Uber’s Autonomous Vehicle Program Continues but Without its Key Engineer

Trade secret self-driving carsOn Monday, May 15, 2017, Uber Technologies, Inc. narrowly sidestepped what could have been a complete shutdown of its autonomous vehicle program. Specifically, a federal district court judge declined to issue a temporary injunction against Uber and its self-driving car program. A copy of the order is available here, Waymo LLC v. Uber Technologies, Inc. (5-15-2107).

However, the District Court enjoined a key engineer leading Uber’s autonomous vehicle program from working on a critical component of the self-driving vehicle technology during the litigation.

The injunction arose out of a case filed in February 2017. The suit accused Uber and Google/Waymo’s former engineer of stealing trade secrets to develop an autonomous vehicle. The engineer, Anthony Levandowski, was an autonomous vehicle guru while at Waymo.

As we reported, Waymo alleged that Levandowski downloaded approximately 14,000 files comprising. According to the lawsuit, this amounted to 9.7 GB of confidential autonomous vehicle software data. The suit claims Levandowski missapropriated the data to help develop Uber’s autonomous vehicle program.

The New York Times reported on May 12, 2017 (by Mike Isaac) the judge previously referred the case to the United States Attorney’s office for possible theft of trade secrets. Such theft carries the possibility of criminal charges for those involved if the Department of Justice pursued the case. Anticipating as much, Mr. Levandowski decided to plead the Fifth Amendment to preserve the right against self-incrimination.

In today’s ruling, the judge reasoned,

Waymo L.L.C Has shown compelling evidence that its former star engineer, Anthony Levandowski, downloaded over 14,000 confidential files from Waymo immediately before leaving his employment there … Significantly, the evidence indicates that, during the acquisition, Uber likely knew or at least should have known that Levandowski had taken and retained possession of Waymo’s confidential files.

Having represented companies and engineers in pursuing and defending against trade secret litigation, the issues addressed in the court’s order are all too common. And while Uber can “spin” a partial victory from not having its autonomous vehicle program enjoined during the pendency of the litigation, this may prove to be a hollow victory.

First, Levandowski appears to be key to its self-driving car software development. Right now he is temporarily sidelined per the court’s order. But it would not be a surprise if Levandowski’s employment was eventually terminated (and likely sooner than later if criminal charges are pursued). Second, if there is evidence that Uber knew of the misappropriated trade secrets, its entire autonomous vehicle program could be enjoined, besides facing other civil or criminal sanctions.

We will continue to monitor this case. Meanwhile, the Waymo/Uber lawsuit is an important reminder to carefully evaluate measures to prevent new hires from wrongfully using trade secrets and confidential information of competitors. Such measures include having the right policies. They also include educating HR professionals and managers about the need to discourage and even police against such misappropriation.

For more information about trade secret misappropriation or the issues raised in this post, contact attorney Jason Shinn. Mr. Shinn routinely represents individuals and companies and trade secret and noncompete litigation in federal and Michigan lawsuits.

Revising Non-compete Law to Eliminate Unfair Competition

Noncompete Agreement and Unfair AdvantageNon-compete agreements are intended to prevent unfair competition. But they often create unfair advantages against employees and start-ups. And these unfair advantages adversely affect individuals and the overall economy. At least that is the take-away from a recent op-ed in the New York Times.

Noncompete Restrictions and the Economy

Specifically, Prof. Orly Lobel wrote in Companies Compete but Won’t Let Their Workers Do the Same

Noncompete agreements, like other anti­competitive practices, poison our economy in larger, less tangible ways. There is strong data showing they reduce employee motivation, entrepreneurship, and sharing of knowledge, the fundamental building blocks of innovation and economic growth.

In support, Professor Lobel cites to research from the Treasury Department:

The evidence shows wages in states that enforce noncompetes are 10 percent lower than in states that restrict their use. The Treasury Department concluded in its recent report that ‘by reducing workers’ job options, noncompete agreements force workers to accept lower wages in their current jobs, and may sometimes induce workers to leave their occupations entirely, forgoing accumulated human capital.’

