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The Hazy State of Employment Protections for Medical Marijuana Users
Posted by: David Blanchard
July 21, 2010
Topic: Employment Law

Michigan voters legalized the medicinal use of marijuana in 2008, and as of June 2010, about 20,000 Michigan residents have registered for the program. These medical marijuana users are explicitly protected from criminal prosecution, but the law is hazy on whether employers may not hire or even fire them because of their marijuana use.

In a recent and well-publicized case out of Battle Creek, Wal-Mart fired an employee, Joseph Casias, because he used marijuana off the job to treat his cancer. The ACLU has filed suit in the case, arguing that Wal-Mart could not fire Casias for using a legal medical treatment to relieve his pain. Whether Casias will succeed in court is unclear, and his uncertain predicament is common in the fourteen states that have legalized medical marijuana. Most of these states do not protect medical marijuana users from adverse employment actions. For example, the California Supreme Court ruled in the 2008 case Ross v. Ragingwire Telecommunications, Inc. that California employers were free to not hire or even fire an employee based on that person's state-authorized marijuana use. In April 2010, the Oregon Supreme Court held in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indudstries that the state's disability antidiscrimination law does not protect the use of medical marijuana because, while such use is legal in the state, it is illegal under federal law. Oregon's high court identifies a source of confusion in all states with medical marijuana laws-even though these states authorize the use of marijuana for certain purposes, all use of the drug is still criminalized under federal law. With no clear guidance from the U.S. Supreme Court on whether state employment protections are preempted by federal criminalization, individual state courts must decide that question for themselves.

While other states' courts have found no such protection exists, the Michigan Medical Marijuana statute is unique. Unlike the medical marijuana laws of states like California and Oregon, Michigan's law includes explicit protections for employees. Under the statute, individuals carrying a medical marijuana card cannot be "denied any right or privilege including . . . disciplinary action by a business or occupational or professional licensing board." MCL 333.26424. The Michigan law also makes specific findings that suggest the voter initiative must be understood as public policy of the state. ACLU lawyers in the Casias case here latched onto this language in alleging that the firing of someone for their medical marijuana use is a discharge in breach of public policy.

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Facebook: Costing You More than Just Time
Posted by: David Blanchard
July 21, 2010
Topic: Civil Rights

Most mature Facebook users know that what they post on the social networking website can have serious consequences on their job security and future job searches. Few imagine, however, that including their address in their account profile or accepting a friend request can dramatically affect their financial security.

There is a new kind of internet predator on the loose: bill collectors. Creditors and collections agencies are now using Facebook and other social networking sites to locate delinquent debtors. A recent Vanderbilt Journal of Entertainment and Technology Law blog article quotes one credit agency attorney as admitting that his agency will routinely "friend or connect with [debtors] if necessary to gain more information, and even go so far as to talk to the debtor and his friends to learn of the debtor's assets."

But are these practices legal? At Nacht & Associates, we believe the answer is no. Section 807 of the Fair Debt Collections Practices Act (FDCPA) states that creditors cannot use "false, deceptive, or misleading representation or means in connection with the collection of any debt." Apparently the Federal Trade Commission agrees. National Public Radio, in a July 12, 2010 story, asked the Federal Trade Commission, which enforces the FDCPA, whether it was legal for collections agents to friend or contact a person via Facebook without mentioning their debt. The FTC's email response: "FDCPA mandates that collectors must disclose that they are attempting to collect on a debt and any information obtained will be used for that purpose. It also requires that collectors state in subsequent communications with the debtor that they are a debt collector. A collector's failure to make these disclosures would violate Section 807(11)."

The FTC response suggests that where the debt collector communicates with a Facebook user, the collector must disclose his purpose for doing so. But this begs the critical question: what constitutes communication in Facebook's virtual social world? It seems unlikely that looking at a user's public profile would constitute communication under the act. However, a collector's explicit request for information regarding a debtor's whereabouts or recent purchases would almost certainly violate the act. The communication question becomes less clear when the collector must "friend" the debtor in order to access his information. Is "friending" someone a communication? No court has issued an opinion on the subject; nor has the FTC.

At Nacht & Associates, we regularly stand up for victims of illegal debt collection practices. If you believe you have been the victim of online debt collection predators, your first step toward fighting back should be to contact an attorney.

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The Fight to End Forced Arbitration
Posted by: David Blanchard
July 13, 2010
Topic: Employment Law

Most Americans go to work each day without a thought about the laws that govern their workplace. They assume that the various state and federal laws will protect them, that the laws are fair, and if they are treated unfairly- bullied, harassed, discriminated against, or otherwise have basic civil rights denied-they can at least have their day in court. Our constitution guarantees a right to trial by jury, right? Not so for millions of millions of Americans who have been forced into signing arbitration clauses as a condition of employment, or even just for the right to apply for a job.

