Lawful Consumable Products or Activities Laws . Employers that use the web or social media sites to screen applicants or to monitor employees might also uncover information about an individual engaged in alcohol use, marijuana use, smoking, or other lawful activities that an employer might disagree with or prefer the individual not do. However, Minnesota law prohibits employers from refusing to hire an applicant or taking adverse action against an employee for the consumption of lawful products, such as alcohol, marijuana, or tobacco, away from work during nonworking hours. [See Minn. Stat. § 181.938, Subd. 2]. Many other states have similar laws, and some even prohibit adverse action based on other lawful activities, such as an individual’s appearance, political affiliations, or other factors. The recent trend of legalizing marijuana at the state level has created an additional layer of complication around lawful consumption laws. Many state governments, including Minnesota’s, have yet you opine on whether or not the consumption of marijuana, where legal, is covered under these laws. The Minnesota law provides exceptions if a restriction on consumption of lawful consumable products is based on a bona fide occupational requirement or is necessary to avoid a conflict of interest with any responsibilities owed by the employee to the employer. However, employers should act cautiously before taking any action against an applicant or employee on the basis of these narrow exceptions. Retaliation Laws. Similarly, employers may face legal risk for taking action based on information that could be construed as asserting rights under employment laws. A number of federal and state employment and labor laws (including but not limited to anti- discrimination, wage and hour, leave, worker’s compensation laws, and the NLRA) prohibit retaliation against an individual for asserting rights under the law, assisting someone else to assert their rights, or participating in an investigation or legal proceeding. Just as employers may learn of whistleblowing through online sources, employers also may learn of other protected activities that an individual may claim gives rise to anti-retaliation rights. An employer who learns of such activities through online sources must act carefully to avoid engaging in unlawful retaliation.
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