Noncompete Agreements in Michigan

In Michigan, like many states, non-compete agreements may be enforceable if certain threshold requirements are met. Among these requirements:

  1. It must be reasonable as to its duration, geographical scope, and the type of employment or line of business restricted.
  2. The enforceability of a noncompete must protect against the employee’s gaining some unfair advantage in competition with the employer. However, the restrictions cannot prohibit the employee from using general knowledge or skill.
  3. It must protect an employer’s reasonable competitive business interests.

See St. Clair Medical, P.C. v. Borgiel, 270 Mich. App. 506 (2006).

In addition to the concerns raised by Professor Lobel, it should also be noted that former employers seldom need to actually establish these elements in order to prevent an individual from working for a competitor. Instead, it is often enough to send what is called a “cease and desist” letter to the individual and new employer that threatens to sue to enforce the post-employment restrictions. This, in turn, frequently results in termination or an unpaid leave to (hopefully) resolve the noncompete dispute. Thus, even where the enforceability of the noncompete agreement is questionable, a company can prevent the individual from working.

For example, we represented an engineer in a noncompete dispute. The engineer’s employer was closing the office in the state where the engineer worked. He was given the option to relocate him and his family to another state. Instead, he chose to accept a position with a state college. But the employer sought to enforce its non-compete restrictions to prevent this employment. Ultimately, the judge agreed with our position that the non-compete was not likely to be violated by accepting the college position. But by that time, the college had hired another engineer for the position.

This example shows how employees can win a non-compete dispute while still losing. Other issues remained to be resolved in that example, but, unfortunately, the employment opportunity was gone.

A modest Proposal to Revise Michigan’s Noncompete Law

In our experience representing employers and individuals in non-compete disputes, we believe such post-employment restrictions – if used appropriately – have a legitimate and important purpose. But all too often companies or their attorneys often overreach.

In those instances, Michigan would do well to revise its non-compete statute to include a bad-faith provision. Michigan’s trade secret statute already contains a provision that allows a defendant to recover attorney’s fees if a trade secret misappropriation claim was brought in bad faith. Adding a similar provision to Michigan’s noncompete statute could deter frivolous non-compete disputes or provide some measure of recovery to an individual subject to such a lawsuit.

For more information about this article or Michigan non-compete law, contact attorney Jason Shinn. Mr. Shinn has practiced in this area since 2001 on behalf of employers and employees.

Is a Noncompete Enforceable if an Employee is Laid-Off?

noncompete agreementLast week, ESPN laid off 100 employees. This included well-known SportsCenter anchors and popular writers who are subject to noncompete restrictions. A lot of ink has been spilled about the causes for these layoffs. See, for example,

A lot of ink has been spilled about the causes for these layoffs. See, for example, ESPN is Not Doomed. But one topic near-and-dear to our attorneys is what happens to the ESPN employees let go who are under noncompete restrictions.

John Ourand of Sports Business Daily touched upon this issue when he reported in Tough trend for Talent,

ESPN agreed to pay out full contracts, which in some cases lasted more than five years … Many have non-compete clauses in their deals, which means they can’t report their beats, even on social media, until their contracts end or they are released. In order to get around the non-compete clauses, they would have to report on entirely different beats than the ones they spent years developing at ESPN.

Now there are worse things in life than getting paid to not work for five years to comply with your noncompete obligations. But the reality is that many employees are not going to have this benefit. In fact, often employees are fortunate to get two-weeks severance. So what happens when you’re employment is restricted and you receive limited or no severance – is the noncompete still enforceable?

Enforcing Noncompete Agreements After the Employment Ends

Our law firm specializes in noncompete law when it comes to representing both companies and employees. A common question from both is what happens to a noncompete restriction if the employee is fired or laid-off due to no fault of the employee.

The short answer is that it depends on a few issues (I know, typical attorney answer). First, most states, including Michigan, do not preclude enforcement of a post-employment restriction in a noncompete agreement simply because the employee was fired, laid-off, or the employment ended due to no fault of the employee or for reasons outside the control of the employee.

Second, noncompete restrictions generally include a provision that it will be enforceable regardless of the reason the employment ended. In such an instance, the reasons for termination becomes irrelevant. From an employer’s perspective, it is important to carefully draft this provision to avoid litigating the reasons for an employee’s termination.

