What considerations does the employer need to be aware of following the SOEDA Amendment? First of all, the employer should not inquire about the applicant’s sexual preference. Additionally, when advertising for an opening within the company, there should not be an expressed preference for a sexual orientation.  It is prohibited for the company to have separate lines for progression or seniority status based on sexual orientation. Finally, the employer must allow employees to dress according to the gender in which the employee identifies with (Federal Antidiscrimination Laws, 2011).

Being aware and complying with this law is certainly important, but why not take it a step further and enhance the company’s support for LGBT by forming cultural norm? Did you know studies show that more than half of LGBT employees keep it a secret? This negatively affects morale and productivity! Here are just a few tips for your company to consider for showing acceptance for your LGBT employees (Anderson, 2011):

1. Provide support inside and outside of the organization for LGBT through networking opportunities. This provides structured support which helps LGBT staff succeed within the organization.
2. Ensure that information about partner benefits is clearly communicated to the LGBT staff. Often, LGBT employees are not aware of the benefits that their domestic partners may be eligible for.
3. Using inclusive language often makes the LGBT employees feel more comfortable. For instance, if an organization is hosting a company party, encourage all employees to bring a “guest” rather than their “spouse.”
4. Support LGBT events, either through donations or involvement of the organization in events.
5. Highlight senior management support of LGBT employees.  When senior management discusses the importance of diversity, it sends a strong and positive message when they include LGBT as well!

Dani Kimlinger, MHA, PHR
Human Resources

References

The State of Colorado. (2011). Federal Antidiscrimination Laws. Retrieved October 26, 2011, from http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheadername1=Content-Disposition&blobheadername2=Content-Type&blobheadervalue1=inline%3B+filename%3D%22Non-discrimination+Policy.pdf%22&blobheadervalue2=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251741381222&ssbinary=true

Anderson, Melissa J. (2011, October 11). 1o Tips to Create an LGBT Supportive Workplace on National Coming Out Day [Web log message]. Retrieved from http://www.evolvedemployer.com/2011/10/11/10-tips-to-create-an-lgbt-supportive-workplace-on-national-coming-out-day/

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No business goes into a relationship expecting a legal dispute.  But neither does a skydiver jump out of an airplane expecting his parachute to fail. However, in both cases, the wise person will prepare for the worst in case it actually happens. Just like the wise skydiver carries a spare parachute, the wise business owner will include a provision in his contracts that outlines how the parties will resolve disputes, should they occur.

As an attorney, I would say that generally litigation is not a good solution for resolving disputes and should be considered a last resort. It’s expensive, time consuming, and it often can be argued that no one wins but the lawyers. For this reason, I recommend that disputes be resolved outside the courtroom as much as possible. This usually involves what is called “alternative dispute resolution” or “ADR.” Typically, ADR refers to either “mediation” or “arbitration.”

Mediation is a non-binding method that involves a mediator who brings both parties together to discuss ways to resolve their concerns. The idea is that a mediator who does not have a vested interest in the outcome can see things more clearly and with less bias, and as a result can recommend solutions that the disputing parties are unable to see. Mediation is far less expensive and time consuming than litigation and it can sometimes even salvage the relationship.

Arbitration is a more formal method of ADR that involves an arbitrator who hears both sides of the argument and then makes a decision as to how the dispute is to be resolved. The arbitrator’s decision is binding on both parties, similar to the ruling of a court in litigation, but is far less expensive and time consuming.

Both of these methods of ADR can be an effective alternative to litigation that benefits both parties, and it would be wise for businesses to consider including mediation or arbitration in their contracts as their method of dispute resolution.

Wade Hardie, JD, MBA
MINES Corporate Counsel

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One area of preparation that is all too often overlooked is maintaining a current will or trust.  It has been said that the two certainties in life are death and taxes, and even though it’s not pleasant dealing with either of them, we need to be prepared for both. If something happened to you tomorrow, heaven forbid, do you know where your hard-earned assets would go? Do you know where you would want them to go? If you do know where you would want them to go, has it been properly articulated in a will or trust?  If the answer to that last question is no, the chances of your assets ending up where you want them are not very good. In fact, it’s quite possible that your assets could end up precisely where you don’t want them to go.

