Nicole focuses her practice in the area of commercial litigation, using her civil litigation experience to advise clients on an ongoing basis and to prepare for their defense in administrative actions and state and federal court lawsuits. Nicole has been admitted to practice in courts across Illinois, including the United States District Courts for the Northern, Central, and Southern Districts of Illinois, as well as the Northern District of Indiana.
Prior to joining Davis & Campbell, Nicole practiced with the law firm of SmithAmundsen, LLC in Chicago. Nicole then served as the Director of the Pre-Law Center and Title IX Coordinator at Bradley University, providing her with experience to represent university clients in a variety of matters.
Nicole is an active member of the Peoria community, currently a member of the Junior League of Peoria, and sits on the Campaign Committee for Prairie State Legal Services. Additionally, Nicole is a former Executive Board Member of the Pediatric Resource Center.
In her spare time, Nicole enjoys traveling, exercising, dining out, and spending time with her husband, daughter and son.
401 Main St, Suite 1600
Peoria, IL 61602
Governor Pritzker has signed an amendment to Illinois’ Cannabis Regulation and Tax Act (the new recreational marijuana law), and – in so doing – has effectively expanded employers’ rights to drug test and discipline for marijuana use.
First, public employers may now prohibit/discipline officers, paramedics, and firefighters from/for using and possessing marijuana when they are off-duty. The previous language merely prohibited on-duty use and possession. Second, the amendment provides that all employers (both public and private) may subject employees to random drug testing and may also subject applicants to pre-employment testing for marijuana, in addition to testing employees based on an employers’ “good faith belief” of impairment (i.e., post accident, reasonable suspicion, etc.). Employers may then discipline/terminate/not hire an employee or applicant for failing any such test.
In sum, employers do not need to observe impairment prior to testing (or subsequently disciplining) for marijuana use. However, remember that all drug tests and discipline following failed drug tests must continue to be administered via employers’ reasonable and non-discriminatory drug policies. Thus, in addition to having a drug policy in place, employers should regularly review those policies to ensure the content remains reasonable.
Nicole D. Meyer | Davis & Campbell, L.L.C.
401 Main Street, Suite 1600 | Peoria, IL 61602
(309) 673-1681 | Fax: (309) 673-1690
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On February 11, 2020, Attorneys Rick Russo and Nicole Meyer will present on the amendment to the Illinois marijuana bill and its effect on employers, medical marijuana/reasonable accommodations, and how the legalization of marijuana may affect workers compensation matters for the Peoria Chamber of Commerce at the Hult Center for Healthy Living.
On February 19, 2020, Attorney Nicole Meyer will present “Policies on Marijuana, Drug Testing, and Reasonable Accommodations.” Topics covered will include: What options are available to employers for use of marijuana? What are the risks associated with different drug testing programs? Do employers have to accommodate the use of medical marijuana as a reasonable accommodation?
On February 20, 2020, Attorney Nicole Meyer will present on Policies on Marijuana, Drug Testing, and Reasonable Accommodations and Workers Compensation at DePaul University College of Law (CLE provided).
On April 1, 2020, Attorney Nicole Meyer is leading an OLLI study group on the new recreational marijuana law and its implications for employers and businesses on Bradley’s campus.
On April 23, 2020, Attorney Nicole Meyer will present on the new recreational marijuana legislation and its impact on business and insurance for the Central Illinois Chapter of the Insurance Accounting & Systems Association Conference at Eastland Suites Hotel & Conference Center, Bloomington, Illinois.
On September 20, 2019, the National Labor Relations Board announced that it will establish a regulation exempting student graduate assistants, teaching assistants, research assistants, and other similar positions from the definition of an employee under the National Labor Relations Act. The proposed rule was posted in the Federal Register on September 23, 2019. This proposed rule [NM1] [BAM2] will overrule the Obama-era Board decision from 2016, which held that research and teaching assistants were employees under the NLRA and were allowed to unionize and collectively bargain. The NLRB has changed its position three times in the last twenty years on whether research and teaching assistants are classified as employees under the NLRA. However, as a result of the NRLB’s proposed rule, there will no longer be unrest on this subject, as the rule will permanently exclude teaching and research students from the scope of the NLRA.
