these individuals can feel that the government is against them. As Judge Edward M. Chen, the first Asian American appointed to the United States District Court for the Northern District of California, said:

“The case for diversity is especially compelling for the judiciary. It’s the business of the courts to dispense justice fairly and administer the laws equally. It’s the branch of government ultimately charged with safeguarding constitutional rights, particularly protecting the rights of vulnerable and disadvantaged minorities against encroachment by the majority.

“How can the public have confidence in such an institution if the communities it’s supposed to protect are excluded from its ranks?”

Still, among all U.S. District and Court of Appeals judges, people of color make up just 27% of all active judges. Only thirteen percent of active judges are Black.

Get Help with Racial Discrimination in Law

Racial discrimination in law firms can take many forms, from harassment to lack of mentorship or promotion opportunities. Many of these are illegal under Title VII of the federal Civil Rights Act and state anti-discrimination laws. Black and minority attorneys don’t have to wait for the legal industry to offer them fair treatment. They can push the industry forward through strategic litigation.

At Eisenberg & Baum, we are committed to fighting against racism, even in our own industry. Our employment discrimination attorneys can help Black lawyers and law students file racial discrimination claims against firms who pass them over because of their color. We will push for industry-wide changes and improved diversity and inclusion in the legal industry. If you have been the victim racial discrimination, contact us. We’ll meet with you and help create a strategy that protects your rights and advocates for your equality.

Settlement Reached in U.S. Figure Skating Sex Abuse Lawsuit

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Figure skating is one of the most popular sports in the Winter Olympics. Its athletes pair strength and power with beauty and grace. It can be hard to remember that many of the sport’s top competitors are young — often teenagers. Over the last several years the United States Figure Skating (USFS) faced accusations, media attention, and lawsuits because of sexual abuse of its skaters. Now one of those lawsuits has reached a settlement, but the fight to end the coverup continues.

National Figure Skating Organization Covered Up Richard Callaghan’s Sex Abuse

Richard Callaghan used to be one of the biggest names in U.S. figure skating. Now he is one of the most controversial. Callaghan was the coach of Olympic superstar Tara Lipinski when she won her gold medal in 1998. The next year, he faced allegations that he had been sexually grooming his former student, Craig Maurizi, since he was 15 years old.

But those allegations were quickly dismissed — the skating bylaws required all misconduct claims to be reported within 60 days of the incident. Maurizi, a minor at the time, had missed his window. And so, Callaghan kept coaching and, according to the lawsuits against him, kept sexually assaulting the skaters in his charge.

U.S. Men’s Figure Skater Adam Schmidt Settles Sex Abuse Lawsuit

In 2019, skater Adam Schmidt, formerly Baadani, filed a lawsuit in San Diego Superior Court against U.S. Figure Skating, Onyx Ice Arena, and Callaghan himself for “numerous sexual assaults” he suffered while training with the U.S. figure skating team beginning in 1999. That was the same year Maurizi’s complaints against the figure skating coach were dismissed. Schmidt’s complaint said that decision allowed Callaghan’s abuse to “continue unabated,” causing him and other skaters to suffer anxiety, depression, fear, grief, and stress as the victims of sexual assault.

Then, in late 2020, Schmidt and the organization reached an agreement. U.S. Figure Skating agreed to pay the former competitive skater $1.45 million in exchange for dismissing his lawsuit. The settlement, which was accepted by the district court in early 2021, didn’t require U.S. Figure Skating to admit any fault or wrongdoing at all, but Schmidt says:

“I think the settlement speaks for itself. . . . People don’t settle things for millions of dollars for nothing.”

This payment was on top of an earlier settlement with defendant Onyx Ice Arena, located in Michigan, where the alleged sex abuse took place. Onyx also agreed to pay $1.75 million, bringing the total Schmidt will receive to $3.2 million. ABC News called that total “a landmark figure with potentially far-reaching implications.”

Other U.S. Figure Skating Sex Abuse Lawsuits Continue

However, whether those implications will reach far enough to affect Callaghan remains to be seen. After Maurizi’s story went public in 2018, the U.S. Center for SafeSport permanently barred Callaghan from coaching based on complaints filed by Adam Schmidt and three other skaters. However, Callaghan appealed the suspension to an independent arbitrator, and it was eventually reduced to a three-year suspension. As it stands, in 2022, Callaghan will once again be eligible to coach young boys and girls hoping to become U.S. figure skaters.

