HR Cinema: Wreck-It Ralph

RalphHR: Cinema is an ongoing feature here at The Employer’s Lawyer.  It combines my love of movies with my passion for human resources and employment law.  Please feel free to suggest movies in the comments and I will do my best to incorporate your suggestions.

This week, we’re doing another animated movie: Wreck-It Ralph.  As the father of a two-year-old, I watch a lot of animated fare.  I’ve seen Wreck-It Ralph a few times, and I really enjoyed it.  If you haven’t seen it yet, here’s the IMDB summary:

A video game villain wants to be a hero and sets out to fulfill his dream, but his quest brings havoc to the whole arcade where he lives.

So what can you learn from this Disney movie about video game characters?

Even the Most Unpopular Roles are Important

One of the central themes in Wreck-It Ralph is Ralph’s unhappiness with being the “bad guy” for 30 years.  Every time a gamer pops in a quarter, Ralph must break windows on his game’s building and then, after he is defeated by Fix-It Felix, he’s thrown off the building.  To make matters worse, the other game occupants don’t like Ralph, because he’s the “bad guy.”  They don’t understand that he’s an important part of the game, after all, once he leaves, the game is “Out of Order.”

We’re all familiar with “that guy” or “that girl” in our company.  They’re the one that are always telling us what we can’t do.  Maybe its someone from accounting that says you can’t do something because it will cost too much or won’t fit in the budget.  Or maybe its someone from the legal department or *ahem* outside counsel, who tells you that doing something would be legally risky. It’s important to remember that everyone in your organization has a role to play, even if you don’t like the end result.  If every department could spend as much as they want or there was no one to ensure that legal risk was properly managed, you may not have a job to return to.  Most people don’t like to be the one telling others “no,” but they’re probably doing it for a good reason, not a personal one.

Movie takeaway:  Even unpopular roles can be important to the survival of an organization.

Be Careful Climbing the Ladder

In the game Sugar Rush, a sugary snack-themed racing game, one racer, Vanellope, is deemed a “glitch” and constantly put down by the other racers.  In fact, she’s not even permitted to race.  Thanks to some help from Ralph, Vanellope realizes that if she simply finishes a race, the game will reboot and she will be restored to her rightful place in the game.  What no one realizes, except for the bad guy, is Vanellope is actually Sugar Rush’s rightful ruler.  Once the other racers realize Vanellope’s status, they beg her to forgive them for treating her so poorly.

Every organization has a corporate ladder.  Sometimes that ladder only has a few rungs, for a small business, and in others the number of rungs can’t even be counted.  While it may be tempting at some point to throw someone else under the bus or treat a subordinate poorly as you move up the ladder, it’s important to remember that people have long memories, particularly for those who have wronged them.  I know I won’t be forgetting those who treated me poorly any time soon.  Unfortunately for you, the person you mistreated on the way up may pass you at some point, and then you may find yourself on the receiving end of some unfortunate treatment, if you still have a job, that is.

Similarly, if your organization is large enough, you may not always realize which folks wield a great deal of power within the organization.  It would be unfortunate if you were rude to someone who happened to be the VP of a different department and then reported your behavior to your supervisor, or made your life more difficult in some other way.

Movie takeaway:  You never know the effects of your behavior until well down the line, so focus on treating people right and the effects will be positive, rather than treating people poorly and hoping that it doesn’t hurt you down the line.

HR Cinema: Road House

Road HouseThis week on HR Cinema, we’re going to look at one of my personal favorite movies from the 80s (possibly because TNT and USA played it 4 times a day when I was at a very impressionable age), Road House starring the one and only Patrick Swayze.  Just in case you missed this fantastic example of 80s cinema, here’s the IMDB summary:

When it becomes too violent at the Double Deuce road house, the club owner hires Dalton, a professional “cooler” (head bouncer) to clean it up. But Dalton’s early successes and budding romance with the local doctor enrages Wesley, the town crime boss. When Dalton continues to defy him, the stage is set for a dramatic confrontation that will test Dalton’s limits and decide the fate of the town.

