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Recently Passed and Pending Legislation to Watch

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RECENTLY PASSED LEGISLATION

DEFAMATION SUITS & SEXUAL HARASSMENT CLAIMS

Governor Brown has recently signed Assembly Bill 2770 entitled Privileged Communications: communications by former employer: sexual harassment. AB 2770 (Irwin; D-Thousand Oaks). This bill takes effect January 1, 2019.

As a consequence to the increase in sexual harassment claims, there has also been a rise in claims of defamation asserting the accusations are false. Employers can also face claims of defamation if they provide any negative information to a prospective employer regarding the basis for the separation.

The bill seeks to protect both employees who report, and employers who take appropriate action, from defamation lawsuits for reporting sexual harassment allegations to employers or official agencies.

Defamation includes claims of false and unprivileged statements, written or oral, which can cause damage to the reputation of another person.  Clearly, an allegation of sexual harassment can negatively impact a person’s reputation, and if the allegation cannot be proven, the individual or employer making the allegation could be charged with defamation. To avoid this outcome, the new law considers certain communications about sexual harassment privileged and not subject to claims of defamation.

AB 2770 amends Civil Code Section 47(c). The definition of “privileged publication or broadcast” is broaden to include:

  • A complaint of sexual harassment by an employee (without malice) to an employer based upon credible evidence; and
  • Communications between the employer and interested persons (without malice) regarding complaints of sexual harassment. This includes current or former employers’ communications regarding whether the employer would not rehire the alleged harasser due to a determination that he or she engaged in sexual harassment.

Under the theory of a privileged communication, if a potential employer inquires whether the applicant/former employee is eligible for rehire, it is “privileged communication” for the former employer to respond the applicant/former employee is not eligible for rehire based on the applicant’s job performance. The new law extends the scope of that privilege to allow former employers to say it would not rehire an applicant based on the employer’s determination that the former employee committed sexual harassment. The law also amends the section of the privileged communication law to include complaints of sexual harassment made by an employee to an employer.

PENDING LEGISLATION

EMPLOYMENT DISCRIMINATION CLAIMS BASED ON MEDICAL MARIJUANA USE MAY SOON BE UP IN SMOKE

A proposed bill (AB 2069) seeks to amend California employment discrimination law to protect medical marijuana users.

Currently, California employers can refuse to employ, or take disciplinary action against an employee for the use of cannabis at work or reporting to work under the influence, regardless of whether such use is for medical purposes to treat a medical condition. This new bill would amend the Fair Employment and Housing Act (“FEHA”) to make it an unlawful practice for an employer to take any “adverse action” against an applicant or employee because of a positive drug test for cannabis if the use was by a medical cannabis card holder or because of one’s status as a medical cannabis card holder.

Several years ago the California Supreme Court held that an employer need not accommodate medicinal marijuana use, irrespective of the Compassionate Use Act of 1996. The Court reasoned that because FEHA does not require employers to accommodate illegal drug use, an employer could lawfully deny employment to individuals using medical marijuana, which remains illegal under federal law.

With the passage of The Adult Use of Marijuana Act (passed in 2016), nothing changed with respect to an employer’s policies so that an employer may “maintain a drug and alcohol free workplace.” Health & Safety Code § 11362.45(f).

Now, AB 2069 would create a new protected category: marijuana card holders (i.e., medical marijuana users) and would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.”

However, to allow employers to maintain some control over the workplace, AB 2069 would permit employers to take corrective action against employees who are impaired on employer premises because of marijuana use. The issue then becomes a question of how to determine if the employee is impaired and when the employee consumed the drug since cannabis can be detected for days or even weeks following consumption depending on the duration and frequency of use. So, in order to take corrective action against an employee using medical cannabis, the employer would have to have a clear indication that the employee was in fact impaired on the employer premises at a specific point in time.

AB 2069 also would permit employers to deny employment “if hiring the individual or failing to discharge the employee would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

If this bill passes, drug testing policies would need to be changed, and hiring practices would need to be modified as to positive tests for marijuana use. Of significance is that AB 2069 would not protect recreational marijuana users so California employers could still maintain and implement drug testing policies against those who use marijuana for non-medicinal purposes.

If this new legislation passes it could lead to other concerns in the workplace – such as whether the use of medical marijuana could be found to be a reasonable accommodation under disability discrimination laws.

 

This Newsletter is intended as a brief summary of employment law.  While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship.  If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved.  ©2018.