OMW Municipal Law Blog

The Washington State Legislature is currently considering ESSB 5073.  See the post below, dated March 21, 2011, for further discussion of the major effects of the bill.  ESSB 5073 is modeled upon a California measure providing regulation of the growth, processing, and distribution of medical marijuana.  The measure would change the designation from “marijuana” to “cannabis.”  Its major provisions include:

1.         Provisions for rule-making and licensing by the Department of Agriculture;

2.         Extending the protections from criminal prosecution to dispensaries, processors, and growers; and

3.         Permitting local jurisdictions to enact “reasonable” zoning and licensing provisions.

RCW 69.51A.060(4) currently provides:

(4)        Nothing in this chapter requires any accommodation of any onsite medical use of marijuana in any place of employment… or smoking medical marijuana in any public place….

Nothing in the new legislation proposes amendment of this section.

In 2009, Division II of the Washington Court of Appeals decided Roe v. TeleTech, 152 Wn. App. 388, 216 P.3d 1055 (2009).  The case involved a claim of wrongful termination against an employer who revoked a conditional offer of employment.  The perspective employee failed a drug test, but provided proof to the employer that she was following a health professional’s recommendation to use medical marijuana.  The employer’s policy required a pre-employment drug test and made an employee with a “confirmed positive drug test … ineligible for employment with the company.”  TeleTech, 152 Wn. App. at 392.  Following dismissal of her law suit by the Superior Court, the prospective employee, Jane Roe, appealed to the Court of Appeals, asserting an implied cause of action under the Medical Use of Marijuana Act (MUMA) and a tort action on policy grounds.  The Court of Appeals upheld the dismissal, finding that the structure of Initiative 692 was clearly aimed at creating a defense from criminal prosecution and not at extending workplace protections.  The appellant argued that since the provisions of the MUMA provided that “on-site ” use of medical marijuana was not protected, MUMA implied that off-site use was protected.  The Court of Appeals disagreed.  It applied the same reasoning in dismissing her tort action based on public policy grounds. 

Jane Roe, the prospective employee, has appealed and the case was argued to the State Supreme Court in February.  A decision is pending. 

Public employers and others with federally-required drug-free workplace policies should pay particular attention to the court’s holding.  Under federal law, marijuana is a Schedule I controlled substance which, by federal finding, has no valid medical use.  While five separate challenges to this classification have been brought in the last thirty years, all have been rejected by the Second Circuit.  Challenges that the federal criminal provisions are unconstitutional as applied to medical marijuana users have been rejected by the U. S. Supreme Court.  Gonzalez v. Raich, 545 US 1, 125 S. Ct. 2195 (2005). 

Scott Snyder of our firm will be making presentations at the Washington State Association of Municipal Attorneys (WSAMA) Spring conference, the Local Public Governmental Institute at its May convention, and at the Civil Service Convention in September.  These presentations will update the attendees regarding any enactments by the legislature, a decision by the State Supreme Court, as well as the impact of various federal statutes such as CDL provisions, the Drug-free Workplace Act and the Americans With Disabilities Act.  This is a rapidly developing field of law with a few surprises, no doubt, in store.

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits local government employers with 15 or more employees from requesting, requiring, or purchasing genetic information of an individual or family member of the individual, except as specifically allowed.  A city should not assume that since cities rarely require genetic testing that these regulations have no application to cities.  Genetic information can also include “family medical history.”  Therefore, while your city is unlikely to do genetic testing, you may gather family medical histories for FMLA leave administration, in the course of administering your wellness or insurance programs, or when conducting fitness for duty examinations.  Although there are exemptions for the acquisition of FMLA material and other incidental acquisitions of genetic information, cities should consult with their city attorney about any family medical histories or genetic information that are acquired by the city.

