April Fools' "Pranks" May Result in Lawsuits

While pranksters may relish the opportunities provided by April Fools' Day, they should carefully consider potential legal ramifications before doing something they might regret.

Injuries to people should be avoided at all costs, and whether such injuries are physical or emotional, they can result in serious liability for companies or co-workers who take things too far.

Denver employment lawyer Kim Ryan joined 9NEWS to explore some April Fools' "pranks" gone wrong.

Kimberlie Ryan
for Ryan Law Firm, LLC
Employment Lawyer
Denver, Colorado
kim@ryanfirm.com
www.KimberlieRyan.com

Fired for Tweeting?

A new website tracks tweets of employees who trash-talk their bosses, then posts their tweets publicly and ranks the Tweeters on how likely it is they will be fired. Can workers be fired for their tweets?

Denver civil rights attorney Kim Ryan explained these issues on 9NEWS KUSA at 7AM.

Kimberlie Ryan
for Ryan Law Firm, LLC
Civil Rights Employment Attorney
Denver, Colorado
www.KimberlieRyan.com

Employee Drug Testing Companies Profit from Failed Employer Policies

Drug testing corporations want your body - and your company's money - even though their tests don't establish workplace performance issues, impairment, or current drug use.

"Two of the former Drug Enforcement Agency officials who recently publicly urged the federal government to nullify new state pot laws in Washington and Colorado are facing criticism for simultaneously running a company that may profit from keeping marijuana illegal . . . a company that specializes in workplace drug testing, among other employee programs," according to an article in U.S. News and World Report.

Remember, the Drug Free Workplace Act does not require or authorize employment drug testing.

The U.S. Department of Labor confirms - and this is a quote - "drug testing does not determine impairment or current drug use." DOL E-laws.

For more information about these officials and their company, read "Former DEA Chiefs May Profit From Illegal Pot, Critics Say," an insightful article by journalist Elizabeth Flock.

More than 1.3 million Colorado employers and workers want a more sensible policy. Protect each other from humiliating physical intrusions.

Challenge unwarranted employment drug testing.


Kimberlie Ryan
for Ryan Law Firm, LLC
Civil Rights Employment Lawyer
Denver, Colorado
www.kimberlieryan.com

Top Five Facts About the Drug-Free Workplace Act

When Colorado became the first state to recognize the Constitutional right to use marijuana for any reason by adults ages 21 and older, some employers wondered how this impacts their duties under the federal Drug-Free Workplace Act of 1988 (DFWA).

A brief background on the DFWA: President Reagan signed the Drug-Free Workplace Act nearly 25 years ago in 1988. The Act defines a "drug-free workplace" as a site for the performance of work done by a federal contractor or grantee in connection with a specific federal contract or grant at which employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of any controlled substance. At this time “controlled substance” still includes marijuana. But that is not the end of the analysis.

By definition, the DFWA limits the “workplace” to the work site for certain “covered” employers. By its terms this does not include any other location where work for the contract is not performed. It does not require employers to prohibit the use of marijuana completely, and it does not apply to all employers.

1. Fact #1 – The DFWA does not apply to all private employers.

The DFWA only applies to certain federal contractors and grant recipients. A company is subject to the Act only if the value of a single contract is more than $100,000, or if it has any federal grant. Individuals with grants or contracts from any U.S. Federal agency are covered by the Act, regardless of dollar volume. Last year, only 21.7% of federal contracting dollars went to small businesses. Unless employers meet the specific requirements for coverage, the DFWA does not apply to them. The Act does not apply to those that do not have contracts or grants from the federal government, and it does not apply to employees who are not directly engaged in the performance of the covered contract or grant.

2. Fact #2 – The DFWA does not require employers to drug test employees.

The DFWA does not require or authorize drug testing. In fact, the legislative history of the Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act, which are very limited as discussed below. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act.

3. Fact #3 – The DFWA does not require employers to fire employees who use marijuana at home as authorized by Colorado Constitutional Amendments 20 and 64.

