Cara Nicklas

The Impact of Oklahoma's Medical Marijuana Law on the Workplace

by Cara Nicklas

Oklahoma voters recently passed a state question that legalizes medical marijuana. Oklahoma’s medical marijuana laws are codified in Title 63, Chapter 15, § 420A through § 426A, of the Oklahoma statutes. So, what is the impact of the medical marijuana law on the workplace? The short, precise and lawyerly answer is . . .  it depends.  It depends on many factors, known and unknown. Without settled case law in Oklahoma on many of the issues related to medical marijuana use by employees, employers are left to make judgment calls based on the particular facts in a given situation.

A reasonable interpretation of the Oklahoma statute suggests the impact on employers should be minimal. The law restricts an employer from discriminating based on an employee’s “status” as a medical marijuana license holder or solely on the “results” of a positive drug test by a medical marijuana license holder. The law does not restrict an employer from maintaining a safe and drug-free workplace just as employers have done since before the law passed. Employers may restrict any drug use, legal or illegal, during or before work hours, that would impair the employee’s ability to perform work or would cause a safety risk. A situation analogous to medical marijuana would be the use of pain medication. An employer may prohibit its employees from driving or operating dangerous equipment while under the influence of traditional prescription drugs or medical marijuana. An employer may also take action against a poorly performing employee who may be under the influence of legal or illegal drugs.

Marijuana is still illegal under federal law. Therefore, an employee may not bring marijuana-related discrimination claims under federal statutes, such as the Americans With Disabilities Act. It is uncertain whether claims for disability discrimination can be brought under state law.  Assuming a claim may be brought under the Oklahoma Anti-Discrimination Act, any request by an employee for a reasonable accommodation involving use of medical marijuana is fact-specific and would require the employer engage in the interactive process similar to the dialogue and deliberation an employer goes through when an employee depends on prescription drugs that violate an employer’s policies. Whatever reasonable accommodation an employer determines is necessary, it is not required that the employer accommodate an employee’s use of marijuana on the work-premises or during working hours. Additionally, an employer can legally take action against an employee if “failure to do so would cause an employer to imminently lose a monetary or licensing related benefit under Federal law or regulations.”  (See 63 O.S. § 425A)

Oklahoma employers already realize how vulnerable they are to discrimination claims.  The new medical marijuana law certainly does not minimize the risk of discrimination lawsuits. Nevertheless, the new law should not significantly increase that risk if employers continue to take action against employees that is focused on the employee’s work performance as opposed to the employee’s status. 

Restrictive Employment Covenants in Oklahoma

by Cara Nicklas

Restrictive employment covenants are becoming more commonplace.  Employers have an interest in protecting against the unfair competitive advantage employees gain by access to an employer’s customers, trade secrets, business decisions, etc.  Employees may betoo desperate for work and unequipped to negotiate such covenants, so they sign without much thought.  Both employer and employee should make sure they understand the restrictive employment covenant they sign and ensure it makes sense for their particular industry and situation.
 

Restrictive employment covenants are governed by state law rather than federal law.  Therefore, employers should exercise caution before using “free and easy” downloadable agreements from the internet.  They are not “one-size-fits-all” type of agreements.  Employees should carefully consider the impact of a proposed restrictive covenant when the employment relationship ends and should seek advice as to the enforceability of the particular provisions in order to understand the potential risks in signing an employment agreement.  
 

Restrictive employment covenants may include the following provisions:

  1. A non-compete provision prohibits the employee from working for competitors during a specified period of time and within a defined geographical area.   General non-compete agreements are not permitted in Oklahoma.  A broadly worded contract that restrains a person from exercising a lawful profession, trade or business is void as a violation of Oklahoma public policy except as provided by Oklahoma statute.  In an agreement to purchase another’s business, which includes the goodwill of the business, the parties may agree that the seller will refrain from carrying on a similar business (bear in mind such provision can affect the tax consequences of the sale of a business).  Similarly, partners who dissolve a partnership may agree that none of them will carry on a similar business within a specified geographical area.
     
