New Year, New Rules

On January 20-22, the American Bar Association’s Forum on Construction Law will hold its annual winter meeting in San Francisco, California. Construction law, like the industry itself, is constantly evolving, and national conferences like this one provide a valuable opportunity for lawyers practicing in the industry to get together and discuss recent developments, trends, and changes in the law.

One of the presentations that will be given at the conference concerns the interface between employment law and construction. The construction industry has a long and checkered past when it comes to employment issues, and current trends suggest the industry will remain at the jagged edge for years to come. Two prime examples illustrate this point.

As our country heads to another presidential election at the end of this year, the issues surrounding immigration—documented, undocumented, skilled, unskilled, temporary, or permanent—have once again come to the forefront, and are likely to remain there for the foreseeable future. By any measure, the construction industry has a deep and complicated past with immigrant workers. As the legal landscape continues to shift—influenced by Executive Orders, court orders, and state-level legislation—construction companies must remain fully apprised of their obligations and common pitfalls. Ignorance of the law, even when the law is constantly shifting, is seldom accepted as a defense.

Another issue likely to make its way to the ballots in several states this year is the legalization of marijuana. Regardless of the outcome of these state initiatives, marijuana will almost certainly remain illegal at the federal level, and subject to DEA seizure and federal court prosecution. For employers, the questions become thornier. Can an employer ban the after-hours use of a substance that is now legal, at least at the state level? Standards exist for measuring impairment of driving when it comes to alcohol, but not to marijuana, so how does an employer adjust its policies to reflect this uncertainty? When an employer has employees in multiple states, some of which have legalized marijuana and some of which have not, whose rules govern the employee? And what if that employee travels between offices?

It is traditionally said that there was an old curse that went “may you live in interesting times.” The story behind the curse is apocryphal—there never was such a saying. But the essential point is still well-taken. Construction industry participants currently do, and will for the foreseeable future, live in interesting times. As such, timely, accurate, executable advice continues to be valuable, and provide some stability, even as the legal landscape shifts under our feet.

AB 1897 Holds Client Employers Liable if Labor Contractors Fail to Pay Adequate Wages or Provide Workers’ Compensation for Injuries on the Job

Effective January 1, 2015, employers who hire temporary labor from labor contractors can be held liable for payment and workers’ compensation violations. Specifically, the bill adds California Labor Code §2810.3, which provides in pertinent part:

 (b) A client employer shall share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for both of the following:

 (1) The payment of wages.

 (2) Failure to secure valid workers’ compensation coverage as required by Section 3700.

The bill was enacted as a reaction to a recent shift from a traditional employer-employee relationship towards a business model that utilizes subcontracted or contingent workers. Proponents are concerned that this change creates challenges for workers and enforcement agencies in ensuring workers’ rights.

The law will affect the construction industry by increasing liability of employers who hire temporary labor to work on specific projects. According to a group of workers compensation lawyers, although existing workers compensation law requires employers to enter into written contracts for construction services that include workers compensation and wage information, the new law holds employers specifically accountable for violations related thereto.  Employers should be diligent in researching the policies of the labor contracting companies they work with and ensuring the adequacy of their wages and workers compensation coverage. If for any reason you find that your employer is not providing all things by law then you should contact a workers compensation attorney for help on the matter.

To see the bill in its entirety, click here.

To Test or Not to Test, That Is the Question …

By John Keen and Christine Kroupa

In November 2012, voters in Colorado and Washington state approved separate initiatives – Colorado Amendment 64 and Washington Initiative 502 – making it legal for anyone over the age of 21 to possess small amounts of marijuana for recreational use.  Following the legalization of recreational marijuana use in Colorado and Washington, employers have been left to wonder what, if any, impact Amendment 64 and Initiative 502 will have on their ability to test and take employment action against employees for use of marijuana.  This is especially true in the construction industry, where safety concerns are paramount.

Difficulty Testing for Marijuana Use

CON BLOG_drugtestTo understand the complications presented by the legalization of marijuana use, employers must understand the problems associated with reliable testing for marijuana use.  The active ingredient in marijuana, tetrahydrocannabinol (THC), enters the body’s bloodstream rapidly and is detectible in the blood for a short time, usually a matter of hours.  THC is then rapidly metabolized into molecules known as metabolites, which are stored in body fat.

