Archive for category: In The News

By: Stacey Rose Harris and Noor Chughtai

Since 1924, a statue of Confederate general Robert E. Lee riding his horse Traveller has stood in what is now known as Emancipation Park in Charlottesville. Until last year, most people paid little heed to the statue. But that changed dramatically when the city voted to remove the statue as part of the recent national trend to reconsider public displays that may be perceived to honor those who fought to uphold slavery.

The Charlottesville Protests

We know all too well that on Friday, August 11th, white supremacists and neo-Nazis gathered to protest the removal of the statue. And, when counter-protestors from movements such as Black Lives Matter arrived on scene, chaos and brutality followed. Many were injured, and a young woman was killed after being rammed by a car driven by a person who had espoused white supremacist views.

Americans nationwide reacted in horror to the violence that occurred in Charlottesville and to the sight of neo-Nazis parading in a torch lit march on the grounds of the University of Virginia, founded by Thomas Jefferson. Such a sight certainly raised concerns about the prevalence of racism and anti-Semitism within our society.

Political Speech and Employment

In the wake of the violence in Charlottesville, it is not surprising that many persons have taken it upon themselves to pressure employers to fire those who attended the protest as white supremacists and neo-Nazis. Indeed, a twitter account with the handle @yesyoureracist has sought help in identifying those who participated in the protest that sided with the white nationalists. With the assistance of their followers, @yesyoureracist has managed to pressure a restaurant in California to secure the resignation of an employee who participated in the Charlottesville protest, and it is likely that other employers will come under similar public pressure.

Such pressure can be of significant concern to a business. It is important for a company to maintain its reputation and to take steps to prevent anything that could cause it to be the subject of disrepute. A business also may wish to use its position within the community to send a message that rejects ideologies that are threatening to the public good and are inimical to what the country stands for. Thus, many employers are now asking whether they should consider firing a worker for off-the-job political conduct or speech that is racist and beyond the pale, and if they do, could they face legal repercussions.

Legal Protections for Speech

Under Title VII of the Civil Rights Act of 1964, employees are protected from being fired based on such protected categories as race, color, sex, national origin and religion. Political beliefs, however, are not protected by Title VII. The First Amendment prohibits the government from interfering in a person’s ability to exercise his or her freedom of speech, and it protects governmental employees. Private employers, however, are not subject to the same constitutional restraints.

In addition to federal laws, certain states have laws that serve to protect employees due to their political involvement and activities. New York and California are two such states with laws on the books that do, in fact, limit the freedom of private employers to terminate employees for off-duty political speech. In New York, certain private employers are precluded by statute from terminating workers for “lawful” political speech outside the workplace, which can include anything from participation in an legally-sanctioned rally to social media posts. Similarly, in California, private employers are prohibited from retaliating against employees for any legal, off-duty political speech, and further, may not make any rule or policy that could be construed to forbid, or control, in any way, an employee’s political speech.

Virginia, however, is not one of those states. Virginia strongly adheres to the doctrine of at-will employment, and a private employer is entitled to hire or fire an employee for any reason that is not discriminatory (i.e., on the basis of race, gender, national origin, religion) or in violation of public policy (i.e. for refusing to commit a crime or engage in an otherwise unlawful act). Thus, a private employer in Virginia may terminate an employee because it does not approve of that employee’s participation in political protests, because it does not approve of the way the employee dresses, or for no reason at all. Indeed, if you are firing an employee for political speech in an at-will state such as Virginia, the best policy may be to give no reason except that the employee’s services are no longer needed. Refraining from providing any further explanation will also help avoid any potential defamation claims by the employee if a prospective employer inquires as to the reason for the termination.

Bottom Line:

For a Virginia employer, ultimately the question of whether to terminate an employee for off-duty conduct—political or otherwise—of which the employer disapproves—will likely come down to a common-sense balancing test. On one hand, you should ask whether the employee’s conduct may be harmful to your business, or simply represents the type of conduct you choose not to support. This should be balanced against potential distraction and upheaval at the work place that may be generated by the termination of the employee, and any potential perceived unfairness by other employees or the public.

That being said, if you truly are interested in taking a moral stand against racism and anti-Semitism in the wake of the horrific events in Charlottesville, terminating employees who have racist views you find abhorrent may not be the best way to do so. Rather, a more productive response may be to reinforce in your workplace what Mary T. Barra, CEO of General Motors, has said are the “values and ideals that unite us – tolerance, inclusion, and diversity.” We all know that acting responsibly and leading by example is the best way to work toward what Kenneth Frazier, CEO of Merck, has said is the “American ideal that all people are created equal.” Charlottesville has reminded us that we have a ways to go before we achieve that ideal. We cannot rest on our laurels.