Be Nice

On Dalton’s first night at the Double Deuce, he sets out his rules, including “Be nice.”   He goes further and reminds them, “It’s the job, its nothing personal.”  Even when the angry patron calls someone a nasty name (that I cannot post here), Dalton says to be nice.  Sadly, I couldn’t embed the video of this scene due to the “colorful” language used.

Like Dalton says, it doesn’t hurt to be nice.  Whether you’re admonishing an employee for breaking a rule or terminating someone for behavior that goes above and beyond anything you’ve ever seen before, it doesn’t hurt to be nice.  First of all, you’re probably giving someone news that’s going to ruin his or her day, there’s no reason to be mean, condescending or rub salt into the wound.  Second, depending on how things play out, you may find yourself repeating anything you say during a deposition and trial.  You won’t lose anything by being nice, and you have everything to gain.

Movie takeaway:  Be nice to employees, even if they’re not being particularly nice to you.

Watchfulness is Key

Dalton catches the bartender, Pat, pocketing the money from every few shots and beers.  Dalton noticed it his first night on the job (of course, he did, he’s Dalton), but who knows how long it was going on prior to that. According to Dalton’s quick math, the skimming cost the Double Deuce $150 a night, which equates to more than $35,000 a year in losses.

Even small thefts can (and should) lead to terminations, depending upon the circumstances.  For example, if your employees are trusted to handle money, customer information or other sensitive data.  In fact, a recent case made headlines where a casino fired a new employee for stealing two plastic cups.  While a few plastic cups may seem trivial, it may show an employee’s underlying lack of trustworthiness.  And trust is always important between an employer and employee, because you can’t babysit employees at all times.  So while it may not directly hurt your bottom line that an employee is taking home a few K-cups each day, it should make you wonder what else they may be doing that you’re not aware of.

Movie takeaway: Theft, no matter how small, may be an indication that you can’t trust that employee, and might warrant termination.

Pain Don’t Hurt

Movie takeaway: If someone tells you that pain doesn’t hurt, you should back away slowly, avoid any sudden movements and try not to antagonize them.

HR Cinema: Iron Man

ironmanHR: Cinema will be a new ongoing feature here at The Employer’s Lawyer.  It combines my love of movies with my passion for human resources and employment law.  Please feel free to suggest movies in the comments and I will do my best to incorporate your suggestions.

In case you can’t tell yet by my movie selection so far, I’m a little bit of a nerd.  And today is no different, because we’re going to talk about Iron Man.  Iron Man marked Marvel’s first foray into making movies, instead of just comic books.  The movie was an unbelievable success, spawning 2 sequels, a number of other Marvel comic character movies and the billion dollar Avengers movie.  For those of you who have trouble remembering back to 2008, here’s the IMDB summary:

When wealthy industrialist Tony Stark is forced to build an armored suit after a life-threatening incident, he ultimately decides to use its technology to fight against evil.

Make Sure the Right Hand Knows What the Left is Doing

In Iron Man, Obadiah Stane begins selling Stark Industries’ weaponry to dictators and terrorists, directly contradicting Stark Industries’ policy.  Of course, Tony Stark isn’t aware of this until he’s captured by some of the terrorists Stane is selling weapons to.  If he was aware, you would imagine that Obadiah would be fired and the weapons sales to the bad guys would be stopped. In fact, once Tony finds out about the sales, Stane locks Tony out of the company in order to continue selling. It’s possible that Tony could have been more hands-on with the company, or at least had measures in place to ensure that his policies were followed.

In your company, its unlikely that one of your executives is selling your product or service to terrorists, but you should always try to have a good idea about what is going on elsewhere in the company.  After all, as a business owner or human resources professional, you will be more successful if you know the company goals and what the other departments are attempting to accomplish.  Awareness of other departments will allow you to better anticipate needs for hiring and help you assign personnel for more effective and efficient performance. Additionally, being aware of other departments will let you know when rules and policies are being violated, because such violations won’t always be reported.

