Texas state Rep. Jessica Farrar was fed up with men making laws restricting women’s reproductive choices and decided to get back at them. Farrar, a Democrat, introduced a bill on Friday that calls for a $100 fine on men who masturbate, and would place additional requirements on doctors prior to performing vasectomies and colonoscopies or prescribing Viagra. Under the proposed legislation, men would have to go through the same invasive scrutiny that women face today when seeking an abortion. House Bill 4260 would also allow doctors to refuse to perform a vasectomy and prescribe Viagra because of religious beliefs.

Farrar realizes that her bill, unfortunately, has very little chance of becoming law, but she said she hopes it will open up people’s minds–even though she admits this may be too much to ask of her fellow politicians. “What I would like to see is this make people stop and think,” she told The Texas Tribune. “Maybe my colleagues aren’t capable of that, but the people who voted for them, or the people that didn’t vote at all, I hope that it changes their mind and helps them to decide what the priorities are.”

#HB4260, “A Man’s Right to Know,” mirrors real TX laws and health care restrictions faced by TX women every #txlege session.

— Jessica Farrar (@JFarrarDist148) March 11, 2017

The new bill is named the “Man’s Right to Know Act.” Given that many male politicians cite the sanctity of life when fighting against abortion, Farrar said it’s only fair to view a man’s sperm as a contribution to that life and that it would be a shame to waste it. Therefore she proposed a bill that would require men to be responsible for their own actions–only allowing them to masturbate at a clinic where the sperm can be stored to fertilize a woman in the future.

Mirroring yet another law that currently affects women, the bill also calls for a 24-hour waiting period after a man’s first consultation for an elective vasectomy procedure or a Viagra prescription. This is a reality today for women seeking an abortion. Also, Farrar’s bill would require a rectal exam before a vasectomy or colonoscopy, even though it is not medically necessary. Today in Texas, women are required to have an ultrasound and listen to the heartbeat of the fetus before an abortion is performed, which is also medically unnecessary and, as Farrar says, “messes with women’s heads.”

Jessica Farrar, a Texas state Rep. from Houston, just filed a bill that trolls the entire Texas GOP. H/t @rossramsey https://t.co/PMNNQtmEje pic.twitter.com/IN9BvSHwdV

— Aman Batheja (@amanbatheja) March 11, 2017

It probably goes without saying that Farrar is an outspoken advocate for a woman’s right to choose abortion, and she has long fought against Texas legislation that restricts access to abortions. Lately, a lot of bills have been filed in the state targeting women’s reproductive rights. A bill by Rep. Tony Tinderholt goes as far as charging women who have an abortion, and their abortion providers, with murder. In a statement responding to the “Man’s Right to Know Act,” Tinderholt said, “I’m embarrassed for Representative Farrar,” and suggested that she take a biology class, obviously missing the point Farrar was trying to make.

Another bill by Rep. Byron Cook requires Texas hospitals to bury or cremate all fetal remains rather than disposing of them as biological waste. Texas is only one of many states with pending legislation like this. Advocates say it’s inhumane to “throw the bodies of human beings into a landfill.” Opponents say this is an ideological viewpoint that the state shouldn’t impose on women and that it could affect the access to abortion by imposing additional costs on clinics and hospitals.

As expected, many men and conservatives attacked Farrar and the bill on social media, claiming that she doesn’t know what she’s talking about. But most people got the joke and if the satirical bill could help people open their eyes to what women go through every day, that’s at least one step in the right direction.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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The Fourth Circuit Court of Appeals struck down a North Carolina voting law on Friday, concluding that it was passed with clear “discriminatory intent.”

The ruling forcefully reversed a district court finding that did not acknowledge the law’s intent to discriminate. In the ruling, Circuit Court Judge Diana Gibbon Motz writes,

In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.

Motz, also writing for judges James Wynn and Henry Floyd, goes on to note that the sequence of events that led to the law provides sufficient evidence to conclude that the law intentionally sought to restrict voting rights of African American voters in clear violation of the Voting Rights Act.

While many argue that voting laws like the one in North Carolina are passed for partisan reasons–by focusing on minority communities that traditionally vote for Democrats, Republican legislators may be seeking an electoral edge–the way this law in particular targeted race amounts to racial discrimination. And yes, challenges to these laws could also be considered partisan efforts on behalf of the Democrats as well, but the racial focus here appears to take it a step further.

