Hire a Great Candidate, but Avoid a Lawsuit (Part I)
By Bernard (Bud) Bobber
Often the best candidate for an important, open job at your company is an individual who has successfully worked in a similar role in your industry. Additionally, that top candidate often works for a direct competitor that will not be happy to learn that the person has taken a job with your company. If the individual is a valuable asset to that competitor, it may choose to sue him or her — and possibly your company as well — alleging that its confidential business information or customer relationships are unfairly jeopardized in violation of a noncompete or confidentiality agreement, or even the trade secret law. A lawsuit is even more likely if the circumstances of the job change (that is, the resigning, the hiring, or both) fuel the former employer’s suspicions and fears that the individual and the new employer intend to compete unfairly by use of the former employer’s confidential business information.
In those situations, the hiring company can help minimize the chances of a lawsuit by following some thoughtful best practices during the interviewing and hiring processes, such as:
- Before any interviews take place, tell candidates that you need them to be mindful during the interview process not to disclose any confidential business information of their current employers. Additionally, remind your interviewing managers not to dig for or even ask about confidential business information about competitors during the interviews.
- Often candidates are anxious to impress you with explanations of the exciting, cutting-edge projects on which they are working; yet those are precisely the circumstances that may prompt the former employer to react negatively (with litigation) when it learns that a former employee has joined a competitor.
- Require the candidate to disclose, early in the process, any agreements with the current or former employer that contain post-employment restrictions like noncompete, nonsolicitation, and confidentiality obligations. Have those agreements reviewed by legal counsel with specific experience in this area to get both legal and strategic advice about navigating around the legal issues.
- Instruct the candidate not to take or retain any confidential business information from the current/former employer. Explain that the employer may initiate a forensic analysis of the individual’s computer, smart phone, or voice mail, as well as its own computer network and/or security systems, to try to discover any theft of information.
Part II of this article will appear in next week’s Employment Law Update.
Employers Continue to Struggle With Medical Marijuana Laws
By John F. Birmingham, Jr.
Fourteen states and the District of Columbia have passed laws that, in one form or another, legalize the use of medical marijuana. Employers have a well-recognized interest in maintaining a drug-free workplace (http://tinyurl.com/24vdwpe), and marijuana remains an illegal drug under federal law. Reconciling these competing concerns is made even more difficult, especially for national employers, by the fact that: (1) each state’s laws differ with respect to the protections they give to employees who use medical marijuana; (2) while the ADA has not been amended to protect marijuana use, many states have their own disability discrimination laws that protect the use of prescription drugs, while others have laws limiting employment action taken on the basis of off-work activities; and (3) typical drug testing is not sophisticated enough to determine whether the employee used marijuana two hours ago versus two weeks ago.
The state laws also are often ambiguous or confusing regarding the protections they offer employees using medical marijuana, and the case law is not well developed. For example, California’s Compassion Use Act gives individuals the right to use marijuana for medical purposes, but the California Supreme Court held that this Act does not prevent an employer from terminating an employee who tests positive for marijuana, even if used for medical purposes.
Recent challenges (http://tinyurl.com/22nfvvh) to marijuana-based terminations eventually may lend some clarity. In Michigan, an employee who had a prescription for medical marijuana filed a lawsuit in mid-2010 when a large retailer terminated his employment following a positive drug test. The Michigan act specifically prohibits disciplinary action for the medical use of marijuana but does not allow an employee to work under the influence of marijuana. Because the drug test could not determine whether the employee was under the influence at work, that issue must be decided by a jury. In Colorado, a paralyzed employee who used marijuana to control muscle spasms was terminated when he tested positive. He recently brought suit arguing that Colorado’s “lifestyle law” prevented employment decisions based on activity occurring during non-working hours.
Finally, there are safety concerns posed by the use of medical marijuana. An employer can be caught between a rock and a hard place, as it potentially could be held responsible for an accident after it had knowledge of an employee’s drug use.
Given the evolving legal landscape, employers should: (1) recognize that their drug polices may need to be tailored depending upon the applicable state or city in which the facility is located; (2) where the use of medical marijuana is permitted under state law, consider asking the employee to provide documentation authorizing the use of the medical marijuana before any drug test; (3) focus on the employee’s behavior while at work, as no state law protects being under the influence of marijuana while working; and (4) seek legal counsel before taking action.