Movie takeaway: Knowing what is going on inside the company and in other departments will help you to accomplish your goals and protect the company.

Compartmentalize Confidential Information

Tony Stark sends Pepper Potts into Stark Industries’ headquarters to copy files from his computer, while he was locked out of the company.  While she was copying files that Tony, ostensibly, should have access to, particularly as the company’s owner, she stumbled onto a video implicating Obadiah Stane as the person responsible for Tony’s earlier capture.  It certainly seems foolish to allow Tony’s computer to access information to directly concerning his capture.

It can be equally foolish to allow every employee in your company access to every document and file on the company network.  Especially in larger companies, information on the company network should be compartmentalized with access granted only to those who need the information on a day-to-day basis, with temporary access given when an employee needs access for a short period of time.  Allowing every employee access to everything simply increases the likelihood that your confidential information will be taken when an employee leaves the company or simply decides to abscond with information that doesn’t belong to them.  Additionally, if confidential information is taken, it will be easier to find the culprit when only a smaller group has access.

Movie takeaway: Help keep confidential information confidential by compartmentalizing access, so theft of confidential information is less likely (and so you can’t be implicated in a worldwide plot to kill a billionaire playboy philanthropist).

Monitoring Employees’ Social Media

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A great deal has been written in the last week about whether you should monitor your employees’ social media activity. A lot of very smart folks fall on both sides of the debate, since it can be a rather murky issue involving a balancing act between protecting the company and respecting employees’ right to act as they wish in their time off work. Notice that I didn’t say employees’ privacy. Little, if anything, shared via social media is private, so monitoring social media can hardly be deemed an invasion of privacy.

So now I’ll offer my two cents on the subject: it probably isn’t worth it to actively monitor your employees’ social media accounts. Doing so would require a great deal of time and effort for only a small likelihood of a worthwhile result. And let’s face it, you’re probably already busy as it is, do you really need more on your plate?

Instead, just be prepared to take action if an employee posts something that could damage your business or reputation. Because the truth is, you’ll find out about it. Once you know about it, then you can decide on an appropriate response.

Monitoring doesn’t do much more than allow you to act a little bit quicker. After all, monitoring the account wouldn’t prevent an employee from saying or sharing something, it would only notify you if they did. Once the employee posts something, it will be seen and it will be cached, at which point it’s never truly gone anyway.

So maybe the biggest takeaway here is to make sure you hire employees you can trust to represent your business and your brand. Monitoring employees’ social media use probably isn’t worth the effort.

HR Cinema: Monsters, Inc.

monstersincHR: Cinema will be a new ongoing feature here at The Employer’s Lawyer.  It combines my love of movies with my passion for human resources and employment law.  Please feel free to suggest movies in the comments and I will do my best to incorporate your suggestions.

Another one of Pixar’s gems, Monsters, Inc. may not necessarily strike you as a “workplace” movie, but its full of lessons for anyone paying attention, whether you’re 9 or 90.  For those of you that need a refresher, here’s the IMDB plot summary for Monsters, Inc.:

Monsters generate their city’s power by scaring children, but they are terribly afraid themselves of being contaminated by children, so when one enters Monstropolis, top scarer Sulley finds his world disrupted.

So, what can Monsters, Inc. teach you about avoiding problems in the workplace?

Workplace Romance

In the movie, Mike, the lovable one-eyed main character, is dating Celia, the snake-haired receptionist.  Of course, it doesn’t seem like much of a problem at first, because Mike and Celia are happy.  It doesn’t take long, though, for things to get a little ugly when Mike runs off during a romantic dinner and Celia gets picked up by the Child Detection Agency.

Unfortunately, workplace romances often start out fine, with no sense of the impending trouble they can cause when things go poorly.  Not only can a workplace romance lead to the possibility of ugly (see also: embarrassing, awkward) scenes as the former paramours argue/fight/try to kill each other in the office, but legal issues may arise.

