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Friday, August 25, 2017

Employer Federal Marijuana Defense Up In Smoke

Katelin Noffsinger was made a verbal offer for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut. When she was then asked to undergo a routine pre-employment drug screen, Noffsinger disclosed that she was diagnosed with PTSD and that she took prescription marijuana as a “qualifying patient” under Connecticut Palliative Use of Marijuana Act (PUMA). Noffsinger provided Bride Brook a copy of her patient registration certificate, explaining that she only took Marinol in the evenings, before bed, and thus would not be impaired during the workday. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because she tested positive for marijuana.

Noffsinger filed a complaint in Connecticut state court, alleging a violation of PUMA’s anti-discrimination provision which states, “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” After removing the case to federal court on the basis of diversity jurisdiction, Bride Brook moved to dismiss Noffsinger’s complaint. The court denied the motion finding no federal preemption by the federal Controlled Substances Act (CSA), Americans with Disabilities Act (ADA) or the Food, Drug and Cosmetic Act (FDCA). 

Bride Brook had argued that an actual conflict exists between PUMA, which affirmatively authorizes the medical use, possession, sale and distribution of marijuana, and the CSA, which classifies marijuana as a Schedule I substance with no known medicinal purpose and thus makes it a federal crime to use, possess, or distribute marijuana. The court rejected this argument as “overbroad,” holding that, because Noffsinger’s claim is limited to PUMA’s anti-discrimination provision Bride Brook must prove a conflict between that specific provision and the CSA, not between the CSA and PUMA more generally. The court held that no such conflict exists because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. It distinguished this case from multiple cases in other states that held CSA preempted the state’s medical marijuana law, as none of those state statutes had specific anti-discrimination provisions. Even more disturbing the court held that there is no broad exemption for federal contractors or other federally regulated employers.

Common Sense Counsel: This case complicates an already complicated landscape for employers who conduct drug testing for marijuana, particularly as the decision marks the third time in four months that a court has ruled against employers in drug testing cases involving medical marijuana users. The others were Massachusetts and Rhode Island state courts.  This is the first time a federal court has considered whether the CSA preempts a state medical marijuana law’s anti-discrimination provision, and the result is a warning to employers with policies that include categorical bans on marijuana use. There are at least eight states that have similar medical marijuana employment anti-discrimination penalty prohibition laws, so fix your drug free workplace policy so it will not go up in smoke.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Monday, August 21, 2017

Pharmacist’s needle phobia loses to well drafted job description

As soon as Christopher Stevens turned 16, he got a job at Carl’s Drugs, and he remained employed continuously by Carl’s Drugs and its successors, which included Rite Aid, for the next 41 years. Stevens’ job included providing medication safely to customers, ensuring that medications were stored properly, providing appropriate information to customers regarding their prescriptions and fielding medical questions.

In March of 2011, Stevens received an e-mail from the district manager which informed all pharmacists that Rite Aid was going to require them to start giving immunization shots to customers. Doubting his ability to give shots as a result of his lifelong fear of needles, Stevens consulted Rite Aid’s employee handbook, which included a provision regarding the accommodation of employees with disabilities in compliance with the Americans with Disabilities Act (“ADA”). Stevens provided Rite Aid with a note from his treating physician who explained that Stevens’ suffers from trypanophobia2 (“needle phobia”) and informed Rite Aid that as a consequence Stevens could not give injections. Notwithstanding, Rite Aid directed him to undergo immunization training and ignored his request for an accommodation for his disability.

Stevens heard nothing further from Rite Aid until two months later, when Rite Aid’s Human Resources Department faxed Stevens a list of five questions that he wanted his doctor to answer regarding Stevens’ phobia and the doctor responded with a note indicating that if Stevens were to administer an injection, “[h]e would become diaphoretic, hypotensive and probably faint. He advised Rite Aid that Stevens could not safely administer an injection, since the likelihood that he would faint would be “unsafe for the patient and Mr. Stevens.”

On August 18, 2011, several Rite Aid managers came into the pharmacy where Stevens was working and told him that Rite Aid had concluded that the ADA did not apply to his trypanophobia, that they were not required to make any accommodation for him and, that if he did not successfully complete immunization training and start giving injections, he would lose his job. No accommodation or alternate position was offered or even discussed at that meeting. The following week, Stevens was terminated by a letter.