Now there are still significant threshold requirements that must be met to have an enforceable noncompete agreement. Such considerations include whether it protects an employer’s reasonable competitive interest, whether it is limited in duration and geographic scope, etc. But the reasons for the termination will not be a legal bar for enforcement if it is properly drafted.

For more information about noncompete agreements and best practices for enforcing them or strategies for challenging their enforceability, contact attorney Jason Shinn. Since 2001, he has worked with companies, executives, sales representatives, and other employees to address noncompete disputes. Mr. Shinn has extensive experience in obtaining and defending against temporary restraining orders and other remedies involved in noncompete litigation.

Also to obtain a free report, 10 Noncompete Mistakes You Can’t Afford to Make, follow this link and complete the contact form (include “noncompete mistakes” in the subject line).

Religion and LGBT Discrimination – Who is Protected Under Title VII

Employer Religious Freedom and LGBT RightsLast year we reported on an important LGBT case involving a Michigan corporation that fired a transgender female employee (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.). The Equal Employment Opportunity Commission (EEOC) argued Title VII’s ban on sex discrimination prohibits bias based on gender identity. The funeral home’s majority shareholder claimed the termination was shielded by the Religious Freedom Restoration Act (RFRA). The district court judge ultimately agreed, but the case has been appealed.

The District Court’s Decision – Title VII does not Expressly Cover Transgender and Protecting Corporate Religious Belief

The district court reasoned  transgender status is not a protected class under Title VII. But a transgender plaintiff may still bring a claim under Title VII under a sex-stereotyping gender-discrimination claim if that person’s failure to conform to sex stereotypes was the driving force behind the termination.

However, the district court further concluded that the funeral home’s majority shareholder, Thomas Rost, had a religious freedom defense to the Title VII claim under the RFRA. Mr. Rost believed he would be “violating God’s commands” if he allowed workers to “deny their sex” while representing the funeral home.

The RFRA generally bars government action that substantially burdens an “individual’s” sincerely held religious beliefs if the government didn’t take the “least restrictive means” to achieve its interests. 42 U.S.C. §§ 2000bb-1(a),(b). By its terms, the RFRA protects religious exercise, not religious beliefs. See 42 U.S.C. § 2000bb-1(a).

Religious Exemption – Appeal to a Higher Power

The case was appealed to the Sixth Circuit. Interestingly, numerous clergy and religious organizations, including the Anti-Defamation League, Muslim Advocates, the Interfaith Alliance Foundation, the People for the American Way Foundation, and 76 Christian and Jewish clergy joined in a friend-of-the-court brief asking the federal appeals court to reverse the decision. This brief was filed by the Americans United for Separation of Church and State. Here is a passage:

If the district court’s decision is allowed to stand, ‘for-profit businesses would have broad—indeed, nearly limitless—license to engage in unlawful and invidious discrimination through a simple expedient: describing their decision as religiously based.

* * *

The [Religious Freedom Restoration Act] provides important safeguards for religious exercise. But it does not and cannot upend all employment-discrimination law.

Where the EEOC and Courts Stand on Religious Defense and LGBT Protections

The EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. If the Sixth Circuit does not reverse the EEOC v. R.G. & G.R. Funeral Homes case, it would mean secular employers could use religious belief under the RFRA to defeat LGBT bias claims.

Ultimately, however, it is likely the issue will be reviewed by the U.S. Supreme Court. This is because there is currently a split among the Circuits. The Seventh Circuit Court of Appeals recently followed the EEOC’s interpretation and concluded on April 4, 2017, that discrimination based on sexual orientation is a form of sex discrimination. Hively v Ivy Tech Community College of Indiana. In contrast, the Second Circuit in Anonymous v. Omnicom Grp., Inc. (2017) and Eleventh Circuits in Evans v. Ga. Reg’l Hosp., (2017) concluded that Title VII did not extend to sexual orientation. In any event, this is an issue HR professionals and companies will need to watch.

For more information about complying with federal or Michigan employment discrimination laws, as well as litigating employment discrimination claims, contact employment attorney Jason Shinn.

