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Monday, August 28, 2017

Ideologies in the workplace

Watching what unfolded in Charlottesville in mid August I noticed one of the protestors wearing clothing marked with the Verizon logo, their uniform. Later Verizon issued a statement stating that the company in no way supports the white supremacist groups or the hate and bigotry associated with the groups. It may be sometime, if at all, when we hear if this person was an actual employee and was disciplined or terminated. Obviously, this person, whether an employee or not, put Verizon in an awkward position.

Publicly representing the company for which one works does limit what an employee can do in their off duty hours. Some businesses have policies specifically stating that employees cannot express political views while representing the company. What the employee does off duty when not representing the company and whether the company can control these activities has come under court scrutiny. Most notably in the use of medical marijuana. (Smoke ‘em if you got ‘em {Marijuana in the workplace})

If an employee is wearing the company uniform and participating in activities that go against the company values the company may have legal precedent to terminate or discipline the employee. The question that came to mind is what if the employee keeps the off duty activity anonymous? They do not espouse their ideologies at work and is a solid employee/coworker. Somehow their off duty activities are exposed and now the workplace becomes a hostile environment. Are there grounds to terminate that otherwise productive employee?

What are employer’s rights?

Allen Smith, J.D., wrote an excellent article for the Society For Human Resource Management website, Can or Should Employers Fire Employees Who Participate in Hate Groups? Smith reinforces what I have found, that the answer is not clear. When what employees do off duty creeps into the workplace several legal precedents have to be considered before an employee can be fired. Allen Smith makes the following points.
No federal law is violated if a worker is fired for being a member of a hate group or verbally expresses beliefs. Courts have rejected KKK members claim of religious protection under Title VII of the Civil Rights Act of 1964. Freedom of speech protections under the First Amendment does not apply to private employers.
Most states are work at will states meaning that employees can be terminated for any lawful reason. California, Colorado, New York, and North Dakota have laws protecting workers against being discriminated against while participating in lawful activity outside of work. However, if it becomes known at work that an employee was participating off duty in a hate-based protest, an employer may choose to terminate. Basing their action on violations of non harassment policies.
When dealing with customers who are offended by an employee’s ideologies, businesses have to consider the impact on the business. If the person continues to be employed will that affect business? Or is firing the employee at the risk of being sued better for the company?

Human resource issues are not cut and dried. Even though similar issues may have arose in the past, each case must be examined on their own. Always contact an employment law attorney before making termination decisions.

Tuesday, August 22, 2017

Smoke 'em if you got 'em? {Marijuana in the workplace}

Florida recently passed a medical marijuana bill becoming the twenty-ninth state to do so. State by state the legalization of marijuana for medical purposes is gaining ground. Eight states have decriminalized marijuana, allowing recreational use. (Alaska, California, Maine, Massachusetts, Nevada, Oregon, and Washington) However, the drug still remains illegal under Federal law. In fact, it remains a schedule I drug alongside opiates and synthetics drugs. The court battles that were expected with the U.S. Justice department after Colorado legalized marijuana have not occurred. The chances of employees being high at work are definitely increasing. Businesses are scrambling to adapt.

A survey of 10,000 California cannabis users revealed 58% of working professionals use daily and 31% consume while working. (Eaze Insights) Some businesses not only allow the consumption of marijuana at work, they encourage it. Those that do say that it helps employees with stress and anxiety promoting longer work days and creativity. These businesses are mainly in the legal cannabis industry or tech fields.

What is at odds are company drug policies and making accommodations for those with disabilities. Companies want to be inclusive but want to maintain standards as well as workplace safety. Medical marijuana users are looking to the American Disabilities Act for protection.

American with Disabilities Act

The American with Disabilities Act  (ADA) was signed into law in 1990. Succinctly, the ADA prohibits employers from discriminating against those who are disabled and requires employers to provide reasonable accommodations to a qualified individual with a disability to perform the essential duties of their job. Illegal drug use is not covered as a disability. However, the ADA does allow for the use of drugs taken under the supervision of a health care professional. Marijuana may be legally prescribed under a state law but remains illegal Federally. Then there’s the Drug Free Workplace Act of 1988 requiring that Federal contractors provide drug free workplaces as a condition of receiving a contract.  The ADA states that employers can require employees to conform with the Drug Free Workplace Act. Further, under the ADA drug testing is not considered a medical examination, allowing employers to test for the use of illegal drugs.

With state law in conflict with Federal law regarding the legality of marijuana, tests of the ADA are definitely heading to the courts.

