February 2022 Volume 4

OPERATIONS & MANAGEMENT

them -- they may specifically tell you they are not providing any legal advice as to whether form notices are compliant, and/or may seek indemnification for actions related to the relationship. Another issue: what about pre-employment drug testing? And can/should I include pre-employment testing for marijuana? As to the first question, as with background checks, pre-employment drug testing is a regular part of the hiring process. (If you run this through your same third party who does your background reports, you can be subject to the same adverse action requirements.) As to test for marijuana (or not), the first question has to be: do you have any obligations to do so, e.g., are you a federal contractor? Of course, if so, here the answer is an easy yes, you include marihuana in the testing. If it’s just part of your drug-free policy, you need to consider (again) any state laws. Right now, only one state has no marijuana- related state law provisions (it’s Idaho, but a law is supposed to be put to voters this year). Now, that is not to say that marijuana use is legal everywhere else. Some of the state laws are about decriminalization or low THC products -- issues that do not directly impact the hiring process. But multiple states make either medical and/or recreational marijuana use legal. In those locations, some -- but not all -- of the laws also address employment-related issues. I know, again, not helpful (practically). But it’s the reality of the current legal landscape on this issue. And with it, removing marijuana testing from pre-employment drug screens becomes a viable consideration point. (This does not necessarily mean you have to remove it from other drug testing, e.g., reasonable suspicion. It also does not mean that you cannot prohibit marijuana use at work.) The other key issue relates to compensation and benefits. For current workers, it’s all about the salary/hourly rate, and employee demands are high. This is really a business decision, provided however, that you make sure you are not favoring a certain group as compared to another. In other words, at least for jobs that are the same/similar, employers should look to address salary/rate demands in a more uniform or comparable way. For your non-exempt employees, you also have to consider how/whether any sign-on bonus impacts the overtime rate. If you offer a “signing bonus” that requires the employee to be and remain employed for some period of time, it may have to be included in the regular rate (similar to any attendance bonus) and considered in calculating overtime. It's all perfectly clear, right? I know, it’s not. This is just meant to identify some common hiring issues employers face, especially in today’s market. Of course, this article is not legal advice as to your situation, and all questions should be directed to your counsel.

P.S. On January 13, 2022, the Supreme Court of the United States reinstated the stay of the OSHA vax-or-test emergency mandate. National Federation of Independent Business v. Dept. of Labor, OSHA , 595 U.S. ___ (2022). This rule required employers with 100+ employees to take certain measures related to COVID-19, including requiring weekly testing of certain unvaccinated employees (to begin February 9, 2022). Practically, the Supreme Court’s decision marks the end of the ETS; the ruling means that the OSHA cannot enforce the ETS, and employers have no obligations under it. The Supreme Court found that the mandate “operates as a blunt instrument” with “no distinctions based on industry or risk of exposure to COVID-19.” As such (per the Court), it was not a workplace safety standard -- which OSHA is permitted to promulgate -- but a public health measure beyond the scope of OSHA’s authority.

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

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