In the United States, the law typically defers to a decedent’s wishes of where his or her assets are to go as long as those wishes have been properly communicated through a will or a trust. However, the law contains default provisions for situations where a person dies without a will or trust and these provisions are called intestacy statutes. These statutes may vary from state-to-state, but the gist of these laws is that the state decides who gets your assets based upon family relationships. The type of familial relationship a person has with the decedent will determine what, if any, assets that person will receive, regardless of what the decedent would have preferred. And if you think about it, it only makes sense. There has to be a standardized “plan B” in the event someone dies without a will, otherwise how could it ever be decided where a decedent’s assets would go?

With that said, everyone is capable of having a will or a trust. Without going into the differences between the two, having a current will or trust is your way of ensuring that the things you’ve worked so hard your entire life to acquire end up going where you want them to go. That may be to those you love the most (i.e. family and friends), it may be to a favorite charitable organization, it may be to a church, a school, or a museum. Where you decide for your assets to go is not as important as making sure your wishes are fulfilled and having a current will or trust is the best way to make that happen.

The most ideal way to create a will or trust is to hire an attorney to do it. There are general attorneys and those who specialize in probate law who can help you with this. However, if funds are currently too tight and you either can’t afford to pay an attorney or don’t want to pay an attorney to do this, many jurisdictions allow you to create what is called a “holographic will.” A holographic will is a will you create yourself. To do this, you simply hand-write your will on a piece of paper, date it and sign it. Standard wills require witnesses signatures attesting to the validity of the testator’s signature, but a holographic will does not. The important thing with a holographic will is that the testator informs individuals close to him or her that the will exists and where it is located, so when the testator dies, it can be found and applied.

If you get nothing else out of this, the one point you should take home is that everyone needs a will or trust and almost everyone is capable of having one, regardless of a your financial situation. The key is that you begin the process now.

Wade Hardie, JD, MBA
MINES Corporate Counsel

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Legal or Not?
There are two primary types of statutory laws in the United States, state and federal, both of which are enforceable.  A person who violates one but not the other can still be criminally prosecuted.  So given that fact, what happens if a person consumes marijuana legally under state law, but by doing so, violates federal law?  The answer is that he can still be prosecuted under federal law.  The caveat is that for the time being, the federal government is choosing not to prosecute legitimate medical marijuana users who reside in states that have legalized its use.  So although a medical marijuana user is violating federal law, he won’t likely be prosecuted if he resides in a state that has legalized its consumption.

Company Drug Policies
But what if an employer prohibits its employees from using all illegal drugs and that employer resides in a state that has legalized the use of medical marijuana?  Can that employer prohibit its employees from consuming medical marijuana?  The answer is…it depends.

Medical marijuana is still an illegal drug, even in states that have legalized its use because marijuana consumed for medical purposes still violates federal law.  Therefore, in all fifty states in the U.S., any company policy that prohibits the use of all illegal drugs will technically include marijuana regardless of whether it resides in a state that has legalized the use of medical marijuana.  However, whether or not an employer can prohibit its employees from using medical marijuana in a state that has legalized it depends on that state’s law.  For example, Colorado does not have any laws that prevent employers from terminating employees because they use medical marijuana.  But Arizona recently passed legislation that says an employer is not allowed to discriminate or terminate employees because they use medical marijuana (see http://www.natlawreview.com/article/arizona-employers-must-be-ready-new-medical-marijuana-use-law).

The bottom line is this is an evolving area of the law and there are still many unknowns and grey areas.  What is clear is that consumption of medical marijuana in the U.S. still violates federal law and employers may or may not have the ability to ban it’s consumption by their employees depending on their state law.  If you are an employer who resides in a state that allows the use of medical marijuana, it would be advisable to talk to an attorney before implementing any company policies that completely ban the use of marijuana to make sure you’re in compliance with your state law.

Wade Hardie, JD, MBA
MINES Corporate Counsel

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