AB 1989 (Swanson) – Expands WARN act to include offshoring.
AB 2075 (Fuentes) – Off-the-clock hours would be equivalent to signing flase wage release.
AB 2134 (Swanson) – Would conform state and federal family leave.
AB 2279 (Leno) – Reverses Ragingwire: no discrimination based on medical marijuana usage.
AB 2421 (Huff) – Investigation and prosecution of complaints of employment of unauthorized workers.
AB 2530 (Duvall) – Would exclude certain transportation employees from meal period orders.
AB 2716 (Ma) – Paid sick leave for everyone.
AB 2719 (Jeffries) – Would exclude employees investigating workers compensation fraud from meal period orders.
AB 2874 (Lieber) – Removes penalty limits for violations of CRA2005.
AB 2879 (Leno) – Labor Commissioner audit triggers.
AB 2888 (La Malfa) – Sex offenders cannot work in certain fields with minors, fines related thereto.
AB 2918 (Lieber) – Would restrict usage of credit information as a condition of employment.

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By now it’s on the back burner, but with the issue of DHS “no match” letters hanging over the workplace, some guidance about how the courts would rule when employers are caught in a federalism pincer maneuver would be helpful.

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Justice Joyce L. Kennard said the issues before the court do not simply weigh the use of “illegal drugs.” “Under California’s Compassionate Use Act, this particular use … is allowed,” she said. “What we have is a conflict.”

Indeed. It seems pretty clear to me that that conflict means the federal law wins, and, not unlike the no-match letters, it would put a lot of employers in damned-if-you-do, damned-if-you-don’t situations. Thing is, it also puts employees in the same kind of position, doesn’t it? The article is focused on the medical marijuana issue, because that’s more interesting to the newspapers. My hope is that this adds new dimensions to Tameny claims, which, ironically sprang from an employee’s unwillingness to do an illegal act. Paging Alanis Morrisette.

I will add this to the track list. Its current procedural status is “under review,” so, red.

You can watch the oral arguments, here.

UPDATE:

After watching the oral arguments, I would say that we should be prepared to see Ragingwire overruled. With one justice absent, and many mostly silent, it’s hard to speculate. Of the six there, I saw two to overrule, two on the fence, and two to affirm.

I would say that I thought Ross’s counsel had the better of the argument, but was, to be fair, thrown a number of easier questions. I thought that it was interesting that the issue of illegal aliens was only touched on for a very brief moment, when that seems to be the perfect analogy: state law extends them certain benefits; federal law prohibits their presence, and this exact conflict is very much on everyone’s mind with the no match issue—yet this was almost never discussed.

I’m not sure what result will cause less problems for the people I represent. Before, I was certain it was one way; now, I’m not so sure.

UPDATE II:
Upon further reflection (and not having read the papers at all), I’m surprised that the parties didn’t touch at the main question here: sovereignty. This is not a question of the FEHA or California common law as much as it is a question that relates to conflicts of laws and sovereignty. Yet, unless I’m forgetting something, that was not discussed at all in the oral argument.

In general, states are free to regulate the health, safety, welfare, and morals (i.e., the police power). Though apparently, the commerce clause issues opened by the Lopez case have been re-liberalized, what really needs to be looked at here, in my humble opinion, is whether the Federal CSA, even if allowed under purely intrastate grounds, means that all state laws necessarily contain it in some “implied” form.

I’m not an expert, or even a novice, on this kind of law, but, to me, this issue, and the illegal worker analogy, seem to be closer to the crux of the issue than whether it’s a “prescription” or a “recommendation.”

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Ross v. Ragingwire Telecommunications, Inc.The Court of Appeal (Third Appellate District) holds that an employer does not violate the FEHA’s prohibition against disability discrimination for firing an employee whose pre-employment screening tested positive due to physician-prescribed marijuana smoking. Although the drug use was lawful under California’s Compassionate Use Act of 1996, it remains unlawful under federal law. Nothing in the FEHA requires an employer to tolerate current illegal drug use. Moreover, the California statute “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions. The initiative says nothing about protecting the employment rights of those who do so.”

Comment: It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use.

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