A Quick Look at the Voting Rights Act

To understand this case in North Carolina, it’s important to understand the Voting Rights Act. Congress passed the VRA in 1965 to ensure that African Americans and all minority voters would not be discriminated against at the polls.

The law took a particularly active approach to dealing with an enormous challenge. It created a formula to identify states and locales where voting was polarized by race and then added additional safeguards to changing voting laws there. Section 4 of the law created that so-called “coverage formula,” and coupled it with a preclearance requirement in Section 5. That requirement mandated that state and local governments falling within the coverage formula get explicit approval from the Department of Justice before changing voting laws.

The law also maintains provisions to ensure that race-based discrimination does not happen and places redistricting requirements on states to ensure minority representation, among other protections. But the preclearance requirement and coverage formula took the center of attention in an infamous Supreme Court ruling in 2013. That case, Shelby County v. Holder, struck down the coverage formula and ended the preclearance system as it existed at the time. Justice Roberts, who wrote the 5-4 opinion, concluded that the law employed “extraordinary measures to address an extraordinary problem,” but that those measures are no longer needed. He went on to argue that the coverage formula used to determine which areas require preclearance now violates states’ rights and equal sovereignty as laid out in the 10th Amendment.

Since that ruling, governments have been free to change their voting laws as they see fit without the need for preclearance from the Justice Department. And that brings us to the recent challenge in North Carolina.

The North Carolina Ruling

Judge Motz notes in the ruling that between 2000 and 2012–a period when preclearance was needed for to all statewide and many local voting law changes in North Carolina–registration and participation surged among black voters. By 2012, black voter registration had increased by about 50 percent and turnout nearly reached parity with that of white voters, at about 70 percent. But shortly after the Supreme Court issued its Shelby County ruling, the state assembly began the process to overhaul its voting laws. According to the ruling, the new law would have several effects on black voters in the coming November election:

In this one statute, the North Carolina legislature imposed a number of voting restrictions. The law required in-person voters to show certain photo IDs, beginning in 2016, which African Americans disproportionately lacked, and eliminated or reduced registration and voting access tools that African Americans disproportionately used.

In cases like this, it is particularly difficult to prove that a legislature acted with discriminatory intent, but the court concluded that there was enough evidence to indicate that race was central to the new law. That holds true, according to Motz, even if it was done for partisan reasons and not outright racial hatred or racism. The ruling notes that almost immediately after the Shelby County opinion came down in June 2013, the North Carolina legislature began drafting new voting restrictions. It also notes:

Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.

This indicates that shortly after the state did not need preclearance to pass a new voting law, it looked into how certain voting practices related to race, and then passed a new law limiting certain practices. Based on that sequence of events, the court ruled there was clear intent to discriminate based on race.

Going Forward

While the ruling effectively struck down the law, the court declined to use another section of the Voting Rights Act to impose a preclearance requirement on North Carolina after finding discriminatory intent. Essentially, it chose not to reinstate the preclearance requirement on the state using a different part of the VRA. As Rick Hasen–a law professor at University of California, Irvine–notes in a blog post, the state can still appeal the ruling to the Fourth Circuit en banc, which means that all of the judges, not just the original panel of three judges, would review the case. It could also appeal to the Supreme Court, but as Hasen notes, the court may not decide to hear the case given its current eight justice makeup and the Circuit Court’s decision not to implement a preclearance requirement.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Why A Circuit Court Struck Down North Carolina’s Discriminatory Voting Law appeared first on Law Street.

The New York State legislature passed a bill last week that would make advertising entire-home rentals for fewer than 30 days illegal. The bill would affect many of the city’s residents who rent out their apartments on Airbnb while they are away. Now it is up to Governor Andrew Cuomo to sign or veto the bill.

The new bill would mean that anyone who attempts to rent out their entire home would be subject to a fine of $1,000 for a first offense and up to $7,500 for a third violation. The law would not apply to people who only rent out a room, while also staying in the apartment themselves.

The bill has been criticized by many of Airbnb’s high-profile investors such as actor Ashton Kutcher and venture capitalist Paul Graham:

Tech is the future of the NY economy, but @NYSA_Majority & @NYSenate might throw it all away with terrible anti-tech bill A8704C/S6340A

— ashton kutcher (@aplusk) June 17, 2016

The @NYSenate is trying to quietly rush through a bill banning Airbnb. If you'd like the decision to be more democratic, tell them.

