Maine House Overrides Governors’ Veto to Make Marijuana Law More Employer Friendly
On May 2, 2018, the Maine House and Senate voted overwhelmingly to override Governor Paul LePage’s veto and passed LD 1719, which establishes rules for licensing and regulating marijuana producers, processors, retail establishments, and more. “An Act to Implement a Regulatory Structure for Adult Use Marijuana” provides additional clarity to the rules related to marijuana and the workplace in the state.
In part, the new law states in section §112. Employment policies
Except as otherwise provided in the Maine Medical Use of Marijuana Act, an employer:
Marijuana in the workplace. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;
Workplace policies regarding marijuana use. May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace
or while otherwise engaged in activities within the course and scope of employment; and
Discipline of employees. May discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.
The Maine Department of Administrative and Financial Services, responsible for the administration of this law, is directed to consult with the Department of Labor “prior to the adoption of any rules concerning workplace, employment or other labor matters involved in the regulation of adult use marijuana and adult use marijuana products.”
The previous version of the personal marijuana use implementation law contained an anti-discrimination provision that stated that employers “may not refuse to . . . employ . . . or otherwise, penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the . . . employer’s . . . property. While it is not clear that this issue has been fully addressed the new version of the law clearly states, “May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment.” With the wording ‘in the workplace’ it would appear that the ‘while working’ aspect has been addressed, however, what employers are allowed to do with an employee who comes to work under the influence of marijuana used outside of the workplace still potentially remains and open question.
Although the latest legislative action is an attempt to correct the governor’s veto, what remains to be seen is how this law will be interpreted. While it seems that §112 of the new enabling law opens the door to employer drug testing programs and discipline for violation of those policies, you will note that employer actions are limited to conduct within the workplace. This new law doesn’t prohibit discipline for an employee’s use of marijuana “outside the employer’s property.”
Further clouding the issue is the reality that Maine is the only state (at this moment) authorizing the medical and personal use of marijuana and with a very detailed mandatory workplace drug testing law.
I guess we will just have to wait and let the lawyers sort this one out.
To read the full act go to – An Act to Amend the Marijuana Legislation Act
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Woman Steals ID to Get Six-Figure Job, But Can’t Do the Work
Forty-one-year-old Cindy White of Louisiana was found guilty of
identity theft after she used another woman’s ID to get a job at
Diversified Food and Seasonings and was promoted to a senior
position with a six-figure salary. Her fraud was exposed after the
company realized she was having trouble with jobs that should
have been within her claimed ability and was delegating much of
her work. Investigators found that she copied another woman’s
resume from LinkedIn and stole her identity numbers from another
Federal appeals court recently ruled that an employee’s salary
history is insufficient to justify pay differences between male and
female employees. The Equal Pay Act, adopted in 1963, requires
employers to pay men and women the same salary for equal work,
but it does provide four exceptions: a seniority system, a merit
system, a system that measures earnings by quantity or quality of
production and a differential based on any other factor other than
sex. The recent decision, which only applies to nine western states, overruled a 1982 case that allowed employers to base a pay differential on an employee’s prior salary history.
I Hired Him Without Performing a Background Check. Then He Stole His Colleagues’ Identities
When three employers came to a senior HR manager at a foreign banking company claiming their identities had been stolen, he recognized an internal problem. After hiring an investigative company that specialized in fraud, it was discovered that a temp employee who was hired through an outside agency had been stealing information from personal files. The company learned two hard, but important, lessons: Quickly determine when something is outside of your element and know when it’s time to get help, and always perform background checks for temp employees.
Criminal Record Screening Policies Continue to Raise Important Compliance Issues
A recent settlement by Target reinforces the importance of employers to be vigilant with all applicable laws pertaining to criminal record screening policies. Plaintiffs in the case allege that Target’s criminal-record-screening policies had a disparate impact on African-American and Latino job applicants for store positions. The claim centered on the standards for assessing ex-offender job applicants as eligible or ineligible for employment. Over a period of several years, the parties negotiated a pre-litigation class-wide settlement that must be approved by a federal court. In early April, a settlement submitted by the plaintiff’s attorneys would require programmatic relief in addition to a monetary payment.
Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use
Changes in cannabis laws are causing some employers to think twice before denying employment to individuals because they tested positive for the use of marijuana that they are ingesting for state-authorized medical reasons. In Arizona, an employer may not discriminate because of a person’s status as a cannabis cardholder, unless failure to do so would cause an employer to lose certain benefits under federal law. Delaware law is similar, however, an employer can prohibit the ingestion, possession, or impairment of marijuana in the workplace. Employers in Maine cannot test applicants for cannabis unless they submit a request to the State of Maine that that request is approved. Employers there also cannot use a positive test for cannabis to prove that an employee is impaired by cannabis. Other states with similar laws include Minnesota, New York and California.