Noor Chughtai was an intern this past summer with DiMuroGinsberg, P.C. Stacey Rose Harris is a partner at DiMuroGinsberg. She may be reached at sharris@dimuro.com.

Click here to download full article.

DiMuroGinsberg is proud to announce that founding partner, Nina Ginsberg was sworn in as First Vice President of the National Association of Criminal Defense Lawyers (NACDL) at the Association’s 60th annual meeting in San Francisco, CA on July 29, 2017.

Nina has been an active member of the National Association of Criminal Defense Lawyers for decades. She previously served three terms on the Board of Directors and served as Second Vice President, Secretary and Parliamentarian prior to her recent appointment. Nina has served on many committees including the National Security, International Law, Sex Offender Policy and Death Penalty advisory committees. She also has represented NACDL as a Delegate to the United Nations Commission on Crime Prevention and Criminal Justice.

For more about Nina’s appointment and NACDL’s mission, click here.

As Bob Dylan sang, “the times they are a changin’,” and this never has been truer than with public attitudes toward the use of marijuana. Once feared as a drug that would create “Reefer Madness,” as the title of a 1930’s movie proclaimed, marijuana use increasingly has become acceptable among the general population both for medicinal and recreational purposes.

This year, the Republican and Democratic candidates running for governor have called for decriminalizing marijuana use, and in response to a request from Senate Majority Leader Tommy Norment, the Virginia State Crime Commission will be studying whether marijuana should be decriminalized in the Old Dominion. The Commission’s executive committee has said that it will issue the study this year.

So, what does all of this portend for Virginia employers? If marijuana is decriminalized in Virginia, does that mean that persons who use marijuana to treat medical conditions that rise to the level of disabilities now may find protections under the Americans with Disabilities Act (“ADA”) and be entitled to use marijuana as a reasonable workplace accommodation? In order to seek some guidance on these and other questions involving marijuana use, the Virginia Employment Law Letter asked DiMuroGinsberg partner, Jonathan R. Mook, who is a nationally recognized authority on the ADA, as to what he thinks employers need to know.

How is marijuana use dealt with under the ADA?

Because marijuana still is an illegal drug under federal law, it comes within those provisions of the ADA that exempt from the statutes’ protections persons who are engaging in the illegal use of drugs.  That means there are no limitations on employers asking questions about whether a job applicant or employee currently is engaging in the use of marijuana or for employers to test for such use, and if the answer is “yes” or the test is positive, take a job action such as refusal to hire or termination.  There also is no need to accommodate an employee who currently is using marijuana, even if for medical purposes.

What conditions are treated with medical marijuana?

Medical marijuana has been prescribed for a variety of medical conditions including PTSD, pain relief (instead of opioids), and to enhance appetite for those persons who are HIV positive.  Importantly, even though the ADA allows an employer to take a job action against an applicant or employee based upon the use of marijuana, the employer may run into problems if the employer bases the job action on the underlying medical condition that the person has.  In the latter event, the ADA would come into play.

What is the importance of state law?

Any legal protections that an employee may have will be founded upon state laws legalizing use of marijuana for medicinal or recreational purposes.  Hence, Virginia employers who have operations outside of the Commonwealth need to keep current on the marijuana laws in each of the states in which they have operations and abide by those laws.

How is the legalization of marijuana in other states affecting employer attitudes toward “drug free” workplaces?

Particularly in those states that have laws allowing for the use of recreational marijuana, many employers are considering adjusting their “drug free workplace” policies to recognize the reality that many otherwise qualified job applicants may test positive for marijuana use. That’s because signs of marijuana use can turn up in drug tests long after the drug’s mind-altering effects have worn off. Automatically disqualifying all applicants who test positive severely reduces the available pool of qualified individuals.

Employers, therefore, are beginning to evaluate, on an individualized basis, job applicants who test positive for marijuana, rather than disqualifying those applicants off the bat.  This change in employer practices has occurred irrespective of whether the state in which the employer is located has an explicit state law protecting job applicants or employees who use, for example, medical marijuana.

Given these changing times, what’s the bottom line for employers?

At base, employers have rules prohibiting their employees from engaging in the use of drugs because of the negative impact such use can have on employee performance and workplace safety. Even if marijuana use is legalized in the Commonwealth, employers still have these legitimate concerns, and should be able to discipline employees for any poor or unsafe performance of their job duties that occurs due to marijuana use. Thus, if you suspect that an employee is coming to work impaired by the effects of smoking marijuana, remember the best way to deal with the issue is to focus on the employee’s job performance problems, irrespective of what may be the cause.

Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at jmook@dimuro.com.

To download a copy of the article, click here.