— Paul Graham (@paulg) June 17, 2016

Renting out an entire apartment for less than a month has already been against the law in New York City since 2011, but this new bill would make advertising for such rentals illegal as well. While the multiple dwelling law that took effect in 2011 was meant to target illegal hotel businesses and landlords who own multiple units, it also made the actions of ordinary people in need of some extra income illegal.

If the new bill is signed into the law, it will not only be bad for the company but would also put 30,000 people in New York City at risk of being evicted, according to a survey conducted by Airbnb. After the bill made its way through the state legislature, company spokesperson Josh Meltzer said in a statement:

It’s disappointing—but not surprising—to see politicians in Albany cut a last-minute deal with the hotel industry that will put 30,000 New Yorkers at greater risk of bankruptcy, eviction or foreclosure.

Airbnb has previously been under fire for its unclear responsibility in cases of guests hosting extreme parties, wrecking people’s homes, sexual assault, prostitution, and even death.

Learn More: Uber, Airbnb: Is the “Sharing Economy” Dangerous?

Linda Rosenthal, a member of the State Assembly the bill’s sponsor, said in a statement:

This bill, once it’s signed into law, will send a strong message that we prioritize hardworking New York families and affordable housing, and will give law enforcement the tools they need to crack down on illegal hotels that destabilize communities and deprive us of precious units of affordable housing.

The next step is to wait for the Governor to either approve or reject the bill, making Airbnb partly illegal or not. If you live in New York you can weigh in on the bill here.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post A New York Bill Could Make Listing Your Home on Airbnb Illegal appeared first on Law Street.

Beneath Colorado’s Front Range–a stretch of the Rocky Mountains in the center of the state–billions of cubic feet of natural gas have been bubbling for millions of years. Above ground, the state’s supreme court ruled on Monday to overturn measures put in place by Fort Collins and Longmont–two towns that sit atop the reserves–to prevent fracking within the limits of their municipalities.

A lawsuit brought by the Colorado Oil and Gas Association to a lower court ended up invalidating both cities’ anti-fracking measures, and following an appeal by Fort Collins and Longmont, the case moved to the state’s high court.

The court overturned Fort Collins’s five-year freeze of fracking within its city limits, issuing the following statement:

“The supreme court concludes that Fort Collins’s five-year moratorium on fracking and the storage of fracking waste within the city is a matter of mixed state and local concern and, therefore, is subject to preemption by state law.”

Similarly, the fracking ban established by Longmont in 2012 was deemed “invalid and unenforceable.”

“Applying well-established preemption principles, the supreme court concludes that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within its city limits operationally conflicts with applicable state law,” Justice Richard Gabriel wrote.

Colorado state law does not prohibit fracking, though the practice is regulated, and is among the most transparent in the country. State law also maintains the state’s authority in instances where a local government moves to push litigation involving the oil and gas industries.

Unsurprisingly, energy industry advocates were encouraged by the court’s ruling while conservationists were incensed.

“Oil and gas is ready to stand up for Colorado consumers and for Colorado’s place in the American energy renaissance,” Colorado Petroleum Council director Tracee Bentley told the Denver Post.

Conservation Colorado director Pete Maysmith expressed disappointment, advocating for “ground up” policymaking.

“Local governments should have the ability to call a timeout on drilling in order to better understand its impacts and ensure safety and public health,” he said.

While Monday’s ruling prohibits Fort Collins and Longmont from halting the practice of fracking, other Front Range towns voted for and still maintain regulatory measures (but not full force bans) for fracking on their land, namely Boulder and Lafayette.

As the demand for natural gas rises, it’ll be interesting to see how other states handle local attempts to regulate the potentially unsafe methods of natural gas extraction.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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The minimum wage was first created to ensure that workers are protected from being underpaid for their work; however, given that national and local costs of living have varied over time, whether or not the minimum wage amounts are fair has been the main pillar of the  national debate for some time. Read on to learn about the minimum wage and all of the controversies and debates surrounding it.

Current Minimum Wage Laws

The Fair Minimum Wage Act of 2007 is a law passed by Congress that requires employees to be paid at least $7.25 per hour. The act took effect in 2009 as an amendment to the Fair Labor Standards Act. This law only applies to jobs that are under the purview of the Fair Labor Standards Act. Tipped workers may only be paid less than $7.25 an hour if their hourly wages plus tips match or exceed $7.25.