In Monsters, Inc., Mike and Celia were merely co-workers in different departments, which presents the least likelihood for trouble.  However, trouble and liability issues multiply if the relationship is between a manager and subordinate.  Not only do you run the risk of alienating other workers, who will assume that the relationship lead to special treatment, but the subordinate may end up filing a sexual harassment lawsuit.  It is probably foolish to try to ban workplace relationships, because employees will just hide them.  However, you may be able to protect your business and limit liability by requiring employees to inform HR of a relationship and require each party to a romantic relationship to sign a waiver.  Additionally, any ugly scenes that arise should be dealt with and quickly quashed, to prevent escalation and show other employees that such behavior is not acceptable.

Movie takeaway:  Workplace relationships can cause ugly scenes (and possibly legal issues) and steps should be taken to limit both the in-office incidents and any liability.

Paying Employees for After-Hours Work

Randall, one of the **spoiler alert** bad guys, is initially witnessed working after the “Scare Floor” has been shut down for the day.  Sulley initially believes that Randall is simply trying to boost his numbers to catch Sulley and break the all-time scare record.  In reality, Randall is kidnapping children to use on a new scream-extracting machine.

While I would highly recommend that you immediately terminate an employee that is using workplace resources to kidnap children (and call 911), the simple fact that Randall is working after-hours is troubling.  The scarers, and their assistance, certainly appear to be blue-collar workers, somewhat akin to workers in a power plant, which means they are very likely non-exempt under the FLSA.  As a result, any time working beyond 40 hours per week (or 8 hours per day depending on your state) requires you to pay overtime at time-and-a-half.

Even the fact that it doesn’t appear that Monsters, Inc. condones the after-hours work, they could still be held liable.  It would be similar to an employee answering emails while off-the-clock or a grocery store employee cleaning up after clocking out.

In order to limit liability, it is important to have a policy requiring permission from employees to work overtime.  In addition, you will want to monitor your employees.  Ensure that they are not answering emails off-the-clock and be sure they are leaving the premises after the clock out.

Movie takeaway:  While off-the-clock work may not involve something as sinister as kidnapping, it could result in significant liability if employees work overtime and not properly compensated.

I hope you enjoyed this HR Cinema post.  Movie suggestions in the comments are greatly appreciated!

HR Cinema: Star Wars

HR: Cinema will be an ongoing feature here at The Employer’s Lawyer.  It combines my love of movies with my passion for human resources and employment law.  Please feel free to suggest movies in the comments and I will do my best to incorporate your suggestions.

For the uninitiated, yesterday was Star Wars Day (May the Fourth be with you), so I, like so many other Star Wars fans, spent part of my day watching Star Wars, specifically Episode IV: A New Hope.  I even managed to convert my 2 year old daughter into a brand-new Star Wars fan.  For those of you who do not know here’s the IMDB synopsis for A New Hope:

Luke Skywalker joins forces with a Jedi Knight, a cocky pilot, a wookiee and two droids to save the universe from the Empire’s world-destroying battle-station, while also attempting to rescue Princess Leia from the evil Darth Vader.

Now, onto the lessons that Star Wars: A New Hope can teach business-owners and HR professionals:

Respect Others’ Religious Beliefs

During a meeting of Imperial officers, one of the officers, Admiral Motti, mocks Darth Vader’s belief in the force.  In fact, he goes as far to call Vader’s beliefs “sorcerer’s ways,” and a “sad devotion to that ancient religion.”  Of course, Vader achieves the upper hand (see what I did there?), as he usually does: by using the Force to choke Admiral Motti.

Mocking another’s sincere religious beliefs, regardless of your feelings about the religion, is never a good idea.  Similarly, you should not allow other employees to make derogatory statements about another’s religion.  An employee only needs to have a sincerely held religious belief for Title VII to control, as Title VII’s definition of “religion” is very broad.  Per the EEOC’s website:

Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.

