Wednesday, July 24, 2019
Medical Marijuana FAQ

As dispensaries open their doors across the state, Arkansas employers should have a policy in place for how to deal with medical marijuana in the workplace. One of the questions we have been asked most frequently is what positions qualify as “safety sensitive” under the language of Arkansas’ medical marijuana Amendment (Ark. Const. Amend. XCVIII). While the interpretation of the medical marijuana Amendment has yet to be tested in court, this article addresses our opinion on what positions qualify as “safety sensitive.”

Ark. Const. Amend. XCVIII, §§ 3, 6 states that employers with 9 or more employees (during 20 or more weeks of the current or preceding calendar year) may not discriminate against applicants or employees based on past or present status as a medical marijuana cardholder or as a designated caregiver for a physically disabled medical marijuana patient. While the Amendment generally extends protections for employees who are medical marijuana card-holders, one provision creates a carve-out for “safety sensitive” positions. Specifically, the Amendment states that an employer may exclude medical marijuana cardholders from “being employed in or performing a safety sensitive position based on the employer's good faith belief that the qualifying patient was engaged in the current use of marijuana.” Ark. Const. amend. XCVIII § 3(f)(3)(B)(iii). 

Section 2 of the Amendment defines a “safety sensitive position” as one that involves either:

A) “a safety sensitive function pursuant to federal regulations governing drug and alcohol testing adopted by the United States Department of Transportation or any other rules, guidelines, or regulations adopted by any other federal or state agency,” or 

B) [A]ny position designated  in writing  by an employer as a safety sensitive position in which a person performing the position while under the influence of marijuana may constitute a threat to health or safety, including without limitation a position:

(i) That requires any of the following activities:
(a) Carrying a firearm;
(b) Performing life-threatening procedures;
(c) Working with confidential information or
documents pertaining to criminal investigations; or
(d) Working with hazardous or flammable materials,
controlled substances, food, or medicine; or

(ii) In which a lapse of attention could result in injury,
illness, or death, including without limitation a position
that includes the operating, repairing, maintaining, or
monitoring of heavy equipment, machinery, aircraft,
motorized watercraft, or motor vehicles as part of the
job duties[.]

For many positions it will be obvious whether they fall into one of these categories. For example, commercial truck drivers who are covered by regulations of the Department of Transportation and the Federal Motor Carrier Safety Administration would fall within subpart (A). Private security guards who are required to carry a firearm as part of their job duties fall within subpart (B). Pharmacists and cooks would likewise be classified as safety sensitive based on their work with medicine and food, respectively. 

Other positions may not be as clear. One common question we receive is about proper interpretation of the provision regarding work “with confidential information or documents pertaining to criminal investigations.” The question is whether the phrase should be read to mean “confidential information or documents pertaining to criminal investigations” as two separate activities (1. confidential information; 2. documents pertaining to criminal investigations), or whether “information and documents” both relate to criminal investigations. The first interpretation of two separate activities would include a much wider segment of jobs since many people work with confidential information — for example, human resource professions. Comparatively few positions work with information related to criminal investigations. Ultimately, the courts will have the final say on the interpretation of this provision.  We believe the best practice is to interpret the provision narrowly as a single activity. Thus, unless an employee is working with records and/or information related to a criminal investigation, we believe it should not be classified as “safety sensitive” solely on the basis that the employee works with confidential information.

One other issue is that the Amendment does not specify any particular frequency with which an employee may be required to perform safety sensitive activities. For instance, does a job that requires an employee to drive or operate heavy machinery twice a month qualify as safety sensitive? The language is silent. Regardless, the key here is to specify  in writing  which positions you deem to be safety sensitive. Job descriptions for any positions you deem to be safety sensitive should also reflect the safety sensitive duties and aspects of the job. Taking these steps can help insulate you from a claim that an employee was not actually working in a safety sensitive position. 

Deciding whether a position is safety sensitive must be done on a case-by-case basis, and any such determinations should be in writing. If you have questions about whether or which of your employees can be classified as safety sensitive under the medical marijuana Amendment, you should consult with one of our attorneys.
Supreme Court &
Legislative Wrap-Up
What You Need to Know

In the legal world, summer signals the end of several important seasons. The U.S. Supreme Court ends its spring term in June by issuing opinions before it breaks for summer vacation. The Arkansas Legislature wrapped up its 92nd General Assembly on April 24, 2019, and most statutes passed during session go into effect today ( Wednesday, July 24, 2019 .) Keep reading for our Supreme Court and legislative updates which highlight the major opinions and legislative updates affecting employment law.
U.S. Supreme Court

The Court decided several important cases addressing proper application and interpretation of the Federal Arbitration Act (FAA) this term. The Court decided Henry Schein, Inc. v. Archer & White Sales Inc. on January 9, 2019. There, the Court concluded that parties — by the terms of their arbitration agreements —can delegate the initial determination of whether a matter is subject to arbitration to an arbitrator, rather than the courts. The Court emphasized that arbitration is a matter of contract, and that courts must enforce contracts according to their terms.

We previously reported on the Court’s January 15, 2019 opinion in New Prime, Inc. v. Oliveira . In New Prime , the Court held that a court — not an arbitrator — must decide the threshold question of whether a carve-out for transportation workers in section 1 of the FAA applies before ordering arbitration. The distinction from the Henry Schein case discussed above is that the employee in New Prime argued he was exempt from the FAA altogether. The bottom line of these two cases is that in most cases the parties can assign the initial determination of whether a matter is arbitrable to an arbitrator rather than the court; an exception to that rule is when someone claims they are exempt from the terms of the FAA, which a court must first determine.