The Fair Labor Standards Act is a federal law that Congress passed pursuant to the Commerce Clause of the Constitution. Federal laws passed under that power are only effective if they pertain to an area that affects commerce between multiple states. Therefore, the Fair Labor Standards Act and the Fair Minimum Wage Act only regulate wages in businesses that are involved in interstate commerce. Businesses that are not sufficiently involved in interstate commerce are not regulated by the federal law but may still be regulated by state or local minimum wage laws. If there are state or local minimum wage laws in effect in the area a (non-interstate commercial) business operates then those laws determine the minimum wage employees of such a business can be paid.

State minimum wage laws are very variable.

The map below represents the minimum wage in a number of states. Green indicates a state minimum wage that is higher than federal minimum wage, yellow shows states with no minimum wage laws, blue states have the same minimum wage as the federal minimum wage, and red states have minimum wage laws lower than the federal minimum wage.

Map of minimum wage variations by state, courtesy of the U.S. Department of Labor via Wikipedia.

According to the Department of Labor, the laws are interpreted as follows:

Federal minimum wage law supersedes state minimum wage laws where the federal minimum wage is greater than the state minimum wage. In those states where the state minimum wage is greater than the federal minimum wage, the state minimum wage prevails.

So why do we still have separate federal and state minimum wage laws? One reason is, of course, politics. The states that have lower minimum wage laws keep them on the books in part to protest what they see as too high of a federal minimum wage. There’s also a more practical application: there are certain workers, such as seasonal workers or those on small farms, who are exempt from the federal laws. In some cases, the state laws may still offer some parameters for those workers.

What are arguments for keeping the federal minimum wage as is?

Supporters of the current federal minimum wage argue that raising the minimum wage will diminish the job market in an economy that is already suffering. They argue that raising the minimum wage to benefit the poor is a shortsighted strategy. Since a majority of the poor (60 percent) are unemployed, raising the minimum wage only makes it more difficult for them to find jobs because it raises the value that they have to demonstrate in order to justify being hired. Moreover, most of the people receiving minimum wage pay are above the nation’s median income so most of the funds workers receive from a higher minimum wage won’t go to the impoverished.

Supporters of keeping the minimum wage law where it is also worry that the costs of a higher minimum wage would be passed on to the consumers, who may be struggling themselves. They reason that the money has to come from somewhere, and in many cases it would come from an increase in the price of goods. In general, it would make it more expensive for employers to hire employees, and have negative ramifications throughout many parts of the economy.

Another argument against raising the minimum wage stems from an idea about the purpose of the minimum wage. Minimum wage jobs are often viewed as “stepping stones” for young people, or those looking to get back on their feet–not jobs for those who need to raise families or be permanently employed in that particular place of business. Those who subscribe to this argument tend to worry that with a higher minimum wage, these jobs become permanent paths rather than just stepping stones, and younger people will no longer be able to get their foot in the door.

What are arguments for increasing the minimum wage?

Those who argue in favor of increasing the current federal minimum wage argue that it does not even pay enough to keep a family of three above the poverty line. The average cost of living has increased by leaps and bounds, especially in larger cities. The minimum wage has not increased proportionately with inflation or the pay of the average worker. Today, the minimum wage is insufficient to keep a full-time working parent and one child out of poverty. At a bare minimum the federal minimum wage should be enough to keep a working parent and her child above the poverty line. Along the same lines, supporters of increasing the minimum wage point out that because those who work minimum wage jobs have such a difficult time making ends meet, many of them have to get some sort of government assistance, which is also a big problem for the economy.

That is why the Obama Administration is advocating for legislation to raise the federal minimum wage to $10.10 an hour. This change would raise America’s GDP, and reduce income disparities between several population demographics.

Conclusion

The minimum wage, and its many derivations across the states, will always be a contentious and politicized issue. The actual economic implications of raising or lowering the minimum wage are difficult to glean, and the arguments are sharp. That being said, the minimum wage debate is far from over.