Employees Wanted – Work at your Own Risk

Workplace InjuryBloomberg Business Week recently featured a story about the South’s manufacturing renaissance. The article, by Peter Waldman, is titled Inside Alabama’s Auto Jobs Boom: Cheap Wages, Little Training, Crushed Limbs.

The workplace injuries and deaths described are simply horrific. Here are a few examples:

  • A female employee at auto parts supplier Ajin USA was impaled while trying to fix a robot. The robot unexpectedly turned on and impaling her upper body with a pair of welding tips. Ajin, per OSHA, had never given workers safety locks and training on how to use them.
  • A male employee lost his arm. This happened after a heated die press that stamps metal parts slammed onto his arms. He was trapped like this for an hour while his flesh burned inside the heated press. When emergency crews finally freed him, his left hand was “flat like a pancake.”
  • In 2015, a 33-year-old technician suffered third-degree burns all over his upper body at Nakanishi Manufacturing Corp.’s plant in Winterville, Ga. This incident happened after four previous fires in the factory’s dust-collection system. Last year, OSHA levied a $145,000 fine (later negotiated down to $105,000).

Bloomberg reported that the incidents of workplace injuries far outpaced the rest of the country, in particular Michigan. Specifically,

[T]he incidence of traumatic injuries in Alabama’s auto parts plants remains 9 percent higher than in Michigan’s and 8 percent higher than in Ohio’s. In 2015 the chances of losing a finger or limb in an Alabama parts factory was double the amputation risk nationally for the industry, 65 percent higher than in Michigan and 33 percent above the rate in Ohio.

* * *

OSHA records obtained by Bloomberg document burning flesh, crushed limbs, dismembered body parts, and a flailing fall into a vat of acid. The files read like Upton Sinclair, or even Dickens.

These examples are typical of recent violations. Here are a couple of examples:

  • In Sec’y of Labor v. Martin Mech. Contractors, Inc., (4/17/17), a Georgia contracting company whose employee died after falling through a skylight was assessed a $49,000 penalty. It was determined the company had inadequate fall protection training program.
  • Exide Technologies, a Kansas battery maker, faces $149K fine over lead hazards for failing to protect workers from overexposure to lead at its manufacturing plant in Kansas. Exide was cited by the OSHA for one serious and three repeat violations.

Work Place Fatality Was on the Decline

Data from the Bureau of Labor Statistics shows that the number of deaths for every 100,000 full-time worker equivalents declined from 4.2 to 3.7 during the Bush administration. Further declines continued under the Obama administration going from 3.6 to 3.3.

However, there is cause for concern these reductions in worker mortality may cease. This is because, within days of taking office, President Trump invited American manufacturers to recommend ways the government could cut regulations. The Department of Labor was the second most popular target in comments submitted. The Environmental Protection Agency was the number of one target.

Further, the Trump administration has proposed to cut the Labor Department’s fiscal year 2018 budget by 21 percent. And President Trump has insisted on eliminating two rules for every new rule.

President Trump ran on a promise to make America Great Again. But that America may not be so great for factory workers and other blue-collar employees when it comes to workplace safety. Hopefully, things won’t get worse.

Employment Agreements Found Unlawful by NLRB

Employment ArbitrationEmployers should carefully evaluate their employment agreements with a focus on eliminating provisions that may be unlawful, given a recent National Labor Relations Board (NLRB) ruling. Specifically, DISH Network was ordered on April 13, 2017, to revise or rescind its employment agreements after the NLRB found the agreements contain provisions that violate federal labor law. See

Specifically, DISH Network was ordered on April 13, 2017, to revise or rescind its employment agreements after the NLRB found the agreements contain provisions that violate federal labor law. See DISH Network, LLC, 365 N.L.R.B. No. 47 (4/13/17). This order applies to DISH Network’s entire U.S. workforce.

Since October 2013, DISH Network required all applicants to sign its mandatory arbitration agreements.  These agreements required employees at U.S. locations to arbitrate “any claim, controversy and/or dispute” against the employer, “whenever and wherever brought.”

Also, the arbitration agreement contained a strict confidentiality provision requiring that “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential …”

An employer violates Section 8(a)(1) if it maintains an arbitration policy that employees would reasonably believe interferes with their ability to file a Board charge or to access the Board’s processes. Applying this, the Board had easily ruled that employees would reasonably understand the DISH Network agreement as prohibiting them from filing unfair labor practice charges or using the NLRB’s administrative processes. Accordingly, the agreement was unlawful.