Nothing in the DFWA requires employers to fire workers for exercising their Constitutional rights to use marijuana while off-duty and outside the workplace. The law requires only that in case of a conviction for a criminal drug offense resulting from a violation occurring in the workplace, the employer may take one of two types of action. The employer may take disciplinary action, which may be a less severe penalty than termination, or may refer the employee for rehabilitation or drug abuse assistance program. The choice of which basic course to choose, as well as the specific discipline or treatment option, is left to the employer’s discretion and may be made on a case-by-case basis, provided all state and local laws are followed. “Conviction” is defined by the Act as limited to a finding of guilt, including a plea of no contest, or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or state criminal drug statutes.

4. Fact #4 – The DFWA does not require employers to report positive drug tests to the federal government.

The Act does not require employers to report positive drug tests to the federal government. The only reporting requirement is triggered solely if an employee is convicted of a drug offense occurring at the workplace.

5. Fact #5 - The DFWA does not preempt state and local laws.

The requirements of the Act “coexist with state and local law,” according to the United States Department of Labor. Colorado does not have any state statute governing drug testing in employment, and adults have a Constitutional right to use marijuana in Colorado. The City of Boulder Ordinance 5195 prohibits employee drug testing except in clear cases of probable cause, and where a written policy has already been provided to the work force. In general, Colorado employers should update their drug testing policies to account for the Constitutional right, or expect legal challenges.

6. Bonus Fact #6 – Employers who recognize Colorado’s Constitutional right of employees to use marijuana at home while off duty will not automatically lose federal contracts.

Nothing in the DFWA governs the use of marijuana outside of the covered workplace for companies. A company that is covered by the DFWA will be subject to penalties only if: 1) it fails to implement the six steps required to establish a drug-free workplace; or 2) the head of the agency determines that the company employs a sufficient number of individuals convicted of a criminal drug offense occurring in the workplace to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace. Even then, the head of the agency may waive any possible penalties in certain circumstances, and violations may not result in contract termination or loss of payments.

What does the DFWA actually require? Only 6 steps:

Covered employers must only:

1. Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.

2. Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.

3. Notify employees that as a condition of employment on a Federal contract or grant, the covered employee must a) abide by the terms of the policy statement; and b) notify the employer within five calendar days if he or she is convicted of a criminal drug violation in the workplace.

4. Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.

5. Impose a penalty on – or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction. The “penalty” is up the discretion of the employer, and it may consist of a disciplinary warning - termination of employment is not uniformly mandated to comply with the DFWA. Employers should evaluate penalties on a case-by-case basis and seek legal counsel to avoid violating state law or the Americans with Disabilities Act in imposing any discipline.

6. Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.
Employers have wasted millions of dollars on ineffective, invasive, and unnecessary drug testing that is not required by the DFWA. Drug tests cannot show impairment, if any, or even when marijuana use occurred. Many employers have relied on information provided by drug testing promoters who have an inherent conflict of interest on the topic.

It has long been recognized that widely cited cost estimates of the effects of drug use on U.S. productivity are based on questionable assumptions and weak measures, according to a report of the National Academy of Sciences. It is a challenge to locate a single case that has imposed liability on an employer for failing to have a drug testing policy, and despite beliefs to the contrary, the preventative effects of drug testing programs have never been adequately demonstrated.
The use of marijuana is a Constitutional right in Colorado. Companies should join employers who are embracing a more sensible approach to drug policies today and seek to understand what the Drug-Free Workplace Act really does – and does not – require. Only then can they release the unfounded myths of yesterday and work with their employees for a more productive tomorrow.

Kimberlie Ryan is the founding member of Ryan Law Firm, LLC, where she practices all aspects of employment law and has represented workers and advised employers regarding medical marijuana and the workplace. In addition to her law practice, she serves as a television legal analyst and is frequently called upon to write and speak about cutting edge employment issues. This article is for educational purposes only, and it should not be construed as legal advice for a particular situation. There may be other state and federal laws applicable to employers, and this article is limited to discussion of the DFWA. Consult with competent legal counsel for specific questions.