Compensated students in teaching or research positions at private colleges and universities will not be able to form a union or collectively bargain with their college or university for wages, insurance, and other work-related terms or conditions. Although there has not been a vast amount of student-employee unions formed over the years, the clear elimination of student-employee collective bargaining may ease the minds of officials at private colleges and universities and allow their focus to remain on education, instead of on potentially having to bargain with their student-employees.
On the other hand, public colleges and universities who are subject to their state’s collective bargaining laws for their employees are not affected by this new rule promulgated by the NLRB.
Nicole D. Meyer, Esq.
Davis & Campbell, L.L.C.
On June 25, 2019, Governor J.B. Pritzker signed legislation making Illinois the 11th state to approve marijuana for recreational use for individuals age 21 and older. Governor Pritzker argues that the Cannabis Regulation and Tax Act (“CRTA”), set to go into effect on January 1, 2020, will have a positive impact on Illinois’ residents and businesses. While the true impact of this legislation is TBD, one thing is for certain: employers need guidance concerning the effects of this bill on the workplace, including how to remain compliant with the law when drafting workplace drug policies and implementing disciplinary measures for violations of those policies.
The haziness of the law leads to questions that may not have clear-cut answers for some time. In the interim, however, we can discuss the uncertain aspects and determine the most probable answers based upon experience and the language of the law.
Q: First, if the law allows an employer to discipline an employee who – on company time – is impaired due to marijuana usage, can the employer discipline another employee if the employer had a good faith belief that this other employee used or possessed marijuana in the workplace, but remained unimpaired?
A: Probably. Because the law allows employers to ban marijuana-usage on their premises and supports the enforcement of drug policies dealing with marijuana possession in the workplace, it seems that employers should be able to discipline employees for using or possessing marijuana on company time, regardless of impairment. However, this is an area of the law that may remain foggy for some time, so the safest course of action is to document all reasons for discipline based on anything marijuana-related (i.e., document the reasons for the “good faith belief”) and strictly follow workplace drug policies.
Q: Second, can a positive drug test – standing alone – support an employer’s good faith belief of employee-impairment?
A: Probably not. Because marijuana can remain in an individual’s system for weeks, a positive test result will not always be indicative of impairment, so an employer may need to observe and document something in addition to a positive drug test (e.g., slurred speech, irrational behavior, etc.) to discipline an employee for marijuana-impairment on company time.
Q: Finally, are employers allowed to not hire applicants and to discipline employees as a result of marijuana possession, usage, or impairment that occurs “off the clock?”
A: Probably not. CRTA amended the Illinois Right to Privacy in the Workplace Act (“Privacy Act”) to provide that – as of January 1 – an employer cannot take adverse actions against applicants or employees based only on their use of products outside of work that are lawful under state law (i.e., marijuana). If employers do take any such adverse actions, they could be liable pursuant to the Privacy Act for an employee’s actual damages, attorney’s fees, fines, and/or costs. However, certain non-profit organizations (e.g., those whose mission is to discourage the use of marijuana) are exempted from this prohibition on taking adverse actions against individuals for marijuana usage outside of the workplace.
On May 21, 2018, the United States Supreme Court decided Epic Systems Corp. v. Lewis, ruling that companies can draft employment contracts to include arbitration clauses that bar employees from joining together in court and taking legal action concerning workplace issues. For thousands of companies, this decision means they can continue to require arbitration agreements as conditions of employment. For others, it means they now have the option to include arbitration clauses in employment agreements to protect against expensive class action lawsuits.
The employment contracts at issue in Epic Systems required employees to resolve workplace disputes in arbitration rather than in court and to file their claims one-by-one rather than collectively. In analyzing consumer contracts, the Supreme Court previously ruled that companies may require arbitration and forbid class actions. The issue for the justices in Epic Systems, however, was whether consumer contract rules also applied to employment contracts. Workers argued that allowing arbitration clauses in employment agreements is different than allowing them in consumer contracts because the National Labor Relations Act prohibits class waivers and protects workers’ rights to engage in “concerted activities.” Federal appeals courts in Chicago and San Francisco had accepted that argument; a federal appeals court in New Orleans had rejected it.
The majority of the Supreme Court Justices disagreed with the workers’ arguments and instead affirmed the precedent favoring arbitration. If workers were allowed to join together to pursue their claims, Justice Neil M. Gorsuch wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”
In sum, this Supreme Court decision is a big win for employers who favor arbitration over litigation and who wish to avoid class action suits.
For more information or to discuss arbitration clauses in light of Epic Systems, contact author Nicole Meyer.