Resources

Primary 

US Senate: Fair Minimum Wage Act of 2007

Department of Labor: Minimum Wage

Department of Labor: History of Changes to the Minimum Wage Law

Department of Labor: Minimum Wage Laws in the States

Additional

Forbes: Why Raising the Minimum Wage Kills Jobs

Washington Post: Economists Agree: Raising the Minimum Wage Reduces Poverty

The New York Times: Raise That Wage

The White House: Remarks by the President in the State of the Union Address

Atlantic: Minimum Wage Was Once Enough to Keep a Family of Three Out of Poverty

Economic Policy Institute: Raising the Federal Minimum Wage to $10.10 Would Give Working Families, and the Overall Economy, a Much-Needed Boost

CNN: Raising Minimum Wage Won’t Lower Poverty

America’s Best Companies: Five Important Exceptions to Know Regarding Minimum Wage

The New York Times: Raising Minimum Wage Would Ease Income Gap but Carries Political Risks

Entrepreneur: Listen to Small Business: Don’t Increase the Minimum Wage

Deseret News: In Our Opinion: Don’t Raise the Minimum Wage

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

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Parents don’t have the luxury of choosing where they are when their babies drop the bomb. When nature calls, mothers and fathers alike run to restrooms to change dirty diapers, soothing both their babies and the ears of the public. But fathers across the nation have long been frustrated by the lack of changing tables in men’s restrooms. Lawmakers across the country are finally starting to right this wrong.

According to the Centers for Disease Control and Prevention, 90 percent of fathers who live with children under the age of five change diapers. When a father goes to change his baby’s diaper at the pizza place in town, he’s forced to either struggle on a dirty bathroom floor or balance the baby on his lap. He has a right to be frustrated, because if he was a she, it probably wouldn’t be such a struggle.

Currently there is no federal or state legislation mandating gender-based accessibility to changing tables. But as equality in parenting increases, we may need to make some changes. California State Senators Lois Wolk and Ricardo Lara support legislation to require adequate baby diaper changing stations in public restrooms, regardless of gender. Bills 1350 and 1358 recently passed out of the California Senate Transportation and Housing Committee with bipartisan support.

Bill Breakdown

If they pass the California Assembly, the bills would go into effect on January 1, 2015. Senate Bill 1350, backed by Lara, mandates that public accommodations that undertake substantial renovations (exceeding $10,000) or install new restrooms assure open access to baby changing stations regardless of restroom gender assignment.

Senator Wolk supports the more stringent bill, 1358. Under this legislation, all public accommodations would require “…mandatory building standards for the installation of baby diaper changing accommodations in restroom facilities…” This bill would create a ripple effect by making more baby changing stations available to modern families.

This isn’t the first time a region has tried to create equality for men on diaper-duty. Pittsburgh City Councilor Natalia Rudiak proposed a bill in July 2013 that would require all city-owned buildings and facilities to offer baby changing stations for both men and women. In response to those opposed to the bill, Rudiak said the stations were fairly low-cost and would not require extensive construction.

Likewise, in July 2013, Miami-Dade County, Florida passed the Baby-Diaper Changing Accommodations Ordinance, which requires all businesses to provide baby changing stations in men’s, women’s, and unisex restrooms. Businesses in violation of the ordinance must pay a Civil Penalty of $500. The efforts of these Pittsburgh and Miami-Dade legislators are just some of the first in an effort to make parenting easier for both moms and dads.

Diaper Dads

Fathers across the nation are pleased by these new efforts. Several daddy bloggers track restrooms with diaper changing stations in restaurants, movie theaters, businesses, and other public buildings. One blogger who calls himself  “daddydoinwork,” called on his fellow fathers to publicize the lack of changing tables in men’s restrooms in order to create change.

The Pew Research Center conducted a study in 2013 and discovered that there are more than 2.6 million single fathers in the United States. The number of fathers who act as primary caregivers is increasing–especially as our modern society becomes more accepting of single parenting and homosexual parenting. Furthermore, the trend of stay-at-home-dads is rising–they comprise a total 3.5 percent of married couples with children in which one parent works full-time.

Our ever-changing society requires complimentary progress in our public facilities. This is no grand task–baby changing tables are easily installed and low-cost. If fathers were given more opportunities to easily change their babies’ diapers, establishments would better fulfill their responsibilities to serve the public’s needs. Businesses should also follow the lead–help out our diaper duty dads, and maybe they’ll leave a nice tip.

—

Natasha Paulmeno (@natashapaulmeno)

Featured image courtesy of [Tex Batmart via Flickr]

Natasha Paulmeno

Natasha Paulmeno is an aspiring PR professional studying at the University of Maryland. She is learning to speak Spanish fluently through travel, music, and school. In her spare time she enjoys Bachata music, playing with her dog, and exploring social media trends. Contact Natasha at staff@LawStreetMedia.com.