Our Michigan courts and the federal courts have increasingly allowed unreasonable and downright sneaky attempts of employers to ban lawsuits from their employees in "arbitration clauses" hidden in the fine print of employment applications or the pile of documents presented to the common worker at the time they are hired. We know that people rarely read the fine print at these times. We know that the last thing they are anticipating is the possibility that a new employer will break the law. The only thing on an employee's mind is gettingthe job, and where the next paycheck will come from.

At Nacht & Associates our job is to fight back against these unreasonable contracts of adhesion. Our job is to fight for your right to have civil rights claims decided by a jury, not in a secret unappealable decision by an arbitrator chosen by the company. We fight back with the constitution, laws, and all tools available to us, but the law is stacked against our workers. The real solution needs to come from out legislature.

Earlier this year, Congress made a huge step forward by passing the "Franken Amendment" to the defense appropriations bill. Now, thanks to Senator Franken, defense contractors who expect taxpayer money may not use forced arbitration to deny employees their civil rights. Unfortunately, the law is temporary and must be renewed each year, and it only applies to contractors receiving over one million dollars in federal funds. The real solution is to ban the practice of forced arbitration clauses pushed on employees before they even have a dispute. That is why I joined my colleagues last month on Capitol Hill, fighting for the rights of Michigan workers, and the simple right to go to court. Right now Congress has a permanent solution within reach - the Arbitration Fairness Act. It has bi-partisan support and the vast majority of Americans of all political stripes support this sort of fix. The question is how long before Congress will act.

If you are an employee that finds yourself illegally treated and now forced into arbitration based on the fine print of an arbitration clause, the first step is to contact a lawyer that will fight for your rights - whether in court or in front of an arbitrator. The next step is to contact your representatives in Congress and tell them to pass the Arbitration Fairness Act. Tell your story. Tell them how the civil rights laws they passed decades ago can't even be enforced in court so long as this practice is allowed to continue. Tell them your right to a jury trial is not negotiable.

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Channel 7 Coverage- Sabo v. City of Allen Park
Posted by: David Nacht
May 27, 2010
Topic: Television Coverage

Channel 7 Coverage- Sabo v. City of Allen Park

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Wage Secrecy and Pay Equity in Michigan
Posted by: Jennifer Salvatore
May 20, 2010
Topic: Employment Law

It is no secret that pay equity (gender disparity in wages) continues to be a significant problem for American workers and their families. Although women now make up half of the workforce nationally, they earn only 77 cents for every dollar earned by a man.

The problem is particularly bad in Michigan, where women earn only 69.8 cents to the male dollar. Indeed, Michigan ranks 45^th nationally on a scale of pay equity by state. The gender pay gap affects the economic well-being of children and families, as 2/3 of families are now supported by female breadwinners or co-breadwinners.

Among the top reasons for pay inequity is wage secrecy. The National Committee on Pay Equity notes that "wage data is largely kept secret in America, so women and minorities are underpaid without knowing it. Employers frequently have policies that forbid workers from discussing salaries . . . or corporate cultures that make it taboo to discuss salaries, even among trusted co-workers."

Under Michigan's Wage and Fringe Benefits Act, employees cannot be prohibited from talking about wages. However, the act does nothing to require disclose of pay scales. And many employees feel a cultural taboo about discussing wages. Lilly Ledbetter - whose pay equity fight at Goodyear Tire inspired the Lilly Ledbetter Fair Pay Act of 2009 - learned of years of pay inequity only when someone left an anonymous note in her locker at work.

WAGE SECRECY prohibits market forces from working effectively because women have imperfect information with which to negotiate salaries. Because a woman often doesn't know what a job truly pays, she can undervalue herself when negotiating. Not knowing about wage discrepancies perpetuates them. Prior legislative proposals have not addressed wage secrecy. The Equal Pay Act, introduced 40 years ago, does not deal with the problem of wage secrecy, nor do any of the comparable worth bills introduced in Michigan or nationally. Likewise, virtually all equal pay initiatives have focused on litigation remedies, not market remedies.

That is why I am working with the Women Lawyers Association of Michigan, to adopt new legislation on wage transparency. So that the market will work more efficiently and help women negotiate from a position of knowledge by providing access to wage information to all Michigan employees. Proposals would amend the Wages and Fringe Benefits Act by making clear that employees have a right to compensation information about similarly-situated employees. This legislation, by improving access to information about others employees' wages, will help women negotiate better salaries for themselves, will reduce litigation costs associated with litigating equal pay claims, and will improve the economic condition of women and families in Michigan.

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