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Recruiting to Avoid a Rocky Mountain High — the Impact of State Marijuana Laws

by Mar 31, 2014, 5:34 am ET

marijuanaHow a state law becomes a recruiting issue 

I recently visited Boulder, Colorado, and guess what: everyone there was talking about the new marijuana law. If you are recruiting leader for a large corporation, you may fail to realize how much the laws of individual states can either positively or negatively impact your recruiting in that region. Take this Colorado marijuana law, for example. As a result of the law and its related publicity, firms trying to attract talent to the state may get a noticeable increase in applicants from younger workers who view the new law as a positive thing, making the state a great place to work (For example, the University of Colorado had a 33 percent spike in freshman enrollments this year. Some have attempted to attribute the rise at least in part due to the publicity around the law).

But a recruiting leader shouldn’t be surprised to find out that state laws can also have a negative impact on recruiting. Once more using the Colorado example, there is already some indication that employees with families are having second thoughts about relocating there because they are unsure about living in a state where their children could be continually exposed to widespread marijuana use. And before you make the assumption that the recruiting implications of this law are unique, realize that the same positive and negative impacts may come from other state laws relating to high profile issues. Those might include local laws covering gay rights/marriage, abortion, access to voting, tax rates, and school choice and even, as happened in Florida, gun laws.

Recruiting Challenges in a 420 World

Even if medical or recreational marijuana hasn’t come to your state yet, you might be surprised to learn the surprising number of recruiting implications that a single law can have. Let’s look at how the legalization could impact recruiting in Colorado to illustrate how complex an issue this could turn out to be.

  • Marijuana could serve as an attraction factor – the marijuana law could provide a recruiting draw for all Colorado firms; however, it could have a much bigger advantage at some particular types of firms. For example, if you are a startup, a social media/web firm, or do work in the design field, you may find that a liberal marijuana law is quite attractive to a target workforce that is both young and creative. If you recruit for a firm that produces a counterculture product or service, the law might also make it easier to attract innovators or counterculture types. States that only have medical marijuana laws could find that this option will attract individuals with the medical issues that are helped my marijuana. Even individuals who didn’t care one way or the other about marijuana may now view Colorado positively as a place that offers increased freedoms of many types.
  • Would you use marijuana as a recruiting selling point? – I would be surprised if more than a handful of firms were bold enough to overtly use the law as a recruiting draw. However, if you did, you can be assured that it would be noticed and that it would receive massive press coverage. Of course with any public exposure, you would have to be careful because any connection between the firm and the drug may negatively impact applicants with families and even your customers. If your Colorado facility was part of a larger multi-state operation, obviously any use as a recruiting draw would have to be approved by executives.
  • How do you proactively alleviate fears related to widespread marijuana usage? — Your first reaction as a recruiting leader might be to just ignore the law and its impact, but that could be a mistake because it could negatively impact some applicants. For example, you would have to decide if your firm would attempt to alleviate the concerns of potential applicants who would be worried about marijuana’s impact on their families. And if you decided to proactively act, would the message best be sent on social media, placed on your website, or mentioned during the hiring process?
  • You will get questions about marijuana use — if you’re recruiting  in Colorado, at the very least you must prepare for the fact that both prospects and candidates will almost assuredly have questions related to the marijuana law. As a recruiting leader you would have to decide whether to put a FAQ section covering those questions on your website and also if you would encourage or restrict your employees from talking about the issue in their blogs and social media postings. And it would also make sense to work with the legal department to provide hiring managers and recruiters with prewritten answers. HR would of course have to determine what aspects of marijuana use should be covered during onboarding.
  • Does your reference-checking process identify applicants with the potential to abuse it — your executives could be concerned that the law would result in a flood of applicants from those who have the potential to be heavy users. If that was a concern, it would make sense to include checking for actual or potential drug use during your reference checking. Obviously you could look for drug convictions, but you could also search social media in order to identify an excessive number of references to drug or alcohol usage. HR would also have to decide whether managers and supervisors should be trained in how to spot usage or impairment on the job.
  • Routine drug testing could harm your recruiting — Colorado is an “at will” state, and as a result, employers have the right to institute almost any rule that restricts or prohibits marijuana use (even off the job and with a medical prescription). But at the same time executives need to be aware that these marijuana-related rules could negatively impact recruiting and retention. Firms should consider the possibility that the passage of the law is an indication that most of the population is against a negative attitude toward drugs. And by requiring drug tests at either the time of hire or periodically on the job, corporations could be unintentionally sending the message to Colorado applicants that they are out of touch. If individual firms decide to continue with their drug tests, explain to applicants and employees exactly why they are necessary and whether they apply to marijuana use. Managers should also consider letting applicants and employees know that marijuana lingers in the bloodstream and can show up in drug tests weeks after its use. To an employee, this means that if they were drug tested related to their job (like after an accident), any usage in the last few weeks may result in a positive drug test and their immediate termination. So if off-the-job usage was frequent among employees, frequent drug testing would likely result in an extremely high involuntary turnover rate.
  • How will you handle the smell of marijuana? – because the smell of marijuana has been known to attach itself to clothing, recruiters and hiring managers might find themselves with candidates for interviews who carry that smell with them. An interesting issue arises as to whether you should warn or train manager/recruiters to ignore the smell or to recognize it and take it as a possible indication of heavy use (even though it’s legal to use, or the smell might come from just being close to others who were smoking).
  • Recruiting at federal agencies and government contractors is problematic – under federal law, marijuana is still technically illegal (even in Colorado). As a result, federal agencies and government contractors in the state operating under the “drug-free workplace” rule would be required to continue with their periodic drug tests. Because of that management should probably subtly make applicants aware (and directly let new hires know) that any use by employees on or off the job would be considered illegal under federal law.