Additionally, the Board found the agreement’s confidentiality requirement independently violated the NLRA (Section 8(a)(1)). Applying this section, the Board ruled that DISH Network’s agreement was a workplace rule that prohibits the discussion of terms and conditions of employment by prohibiting employees from discussing “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards.” As such, the rule was unlawfully overbroad.

Considerations for your Company’s Employment Agreements

Decisions like this are reminders that broad company rules prohibiting employees from discussing workplace issues are likely to be inconsistent with NLRB rules and, therefore, unlawful.

So employers should review their employment agreements to eliminate blanket prohibitions. It is also recommended to expressly note that the agreement is not intended to interfere or restrict an employee’s rights under the NLRA or to file any NLRB charges. Such carve out provisions may save an agreement from being found unlawful.

For more practical advice and best practices for improving your company’s employment agreements and other policies, contact, employment attorney Jason Shinn. He routinely works with companies to implement HR best practices or update their existing policies to comply with federal and Michigan employment laws.

Ex-Worker Sued for Accessing Former Employer’s Google Drive Account

Data BreachA former employee’s accessing a Google Drive he set up for his employer may result in a violation of the federal Computer Fraud and Abuse Act (CFAA). This case also serves as a reminder to carefully evaluate how your company uses any third-party services like Dropbox, Google Drive, etc.

Computer Fraud and Abuse Act Background

The CFAA is primarily a criminal statute focused on combating hacking. It was later expanded to provide civil remedies. Specifically, it grants “[a]ny person who suffers damage or loss by reason of a violation of this section” the ability to bring a civil action “to obtain compensatory damages and injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). Violating any of the statute’s provisions exposes the offender to both civil and criminal liability.”

The CFAA is frequently used against former employees believed to have improperly used or accessed company information. See “Courts Continue to Narrow Application of Computer Fraud and Abuse Act Against Former Employees.”

Accessing Former Employer’s Database

That happened in this case, Estes Forwarding Worldwide LLC v. Cuellar (3/9/17). This case was filed in federal court in Virginia where Estes Forwarding Worldwide LLC alleged its former employee wrongfully accessed and downloaded information from a Google Drive account used in Estes’ shipment and vendor business.

Estes fired Cuellar in February 2015. Cuellar then worked for a competitor of Estes. In May 2016, over one year after his termination, Cuellar accessed the Google Drive account from his home and removed both a recovery phone number associated with the account and a secondary email address on file. This email went directly to Estes. Cuellar also changed the password for the account and created an archive of the spreadsheets it contained.

Later that same day, Cuellar again accessed the account. This time, he accessed the account from his work. At that time, Cuellar downloaded the entire archive he created earlier that morning. The archive was over 1,900 spreadsheets generated by Estes employees. Cuellar then deleted the account.

Distinction Between Personal Account and Business Account

Cuellar moved to dismiss the CFAA claim. One argument he made focused on “authorization.” Cuellar argued that “[w]hen a person provides personal information to register an email account with a service provider like Google or Yahoo, and establishes a password, it is the service provider that authorizes that person’s access to the account and not the employer.”

In other words, Cuellar argued that “[f]or purposes of unauthorized access to the [account] under the CFAA, Estes does not get to create [the] rules [governing authorization]; only the Google Terms of Use can do that.”

To support this argument (and as discussed below this point is important for employers), Cuellar cited to another case (Hoofnagle v. Smyth-Wythe Airport Comm’n, 5/24/16) in which a former airport worker could pursue a claim that his employer accessed his Yahoo e-mail account without authorization. The Hoofnagle court said that although the plaintiff created the account in part to conduct airport business, he did so with his personal information and used the account for personal use.

The Court rejected this argument. It reasoned that Cuellar unlike the employee in Hoofnagle, created the account within the scope of his employment with Estes and at its direction. This was not Cuellar’s personal account and it had never been used by Cuellar or any other employee for personal use.