Court challenges

Rights of the employer and the employee vary state by state. As examples: Arizona, Connecticut, Illinois, Minnesota, and New York laws prohibit employers from discriminating against employees who use medical marijuana and must make accommodations, some further citing-unless the employee is under the influence at work. Florida’s recently passed law does not require an employer to accommodate on site medical marijuana use. California passed Proposition 64 in 2016, which allows for the recreational use of marijuana. However, the law protects an employer’s rights to enforce workplace drug policies. Rhode Island’s law protects the employer’s right against accommodations for on site consumption but protects the medical marijuana cardholder against hiring discrimination.

A 2017 Rhode Island court case ruled that employers could not refuse to hire medical marijuana cardholders even though the person would knowingly not pass the employer’s pre employment drug test required of all applicants. (Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, Rhode Island Superior Court, May 23, 2017)

Another twist to the saga is the off site or off duty use of marijuana which may be legal in the specific state but against company policy. In one of the first court cases of off site medical marijuana use the Colorado Supreme Court heard the case of Coats v Dish Network in 2010. The court upheld the firing of a man who failed an employer random drug test for marijuana use. Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient after he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case was the first to look at whether off duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off Duty Activities Statute. The statute states that employers cannot fire employees for doing legal activities while not at work. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supported employer rights to enforce their drug policies. Since this case, courts in California, Oregon, and Washington have also ruled against employees.

The most recent case regarding this issue occurred in July 2017 and went against the employer. In Barbuto v Advantage Sales and Marketing, LLC the Supreme Judicial Court of Massachusetts ruled in favor of an employee to use medical marijuana outside of work. The employee claimed that since they have an ADA qualified disability (Crohn’s disease) the employer must make accommodations for employee to use medical marijuana off duty. The ruling was based on the state’s anti discrimination law. The court rejected the employer’s argument that marijuana is illegal under Federal law and to allow accommodations would be unreasonable.


Maryland is still getting going on its version of medical marijuana. The law was passed in 2013 and took effect in 2016. However, there have been legal challenges to the dispensary licensing process that has slowed implementation. Maryland decriminalized possession of less than 10 grams of marijuana in 2014.  Marijuana is still considered illegal but possession of smaller amounts will result in a civil citation rather than arrest. Each year since there have been bills introduced to further decriminalize marijuana. In 2016, a law passed making possession of paraphernalia a civil offense. In 2017, those convicted of marijuana offenses may petition to have their records expunged.

What to do, what to do…

Confused? Don’t feel bad. It’s a tricky topic that is evolving almost monthly. Employer’s need to have hiring policies as well as policies to guide employees. These policies have to be living documents and open to change. Having employees and dealing with human resource issues is difficult, especially for small businesses. The rules are constantly changing. There will always be challenges to any policy or rule. You have to stay ahead of the curve and aware of what’s taking place.

See the blog archive for other posts regarding workplace discrimination and medical marijuana.
Which came first... February 2017
Ban the Box update August 2016

Tuesday, August 8, 2017


We’re not talking about water bugs, tools to clean your pool, or skipping rocks. These skimmers steal your financial identity. The news had reported that skimmers were discovered on a local gas station’s pumps. This particular station consistently has problems with pump maintenance and just the overall condition of the pumps seems to be “beat up”.  It was not a surprise that skimmers had been installed. Not that the owners had any involvement, but meaning that the owners/operators are not paying attention to the condition of the pumps. Or what is going on at the pumps. This station is also known to allow third party vendors to sell their goods on the lot and accost customers at the pumps. Big personal security peeve-Do not approach me while I’m using a gas pump or ATM. These little things add up and go back to not being surprised. The condition and environment of a business can be both a determent and invitation to criminals.

Not everyone may know exactly what a skimmer is or the extent of the problem. I thought some background might help us from becoming victims. A little education goes a long way.


So what are skimmers?  Credit card skimmers or skimmers are electronic devices that are attached to machines with credit card slots. Mostly ATM’s or gas pumps. The parasite device usually fits over top of the original slot so that the customer believes they are inserting their card into the machine’s card slot. When in reality the card is swiping through the criminal’s device. The device retrieves the credit card data from the magnetic strip and stores it until the criminal retrieves the device. Newer, more sophisticated devices attach internally to the machine’s card slot or transmit the data via Bluetooth.

Although criminals can make use of debit card information, it is much easier with the associated PIN. To gather this information there will also be a camera attached somewhere to video the customer entering the PIN on the keypad. Or a fake keypad accompanies the slot reader and records the keystrokes. Most times the operation of the machine is not affected. If the machine fails to work, you may have already become a victim.

History of skimmers

The idea of the use of credit card skimmers was mostly urban myth. In the late 1990’s, we were just getting use to personal computers, let alone tiny devices that could steal data from a magnetic strip. Nobody believed that such things existed or could work.

