Employment Law: This Year’s Smokin’ Hot Topics

By Kristen Harris

The laws and legislative issues related to hiring, employment, and human resources management are constantly changing. Attending the American Staffing Association’s Staffing Law Conference helps us stay on top of these issues for ourselves, our clients, and our talent.

We’ve provided this quick overview of the hottest topics that may be of concern to our clients. Please keep in mind that we are not attorneys, and are only providing this as an informational resource. If you have questions or concerns about any of these issues, please consult with your legal counsel.

Top Four Employment Law Issues:

  1. Medical Marijuana. While it remains illegal under federal law, cannabis is currently legal for doctor-prescribed medical use in 30+ states, including Ohio. In addition, several states (not Ohio) have passed laws expressly prohibiting employment discrimination for medical marijuana use. The medically prescribed version does not get you “high” but what if an employee has a positive result on their drug test and explains it with a medical card? The ADA does not directly require medical marijuana accommodation because the drug is still federally illegal; however, it’s assumed that there is an underlying medical condition that may require accommodation. Maybe it’s no different than any other medical condition that requires medication? In addition, when there is a workplace accident it’s often standard practice for the employee(s) involved to tested for drug and alcohol impairment. With marijuana, unlike alcohol, a positive result does not necessarily mean the employee is impaired at that time; residue can remain in the body for several days or more. If you are in a state where cannabis is legal for medical use, consult with your attorney to establish best practices, policies, and procedures.

  2. Recreational Marijuana. Currently, there are nine states where cannabis is legal recreationally (and yes, this is the kind that gets you “high”). In these states, companies are looking at the impact on their employment policies and hiring practices. In many cases, it falls under the same policy as alcohol–employees cannot be under the influence while at work. In more dangerous occupations there can be concern about the impact on work performance, even when employees are only partaking off-the-clock. Some companies continue to have a zero-tolerance policy; others test only for certain jobs where safety is a factor; others have removed marijuana from their drug testing protocol. Recreational marijuana users are not a protected class (less tricky than when it’s prescribed to treat a medical condition), but businesses need to weigh their company needs against the available workforce in this tight hiring market. As always, consult your legal counsel to create policies and practices that fit your business needs.

  3. Immigration. With continuing emphasis on enforcement of immigration policies, it’s important to have properly completed I-9 forms ready for inspection. Even if you are a small company, keep in mind that when a large company is audited then often all of their suppliers and vendors are audited within the year. A best practice is to do your own self-audit annually. Create a process and have a team member who does not typically fill out I9s do the audit; when there is an I-9 inspection most frequently they find one or two mistakes that were made repeatedly. If someone on your team fills out I-9s every day, they believe they’re doing it right. With an audit, you can catch mistakes, follow the USCIS rules on making corrections, and retrain to prevent future mistakes. There is also new attention being paid to how I-9s are being completed electronically. I am not qualified to explain this but we can send you a very thorough ASA Issue paper on the topic, just send us a note. And, of course, consult your attorney.

  4. Background Checks. There continues to be attention focused on the use of arrest or conviction reports in employment decisions. These concerns are related to how the broad use of background checks may have a disparate impact on minorities. Even when a company is following consistent screening practices (e.g. every employee has to pass X, Y, Z background check), the question is being raised whether that level of background check is necessary and appropriate for every job. Is the reason that person has been denied employment related to that job or a business necessity? Factors to consider are the nature of the crime, time elapsed, conviction vs arrest, and the nature of the job they are applying for. Does the applicant’s criminal record prevent them from doing the essential functions of the job? Some states and municipalities require that an employer inform an applicant of the job-related reason they are not qualified. Consult your attorney and guidance documents available from the EEOC.

The best way to protect yourself is to stay informed and proactive. Review policies, ask questions, and resolve concerns before they become an issue.

If you are a Portfolio Creative client and have questions about these topics, or anything else related to our dual responsibilities of hiring and employing talent, please contact us at HR@portfoliocreative.com.

If you are not a client and would like more information on how these topics may apply to your creative staffing or recruiting processes, connect with us at kristen@portfoliocreative.com.

For more information related to hiring, staffing and employment, the American Staffing Association has valuable resources for both employers and employees.