Final Thoughts

It’s easy to joke about a state medical or recreational marijuana law, or alternatively, to assume that the law is not relevant to recruiting. However if you live in a state that has or might soon have such a law, there are many recruiting implications. There could be an equal number of recruiting implications related to laws covering other prominent issues including gay marriage, divorce, child custody, etc. As a result, recruiting leaders should spend some time identifying the issues related to the impact of any high-profile state laws and then develop a plan to handle those identified opportunities and issues.

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

  • Logan Meece

    “Does your reference-checking process identify applicants with the potential to abuse it — your executives could be concerned that the law would result in a flood of applicants from those who have the potential to be heavy users. If that was a concern, it would make sense to include checking for actual or potential drug use during your reference checking. Obviously you could look for drug convictions, but you could also search social media in order to identify an excessive number of references to drug or alcohol usage.”

    Please elaborate.

    “Excessive number of references”….

    How is this any different than discriminating based on religious or political views?

  • Martin Snyder

    Firms don’t live on some Platonic plane immune from political winds; so it’s a good point for an article.

    But taken to its logical next step, firms will need to decide if they are red or blue, rural or urban in their employment and marketing branding efforts… Weed is just one dimension, but this segmentation is real, and it will have real world effects on commerce, employment, etc. It’s not some egghead projection, it’s happening now with the biggest concerns in the nation:

    http://www.foxnews.com/leisure/2014/03/28/hybrid-wars-heat-up-as-ford-parodies-cadillac-poolside-commercical/

  • Martin Snyder

    Logan there is a universe of difference between protected classes such as race/religion and non-protected attributes like political views or lifestyle. One supersedes “At Will” doctrine and one does not, and THAT’S the whole ballgame..

  • Logan Meece

    Martin, an employer cannot terminate an employee for engaging in lawful off-duty activities. This applies to the ‘at will’ state of Colorado. Legal marijuana use is just that, legal.

  • Keith Halperin

    This is a good and interesting article.b I think things will become even more “interesting” along these lines depending on how the SCOTUS decides on the Hobby Lobby case (http://www.cnn.com/2014/03/21/politics/scotus-obamacare-contraception-mandate/) In a nutshell- can a private employer not cover contraceptives as part of its health coverage based on a religious-freedom exemption?

  • Martin Snyder

    Logan IIRC, the sine qua non of “at will” means a person can be terminated for any reason or no reason, excepting for statutorily protected classes. Lawful off-duty activity is no bar to firing under “at will”

  • http://www.verticalelevation.com Carol Schultz

    This is a timely and appropriate topic. The problem is most of the “challenges” pointed out by the author. I will only mention a couple:
    1. “How will you handle the smell of marijuana?” Really? Do you anticipate applicants interviewing with the smell of alcohol on their breath? This is ridiculous. And if someone is such a dumb ass to come to an interview reeking of pot, I don’t imagine you should be hiring them.
    2. “You will get questions about marijuana use.” What kind of questions and from whom? “Dude, if I get hired, is it OK for me to get high on my break?” Do you mean this type of question? I worked for a firm for 9 years and didn’t go out and get loopy from drinking during my lunch or any other break. The only exception to this was for special occasions like birthday or holiday celebrations. If I drank I was cautious of limiting to one drink if I was returning to the office to work.

    Perhaps companies hiring people in Colorado, where I live, should make it clear that getting high on the job (just as getting drunk would be) will not be tolerated?

  • Logan Meece

    Martin, what you said is not true. There are exceptions to ‘at will’ employment, including discrimination, violation of public policy and contract law. Therefore, employers cannot terminate for ‘any’ reason or ‘no reason’.