What Employers Should Do to Protect their Business

For any company that uses third-party services – think Dropbox, Box, Google Drive, etc. – to conduct business, this case should be a wake-up call. This is because the case itself involved a clear-cut issue of wrongful access to a company database by a former employee – Cuellar was terminated in February 2015 and accessed the Google Drive account over a year later without permission.

But the court opinion suggests that a different result may have been reached had Cuellar originally used the Google Drive for personal use in addition for business reasons or if he had set up the account using his personal information. In our experience, both situations commonly happen.

For this reason, your business should immediately audit of any third-party data or file sharing services used, officially or otherwise, to conduct business. As part of this audit, you will want to:

  1. Make sure these accounts are in your company’s name. For any account created by an employee or that is in the name of the employee, immediately take appropriate steps to transfer the account or rights to the account;
  2. Confirm the account is used only for your company’s business;
  3. Identify anyone with access to the accounts and data stored in any such account;
  4. Have a written policy specifically advising employees that the information belongs exclusively to the employer, the account and information is to be used only for business, and it may only be accessed for business; and
  5. Make sure an individual’s access to the account is disabled upon termination.

For more information about the Computer Fraud and Abuse Act, and litigating claims under the CFAA, contact attorney Jason Shinn. On behalf of businesses and individuals, Mr. Shinn has brought and defended against CFAA and related trade secret misappropriation issues in federal and Michigan courts.

Company Sued for Rescinding Job Offer Because Prospective Employee Signed Online Petition

Online petition legal issuesEmployers have a new concern with job offers and social media; In what appears to be a first, a federal court of appeals held an employer could be liable for rescinding a job offer because the prospective employee signed an online petition supporting issues under the federal Fair Housing Act (FHA).

Specifically, in Linkletter v. Western & Southern Fin. (3/23/17), the plaintiff, Gayle Linkletter, was offered a position with Western & Southern Financial Group. At the time the offer was made, Western & Southern was engaged in a lengthy real estate dispute with a women’s shelter over its location in the neighborhood. Residents of the Anna Louise Inn women’s shelter had sued Western & Southern in federal court under the FHA.

While the dispute between the shelter and Western & Southern was ongoing, Linkletter signed a petition expressing support for the shelter. The petition was titled, “The Anna Louise Inn has my Support!” It also stated, “I support the mission of the Anna Louise Inn, which has provided safe and affordable housing for women for 102 years in its current location.” As a signor, Linkletter also stated that “[the] Anna Louise Inn should remain where it is and continue its mission of providing safe and affordable housing for single women.” The Inn posted the petition online with the names of the signors, including Linkletter.

Before Linkletter began working, Western & Southern’s Senior Vice President of Human Resources called Linkletter to notify her that Western & Southern had rescinded the employment offer. Linkletter said she was told the rescission due to Linkletter having taken “a position that was contrary to Western & Southern” and Senior VP mentioned Linkletter’s support for the Anna Louise Inn.

Linkletter sued Western & Southern. Her suit argued that Western & Southern violated the FHA as it related to her. On this point, the FHA makes it “unlawful to coerce, intimidate, threaten or interfere with any person” for having “aided or encouraged any other person in the exercise” of the rights granted by the act. Linkletter argued that she was protected by this provision because her would-be employer interfered with her employment because she aided or encouraged women in the exercise of their housing rights under FHA.

The lower court dismissed the case because the petition didn’t “aid or encourage” the women of the inn as contemplated by the law. That decision was reversed on appeal.

Linkletter’s action, signing a petition, is seemingly innocuous. However, the language and timing of the petition demonstrate that it existed to encourage the women to remain in their residence in opposition to the alleged discrimination by Western & Southern … Linkletter signed the petition to “encourage” the women in their dispute with Western & Southern

* * *

the defendants fail to explain why a petition-signing is not encouragement beyond vague assertions that the action lacks “concreteness” or “directness.” The allegations in the complaint show that the action was concrete and important enough to alert Linkletter’s future employer to her public support, and result in her termination. If the encouragement is sufficiently concrete to lead to an individual’s firing, it is sufficiently concrete to state a plausible claim.

