Merle Haggard guide to Employment Law

bullard-law2By Bullard Law,
Portland law firm

Merle Haggard passed away. Willie’s Roadhouse on SiriusXM spent the day remembering Haggard – with lots of music (hits and otherwise), interviews with other artists, and telephone call-ins from ordinary folks touched by Haggard’s music or by a personal encounter with him along the way.

The Bullard Edge, moved by this outpouring of love and respect, realized that Haggard’s body of work lends itself very naturally to a discussion of employment law issues.  Haggard understood the Workin’ Man Blues, from the Silver Wings that impact employees away from work to the paycheck challenges so evocatively captured in If We Make It Through December.

Therefore, we are going to indulge our wistfulness today and stretch just a bit to link three Haggard songs to current employment law issues.  With no further introduction, we present country music legend Merle Haggard.

It’s All Going to Pot [Medical and Personal Use Marijuana]

Last year Haggard collaborated with Willie Nelson on the album Django & Jimmie, which included this song as its first single.  The timely song is another opinion in the ongoing national debate related to the legalization of marijuana.

The Bullard Edge has thoroughly covered the medical and personal use marijuana issue.  The law in Oregon and Washington is clear: an employer may adopt a drug and alcohol policy that prohibits marijuana and need not modify that policy to accommodate a medical marijuana user or an employee using marijuana consistent with state personal use laws.

In an article titled Workplace Drug Policies In The Age Of Pot, released shortly after this song, we addressed a key issue ~ the reason why alcohol and “legal” marijuana (at least under state law) are treated differently.  In the case of alcohol, an employee does not violate an employer drug and alcohol policy where s/he drinks alcohol off duty, provided that the employee does not come to work impaired.  However, that same employee would violate the policy where s/he used marijuana off duty, even if the high had worn off by the time the employee reported to work.  As we said, this difference in treatment of the two types of lawful off duty conduct may not be fair, but it is the best an employer can do today.  Employers do not have access to a marijuana impairment test that is comparable to an alcohol impairment test.  The best that an employer can do, today, is test for the presence of marijuana in the system.

Effective marijuana impairment testing does not exist currently, but it is being developed.  Last December an Oakland, California company named Hound Labs, Inc. received significant media coverage following the announcement that a marijuana breathalyzer, developed in conjunction with University of California Berkeley chemists, was ready for testing in clinical trials.  The device is intended to measure whether a person is high on marijuana.  If (and the more apt word may be “when”) this technology is developed there will almost certainly be a significant impact on employer drug and alcohol policies.

Pancho and Lefty [Federal Contractor Paid Sick Leave Regulations]

In 1983 Haggard and Nelson collaborated on the album Pancho & Lefty, which included the nearly eponymous “Pancho and Lefty.”  This chart-topping single tells a slightly convoluted story about friendship between bandits Pancho and Lefty and Lefty’s eventual betrayal of Pancho.  While Pancho ends up buried in Mexico, Lefty is able to slip away to Ohio.

Their iffy friendship puts us in the mind of regulations proposed in February by the Department of Labor that would establish paid sick leave for federal contractors.  The idea is that one of the costs of doing business with the federal government is going to be a requirement that covered contractors provide paid sick leave to their employees.  We will not go into all of the details of the proposed regulations, which in many ways is similar to the various state and local paid sick leave laws that have been enacted in recent times (including in Oregon, as discussed in this July 9, 2015 Bullard Alert).

One aspect that is different, though, than other paid sick leave laws we have seen is the provision that would allow an employee to use this paid sick leave to care for an individual related by “blood or affinity” (defined in §13.2).  In its FAQs the DOL elaborates on the scope of this loose phrasing.

“It could include, for example, an individual who was a foster child in the same home in which the employee was a foster child for several years and with whom the employee has maintained a sibling-like relationship, a friend of the family in whose home the employee lived while she was in high school and whom the employee therefore considers to be like a mother or aunt to her, or an elderly neighbor with whom the employee has regularly shared meals and to whom the employee has provided unpaid caregiving assistance for the past five years and whom the employee therefore considers to be like a grandfather to her.”

If these regulations are issued in final, as proposed, a federal contractor may need to allow an employee to use paid sick leave to care for a friend.  Let the arguments begin as to whether it must be a BFF or just a bud (or even an iffy friend like Lefty).

Okie From Muskogee [Federal Contractor Veteran Outreach]

With the country deeply divided over the war in Vietnam, Haggard released this song in July 1969 and it became an instant hit.  Some viewed the song as anti-hippie and others viewed it as pro-war.  However, Haggard himself stated that he wrote the song to express support for the troops who were risking their lives.  In other words, Haggard believed that the troops themselves deserved support on the home front, regardless of personal views on the appropriateness of the military action.

OFCCP regulations require covered federal contractors to develop an affirmative action plan for veterans.  Revisions to those regulations in effect since 2014 require covered contractors to establish annual hiring benchmarks with respect to veterans (this is a hiring target, not a quota).  To meet the benchmark, a contractor must locate qualified veterans, make them aware of employment opportunities with the contractor, and entice them to apply.  On its website, OFCCP has provided a helpful listing of resources for the recruitment and hiring of qualified veterans.

With that, we bring to a close our salute to Merle Haggard.  We wish him peace in repose.

Best regards,

The Bullard Edge 

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