Yesterday the Supreme Court refused to grant certiorari in Yeager v. FirstEnergy Generation Corp., No. 14-1302 (cert. denied 10/5/2015), the case we previously brought to your attention in which an Ohio court found that an applicant’s refusal to provide a social security number because it would “cause him to have the ‘Mark of the Beast’ which his religion prohibits” was an insufficient allegation to maintain a claim of religious discrimination. Earlier this year, the Sixth Circuit affirmed the Ohio court’s decision that the employer’s refusal to hire him did not amount to religious discrimination. See Yeager v. FirstEnergy Generation Corp., 777 F.3d 362 (6th Cir. 2015). The Supreme Court’s refusal to grant certiorari allows employers to rest assured that insofar as an employee argues that their refusal to provide a social security number because of his or her fundamentalist Christian belief that the number is the “Mark of the Beast,” will not result in liablity in the Sixth Circuit for a claim of religious discrimination.
My four-year-old spent the vast majority of the weekend publically announcing (louder than her grandparents and I would have preferred) “excuse me I tooted” every time she passed gas—which considering her petite frame and refusal to eat a vast majority of foods, occurred much more often than I would have expected possible. Despite her well developed manners I tried to explain the private nature of this type of announcement, in hopes of combating the announcement in later years. While this is not something I would normally share in a public forum, its relationship to a recent employment lawsuit is too serendipitous to not tie the two incidents together. So, now I’ll get to the employment law issue.
Dear reader, we know that after seeing this headline, you are saying to yourself: Super; and in other news, scientists have determined that the big bright thing in the sky is pretty warm. Fear not, however, because in this tale of southern exposure, the alleged harassment victim did the pants dropping (!) Plus, there’s stuff about softball, fortune telling and allegations of breakfast food with a side order of sexual innuendo.
(Like you’re not going to keep reading.)
Recently, New Mexico employer Presbyterian Healthcare Services successfully defended a claim of disability discrimination after terminating a Physician's Assistant who tested positive for medical marijuana. The case, Smith v. Presbyterian Healthcare Services, involved a Physician Assistant, Donna Smith, who through a staffing agency, Advantage Locum, applied for and was hired for a position on February 17, 2014. After obtaining the results of a drug test, however, Presbyterian Healthcare Services discovered that Ms. Smith had tested positive for marijuana. Ms. Smith responded that her use of marijuana was pursuant to New Mexico'a Lynn and Erin Compassionate Use Act, 26-28-1 NMSA, and was to assist with her Post-Traumatic Stress Disorder. Presbyterian, however, terminated her employment on February 21, 2014.
As a result, in June 2014, Ms. Smith filed suit in state court alleging that she was discriminatorily terminated and Presbyterian had improperly failed to accommodate her serious medical condition in violation of New Mexico's Human Rights Act. After discovery, Presbyterian filed a Motion for Summary Judgment arguing that it is a federal contractor which accepts Medicare/Medicaid reimbursements and thus must comply with the Federal Drug-Free Workplace Act of 1988. Accordingly, in order to receive these government contracts (for Medicare/Medicaid reimbursement), the Company had to provide a drug-free workplace--and thus the Company's termination of Ms. Smith was not discriminatory. The Court agreed, granting summary judgment in the Company's favor.
While normally EEO-1 reports have a filing deadline of September 30 (yes that was yesterday), this year the EEOC Joint Reporting Committee extended the EEO-1 Deadline to October 30, 2015. Accordingly, while this extension is helpful to many employers, we suggest employers review the 2015 EEO-1 changes and get their reports filed as soon as possible. Changes this year include:
- Companies are now able to obtain and reset their passwords.
- Company locations with the same address and same NAICS Code must consolidate those locations into one record.
- The requirement to provide the Employer Identification Number (EIN) for each establishment location will be more carefully monitored.
If you have any questions regarding the EEO-1 Report, please contact a member of Verrill Dana’s Labor & Employment team to discuss.
My Facebook news feed blew up last week with reaction to Martin Shkreli’s company, Turing’s, 5,000% increase in the price of the anti-parasitic drug Daraprim from $13.50 per pill to $750 per pill. While an interesting case study in ethics, politics, and how health care and pharmaceuticals are managed in our culture, on its face the problem likely didn’t make you think about employment law issues—but it should.
As the news of Mr. Shkreli’s price hike hit the media, reporters quickly uncovered information concerning Mr. Shkreli’s past—including a recent lawsuit filed in the Southern District of New York alleging breach of the duty of loyalty on the part of Mr. Shkreli as to his former company Retrophin(a biotech company he started at the age of 29). In that suit, Retrophin is seeking more than $65 million in damages. In addition to the breach of the duty of loyalty lawsuit, Mr. Shkreli, during his time at Retrophin, was accused in an unrelated lawsuit by a former Retrophin employee of engaging in a social media attack against the former employee and his family (allegedly hacking into the former employee’s social media accounts as well as threatening the former employee’s family through text messages and Facebook). As a result (or at approximately the same time), Mr. Shkreli was removed as the company’s CEO.