Employment Protections Extended to Online Petitions and Activity

The Linkletter decision was issued by the Sixth Circuit Court of Appeals, which covers Michigan. This decision also means that an employee signing a petition, at least under certain circumstances, may be protected activity. While this case involved the FHA, its reasoning would extend to other situations where an employee or job applicant signs an online petition or voices support through Facebook to support co-workers or people attempting to uphold their statutory rights.

For example, Title VII prohibits discrimination on the basis of the employee’s friendship with or advocacy on behalf of a member of a protected class. See Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir., 2009) (Title VII extended to Plaintiffs who were not members of the protected class but claimed they were discriminated against because they were friends with and spoke out on behalf of their African-American co-workers).

Also, readers of this blog know that employers have repeatedly faced liability for disciplining employees for Facebook postings that implicate rights under the National Labor Relations Act. See NLRB Once Again Wades Into the Lawfulness of Employer’s Workplace Policies or NLRB Finds Employer’s Workplace Rules Violated Federal Labor Law.

Considering the political environment and how technologically allows anyone to publicly communicate their support or opposition on any issue, employers must carefully evaluate the reasons behind any termination to avoid unintended liability.

For more information about employment and social media law, contact attorney Jason Shinn. He routinely works with clients to address issues at the intersection of technology and the workplace.

State Marijuana Laws can Leave Employees Dazed and Confused about their Rights

Workplace drug testingMany states have decriminalized marijuana, whether generally or when used for medical reasons. But such changes present challenges for companies and their employees when it comes to balancing workplace concerns and employee rights. The latest marijuana issue employers may need to consider is called “microdosing.”

Rebecca Greenfield in her article, “The Case for Eating Weed at Work, ” explains the recent microdosing trend :

With recreational marijuana now legal in eight states and the District of Columbia, users have gravitated to low-dose edibles, such as brownies and mints with THC content of fewer than 5 milligrams—low enough for a manageable high for first-time users …

Microdosing refers to regularly taking small amounts of drugs—generally, hard-to-get and illegal psychoactive ones, such as LSD or psychedelic mushrooms—throughout the day to boost creativity. Taken in such small quantities, the drugs don’t make users trip. Rather, people claim the drugs improve their concentration, problem-solving abilities, creativity, and productivity and reduce their anxiety.

Marijuana Use in the Michigan Workplace

Michigan is one state that has decriminalized marijuana for medical reasons. Specifically, under Michigan’s Michigan Medical Marijuana Act (MCL 333.26421) “a certified user may not be subjected to any “penalty of any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business.”

However, employees have not fared well under the statute. Consider for example in Casias v. Wal-Mart Stores, Inc. (2012) the employee was a certified medical marijuana user. He had sinus cancer and an inoperable brain tumor. He later failed a drug test and was fired.

The plaintiff then sued for wrongful discharge. He claimed that his marijuana use was not illegal under Michigan’s Medical Marijuana Act. The Sixth Circuit disagreed. It concluded that Michigan’s medical marijuana statute provided only a “defense to criminal charges or other adverse state action,” and that applying it to claims against private employers would be unduly broad.

Disciplining Employees for Marijuana Use

Legally, employers will continue to have significant leeway for punishing marijuana use in the workplace. Even if its use is permitted under state law, marijuana remains an illegal Schedule I drug under the federal Controlled Substances Act.  And employees using the drug are not currently afforded protections under the Americans with Disabilities Act.

This means whether your state law permits recreational or medicinal marijuana use, you still generally have the right to test your employees for drug use and discipline them if their marijuana use violates your drug-free workplace policy. However, consult with your company’s employment attorney because there are nuances to employment-related drug testing. For instance, recent changes to OSHA’s drug testing and its enactment of an anti-retaliation rule alters the circumstances when drug testing can be conducted. This rule is intended to reemphasize the protections for employees to report injury and illnesses without fear of retaliation.

For instance, recent changes to OSHA’s drug testing and its enactment of an anti-retaliation rule alters the circumstances when drug testing can be conducted. This rule is intended to reemphasize the protections for employees to report injury and illnesses without fear of retaliation.

For more information about complying with federal and Michigan employment laws and your rights under those laws, contact employment attorney Jason Shinn. Since 2001, he’s worked with clients to address employment law matters, and litigating those issues in federal and Michigan courts.

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