The skimmer myth also gained notoriety in restaurants. Wait staff would be issued a small skimming device to carry with them. They covertly slide the card through the device to collect the data from the magnetic strip on the way to cash register. The device holds all of the data until the end of the shift when they pass off device and are paid for their efforts. The victims then start seeing charges on their cards.

If you think about it, a restaurant is the only place you hand a stranger your credit card and let them walk out of sight. featured a good 2014 article on skimming history, The Evolution of ATM Skimmers 

Here is a synopsis:
2002- A CBS report confirmed the existence of skimmers when they reported devices that could record the names, account numbers and other identifying information from credit card magnetic stripes.
2008-Naples Police Department investigated a rudimentary device jammed over an ATM's actual reader. The thief inserted a "micro camera" under a plastic sheet to capture the victims' keypad strokes. This was one of the first times a device had been recovered.
2009-Skimming really takes off as the devices, in different shapes and sizes began being discovered on ATM’s.
Over the next few years the technology progressed. The Internet allowed for distribution networks to manufacture devices and kits that were identical to the machine the criminal hoped to crack. 
            2011-ATM manufacturers began cracking down on skimming by installing anti-skimming devices on their machines. These consisted of translucent, circular casings over the card reader, which the criminals quickly learned to replicate.
2012-Skimmers become too small to be detected. Some being paper thin and inserted into the card slot.
2013-Gas pumps became targets.  A series of scams in Oklahoma saw thieves take home $400,000 from a chain of Murphy's gas stations before they were eventually caught. The thieves used a card skimmer and fake PIN pad overlay to obtain the necessary information. Even more eye opening, these skimmers used Bluetooth enabled devices that sucked power from the pumps themselves allowing them to run indefinitely, and allow remote access to the data. ; once it was installed, the thieves would never need touch the skimmer again.

How it works

The devices used come in all shapes and sizes. Most fit over the card slot. Some actually are big enough to replace the machine face. The closer to resembling the original card slot the less chance of being detected. Home 3D printers are making these deceptions a lot easier. As with everything else electronic, these devices are getting smaller everyday. Some skimming devices are so small and thin, they slide inside of the card slot itself. Newer devices attach to the internal wiring of the card slot. These are mostly used on gas pumps. How do criminals get inside the pumps you ask? Universal keys are available that open the pump faces exposing the card readers. The criminal will have one or more accomplices to block camera/attendant views while they install the device. Victims never know what hit them.

Once collected, the numbers are used in different ways depending on the criminal. Some are sold on the Internet for around $50 a piece (+/-).  Some criminals use the collected numbers to make counterfeit cards, which they use to purchase items, usually electronics, for resell. (Similar to Melissa McCarthy in the movie Identity Thief) The more advanced organizations use the cards to purchase gas. They drive around in specially outfitted passenger vehicles filling up covert gas tanks. This gas is then off loaded into tanker trucks and sold to less than scrupulous gas stations. 

There are thousands of iterations of card skimmers. If you’d like to see what they look like just search “credit card skimmers” in Google images.


Criminals and the technology they use are getting more sophisticated. The Internet provides enough intelligence that consumers can protect themselves. But criminals are sharing information as well. Once law enforcement or consumers defeat one strategy, criminals learn and improve their methods. So what can you can do.

Some gas stations are installing seals to cover the seams that hold the payment box. A broken seal is obvious, but multiple seals overlaid is a clue and, of course, enterprising thieves can replicate seals. Another clue can be the condition of the machine in which you are about to slide your card. If the payment box area is not maintained or appears to have been forced open, be wary. Inspect the card slot. Give it a tug. If anything is out of sorts or the slot comes off in your hand report it to the station and the police.

If your transaction attempt doesn’t work, don’t keep trying. Stop and perform an inspection. The skimmer may be causing a malfunction.

Some habits to get in to help protect your card security:
  • Use Pumps/ATMs near attendants. Less chance they were compromised.
  • Pay inside
  • Pause before you swipe, inspect car slot, look for security seal
  • Feel for difficulty inserting or sliding card
  • Wiggle slot housing. Don’t have to break it. Criminals aren’t going to install anything that takes time or is permanent
  • Check nearby pumps, compare slots for differences
  • Guard the card number
  • Use Apple/Samsung/Android pay whenever possible
  • Check accounts regularly

Any suspicions report to the business owner, the police, and the issuing bank.

This post focused mainly on gas pumps. Another area of concern is the new style parking meters that allow you to swipe at the meter. Seems like easy targets. Get back to you on those.

Please feel free to share. See the blog archive for more articles on personal security