This process creates complications for employers testing for marijuana use.  The problem is shared by law enforcement in Colorado and Washington who are attempting to determine how to test impaired drivers for levels of marijuana intoxication.  Blood or saliva tests can demonstrate current intoxication but not the level of intoxication or impairment.  The types of urine tests typically used by employers only demonstrate whether an individual has recently used marijuana, not intoxication or impairment.  Because of the overriding safety concerns in the construction industry, many employers have zero tolerance for drug use and utilize a urine test to detect any recent use of drugs.

Given the Change in State Law, May Employers Test?

Although marijuana is legal at the state level in Colorado and Washington, it is still outlawed at the federal level.  On Aug. 29, 2013, U.S. Attorney General Eric Holder stated that his office would not interfere with the legalization efforts in Colorado and Washington, however marijuana remains a Schedule 1 drug, the highest classification under the Controlled Substances Act of 1970.  The Department of Justice also clarified that it is not waiving the law, but rather is leaving enforcement up to prosecutorial discretion.  Employers can and should lean on the fact that marijuana is still illegal at the federal level when considering revisions to their drug policy.

Employers can also rely on the fact that the state laws and recent court decisions in Colorado and Washington favor employers in the area of drug testing.  Colorado’s Amendment 64 expressly states that the amendment is not intended “to affect the ability of employers to have policies restricting the use of marijuana by employees.”  Initiative 502 does not address drug testing policies, however state court rulings have been supportive of testing.

The Washington Supreme Court ruling in Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 171 Wn.2d 736 (Wash. 2011) provides guidance for employers seeking to set testing policies in Washington.  In Roe, the court ruled that Washington’s Medical Use of Marijuana Act (MUMA) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy.  The Supreme Court held that MUMA provides an affirmative defense to state criminal prosecutions of qualified medical marijuana users, but “does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.”  This holding applies regardless of whether the employee’s marijuana use was while working or while off-site during nonwork time.  The court also noted that marijuana use is illegal under federal law and that Washington patients have no legal right to use marijuana under federal law.

In Colorado, the Court of Appeals recently ruled the use of medical marijuana is not a lawful activity under § 24-34-402.5 C.R.S. 2012, Colorado’s Lawful Activities Statute.  Coats v. Dish Network LLC, 2013 COA 62 (Colo. Ct. App. 2013) offers Colorado employers further guidance regarding an employer’s ability to maintain drug testing policies and, specifically, policies regarding the use of marijuana.

In Coats, the trial court granted the defendant’s motion to dismiss after determining the plaintiff’s medical marijuana use was not a “lawful activity” under Colorado law, specifically the medical marijuana law did not establish a state constitutional right to medical marijuana use, but rather created an affirmative defense from prosecution for such use. In upholding the trial court’s decision, the Colorado Court of Appeals analyzed the meaning of “lawful” and noted that activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law. Therefore, for an activity to be “lawful” in Colorado, it must be permitted by, and not contrary to, state and federal law. Because the plaintiff’s state-licensed medical marijuana use at the time of his termination was subject to and prohibited by federal law, the court concluded it was not a “lawful activity” for the purposes of the Colorado Lawful Activity Statute.

Interestingly, the Colorado Supreme Court agreed to review the Court of Appeals’ decision for the following two issues:

  1. Whether the Colorado Lawful Activities Statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect the job performance; and,
  2. Whether the Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered in the state of Colorado.

Employees and employers are anxiously awaiting a decision in the Coats case to provide guidance regarding Colorado’s Amendment 64.

Employers in the construction industry should feel more confident that a prohibition against, and testing policies for, all drugs that are illegal under state and federal laws will remain valid in Colorado and Washington despite the recent changes in state laws.  A well drafted testing policy is important to protect construction employers from potential challenges when the need arises.  It is advisable for every Colorado and Washington employer to have their employment policies reviewed by an attorney to ensure they do not get caught in a wave of litigation over the use and testing for marijuana in their respective states.