District Court Dismisses FCRA Disclosure Claim Against Casino in Absence of Concrete Injury
Under the Fair Credit Reporting Act, a potential employer generally may not procure a consumer report on an applicant unless the employer provides a disclosure, in a document that consists “solely of the disclosure,” informing the applicant that a consumer report may be obtained. In Williams v. TLC Casino Enters., the District Court for the District of Nevada has joined a growing chorus of courts finding that a plaintiff cannot bring a “solely of the disclosure” claim in federal court when he or she has suffered no actual harm separate from the perceived failure to properly format the disclosure. Specifically, in Williams, the plaintiff alleged (on a class basis) that TLC Casino Enterprises violated the FCRA by obtaining a consumer report on her without providing her with a “stand-alone document of a legal disclosure.” According to Williams, TLC only provided her “with a written conditional offer to hire that included, inter alia, the following statement: ‘Continuation of this position and your employment is dependent upon your passing any Background Check or Drug Screen that may be required for your position.’” This document, in Williams’ view, was not a disclosure that consisted “solely of the disclosure” that a consumer report may be obtained for employment purposes. TLC Casino Enterprises moved to dismiss Williams’ complaint for lack of standing, arguing that her claim amounted to nothing more than a bare procedural violation of the FCRA. According to the defendant, Williams could not state a claim in federal court because the bare procedural violation of a statute alone does not satisfy the injury-in-fact requirement for Constitutional standing. The Court agreed with TLC Casino Enterprises. In its decision, it drew on the Supreme Court’s decision in Spokeo, Inc. v. Robins to conclude that Williams must allege a “concrete injury in fact” separate from the procedural violation of a statute in order to demonstrate standing. Williams could not do that here. According to the Court, Williams framed TLC Casino Enterprises’ alleged FCRA violation as having “failed to provide the disclosure in a format required by the FCRA.” But “[a] formatting error such as this is a procedural issue that does not satisfy the requirement that plaintiff demonstrate a concrete, particularized injury.” Although plaintiffs’ counsel often argue that disclosure claims are straightforward and easily certifiable as a purported class action, the Williams decision demonstrates that this is not the case. Indeed, courts are increasingly dismissing disclosure claims when plaintiffs allege nothing more than the violation of a procedural FCRA requirement.
New Jersey Federal Court: Employer Need Not Waive Drug Test for Medical Marijuana User
Despite the legalization of medical marijuana in a majority of states, marijuana remains illegal under the federal Controlled Substances Act (“CSA”), which lists cannabis as a prohibited Schedule 1 illegal drug.
What does it mean to be a Schedule 1 drug?
“Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse,” according to the U.S. Drug Enforcement Agency. In light of this federal prohibition on marijuana, employers have professed confusion over what exactly they can prohibit when so many states have legalized medical marijuana. I emphasize medical because in the employment arena, “medical” may connote a “disability” under the Americans with Disabilities Act (the “ADA”). We discussed that employers must engage in an interactive process with an employee who has, or may be perceived as having a disability, or has a record of a disability, so the critical question becomes: does the ADA require an employer to provide a reasonable accommodation to medical marijuana cardholders?
As I explained here, the ADA excludes from protection “an individual who is currently engaging in the illegal use of drugs” from its definition of an “individual with a disability,” with one very limited but significant exception. As a Schedule 1 drug under the CSA, taking marijuana excludes an employee from ADA protection.
Let’s see how one New Jersey court handled a reasonable accommodation request under the state’s medical marijuana law.
New Jersey’s Medical Marijuana Law
Like the Pennsylvania medical marijuana law, New Jersey’s Compassionate Use Medical Marijuana Act (“CUMMA”) is silent as to an employer’s obligation to make any accommodation for the use of medical marijuana on the property or premises of any place of employment. Despite cannabis’ categorization as a Schedule 1 drug under the CSA, when enacting CUMMA, the NJ legislature found that “[m]odern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.” Thus we see the dichotomy when federal law claims the opposite of state law.
NJ Federal Court Ruling – No Reasonable Accommodation!
Anyway, so, the employee in question, a forklift operator, possessed a doctor’s recommendation for medical cannabis (and Percocet) to treat his neck and back pain. The employee had an accident at work and saw a doctor, who placed the employee on “light duty.” Upon his return, he could still perform all the essential functions of the job, but his employer required that he pass a drug and urine test. Knowing that if he failed the test he would be fired, the employee sought a waiver of the drug test as a reasonable accommodation. The employer balked and argued that CUMMA did not require such a waiver. Did the court agree and require that the employer waive its drug-testing policy as a reasonable accommodation? Not so much. In an Opinion last week, which you can read in full here. (https://images.law.com/contrib/content/uploads/documents/399/14598/med-mar.pdf), the federal District Court stated that CUMMA does not require an employer to permit the use of medical marijuana in the workplace. Fine. Makes sense. Significantly, the court also noted that CUMMA specifically excluded employers from its scope. Then, the court sided with the employer, determining that NJ’s narrower law (in comparison to other states) did not require an employer to waive its use of a drug test as an accommodation. Judge Kugler seemed to base his holding on a “plain language of the statute argument” and a prediction, as he explained: Unless expressly provided for by statute, most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions.
This Court predicts that the New Jersey judiciary would reach a similarly obvious conclusion: the LAD does not require an employer to accommodate an employee’s use of medical marijuana with a drug test waiver. Although no court has expressly ruled on this question, New Jersey courts have generally found employment drug testing to be unobjectionable in the context of private employment.
Wait, what happened to the interactive process? Isn’t that a requirement? Didn’t the employer have to engage in a discussion with the employee to determine whether an alternative accommodation existed to accommodate the employee’s disability? Apparently not, and that process is not referenced in the Opinion (perhaps because it was not pleaded in the complaint). What does this tell us?
How these cases are treated may depend on your state. Under similar circumstances, courts in other states have determined that an exception to an employer’s drug policy could constitute a reasonable accommodation, but in any event, the employer was required to engage in the interactive process to determine whether there were any alternatives for the employee’s medical marijuana use.
New Jersey law does not require private employers to waive drug tests for users of medical marijuana. Will it in the future? Judge Kugler thinks it unlikely, but, just in case, employers may want to consider initiating the interactive process to determine if a reasonable accommodation or an alternative to its drug-free policy exists.