    Included in the verbiage of the Violation of Public Policy exception is a clause that employers cannot terminate an employee for engaging in lawful off-duty activities. Sure you can terminate someone if you want to put your company at risk, but you will have to be able to defend the termination should the person go to court of file unemployment. Other examples state that employers cannot terminate an associate for serving on a jury, failing a workers compensation claim or threatening a lawsuit.

    Furthermore, if companies have policies regarding marijuana use (whether implied or written), then those policies can be viewed as a contract. This would negate the ‘at will’ status because ‘at will’ simply means there is no contract. This is stated in the Contract Law exception. And again, an employer must be prepared to defend any policy in court.

    It will get interesting, because employers can have a ‘zero tolerance’ drug policy, and terminate associates for failing a drug test, as long as they administered the drug test according to their policy. If an employer uses random drug testing or post accident drug testing, they must be able to show they actually do it randomly and after every accident.

  • Logan Meece

    Martin, protected classes are not the only employees that have exception under ‘at will’ status. You cannot discriminate any employee for any reason.

  • Richard Araujo

    Here’s a novel idea: stop concerning yourself with how your employees spend their off time and what substances they do or don’t use, so long as they keep it out of the workplace. Instead, concentrate on what they need to do to be successful in the position you’re hiring for, what they have done in the past that’s comparable and can reasonably be verified, and hire and manage according to that, and stop trying to manage their damn personal lives for them as if it had anything to do with their work.

    I don’t care if my candidates are freebasing bunker oil in their off time, I care about their performance on the job. And by concentrating on behaviors which may be correlated with performance issues, and which are arguably very weakly correlated with such, you are not only wasting your time, but using those criteria will exclude candidates who would otherwise perform well because you’re playing it safe rather than smart.

    Some of the smartest and most productive human beings I’ve met in my life have used drugs in the past, some currently use. It’s a fact of the human condition, people dose themselves regularly with everything from caffeine to cocaine on a fairly regular basis and the world has yet to end, and businesses have yet to fall because of it. So why, other than ignorance or political correctness, does anyone even give a damn? If you’ve got safety concerns spot check for sobriety on the job. It’s a lot more effective and to the point.

  • Keith Halperin

    @ Richard: This sounds like the scurrilous idea of “autonomy”: that employees are and should be treated as responsible, capable adults with lives outside what they’re paid to do, and we can’t have that.

    -kh

  • Richard Araujo

    If employers don’t want to give autonomy in the work place that’s their prerogative. It’s not how I would do things, but it’s their choice. It’s when they decide to dictate what people do on their off time with mandatory events or acting as unofficial social enforcers for the government and such, and trying to pass off under staffing and the subsequent long hours as “Work Hard, Play Hard!” or some other marketing hype drivel that I start to get annoyed.

    Plus, I get tired of seeing C level execs going out and getting bombed out of their minds on liquor, and God knows what else, taking days off and ‘working from home’ with no HR drone on them to make sure they don’t go over their PTO limit, and then acting like champions of temperance when it comes to their employees. All while ‘allowing’ them barely enough time off to cover a common cold, requiring them to use such time when a snow storm hits and the entire state is shut down and under a state of emergency, stressing them to the breaking point and then putting on the front of an offended Puritan when their employees feel like imbibing with some of their friends after working a 70 hour week.

    The tolerance of the American worker for the intolerance of their bosses is astounding to me. But it does have limits and it will run out one day.

  • Shanil Kaderali

    @Richard & @Carol – great points.

    Good article.

    This is also a cost issue as insurance costs are drivers behind background checks etc. I don’t know if rates are going up in CO or not and if that will play a role.

    The cannabis industry likely in the next 5-10 years will be legal in US. it’s potentially $60B and that’s a lot of motivation for folks to hire lobbyists etc so the rules will change over time.

    Treating marijuana as same category as alcohol would likely make most sense in terms of policies.

  • http://www.verticalelevation.com Carol Schultz

    @Shanil: Aside from the fact that everyone in the US is now required to carry insurance we don’t need, e.g., pediatric dental and obstetrics, which I don’t need, Colorado has some of the lowest rates in the US. I imagine this will change as people keep coming from other states and the overall health of our state decreases, which is already happening.

    I’m sure you’re correct about the pot industry, just like alcohol. Once people get used to the idea they’re realize the financial benefits. Just some of the financial benefits to Colorado thus far: http://www.theweedblog.com/colorados-marijuana-legalization-drawing-immigrants-and-tourists/

  • Richard Araujo

    The immigration is a problem, I wouldn’t be surprised if it caused a backlash and there’s a strong movement to recriminalize marijuana. If I recall correctly, a similar thing happened in Europe when heroin’s status was changed. Users flocked to the areas where they knew needle exchanges were available, and criminal penalties were lower, causing problems in those areas. Of course, everyone blamed the substance and the users, and not the policies that they were understandably fleeing from and the bad elements that followed them because of it.