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Last week, the Oregon Supreme Court ruled that employers are not required to accommodate the use of medical marijuana in the workplace. A great summary of the facts and reasoning behind the decision can be found here. The bottom-line is that marijuana, despite being legalized for medicinal uses in a number of states is still considered an illegal drug under federal law, and employers are not required to accommodate its use.

In 2008, the California Supreme Court went one step further by ruling that employers are not obligated to accommodate the use of medical marijuana off-site. The ruling wasn’t available on

the California Supreme Court website anymore, but you can read a summary here.

What does this mean for Iowa employers? For now, nothing. But the legalization of marijuana for medical use has recently been creating a stir in Iowa.  In March of this year the Iowa Board of Pharmacy recommended that marijuana be legalized for the purpose of medicinal uses. They plan to propose legislation to the Iowa Legislature during the 2011 session. If the legislation passes, which some predict will happen, what does this mean for employers with a zero drug tolerance policy? Will accommodations need to be made for employees who consume marijuana off-site or on-site?

The California and Oregon rulings are only the “law of the land” in California and Oregon.   Those rulings will not be definitive for any situations that may arise in Iowa. In fact, other states with medical marijuana statutes have implicit or explicit protections for employees written into the statute. Any decisions under those statutes will likely be different than the California and Oregon rulings. Clearly, the language of any law passed by the Iowa legislature will be important in determining an employer’s obligation with respect to employees who use marijuana for medicinal purposes. 

Even though no Iowa law exists currently, employers should be cognizant that any law passed legalizing medical marijuana use may have major implications on current employment policies. Employers should be ready to implement new policies and address the situation when/if the legislature passes a law legalizing marijuana for medicinal use. Such policy amendments may be required by the implicit or explicit language of the statute or be based on an employer’s individual decision relating to its employee’s medicinal use of marijuana.  Change may be coming and employers need to be prepared.

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Having previously blogged about Iowa recognizing "no-fault" divorce, I found a recent article from the New York Law Journal to be particularly interesting. The article discussed a 2009 New York case in which one party cited abandonment and cruel and inhuman treatment in support of their dissolution action. While the Court ultimately granted the dissolution on the grounds of abandonment, the basis for the cruel and inhuman treatment claim is what made this article so intriguing. At trial, in support of the claim, testimony was presented that one party charged the other with a three-foot Japanese sword bringing the blade tip within inches of contact. The police were not called and no physical injuries were sustained; however, additionally testimony was presented regarding the alleged victim's fear of "sneak attacks" and their resulting difficulty sleeping. In declining to grant the dissolution on the basis of cruel and inhuman treatment, the Court found that the incident described, while credible, was not sufficient to show a "course of conduct so harmful to the plaintiff that it makes cohabitation unsafe or improper." The idea that Iowa recognizes "no-fault" divorce can be challenging for some people. Particularly those people who are looking for confirmation that they are not "at fault" or not the cause of their marriage break-up. Reading this article; however, I wonder if anybody would want to have to "prove" their case when in some jurisdictions being attacked by a three-foot sword is not enough to obtain a divorce?   

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The Iowa Supreme Court ruled today that discharging an employee for aiding injured employees in claiming worker’s compensation benefits is not unlawful. At-will employees may be terminated for any lawful reason. One unlawful reason Iowa recognizes is discharging an employee for pursuing worker’s compensation benefits. In this case, the supreme court was to determine whether that exception should be broadened.

In this situation Ballalatak was not the injured employee. Ballaltak was the supervisor of two employees who had been injured on the job. When Ballalatak inquired as to whether the employer was lawfully handling the worker’s compensation claims of two injured employees he was terminated. Ballalatak argued that the pursuit of worker’s compensation benefits exception should extend to employees who attempt to help the injured employee receive worker’s compensation benefits. He pointed to Iowa’s OSHA laws and regulations, wage payment collection actions, and discrimination laws to support his claim. The Supreme Court disagreed. In each of the noted statutes, there is clear language that prevents employers from retaliating against other employees who assist or participate in a proceeding or action brought by the injured employee. Iowa’s worker’s compensation laws and regulations have no such express policy. The public policy protection found in Iowa’s worker’s compensation statutes protects the injured employee, but does not extend to those who assist the injured employee. 