We also previously reported on Lamps Plus, Inc. v. Varela . In that case, the Court held that an arbitration agreement must expressly allow for class arbitration before plaintiffs will be permitted to pursue arbitration as a class. The agreement can neither be silent nor ambiguous. 

In Mount Lemmon Fire District v. Guido , the Court held that all state offices and employers are covered by the Age Discrimination in Employment Act (ADEA) regardless of the number of employees. The ADEA only covers private employers with 20 employees or more, but the Court clarified that limit does not extend to public employers, which are all covered under the Act.

The Court issued its opinion in Fort Bend County, Texas v. Davis , on April 22, 2019. There, the Court held that failing to file a charge of discrimination with the EEOC or equivalent state or local administrative agency is not a jurisdictional bar to a Title VII lawsuit. Instead, it is a mandatory claim-processing rule that is a precondition to relief. The result is that failure to file an EEOC charge does not bar an employee from filing suit. Rather, employers must timely raise any defense of failure to exhaust administrative remedies or risk waiving the defense.
Arkansas Legislative

Act 853 (HB1751) Amending the Arkansas Minimum Wage Act — Act 853 makes several important changes to the Arkansas Minimum Wage Act (AMWA) to bring it more in line with its federal counterpart, the Fair Labor Standards Act (FLSA). Collectively, these changes s hould make litigating wage-and-hour claims more seamless since Arkansas law now more closely mirrors federal law. These changes include:

-Act 853 does away with the prior standard under the AMWA, which stated that the statute should be “liberally construed,” and required courts to interpret the law most favorable to employees.

-Act 853 also significantly amended provisions regarding the extent to which room, board, apparel, and other items can be counted as wages. 

-The Act also amends the AMWA to change the procedure for bringing claims for alleged unpaid wages and overtime on behalf of a class. 

-Act 853 reduces the statute of limitations under the AMWA from three years to two years. 

-Act 853 amended the final paycheck provisions under the AMWA. 

Act 455 (SB303) Clarifying the penalties for failing to report for unemployment insurance — Ark. Code § 11-10-717(b)(3) assesses a penalty for employers who fail to supply required information on quarterly reports to the Department of Workforce Services for the payment of unemployment insurance. Specifically, the statute provides for a penalty of $30 or 15 percent of the contributions due on the employer’s report, whichever is greater. Act 455 adds subsection (b)(3)(D) clarifying that the Department of Workforce Services will assess such a penalty when an employer initially files a quarterly wage report stating that no wages were paid and later amends the quarterly report to reflect employee information and wages paid when such an amendment is filed more than 20 days after the quarterly report was due. Accordingly, merely filing a zero wages report and later amending will not avoid the penalty provision of § 11-10-717. 

Act 1055 (HB1850) Establishing a new test to determine who is an independent contractor versus an employee — Act 1055 adopts a 20-factor test from the IRS for determining when individuals constitute employees and when they are independent contractors. Act 1055 codifies and incorporates many of the factors Arkansas courts already consider in determining whether an individual is an employee or an independent contractor. Thus, it should not significantly affect who is classified as an independent contractor under state law.

NLRB Makes it Easier for Employers to Withdraw Union Recognition
By Allison Pearson

The National Labor Relations Board (NLRB) recently issued an opinion making it easier for employers to withdraw recognition of a union. The NLRB issued its opinion in Johnson Controls , NLRB, 10-CA-151843, on July 3, 2019, upholding the employer’s anticipatory withdrawal of recognition of a union that represented 160 of its workers. 

Anticipatory withdraw is a statement by an employer — made within a “reasonable time” before a collective bargaining agreement (CBA) expires — stating its intent to withdraw recognition of a union upon expiration of the CBA. The employer can only announce such an intent when it has credible and uncoerced evidence that a majority of employees no longer desire union representation. Prior Johnson Controls , an employer could announce its anticipatory withdraw, present evidence of union disaffection, and actually withdraw recognition of the union, and a union could present evidence gathered after-the-fact demonstrating it still had majority support. Unions often did this by mounting “re-organizing” campaigns and having all union members sign new union authorization cards. The union would then present this as evidence that was more recent in time than the employer's to demonstrate it had majority support. Such evidence was held to supersede the employer’s evidence and rendered the employer’s anticipatory withdrawal unlawful. This presented obvious issues with employers being held liable for unfair labor practices even though their actions were entirely lawful at the time and were only rendered unlawful by the union’s actions after-the-fact. 

The information was written by the attorneys in the Labor and Employment Practice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Labor and Employment Attorneys.
Labor and Employment Practice Group
Employers today are facing an ever-changing legal landscape. Our Labor and Employment attorneys take a proactive approach to assist clients in the   development and implementation of effective strategies to meet these specific needs.

With an eye toward avoiding conflicts before they arise, we can guide you through new developments in the law, provide you with options and help you make informed decisions. In those instances where litigation is necessary, our attorneys are prepared to represent you in state or federal court, before regulatory agencies and other tribunals. It is our commitment to provide exceptional client service, value-added legal advice and cost-effective representation concerning all aspects of your employment-related legal matters. 
About the Firm

Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.

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