Stevens brought an action against Rite Aid, asserting claims for wrongful termination because of a disability, retaliation, and failure to provide a reasonable accommodation for his disability in violation of both the ADA and a similar New York State law. The jury returned a verdict in favor of Stevens and awarded back-pay damages of $485,633.00, front-pay damages of $1,227,188.00 and non-pecuniary damages of $900,000. The Second Circuit reversed and ruled in favor of Rite Aid finding that Rite Aid’s designation of a job duty as an “essential function” is essentially dispositive, absent clear and convincing evidence to the contrary by the employee. This week Stevens filed a petition for certiorari with the U.S. Supreme Court claiming the 2nd Circuit was wrong to not use a 7 part test.

Common Sense Counsel: The case is a lesson for all employers on the weight a well drafted job description has with the courts. Have them for all positions so you will not get jury phobia.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Friday, August 11, 2017

Waffle House Smothers Lawsuit

William Jones applied for a job at a Florida Waffle House in Ormond Beach in December 2014 but was rejected. In October 2015, Jones sued Waffle House and various data-reporting companies in federal district court, claiming that they violated the Fair Credit Reporting Act by failing to give him a copy of the background checks that were run on him in connection with his job application and by failing to give him an opportunity to dispute those background checks. Jones also sought class relief, seeking to represent a class of United States residents who applied for employment with Waffle House in the preceding five years who Waffle House did not hire based on a background check.

While that lawsuit was pending, Jones continued to seek employment with Waffle House elsewhere, and, in February 2016, Jones was hired at a Waffle House in Kansas City, Missouri. In connection with that employment, Jones signed an arbitration agreement that covered “all claims and controversies, past, present, or future, arising out of any aspect of or pertaining in any way to his employment.”  The agreement also included a delegation provision requiring that “the Arbitrator, and not any federal, state, or local court or agency, shall have authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.” Jones neglected to tell his new employer in Kansas City that he was actively suing Waffle House in Orlando. When Waffle House’s legal team later learned, in March 2016, that Jones had signed an arbitration agreement, it moved to compel arbitration pursuant to the agreement.

This week the 11th Circuit Court of Appeals held that the Waffle House arbitration agreement contains a broad, valid, and enforceable delegation provision that expresses the parties’ clear and unmistakable intent to arbitrate gateway questions of arbitrability, including questions concerning the interpretation, applicability, enforceability, and formation of the agreement. “In the face of the Federal Arbitration Act’s clear preference for and presumption in favor of arbitration, we are obliged to enforce the parties’ clear intent to arbitrate these issues.” The 11th Circuit has the same track record on similar past decisions.

Common Sense Counsel: in the employment law the most feared words a plaintiff’s employment lawyer hates to hear their client say is “oh by the way I signed an arbitration agreement with my employer.” It is like yelling Zika on South Beach – all the lawyers scatter. It will be the single best employment law risk reduction strategy you may ever use.
The best programs have the following components: 1) an internal complaint process with a promise of no retaliation; 2) handbook provisions giving employee two channels to make their complaint and fair investigation process; 3) well drafted and broadly worded arbitration provision, covering class claims, that will pass court scrutiny; 4) private arbitration panel of former local judges, or AAA Arbitration, and mostly importantly; and 5) a Human Resource professional with a listening ear and risk reduction mindset.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Thursday, August 3, 2017

Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case.

Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

In late June, the EEOC filed a brief in support of Zarda’s estate, whose lawsuit has been unsuccessful so far. The EEOC argued that Title VII does indeed prohibit discrimination based on sexual orientation.

But then last week, the Trump/Sessions DOJ filed a brief in support of the employer, flat-out saying that the EEOC is wrong and that its authority is limited: “Although the [EEOC] enforces Title VII against private employers and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” There brews a bigger battle of a conflict of the Circuits Courts of Appeals on this very issue that will require U.S. Supreme Court intervention.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use lose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able in work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior part of your statement of values. And update your harassment prevention/professional conduct policy, investigative notebook and training updated to include all forms of disrespectful and protected status individuals.  

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Robin Shea, one of Tommy’s Partners featured part of this story in a recent Constangy blog post. He can be contacted at or 334-246-2901. Blog at