WageWatch Ibrief Blog

Login

Archive for June, 2015

MEDICAL MARIJUANA – COLORADO SUPREME COURT SIDES WITH EMPLOYERS

Guest Author:  Lisa A. Baiocchi, Esq.

Pautsch Spognardi & Baiocchi Legal Group LLP

Last week Monday, in a 6-0 decision, the Colorado Supreme Court affirmed the lower courts’ rulings that employers (in Colorado) do not violate the law when terminating an employee who uses medical marijuana, off duty, and then tests positive under the employer’s “zero tolerance drug policy.”  With the lower courts’ decisions upheld, Colorado became the first state to tackle this issue, and most certainly it will have an influence on future cases across the nation in this area. 

By way of some background, Colorado has allowed the use of medical marijuana, in some form, since initiating a constitutional amendment in 2000 legalizing the use of medical marijuana for medical purposes; and then, by building upon that constitutional amendment by adding a commercial element in 2010 with the legislature passing the Colorado Medical Marijuana Code.  Additionally, the state of Colorado, like many states, has a “Lawful Off Duty Activities” statute which generally protects employees from being fired simply because they engage in “lawful” off duty activities. 

The central legal principle in this case was whether the use of medical marijuana, off duty, by a medical marijuana card holder (all legal under Colorado state law) was a “lawful” activity under the “Lawful Off Duty Activities” statute of Colorado.  If so, the former employee could not be fired simply because his use of medical marijuana violated the employer’s “zero tolerance drug policy.”  Sounds simple right?  It’s all legal under Colorado law and therefore the employee should be protected from being fired under the employer’s “zero tolerance drug policy.”  But the Trial Court and Court of Appeals in Colorado sided with the employer. 

 How could the lower Courts side with the employer if this is all legal in the state of Colorado?  Remember that the use of marijuana, for medicinal purposes or otherwise, remains illegal under federal law, specifically the Federal Controlled Substances Act.  Therefore, the Colorado Supreme Court had to decide if the lower Courts correctly determined that the definition of “lawful” under Colorado’s “Lawful Off Duty Activities” statute required “obedience” of all laws, including federal law, in order for this activity to be protected by state law.   

The Colorado Supreme Court decided that:

  • Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law.” 

 And the Court further noted that:

  • Nothing in the language of the statute limits the term ‘lawful’ to state law. Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law.”

In a nut shell, the Colorado Supreme Court affirmed that the lower Courts correctly determined that the definition of “lawful” even under a state statute does indeed require that the activity be lawful at all levels, including the federal level.  Employers in Colorado can now be assured that they may uphold their “zero tolerance drug policies” in the face of an employee failing a drug test due to even off duty use of medical marijuana. 

What does this mean for other states that also protect either off duty lawful activities or use of lawful products?  Well of course it continues to remain unclear, but arguably not as uncertain as it may have been prior to this case being decided.  This case certainly will be cited by employers in other states as a persuasive argument for upholding their “zero tolerance drug polices” when medical marijuana card holders violate similar policies under a similar situation. 

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys and pay practices data that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

Posted in Uncategorized on June 25th, 2015 · Comments Off on MEDICAL MARIJUANA – COLORADO SUPREME COURT SIDES WITH EMPLOYERS

WHAT DETERMINES WAGE LEVELS IN THE MARKET?

There are two competing economic theories for what determines wage levels in the marketplace. The classic model is based on long run lasting effects from the expansion and contraction of the economic cycle which in turn drive wage rates; essentially tying wages to supply and demand for labor over time. The alternative model, which has been gaining support since the 1990s, is that wage levels are driven by what economists call “contemporaneous conditions”. Economists generally agree that the present condition of the economy is the primary factor in determining wage levels. Another way to phrase it is job seekers who are currently employed are motivated by current labor market conditions and not by long run macroeconomics. 

An employer’s willingness to increase pay is influenced by the supply and demand of particular skills and the presence of market constraints. When a particular type of skill or knowledge is in demand and the labor supply is tight then the wages will increase.  Alternatively if the demand is weak and the labor supply is high, wages will be constrained. A perfect example of this is what has occurred in manufacturing industries since the 1980s. As more and more manufacturing industries down sized or increased productivity through automation, the demand for skilled production line workers diminished as did the wage level. 

What is interesting is the relationship of wage rates and the cost of living is disjoint. Cost of living increases tend to be longer term while the increases in labor costs are more dependent on current conditions. Market wage rates and their change are based upon the supply of and demand for labor, which often changes without any consideration of the cost of living. The cost of living is a measure based upon the area’s cost of goods and services as surveyed by the federal government.  

The correlation between these two measures has drastically changed over time.  In the 1980’s and into the early 1990’s there was a closer correlation between wages and cost-of-living and many organizations would provide cost of living adjustments to wages when employees relocated for their jobs from a lower cost of living area to a higher cost of living area.  Today, the wages paid in the local market where the job resides is the primary factor in setting wage levels. 