Marijuana and Employment Rights - Hearsay Radio Interview Video

Attorneys Kimberlie Ryan and Holli Hartman presented a Point/Counterpoint interview on Law Week Colorado's Hearsay Radio about Colorado Amendment 64 rights and workplace issues.  Kim primarily represents workers, and Holli represents employers.  They both were appointed by the Governor’s office to serve on the AMENDMENT 64 IMPLEMENTATION TASK FORCE’S TAX FUNDING CIVIL LAW WORK GROUP based on their expertise and experience as employment lawyers.

Some of the topics explored by the attorneys and reporters James Carlson and David Forster include:

*  Background about the Colorado Amendment 64 Implementation Task Force and the Civil Law Tax Funding Work Group

*  Questions about possible legislation impacting worker rights and employer drug-testing policies

*  Highlights of pending court cases in Colorado state and federal courts for medical marijuana patients

*  Differences between Colorado's Amendment 20 medical marijuana cases and Amendment 64 adult use cases

* Potential legal challenges facing employers who wrongfully terminate their employees for exercising their Colorado state Constitutional rights, and employer arguments for zero-tolerance drug policies

The video/audio of the radio show can be viewed here.

The interview is approximately 35 minutes, with one commercial break at 20.  The interview was conducted on March 8, 2013.

Kimberlie Ryan
Ryan Law Firm, LLC

Scary 911 Call from California Independent Living Facility

A scary 911 call from an independent living facility in California documents the efforts of an operator to get help for an 87-year old woman who apparently needed CPR in an emergency situation. Attorney Kim Ryan spoke to 9NEWS about the case.

Someone identifying herself as a nurse told the 911 operator "we cannot do CPR at this facility," despite the operator's pleas that she at least get a passerby to help or the woman could die. No one performed CPR in time, and the elderly woman died. Reportedly, the elderly woman did not have a "Do Not Resuscitate" or "DNR" directive in place, and she likely would have wanted someone to try to help in her time of need.

The facility supports the nurse's decision not to perform CPR, apparently based on the facility's policy that the staff does not render emergency medical aid. Under the policy, staff can only request professional assistance and wait for help in the case of an emergency. Presumably, the policy was in effect in an effort to limit potential financial exposure if something went wrong in administering CPR. (Not very comforting is it?!).

Questions in this kind of a case arise as to whether the facility or nurse would have a legal duty to render aid, and also whether there is any legal protection for someone who renders aid, in case something goes wrong while aid is being provided.

Generally there is no legal duty for an individual to render assistance in an emergency, unless there is a special relationship that would require it. Some people are afraid that if they help, they could be sued.

Colorado has a so-called "Good Samaritan" law.

This means that if an individual renders emergency assistance in good faith to someone who is not her medical patient (and for no compensation), the “Good Samaritan” generally will be immune from civil liability from any damages caused by rendering the assistance, unless she renders aid in a way that was grossly negligent or willfully harmful. Under that law, the employer of the individual rendering assistance would also be immune from civil liability if the individual met the criteria for immunity under the statute. (If things go wrong, a lawsuit could still be filed, but the "Good Samaritan" defense could be asserted).

Even so, Colorado nursing homes and resident care facilities are subject to state and federal laws and regulations. The regulations require nursing homes to have procedures for emergency situations, and the regulations set forth standards of care.

Currently an elder abuse bill is pending before the Colorado legislature that would require nursing homes, nurses, and others to report abuse of anyone over the age of 70 to law enforcement within 24 hours. The bill addresses caretaker neglect, so it potentially could be relevant in a case like this.

Colorado Nursing home residents also have certain rights spelled out in the Resident’s Bill of Rights and the Colorado Code of Regulations.

Be sure to read the fine print in all documents provided by independent living facilities and nursing homes. If you have any questions about their policies be sure to get answers before moving in.