Although Ballalatak was doing something presumably commendable—assisting injured employees in assuring their rights were not being trampled upon—Ballalatak was not wrongfully discharged. This case is an example of the court’s unwillingness to deviate from the at-will employment structure and the difficulty in proving wrongful termination.

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Last weekend, the Drake Law School Constitutional Law Center hosted a symposium on same-sex marriage on campus.  Members of the ever-famous Westboro Baptist Church from Topeka, Kansas came to the event to protest, displaying incendiary signs and shouting off-color remarks.  See the Des Moines Register piece on the event.  Luckily, the protest (and counter-protest of over 400 Drake students) was peaceful, and no arrests were made or lawsuits filed (yet). 

The Westboro Baptist Church has also protested at military funerals, essentially arguing that these military deaths are God's punishment to the United States for condoning homosexuality.  One father of a slain soldier in Pennsylvania brought a lawsuit against the church, arguing that the church's protest was an invasion of privacy and was an intentional infliction of emotional distress.  The church responded that its speech is protected by the First Amendment to the United States Constitution.  Interestingly, the US Supreme Court has agreed to hear arguments in the case. 

This case represents a classic moral dilemma:  although one can sympathize with the father who likely wanted to mourn his son's death in quiet dignity, it is dangerous to prohibit types of speech that we find repulsive. 

Although this author believes the Court will ultimately side with the church, this case represents one of the truly fascinating aspects of legal theory (and made sitting through law school class bearable).  Stay tuned!!

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Seven states in the United States recognize alienation of affection claims. This type of claim allows a spouse to sue third parties that they allege interfered in their marriages. While Iowa is not one of the states that recognize alienation of affections claims, a recent North Carolina case caught my eye. Under centuries-old North Carolina case law, a woman sued her husband's alleged mistress for alienation of affection.  She claimed that the mistress had deliberately seduced her husband and caused the demise of her lengthy marriage. A jury agreed with her and awarded her $5 million in compensatory damages and $4 million in punitive damages to be paid by the mistress. The mistress has indicated she will appeal the decision.   

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A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

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A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

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Last week I was talking with a friend about the recent job interviews she has had. I was shocked at the questions she was asked and comments that were made to her during her interviews with attorneys. Because apparently even attorneys need guidance on appropriate interview questions and techniques, I have a few reminders listed below:

·         Consider candidates based solely on their qualifications for the job. 

·         Do not make any statements that would cause an applicant to believe he/she is guaranteed a job or will have permanent employment.

·         When asking questions avoid the following as it may be viewed that you are making decisions based on discriminatory criteria. Do not make comments regarding the same as well.

-        Marital status: What is your marital status? Are you married? What does your husband/wife do?

-        Age: How old are you? When did you graduate from high school?

-        Disability: Are you disabled? Have you ever filed worker’s comp claim? Will you take a physical exam before we offer you a job? If the disability is apparent you may ask whether the applicant will need a reasonable accommodation and what accommodation is needed.

-        Religion: What’s your religion? What church do you attend? What religious holidays do you observe? Does your religion prohibit your working on Saturdays? Are there any holidays on which you cannot work?

-        Gender/Sex: Are you pregnant? What are your family plans? How many children do you have? What will you do with your kids while you’re at work?

-        National Original/Race: Where were you born? Are you a US Citizen? What languages do you speak (if not a job requirement)

-        Financial Condition: Have your wages ever been attached? Have you declared bankruptcy? Do you own or rent? These questions are not permissible unless directly relevant to the applicant’s suitability for the position.

-        Avoid personal questions as they may be seen as relating to sex, religion, ethnicity or other prohibited areas.

If in doubt, if it’s not job related, don’t ask! You are trying to find the best candidate for the job and the best candidate for the job is the one who can complete the job related functions.

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