Supply and demand and the prevailing pay or comparable wages are all determined by market forces and factors.  Comparable wages are the most widely used factor for determining wage rates. Comparable wages help an organization remain competitive and aid in the goals of attraction and retention. A widely acceptable definition of fair wages by both employers and employees is, ‘the wages paid by other employers for the same type of work’. The wage rates paid in the industry or locality will form a base for setting wage rates. When an organization lags the market competition, workers will leave their jobs for higher pay somewhere else. It will not be possible to retain good workers for long periods. 

Essentially, the market wage is the lowest wage an employer can pay to attract and keep the quality of employees he needs. He can pay more than the market wage, but he can’t pay less. If he pays less in a tight market he will have higher turnover and not enough quality workers. For the worker, the market wage is the highest wage offered by any of the employers he’s willing to consider. He can work for less, but it would not make sense to do so for a long period of time unless there are offsetting benefits such as a shorter drive time, free parking or other incentives.

The interplay between all of these factors leads employers to decisions regarding where to set their wage levels and employees to enter into wage agreements with employers.  At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys and pay practices data that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

Posted in Uncategorized on June 18th, 2015 · Comments Off on WHAT DETERMINES WAGE LEVELS IN THE MARKET?

JOINT EMPLOYER LIABILITY

The use of sub-contractors, temporary staffing, leased employees and independent contractors can provide employers with quick temporary staffing and reduce benefits and payroll costs. However, the employer client can be considered a joint employer with the leasing or temporary agency when they share certain key employment terms such as the ability to hire, fire or discipline the workers, affect their compensation and benefits, and direct and supervise their performance.  When businesses use temporary agency, leased, or contract workers, though the employer is the temporary help, leasing, or contracting company, the client business may be regarded as a joint employer under some laws.  

The Family and Medical Leave Act has specific language regarding joint employer relationships. While the leasing or temporary help agency is the primary employer, the client company may be required to place the worker in the same or comparable position upon his or her return from FMLA leave.  Additionally, leased and temporary workers will count as employees of the client company for the purposes of determining whether a business is subject to the FMLA regulations. 

In the Tax Equity and Fiscal Responsibility Act of 1982, leased and temporary workers are the client’s employees for the purposes of qualifying retirement plans and certain fringe benefits such as life insurance and cafeteria plans (does not apply to health insurance benefits), if the workers have been engaged with the client company on a full-time basis for a minimum of one year and the client company primarily controls or directs their work. 

An employer can face a charge of discrimination under Title VII anti-discrimination legislation brought by an individual who worked for the employer under one of these leasing or sub-contractor relationships. 

It has also come into question with the National Labor Relations Board (NLRB) whether leased and temporary workers must be included in collective bargaining agreements that cover the client’s regular employees. 

Some states have passed legislation on joint employer liability as it pertains to workers’ compensation regulation.  New York ruled that the client is the common law employer of leased employees and is therefore primarily responsible for providing workers’ compensation benefits. To date there have been no guidelines for joint employer status under OSHA or other health and safety regulations. 

Employers need to be aware of and have guidelines regarding the degree of control they have over these temporary, leased and contract workers. The greater the degree of control, the greater the likelihood that the employer could be determined to be a joint employer. 

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys and pay practices data that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

Posted in Uncategorized on June 11th, 2015 · Comments Off on JOINT EMPLOYER LIABILITY

MINIMUM WAGE UPDATE JUNE 2015

State and City minimum wage increases continue to make front page news.  Most recently, the nation’s second-largest city, Los Angeles voted to increase it’s minimum wage from $9 an hour to $15 an hour by 2020.  Several other cities, including San Francisco, Chicago, Seattle and Oakland, Calif., have already approved increases, and dozens more are considering doing the same.

In 2014, a number of Republican-leaning states like Alaska and South Dakota also raised their state-level minimum wages by ballot initiative.  Gov. Andrew M. Cuomo of New York announced this month that he was convening a state board to consider a wage increase in the local fast-food industry, which could be enacted without a vote in the State Legislature. Nevada state assembly members and senators agreed Sunday to restore a provision that raises the state’s minimum wage to $9 for workers without employer-sponsored health insurance and it’s expected to get final approval in the Senate.  Currently, twenty-nine states and D.C. have minimum wages above the federal minimum wage.

State increases effective during the second half of 2015 include Delaware to $8.25 on 6/1/15, Maryland to $8.25 on 7/1/15, and Minnesota for large employers $9.00 on 8/1/15.

Follow this link to the WageWatch Federal and State Minimum Wage Chart with details of state and local minimum wage and pending increases. 

http://wagewatch.com/resources/Minimum_Wage_Chart_June_2015.xlsx

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys and pay practices data that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

Posted in Uncategorized on June 3rd, 2015 · Comments Off on MINIMUM WAGE UPDATE JUNE 2015