Continuous mocking and derogatory comments about religion (or any other aspect of a protected class) could lead to a hostile work environment claim, which may be successful if the comments are sufficiently severe and pervasive.  Even if your employee doesn’t decide to take action during their employment, they may change their mind if you need to take adverse action at some later date.  Even if you’re legitimately demoting or terminating the employee, they may claim that the action was motivated by religious considerations, and may be able to put together a fairly good case depending on what was said about the employee’s religion.

Movie takeaway: Never speak negatively about an employee’s sincerely held religious beliefs and don’t allow other employees to do so either.

Bullying in the Workplace Won’t Increase Productivity

Vader-Force-Choke

Many of the most memorable scenes from the Star Wars movies involve Darth Vader using the Force to choke an Imperial officer that has displeased him in some way.  Vader obviously runs his operation with an iron fist and a short temper.  In short, he’s a workplace bully.  No one dares challenge him, because any challenge is met with violence.  Yet, despite Vader’s attempts to scare his subordinates into competence, they continue failing and he has to keep choking them.

Now, its unlikely a workplace bully is going to choke fellow employees (with the Force or without), but Vader’s behavior helps to highlight one of the biggest problems with workplace bullying: it not only fails to motivate employees, it is actually detrimental to productivity.  If your employees are too afraid of the consequences of making a mistake, they won’t be performing at their best level.  As a result, you won’t be seeing their best work.  So if you have a workplace bully, maybe its time to tell them to take it down a few notches, because bullying is probably hurting your business.

Movie takeaway: Workplace bullies don’t motivate, they cause fear and decrease productivity.

Protect Your Confidential Information

Han_luke_stormarmor

The “workforce” (i.e. Stormtroopers and other soldiers) on the Death Star is huge, and it has to be to operate such a large battlestation. Despite the heavy security, Luke, Han and Chewbacca were able to sneak around the Death Star, in disguise.  Their incognito wandering resulted in rescuing Princess Leia, which ultimately led them to deliver the secret Death Star schematics (showing its one fatal flaw) to the Rebellion.

If your business has an information it considers confidential or proprietary, you need to take the necessary steps to protect it.  Many, including myself, counsel businesses to utilize the proper countermeasures for computers: BYOD policies, computer passwords and firewalls.  However, physical security is just as important.  If your business is large, and has many employees who won’t necessarily recognize an outsider, you may need to use ID badges and require the badges to be swiped to enter certain areas.  After all, not every employee needs access to all areas. Additionally, ID badges would prevent most outsiders from accessing your business and could allow employees to recognize an intruder by their lack of a badge.  Requiring ID badge swiping also has the added bonus of tracking who entered a certain area and at what time.

Movie takeaway: Both physical and computer security are a must for protecting confidential and proprietary information.

I hope you enjoyed the first of many HR Cinema posts.  Movie suggestions in the comments are greatly appreciated!

Properly Paying On Call Employees Under the FLSA

Paycheck.cartoonThe Fair Labor Standards Act requires you to pay your employees for time they actually spend working, whether they’re working on your property, at a client’s property, at home or anywhere else.  When evaluating whether wages are owed to your employees, the key inquiry is whether the employee is actually engaging in work.

Some businesses, particularly those in the medical field or other fields where emergencies arise, have employees  “on call” for a certain period of time in addition to their actual work day. Under some circumstances, you may need to pay your on-call employees for their on-call time.

When determining whether your employees’ on call time is compensable requires a case-by-case analysis. For example, if your is required to remain on your premises or is unable to use their time for their own purposes, the on call time is likely compensable. Conversely, if you simply require your employee to provide contact information so they can be reached after hours, then on call time is likely not compensable.

While the above situations are fairly simple, most situations actually fall somewhere in the middle, which makes the on call pay issue much murkier. When evaluating the compensability of on call time, a court will primarily consider the amount of control you exercise of the employee while they are on call.  A court will review your employee’s ability to use their time, including:

• Is your employee required to remain on the premises?