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With the legalization of marijuana in Colorado and Washington, people who choose to smoke marijuana for recreational purposes will not face criminal charges. But they could be at risk of losing their jobs. This ongoing debate between employees and employers continues to be fueled by state legislation and employment drug testing policy. The courts must now analyze and settle questions regarding the controversy. Although in certain states, employees are not breaking the law by using marijuana, employers continue to implement pre-screening and routine drug tests. Workers are beginning to take action against what they believe to be violations of their rights. This leads to an inherent disconnect between the law and companies’ policies – so here is everything you need to know about marijuana, employment, and drug testing policies.

History of Drug Testing

In order to explain the divide between state law and employee drug testing, let us examine the history of testing policies and procedures. Surprisingly, not all workplaces require drug testing; the power to choose whether or not to implement the procedure is given directly to the corporation. According to Drug Testing USA, there are three factors that are taken into consideration regarding employee drug testing laws:

“1) who can be tested and under what circumstances (pre‐employment, random, etc.), 2) how testing is to be conducted (in a law, via on‐site devices, etc.), and 3) the procedures to be observed by the testing entity.”

As a result, companies have the power to alter and update their employee requirements to align with state legislation. Yet, in recent cases, companies chose to adhere to their original methods. Later, we will examine how the courts respond when employees challenge employers’ practice.

Who is tested?

If employers do not require mandatory drug screenings, do they have the right to single out individuals and conduct a test based on “reasonable suspicions?” If they do, employers must be sure to adhere to a strict guideline of how they define suspicious behavior in order to avoid a lawsuit. According to the Northwest Justice Project, “it is legal for a private employer to require a drug test of its employees, unless the employer uses the test to discriminate against certain people.”

Who conducts the tests?

There is a discrepancy between the law and employee protocol. Although Colorado and Washington have legalized marijuana, this does not mean that businesses have to follow suit. In a company’s defense, retaining a safe and efficient system is vital to the company reputation and prosperity. But an individual could argue that employee drug testing is a violation of their privacy. Since drug testing lacks federal legislation, and designates most of the power directly to the businesses themselves, it is a corporation’s decision whether to drug test or not.

Ethics: Is an employer testing for marijuana a violation of privacy?

Technically, drug testing is classified as a form of search and seizure. When employers choose to test employees, they are compromising the individual’s Fourth Amendment rights which read, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A common argument is that what an individual does on their own time should not be used against them professionally. The concept of employee drug testing is similar to employers researching their employees’ social media accounts. If a person chooses to party and live promiscuously on their own time, should employers have the right to judge the employee even if they are a capable and efficient worker? The employer could argue that this is a practical and fair assessment in evaluating employees. However, the employee could dispute that they have the right to privacy within their personal lives, and should not have to change their habits or filter their social media on account of being judged by an employer.

Case Study: National Treasury Employees Union v. Von Raab (1989)

In a 1986 case, National Treasury Employees Union v. Von Raab, the National Treasury Employees Union argued that drug testing was violating their privacy rights and the Fourth Amendment. Originally the State Court of Eastern Louisiana ruled in their favor, yet the case ultimately went to the United States Court of Appeals. There, the court ruled that the government’s policy on drugs surpassed the desires of the union. Although testing potentially violated employees’ rights, “balancing the individual’s privacy expectations against the government’s special needs” became the basis for enacting the tests. The ruling outlined several factors which the employer must abide by to protect the employee’s rights and ultimately upheld the standard that, “no privacy invasions should be permitted unless some good end is served.” This case made drug testing legally applicable to businesses if they choose to enact such as policy as long as they abide by the ruling’s contingencies.

Case Study: Johnson v. City of Plainfield (1990)

 “Even if drug testing is found to be constitutional, we must measure what we have gained in finding the guilty against what we have wrought upon the innocent.”

-Johnson v. City of Plainfield

In Johnson v. City of Plainfield, the courts questioned the constitutionality of employee drug testing, and decided that it must be decided on a case-by-case basis. In 1986 in New Jersey, the City of Plainfield Fire Department employees were subjected to an abrupt urine test. Sixteen of the firefighters tested positive for unspecified drugs and were fired without pay. Several of the firefighters felt that accusations were false, and that certain medication could have tainted the urinalysis since no information was provided about those present substances. Additionally, they felt that their privacy had been violated because a member of the same sex had monitored them during the urine test. Finally, they argued that their morales were tainted by the positive drug tests. In the ruling, “[the] court suggest[ed] that the factual findings in this matter should cause us to pause in the nationwide rush toward massive and mandatory drug testing.” This case illustrated a shift from a more conservative stance on employee drug testing to a more reformed view.