More information about Colorado nursing homes and nursing care facilities requirements and complaint procedures can be found at the Colorado Department of Public Health and Environment.

Kimberlie Ryan
Ryan Law Firm, LLC

FBI Sexting Revelations and Employer Monitoring

Sexting can happen in any large organization. This, according to an FBI response to NBC after disciplinary documents revealed last week that FBI employees used government-issued smart phones to access porn and send sexually explicit messages. Attorney Kim Ryan joined 9NEWS at 8AM to explain how these issues impact Colorado workplaces.

Some people have become so comfortable with communication technologies they forget they are creating an electronic footprint that may become permanent record. One report shows that nearly 1 in 5 Americans surveyed admits to having used a smart phone for sexting.

Many employers are taking workplace sexting seriously. According to some estimates, more than 80% of employers now monitor employees’ use of company computers and smart phones, up from 30% just a few years ago.

Some companies routinely observe employee emails and Internet use and even can track employee key strokes on company computers.

As justifications for monitoring, companies cite enforcement of workplace harassment policies, productivity, and protection of trade secrets. Companies also may have to turn over electronically stored information on computers and phones to their lawyers or their opponents’ attorneys when involved in lawsuits. This can be powerful evidence of companies’ efforts to comply with their obligations under anti-discrimination laws.

Generally, private companies have a legal right to engage in monitoring of company computer and phone systems, as long as they have given employees advance notice that workers do not have an expectation of privacy in the company systems. Government employers may search employee text messages as long as they comply with Constitutional rights to privacy, according to a recent U.S. Supreme Court sexting case.

Before engaging in monitoring, employers should have “Computer, Phone and Internet Usage” policies in place outlining the rules for employee use of company computers and smart phones. Companies should regularly update these policies with legal counsel to account for new and evolving technologies and uses, such as Twitter, Skype and social media, and they should clearly communicate the policies to employees.

If employers discover that company computers or phones are being used to harass other employees or engage in unprofessional conduct, they may discipline workers for violations of company policies, as the FBI reportedly did in this case when it suspended workers after discovering the sexting violations.

But grey areas may exist when it comes to employees’ private computers, smart phones, and social media, particularly when they are used off-duty with other employees for personal matters that are not clearly work related.

Currently, a privacy bill is pending in the Colorado legislature to prohibit employers from requiring disclosure of employee or applicant passwords to private electronic communication devices. It does not prohibit employer monitoring of publicly available information. It does not specifically prohibit employers from disciplining employees for postings on their own social media sites, although other state laws, such as the Colorado Lawful Off-Duty Conduct Act, may protect such postings depending on the circumstances.

Employees who believe they have been subjected to workplace sexual harassment by text messages or social media posts should consult with an experienced civil rights employment lawyer to discuss options for resolution.

Employers and workers alike should remember that every keystroke may be recorded, and they should carefully consider potential consequences before hitting the send button.

Kimberlie Ryan
Ryan Law Firm, LLC

Colorado Workplace Gun Bans

Colorado concealed carry statutes currently allow private employers to ban guns at the workplace.

Although the Colorado Supreme Court recently overturned the CU ban of guns on campus, that case was decided on narrow legal grounds and does not directly impact private employer bans.

While it is possible that the statute or an employer policy could be challenged, perhaps on state or federal Constitutional grounds, I have not found a published Colorado case testing such a ban by a private employer.

Courts in other states have found in favor of employers where workers brought wrongful discharge cases after they were fired for bringing guns to work. At the same time, some other states have passed or are considering so-called "take your gun to work" laws, which prohibit total gun bans by employers.

The tension between workplace violence policies and individual gun rights likely will be part of the state and national dialogue on gun restrictions.

While I could foresee a legal challenge to employer gun bans here, whether it would be successful in court is an open question that undoubtedly would be highly controversial regardless of the outcome.

Employers should review their weapons policies and any workplace violence policies they may have in place, and clearly communicate any such policies to their employees.