  2. A non-solicitation provision bars the employee from soliciting the business of the employer’s customers.  The Oklahoma Legislature created a third statutory exception to the general prohibition against contracts in restraint of trade.  An agreement prohibiting a former employee from directly soliciting the sale of goods and services from the “established customers of the former employer” is not a contract in restraint of trade and may be enforced in Oklahoma.  Courts will likely enforce such agreements only if the agreement includes a reasonable length of time as opposed to a permanent ban.  Courts will be left to define terms such as “established customers” but employers are clearly permitted to prohibit direct solicitations of its “established customers” by former employees.   
     
  3. A nonrecruitment provision or anti-raiding provision bars the employee from recruiting the employer’s employees and contractors for a subsequent or concurrent employer.  Effective November 1, 2013, the Oklahoma Legislature expanded the exception to the prohibition against restrictive employments contracts by authorizing employers or businesses to prohibit its employees or independent contractors from soliciting its employees or independent contractors to work for their new employer/business.
     
  4. A confidentiality/nondisclosure provision prohibits the disclosure of the employer’s confidential and proprietary information.  Oklahoma law permits confidentiality/non-disclosure agreements.  Such provisions are common in employment agreements but often poorly written.   A written agreement specifying an employee’s obligations regarding the employer’s confidential and proprietary information should 1) clearly define what is “confidential” and “proprietary” so the employee understands what information is protected, 2) state the duration of the obligation, and 3) identify the specific prohibitions on disclosure or use of confidential and proprietary information.   Vague provisions are difficult to enforce.

Employment Law Basics for the Small Business Owner

by Cara Nicklas

Small business owners sometimes assume the onerous employment laws apply only to the big corporations.  This misconception is fed by the reality that more wrongful discharge cases have historically been filed against larger employers with deep pockets rather than the small businesses.  However, as our society grows increasingly more litigious, small businesses are becoming more prone to lawsuits and should take precautions.

 

Generally, Oklahoma is an “at-will employment” state.  That means an employer may discharge an employee for good cause, for no cause or even for cause that is morally wrong, without being liable.  However, this general rule has been engulfed by exceptions.  Those exceptions include many statutory causes of action such as Title VII of the Civil Rights Act of 1964, Fair Labor Standards Act, Family Medical Leave Act, Americans With Disabilities Act, and Age Discrimination in Employment Act, to name just a few.   Each law’s applicability depends on the size of the employer, ranging from a minimum of 2 to 50 employees.

 

Besides the various statutory causes of action that constitute exceptions to the at-will employment doctrine, Oklahoma has recognized another common law exception.  The public policy tort claim (also referred to as the Burk tort claim, named after the Oklahoma Supreme Court case of Burk v. Kmart Corporation) permits a former employee to sue an employer if the employee believes he or she was discharged for 1) refusing to act in violation of an established and well-defined Oklahoma public policy, or 2) performing an act consistent with a clear and compelling Oklahoma public policy.  Small businesses, with as few as one employee, may be sued under this theory.  This claim is becoming widely used by terminated employees.

 

Oklahoma Courts’ expansion of the public policy tort claim makes it difficult to completely protect oneself against such claims.   A discharged employee may simply claim to have complained to a supervisor about a suspected violation of an Oklahoma law, i.e., public policy, and allege his or her discharge resulted from the complaint.  The case becomes a question of whether the former employee or the supervisor is telling the truth.  Resolution of this allegation, which may be completely false, requires an expensive, protracted jury trial that most small businesses cannot afford.

 

For a small business owner to be placed in the most favorable position, the employer should consider the following:

  • Develop a written, but not overly detailed, employee handbook. Do NOT include policies you do not intend to enforce.

  • Ensure your hiring process is fair. Spend time at the front end thoroughly vetting your new employees. Conduct a background check, including a verification of prior employment, before hiring. This will save time and money in the long run.

  • Do NOT ignore or dismiss employee complaints, even if informal or based on hearsay. Thoroughly document your handling of complaints.

  • Seek legal advice before disciplining or terminating an employee. Making sure you properly handle an employee termination may save you the considerable expense of a lawsuit.

  • Consider the purchase of insurance to defend against employment related claims.