Swimming Against the Tide, Michigan Forbids Salary History Bans Statewide
Michigan’s governor recently signed a bill that forbids localities from adopting salary history bans. The Bill, Senate Bill 353, prohibits local governments from adopting rules regulating the information that an employer or potential employer must request or exclude on an application for employment or during an interview process. While the Michigan Chamber of Commerce and other business groups supported the legislation, Democrats blasted the bill as an attack on local control and argued that it could hinder community efforts to address pay gaps. The legislation comes as several states and cities have moved to prevent employers from asking about applicants’ compensation history.
In Ratliff v. A&R Logistics, Inc., the plaintiff claimed A&R denied him a job based on a background check without the appropriate adverse action process. Ratliff alleged that the company failed to properly provide pre- and post-adverse action as set forth under the Fair Credit Reporting Act (FCRA) guidelines. A&R moved to dismiss, arguing that the plaintiff lacked Constitutional standing. The Northern District of Illinois agreed after it first considered whether an “informational injury” occurred. Ratliff failed to allege any inaccuracies that could cause concrete harm, therefore, no injury existed and the decision stood.
Vitas Healthcare Corp. job applicant Jazzina Williams alleges she was provided a facially invalid authorization form when she applied for employment. The complaint states that the plaintiff signed background investigation authorization and release forms, but she alleges the form is unlawful because it includes a clause requiring applicants to “release from liability all persons, companies and governmental or other agencies disclosing such information.”
Illinois District Court Finds Job Applicant Has No Standing to Bring FCRA Adverse Action Claim
The Northern District Court of Illinois recently confirmed that even if an employer fails to follow the proper procedure, an applicant may not have standing to bring an adverse action claim if the background check as issue is accurate. In Ratliff v. A&R Logistics, Inc., plaintiff Jerome Ratliff, Jr., claimed that the company declined to hire him based on his background check without following a proper adverse action process. A&R moved to dismiss the complaint on the ground that Ratliff had not suffered any injury-in-fact. Because Ratliff failed to allege that the background check on him contained any inaccuracies, he could not show any “informational injury.”
Impending Necessary Ban-the-Box Updates for Criminal Record Inquiries in Massachusetts and San Francisco
Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act that includes a “Ban the Box” component. Recently, Gov. Charlie Baker signed amendments that place further restrictions on employers that inquire about prior criminal records. Taking effect Oct. 13, 2018, the important changes include: a provision that an employer shall not inquire into convictions for misdemeanors where the date of the conviction occurred three or more years from the date of application, unless there was an intervening conviction; the prohibition of an employer from asking an applicant about “a criminal record, or anything related to a criminal record, that has been sealed or expunged,” and a required application statement for those employers who seek “information concerning prior arrests or conviction of the applicant.” An amendment to San Francisco’s “Ban the Box” law also further restricts employees from considering criminal record information.
People 21 or older in Vermont soon will be legally permitted to possess limited quantities of marijuana and marijuana plants. Possession includes up to one ounce of marijuana or 5 grams of hashish and two mature or four immature plants. The law does not affect an employer’s ability to enforce rules on smoking or use of the drug in the workplace. The law does, however, prohibit the consumption of marijuana in a “public place” and doesn’t protect people who possess or consume marijuana from laws related to driving under the influence or consuming marijuana while driving. Businesses should consider drafting policy language that clarifies the company’s position on marijuana use.
Iowa Drug Testing Law Amended: Lawsuits on the Rise
Iowa’s 10-page drug testing statute, enacted more than 30 years ago, includes provisions addressing permissible types of tests, written notice requirements, rehabilitation for positive alcohol test results, split-specimen testing, and mandatory supervisor training, among other things. The Governor recently signed an amendment into law that will allow employers to take action based on an alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. In 2017, an amendment clarified that hair follicle testing is appropriate for pre-employment drug testing.
The increase in the demand for workers has led to employers rethinking their drug testing practices. Many believe that overly broad testing eliminates valuable talent from the applicant pool, especially in states where marijuana has been legalized in some form. According to a recent Express survey, the majority of businesses lose job applicants because of drug test failures. In fact, 37 respondents said less than 5 percent of applicants do not pass a drug test and 13 percent said 5 to 9 percent do not pass.
Ice Now Taking More Opportunistic Approach to Employer Sanctions
In what is believed to be the largest single workplace raid since 2008, U.S. Immigration and Customs Enforcement (ICE) took 97 people into custody at a meat processing plant in Tennessee. The facts underlying the raid show there is more inter-agency cooperation and a new emphasis on illegal immigration discovered than during other types of investigations. The government reportedly went to the facility to execute a criminal search warrant from the Internal Revenue Service’s Criminal Investigation Division, which led to an immigration investigation.
The General Data Protection Regulation (GDPR) due date is May 25, 2018 and there are several things that can be done in preparation for the big day. It is important to start by reading the GDPR in its entirety, especially the Recitals, which will give context for the Articles and also provide guidance on what is expected. In addition, strive to meet the GDPR requirements, as stated in the documentation. Other starting points include appointing someone for GDPR compliance; determining the functions of a Controller and Processor; making changes to Service Agreements with clients and vendors; updating Privacy Notices; completing the Records of Business Processing (Article 30); documenting compliance; and training staff.
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant
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