On June 18, the U.S. Supreme Court overturned a Ninth Circuit Court of Appeals decision in City of Ontario California v. Quon.  Slip Op No. 08-1332.  You may remember that the Ninth Circuit had found that a city’s discharge of a police officer for inappropriate use of a pager violated the employee’s privacy expectations.  The Supreme Court’s decision, overturning the Ninth Circuit holding, was based on the application of the 4th Amendment protections to public sector employers.  The Court’s holding was relatively narrow and expressly does not address whether a city’s reading of text messages violates the federal Stored Communications Act, 18 U.S.C. 2701, nor does the ruling establish any “far reaching premises that defined the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices.”  The Supreme Court in its decision avoided “elaborating too fully on the … implications of emerging technology.” 

 The decision does provide some guidance to public employers:

1.         The Supreme Court noted that the City of Ontario’s use policies did not “apply, on its face, to text messaging.”  Employers should review their policies carefully to make sure that they fully warn employees that the use of City e-mail facilities, telephone, text messaging and other electronic equipment, does not create a right to privacy.  In light of evolving technology, you should consider whether your e-mail policy takes all City-supplied devices into consideration.

2.         The original Ninth Circuit decision hinged in large part upon the communications between the terminated employee and his supervisor.  While the employer’s policy attempted to limit privacy expectations and reserve the right of review, comments by the supervisor indicated that the employee had some privacy expectations.  The Supreme Court highlighted the importance of clear, comprehensive policies involving electronic communications stating: 

“Employer policies concerning communications will of course shape the reasonable expectations of their employees, especially the extent such policies are clearly communicated.”

This statement, again, emphasizes that your best protection is having clear, enforceable personnel policies. 

Please note that there is a distinction between the review which a public employer may conduct and public records which are required to be disseminated under the Washington Public Records Act.  As the Attorney General’s model rules indicate, employees’ personal communications using City e-mail are not public records and therefore are not subject to dissemination.  What the public may request and receive is different than what a public employer may review in order to investigate complaints, manage its employees, and retrieve other  public documents.

A recent US District Court decision emphasized the role that agreements regarding K-9 reimbursement and stipends can play in avoiding overtime liability.  In Hoffman v. City of Lake Jackson, the U.S. District Court (Southern District of Texas), held that a memo stating that a K-9 officer would receive a $100 a month stipend and 4 hours of leave per week for off-duty hours spent caring for a drug-sniffing dog was a valid defense to the officer’s claims for unpaid overtime under the Fair Labor Standards Act. 

The U.S. Department of Labor Regulations recognize that it is “difficult to determine the exact hours worked” when an employee works at home.”  29 C.F.R. §785.23.  In such situations, the regulations state that “any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.”   Ibid.

Exactly what constitutes a reasonable agreement is not well established.  The DOL and the Ninth and Sixth Circuits have both addressed the issue.  The Ninth Circuit held a city agreement with a K-9 officer was not reasonable “because it failed to take into account the number of hours she actually worked” caring for her dog.  Lever v. City of Carson, 360 F.3d 1014 (Ninth Cir. 2004).  In Lever the officer was paid a flat fee of $60 every two weeks, the equivalent of one hour’s pay per week. 

The Sixth Circuit, however, ruled in Brock v. City of Cincinnati, 236 F.3d 793, 806 (6th Cir. 2001), that an agreement providing straight time for 17 minutes per day of off-duty dog care was reasonable even if it “far under-approximated the actual amount of FLSA work performed by the plaintiffs.”  There was no evidence that the employer was unaware that the agreement did not reflect the actual time worked and the court held the agreement to still be “reasonable.”  The Brock ruling upholds the general principle that any agreement should reflect the actual time worked to be considered “reasonable” under 29 C.F.R. §785.23.

To save your accounting department from headaches, a police employer should consider reaching agreements with K-9 officers regarding a flat rate of pay for off-duty dog care.  Any such agreement should take into account the amount of time actually spent by the officer and include that information in the agreement.  We would be happy to work with you to establish an agreement taking advantage of the regulation.