Still, the fight continues. Maurizi himself has filed a lawsuit under the New York Child Victims Act, against Callaghan, U.S. Figure Skating, the Professional Skaters Association, and the Buffalo Skating Club. He, like Schmidt, says that the skating associations had known of Callaghan’s behavior decades — after all, he had told them about it in 1999 — but they willfully ignored his conduct because he was a successful figure skating coach.

Schmidt’s attorney told the New York Times that U.S. Figure Skating’s failure to apologize was indicative of “institutional arrogance combined with a view of skaters as a disposable commodity.” He continued:

“That’s a toxic brew for an organization that’s supposed to protect children under its care. . . . [I am] very concerned about children in the sport today — that they aren’t safe — and [I] want[] a cultural change in the organization.”

Schmidt’s settlement may have been the right choice for him. It allowed him to put figure skating behind him and find a way forward. But for others, including Maurizi, the fight to hold the industry responsible continues.

At Eisenberg & Baum, LLP, we understand what it takes to confront systems that cover up sex abuse and allow it to continue unchecked. We have a team of attorneys who know how to address sex abuse against professional athletes, and in other coaching arrangements. If you have been abused because of your participation in a sport, we will help you get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Biden Administration Drops Lawsuit Against Yale’s Application Process

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The Justice Department under President Joe Biden has voluntarily withdrawn its lawsuit claiming that the Yale application process violated Title XI’s prohibition against racial discrimination. However, the move may be more political than precedential, as a conservative advocacy group stands ready to take Yale, Harvard, and several other universities’ Affirmative Action policies to the highest court.

Justice Department Drops Effort to Undermine Race-Based Yale Application Process

On August 13, 2020, the U.S. Department of Justice under President Trump, issued a press release claiming that Yale University’s admissions process illegally discriminated against Asian-Americans and white applicants. The Yale admissions requirements encouraged assessors to consider the “whole person,” including how their race or national origin could contribute to the diversity of the university’s community. The Trump administration said this was illegal racial discrimination under Title IX of the Civil Rights Act. When Yale refused the Justice Department’s demands to exclude race and national origins from its 2020 admissions policy, the agency took the university to court.

However, the new year brought a new administration, and a different take on the way racial minorities should be treated. On February 3, 2021, just two weeks after President Biden’s inauguration, the Justice Department filed a “Notice of Voluntary Dismissal,” dropping the case. In a statement issued at the same time, the agency based its decision on “all available facts, circumstances and legal developments.”

Harvard Affirmative Action Admissions Policy Upheld Appeal

One such legal development was the decision by the U.S. Court of Appeals for the First Circuit in a parallel case against Harvard University’s affirmative action policy. Issued less than one month after the Justice Department filed its Yale University complaint, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College upheld the university’s use of race as one factor among many in its admissions process.

The Court said that Harvard’s use of race was an appropriate part of an effort to reach out to Black and Latino students. It noted that the university “has already reached, or at least very nearly reached, the maximum returns in increased socioeconomic and racial diversity that can reasonably be achieved through outreach and reducing the cost of a Harvard education.” The University’s campus population would likely look very different if it did not use adjustments to its application process to supplement its financial aid and outreach programs.

The Justice Department was not a party in the Harvard case. It was filed by a group of Asian-American students backed by the conservative advocacy group Students for Fair Admissions. However, under the Trump Administration, the Justice Department had supported the Asian-American plaintiffs and argued against Affirmative Action on their behalf.  The organization has also filed similar lawsuits against the University of North Carolina and the University of Texas.

Affirmative Action Lawsuits, Appeals Likely to Continue

Even with the Harvard decision and the Justice Department’s decision to withdraw the Yale University lawsuit, it seems likely that Affirmative Action will make its way back to the U.S. Supreme Court. Students for Fair Admissions has already expressed its intent to take up the case against Yale. It’s motion to intervene into the government’s case was denied in October. However, the group will likely now refile the case on its own.

At the same time, the group has filed a Petition for Certiorari in the Harvard case, asking the U.S. Supreme Court to take up the question of Affirmative Action once again. The Harvard and Yale policies including race as one non-determinative factor were based on two 2003 cases against the University of Michigan. However, the new, more conservative makeup of the Supreme Court could mean restrictions, or even an end to pro-diversity racial considerations at colleges and universities across the state.

At Eisenberg & Baum, LLP, our discrimination attorneys understand how Affirmative Action can be used to fight against systemic racial discrimination, and what happens when those efforts end up working against students and employees of colleges and universities. If you believe your school has been discriminating against you because of your race, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.