Case Study: Colorado

Although marijuana is now legal in Colorado, not all businesses condone recreational usage. Section 6 of Amendment 64, which legalized recreational marijuana, states that:

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Legally, employees can be tested for marijuana. According to The Denver Post, “despite marijuana’s legal status in Colorado, courts have ruled that employers have the right to fire workers for using pot, even off-duty.” There is no protection against losing your job because of marijuana use, so employees must make wise decisions when partaking in recreational use or they could be at risk for losing their jobs.

Does that violate employees’ rights and the law? According to Amendment 64, Colorado marijuana legalization, “specifically gives employers the right to have a Zero Tolerance Policy.” Therefore companies who choose to enact the policy are abiding by not only federal, but also state law.

Fox Business discusses how Colorado and Washington employers are wrestling with new marijuana laws:

Medical Marijuana

While Colorado and Washington have fully legalized marijuana, a more applicable nationwide debate is medical marijuana. Only a handful of states have provided legal protection to individuals with a prescription for medical marijuana. How do employers handle individuals who smoke to ease the symptoms of painful and sometimes crippling illnesses?

History of Legislation

The 1990 American with Disabilities Act protects individuals with disabilities. It assures that disabled citizens will receive protection from discrimination in the workplace and have the freedom to use certain aides to function in the workplace; yet it does not cover medical marijuana.

The Compassionate Use Act of 1996 gives individuals some protection against criminal charges, such as possession, when they use cannabis for medical purposes. However, it does not include any safeguard for employees from being terminated for violating a company’s drug policy.

Finally, in the 2008 case, Ross v. RagingWire Telecommunications, individuals who used cannabis for medical purposes were denied protection from being terminated from their job.

However, there are some loopholes that certain states provide; in California, a smoker who uses medical marijuana can negotiate with the following letters:

1. Pre-employment Negotiation Letter (.doc).
2. Negotiation Letter for Currently Employed Patients (.doc)
3. Termination Negotiation Letter (.doc)

These letters do not guarantee an employee defense against termination, yet they give an employee a chance to petition to preserve their job.

To see a debate about the legality of medical marijuana in the workplace, click here:

Case Study: Brandon Coats v. Dish Network

In a 2010 Colorado case, a quadriplegic man, Brandon Coats, was fired from the Dish Network for testing positive for marijuana. Coats smoked medical marijuana to alleviate severe pain he experienced on a regular basis. When Coats brought the case to the Colorado Court of Appeals  in 2013,  the court confirmed that Dish had the right to fire Coats for violating company drug policy. When Coats appealed, the appellate court ultimately ruled that: “federal law trumps state law.” Montana, Oregon, and Washington also heard similar cases. All cases resulted in the same ruling– federal law overrides state law, and employers can choose to terminate employees if they do not abide by the company’s drug policy.

Employers retain the right to test and terminate employees for testing positive for THC regardless of the circumstances.

Future Amendments

Will the legislation amend the requirements for employers to accept the use of medical marijuana? Individuals that suffer from chronic illnesses are put in potential financial jeopardy. Yet employers are liable for mistakes made on the job due to marijuana use. As of now, employers have no intention of changing the policy, and legislatures are leaving the power to the businesses. Is this ethical? It has been scientifically proven that marijuana can help with extreme illnesses in a way which no other medication can. Employers are putting individuals who are already in a precarious situation in jeopardy. On the other hand, businesses have a reputation to maintain and would like to remain efficient in a competitive field.

Legal Inconsistency Throughout the States

Currently, every case regarding employees’ rights to marijuana use has been overruled by federal law, which still sees marijuana as illegal. This legal generalization may not suffice with the innovations to state laws that continue to develop. Legislation needs to take into consideration all of the ripple effects that marijuana will have on businesses. When drug testing was deemed constitutionally appropriate, marijuana was distinctly illegal. Now with all of the unique exceptions and amendments to state laws, there are constant inconsistencies. National businesses are now also put in an difficult situation when dealing with the marijuana laws unique to their state– how does a nationwide company handle state-to-state laws regarding their policy on employee drug testing?  Legislation needs to step up and tie up all the loose ends to protect employees as well as protect corporations from being sued by individuals who feel that their rights are being challenged.

