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Legalizing Marijuana: What's an Employer to do?

Posted By Editor, Wednesday, November 2, 2016


Contributed by Becky Barton

These days it’s difficult to avoid the election mania covered by the various media outlets. Given the major spotlight on the presidential race, you may not know that the potential decriminalization of marijuana will be on the ballot in several states.

California, Arizona, Maine, Massachusetts and Nevada will all weigh in on legalized marijuana for recreational use (also known as “adult use” and “non-medical use”) where it is currently approved for medical use only. Another 3 states (Arkansas, Florida, and North Dakota) will decide on the future of cannabis for medical use in their states.

Supporters of the ballot measures see this as a boon to the states’ economies via increased taxes and job growth for cannabusiness people. We have seen 25 states and the District of Columbia legalize marijuana in some fashion, making a continued trend of legalization highly likely.

So what does this mean for business owners and employers? Marijuana remains illegal under federal law and the state-by-state variations make this particularly confusing. For example, within the subset of those states approved for recreational use, the amount an individual can personally carry varies.  As an employer, particularly a multi-state employer, these variations can be an administrative and enforcement nightmare.

Or do they? After all, alcohol is a mind and behavior altering substance that’s been legal for over 80 years and we seem to manage that in the workplace, right? Wouldn’t this be treated similarly? Well, it depends. Many laws clearly state that employers don't have to accommodate medical marijuana use during work hours or on company property while other states require reasonable accommodations for workers with disabilities (specifically as it relates to drug testing and adverse action).

The key is to know what is required by the states in which you operate, create an employment policy that complies with state law and enforce it consistently amongst employees of similar work groups.

The Bottom Line: Work with an HR consultant or an employment law attorney to navigate these unchartered waters. They should be watching how these new laws are interpreted by the courts and have your back should your policy need updating.

 

Becky Barton is the founder of People415, a San Francisco-based Human Resource Consultancy Firm helping companies navigate every stage of their growth.

Tags:  behavior  company culture  employee  employee communication  employee health and wellness  employee relations  Employee Training  employee wellness  healthcare expenditures  hr  HR Communication  HR law  HR Legislation  Human resources management. HR Leadership  law  leadership  management  marijuana  Policies  workforce 

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7 Things You Need to Know Regarding Access to Employee or Applicant Social Media Accounts

Posted By Laurie A. Pehar Borsh, Wednesday, July 22, 2015
Updated: Tuesday, July 21, 2015

 

By Kyung M. Lee - Bergeson, LLP

California law does not give employers unrestricted access to employee and job applicant social media accounts (e.g., Facebook, Twitter, Instagram, etc.).  Instead, California Labor Code Section 980 (“Section 980”) sets strict parameters on employers’ ability to obtain certain social media-related information from employees or job applicants.  Below is a list of seven things that employer hiring managers should know regarding their obligations (and some rights) in this area.

  1. Definition of “Social Media.”  Section 980 defines “social media” very broadly.  It “means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”  (Cal. Labor Code Section 980(a) (italics added).)
  2. What an Employer May Not Do.  As an employer, except under limited exceptions for employees (discussed below), you may not require or request an employee or job applicant to (a) disclose a username or password for the purpose of accessing social media; (b) access personal social media in your presence; or (c) divulge any “personal social media.”  (See id. at subsection (b).)
  3. What Is “Personal Social Media?”  Unfortunately, Section 980 does not define the term “personal.”  In light of this ambiguity, employers should err on the side of safety by treating an employee’s or job applicant’s social media as “personal” even if it appears to serve both personal and business-related purposes at the same time.  And, if use of social media is a part of an employee’s job responsibilities, then a written agreement or policy setting out which social media accounts are business-related may be advisable. 
  4. Investigations.  An employer may require an employee to “divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations.”  However, you must use such social media “solely” for purposes of the investigation or a related proceeding and for no other purpose.  (Id. at subsection (c).)
  5. Employer-Issued Devices.  You may require or request an employee to disclose usernames and passwords for the purpose of accessing employer-issued devices (e.g., company laptops or iPhones).  (See id. at subsection (d) (italics added).)  This provision does not cover employee-owned devices that are used for work purposes under a Bring Your Own Device (“BYOD”) program.  Employers with BYOD programs should have a written agreement or policy that gives the employer the device access necessary to administer employer software or applications that are installed on an employee’s device as a condition for employee participation in the program.
  6. Retaliation.  You may not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or job applicant for failing to provide social media information to which you (as an employer) are not entitled.  (See id. at subsection (e).)
  7. Employee Claims.  Although Section 980 does not provide penalties or damages for violations by employers, an employee may bring a claim for wrongful termination in violation of public policy against his/her employer on the basis of a purported Section 980 violation.  Employees and job applicants may also use alleged violations of Section 980 as the basis for an action under California Business and Professions Code Section 17200 and/or California Labor Code Section 2698 (the Private Attorneys General Act of 2004). 

 

About the Author

Kyung M. Lee is Senior Counsel at Bergeson, LLP in San Jose, where she focuses on employment litigation and counseling. Ms. Lee regularly contributes to the Bergeson, LLP Employment Law blog, which is available at www.be-law.com/category/blog.

 

 

 

 

 

 

 

 

Disclaimer

This blog post is for general informational purposes only and not to provide specific legal advice.  You understand and acknowledge that your review and accessing of this blog post do not create an attorney-client relationship between you and Bergeson, LLP and any Bergeson, LLP attorney.  This blog post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.


Tags:  access  account  applicants  employee  employment  HR  human resources  law  leadership  management  media  NCHRA  social 

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