• If allowed off the premises, are there excessive geographic restrictions on your employee’s movements?

• Is more than merely leaving contact information required?

• How often is your employee actually contacted while on call?

• Is there a fixed time for your employee to respond while on call?

• If there is a fixed time to respond to calls, is the required response time unduly restrictive?

• Can your on-call employee easily trade on-call responsibilities with another employee?

• To what extent is your employee allowed to freely use time while on-call?

In short, a court will try to determine whether, and how much, your employee’s time is restricted during the period in which they are on call.  If your employee isn’t permitted to reasonably use their own time as they wish, then you will be required to pay wages and, if applicable, overtime.

Let the Audits Begin

US Department of LaborTax day is past, and now everyone can start worry about being audited. And while you may be worried about an IRS audit, you shouldn’t forget about the Department of Labor. The Fair Labor Standards Act gives the DOL’s Wage and Hour Division broad investigative authority to review employer records and conduct on-site inspections. Luckily, you can take some steps to prepare for a DOL audit and avoid a great deal of trouble (and expense) down the line.

Review Job Descriptions

You should be reviewing job descriptions periodically, just to make sure that the description matches the position. When conducting your wage and hour audit, you need to ensure that the people you are classifying as exempt are actually exempt. As part of the audit, you will not only want to review employees that are currently classified as exempt to ensure they are exempt under the FLSA, you should also review non-exempt employees to see if any of them can be re-classified.

Independent Contractors

You should begin by reviewing all of your 1099s to determine who was classified as independent contractor. Remember, while there are a number of factors that go into determining whether a worker is an employee or an independent contractor, your control over the worker’s activities can help reach a determination on classification. Classification is very important, because errors could lead to significant wage, tax and penalty liabilities.

In-House or Outside Counsel Should Direct Audits

When conducting a self-audit, it should occur at the direction of either in-house or outside counsel. Counsel can assist with the various legal questions that will inevitably arise, given the difficulties with determining worker classification and FLSA exemption. More importantly, the use of counsel will allow anything you discover during the audit to fall under the attorney-client privilege, helping to protect your organization. It may be tempting to undertake an audit using the human resources department or use an outside human resources consultant, you won’t be afforded the same protections, and you could be required to disclose any findings or documentation.

Establish a Plan for a DOL Audit

You should prepare a plan in the event of a DOL audit. First, you should have a list of those who need to be informed of the start of an inspection, including senior management, senior human resources personnel and legal counsel. You should designate a team leader and point person, who will usually be legal counsel. You should also designate which team members will participate in the opening and closing conference and act as:

  • on-site representatives
  • contractor liaison
  • union liaison
  • interview representative

A well-executed plan and a well-run team can ensure that an audit occurs with minimal interruption and fewer difficulties.

If you follow these steps, you can not only prepare yourself for a DOL audit, but also ensure that your employees will not have grounds to bring an FLSA lawsuit against you for misclassification or unpaid overtime.

To Delete, Or Not To Delete

Two recent cases, one from the plaintiff’s side and one from the defendant’s side, highlight the importance of following information retention requirements.

Recently, Heather Painter learned a difficult lesson about deleting. Ms. Painter claimed that her boss, a dentist, sexually harassed her. After filing her lawsuit, she deleted some Facebook comments that (allegedly) said she loved her job and working for the dentist. Ms. Painter claimed that she did not know it was improper to delete the comments, but the court disagreed. Deleting the posts was a deliberate act, and the court could not infer that she deleted comments, that were detrimental to her case, for an innocent reason. The judge decided that the jury should infer that the Facebook posts undermine Ms. Painter’s claims, which is a particularly rough sanction.

Even more seriously, Kurt Mix, a former high-level engineer for BP, is in trouble for deleting text messages from his employer-supplied iPhone in April 2010. A federal jury decided that Mr. Mix deliberately destroyed the messages because they would prove that BP lied about the amount of oil spilled into the Gulf of Mexico. Now he is facing a prison term of up to 20 years and a max fine of $250,000 in fines.