Resources

Primary

US District Court, New Jersey: Johnson v. City of Plainfield

US Court of Appeals, 5th Circuit: National Treasury Employees Union v. Von Raab

Department of Labor: Drug-Free Workplace Policy Builder

California EDD: Misconduct MC 270

Additional

Regulate Marijuana: Amendment 64: The Regulate Marijuana Like Alcohol Act of 2012

MAPI: Changing State Marijuana Laws and Employer Drug Testing Policies

The New York Times: Creating Confusion in the Workplace

Americans for Safe Access: Employment 

Huffington Post: Employers Can Fire You For Using Marijuana, But Brandon Coats’ Case Could Change Everything

Madeleine Stern

Madeleine Stern attended George Mason University majoring in Journalism and minoring in Theater. Her writing on solitary confinement inspired her to pursue a graduate degree in clinical counseling after graduation. Madeleine is an avid runner, dedicated animal lover, and a children’s ballet instructor. Contact Madeleine at staff@LawStreetMedia.com.

The post After Marijuana is Legalized, What Limits Can Employers Impose? appeared first on Law Street.

In my search for a news story today, I came across what looked like an interesting topic. A trial is set to begin in Fort Hood, TX, regarding a prostitution ring that was supposedly set up by a Fort Hood sergeant who has yet to be charged. On trial is Master Sergeant Brad Grimes, a veteran of Iraq and Afghanistan. He is accused of participating in the prostitution ring.

Conspiring to pay for sex is without a doubt a crime, and if Grimes did so, he deserves to be punished as the court sees fit. But what sparked my interest, and a bit of surprise, was that Grimes was also charged with adultery.

That got me thinking: am I woefully ignorant of current laws, or do I just not see adultery charges that often?

So, I looked it up, and what I found was an incredibly wide-ranging set of laws, and a number of strange cases. Let’s start with the most extreme derivations. In Idaho, Massachusetts, Michigan, Oklahoma, and Wisconsin, adultery is a felony. Technically speaking, in Michigan, you could be sentenced to life in prison for cheating on your spouse, as Judge William Murphy in the Michigan Court of Appeals noted in 2007.

Then there are states that are not nearly as harsh. Of the 23 states that still have adultery laws on the books (Colorado abolished theirs earlier this year), most classify it as some type of misdemeanor. This means that in most of these states, an adultery conviction would result in a fine.

A slim majority of states don’t have any adultery laws on the books at all. And it’s important to note that in those that do, actual trials or charges rarely develop. In Massachusetts, one of the states that does classify adultery as a felony, no one has been convicted of it since 1983. Even in that case, the punishment was only two $50 fines, one for the woman who committing adultery and one for the man with whom she was sleeping. If anything, adultery comes up during custody or divorce battles.

In the military, adultery laws are taken more seriously. The Uniform Code of Military Justice does not specifically contain adultery as a crime, but does have Article 134, which “prohibits conduct which is of a nature to bring discredit upon the armed forces, or conduct which is prejudicial to good order and discipline”. The Manual for Court Martial expands Article 134 to include examples of specific offenses, and does contain adultery. The penalty for adultery can include up to a year in confinement, and/or dishonorable discharge.

According to this Slate article, standalone charges for adultery are rare. They’re usually piled on with other misconduct charges, such as lying to a superior. That doesn’t mean that it can’t be damaging—in 1997, Lt. Kelly Flynn made headlines when she was dishonorably discharged after lying about sleeping with the husband of one of her coworkers.

That brings us back to Grimes. He was charged with adultery in conjunction with other charges, and really, my point here is not to diminish the conspiracy to pay for sex charges he is also facing. My point is that I was shocked to see an adultery charge listed at all. Off the top of my head, I don’t think I can think of a popular prime-time drama in which adultery does not incur. In fact, there have been entire shows that pretty much revolve around it—Desperate Housewives, anyone? Maybe I’m just cynical, but I’ve always seen adultery as a personal act in which a decent proportion of our population engages—not a potential felony. Now I’m not trying to say that adultery is an ok thing to do, or morally acceptable. But the truth of the matter is that it happens. The percentage of married women reporting affairs in the last two decades was around 15% in 2013, for men it was around 21%. Grimes probably deserves the sentence he will receive. But our archaic adultery laws also deserve a look.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Harsh Agrawal/www.chromoz.com via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Adultery in the US: Do You Know the Laws? appeared first on Law Street.