Back in the day, businesses only had to worry about retaining paper documents. Now, information is stored in so many places and forms. Important information is stored via hard drive, cloud drive, email, text message, social media and more. Corralling, and more importantly retaining, that information can be a herculean task, especially when employees have easy, and sometimes sole, access to the information.

So, how do you tackle this difficult issue? Develop a comprehensive information retention policy and provide your employees with training on implementing the policy.

Your information retention policy should address:
How long information should be retained
When information should be retained beyond the policy limits (for example, when litigation occurs)
Where information should be stored and in what format
Procedure for inquiries regarding implementation of the policy
Disciplinary procedures for violating the policy

Training, which is probably more important than the policy itself, should address not only the proper retention of information, but the reasons for doing so. Your employees will be much more likely to adhere to the policy if they know they could face fines or prison time, as well as subject the company to significant sanctions in court.

And most importantly, when it comes to information, never, ever, ever try to destroy something that hurts your case. It will almost always come back to haunt you, and it will be much worse when it does.

Weeding Out the Medical Marijuana Issues

Medical MarijuanaAlright, alright, alright… After a very entertaining and high-ly informative #nextchat about medical marijuana in the workplace, I started thinking about some of the points made today and decided that I’d like to expand on some of the ideas thrown around.  And I’ll  try to avoid more bad jokes and puns, but no promises…

The Sky Isn’t Falling

Even with the passage of bills in your state allowing medical marijuana, it isn’t the end of the world as we know it.  After all, it’s not as if your employees are going to run out to get medical marijuana cards and start smoking up at work.  For the most part, you won’t have any employees that need medical marijuana.  And even if you do, it seems unlikely that they’re going to ask to start getting high at work.  So take a toke deep breath, and relax.

Major Policy Overhauls Probably Not Required

Alcohol is a legal substance that affects a person’s ability to function. Marijuana is a (potentially) legal substance that affects a person’s ability to function.  See where I’m going with this? You don’t allow your employees to come to work drunk, or drink at work (except for those in-office happy hours, right?), so you don’t want your employees working while high or smoking weed at work. It’s doubtful that you’re going to be required to allow Jeff Spicoli stoned employees to work and raid the vending machine.

Job Duties are a Factor

Speaking of performance, your tolerance of medical marijuana usage may depend on your employee’s job duties. If your employee is a desk jockey, then there’s less danger that being stoned will cause a dangerous incident. However, if the employee drives a forklift or a tractor-trailer, then medical marijuana use is not going to work. Allowing usage will need to be done on an individualized basis, and there likely won’t be a uniform approach that works.

Testing Could Be Difficult

Testing an employee that you believe is drunk isn’t all that hard. You give them a breathalyzer, and if its too high, then they are disciplined. Marijuana, and more particularly THC, remains detectable in the system for long after its effects wear off. In other words, giving your medical marijuana-using employee a drug test doesn’t really prove anything other than the fact that they used marijuana sometime over the last few weeks. As a result, it seems like you’ll need to evaluate an employee as to whether or not they’re able to complete their work. Such an evaluation will also necessitate independent evaluations by more than one supervisor as well, to avoid claims of a contact high bias or misunderstanding.

Federal Employment Laws May Not Apply

A great deal of discussions about medical marijuana use involve an employee’s ability to invoke the ADA or other federal employment laws. However, the ability of an employee to invoke federal law is questionable. The federal government still classifies marijuana as a Schedule 1 drug, and under federal law marijuana is illegal. It seems illogical for an employee to ask a federal court to allow him or her to engage in an activity that the federal government deems illegal. So, at this point, until the federal government changes its stance on marijuana, federal employment laws aren’t much of a concern. State laws, however, may apply.

Even if medical marijuana isn’t legal in your state, it seems like we’re heading toward legality in most states over the next few years. It won’t hurt to file some of this away, just in case your very own medical marijuana-using Wooderson employee comes into your office.