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On the Leading Edge: 2020 Ban the Box & Marijuana Laws

January 29, 2020


January 29, 2020

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Poised on the threshold of a new decade, employers are wondering where they stand in terms of two legislative movements that are rapidly changing the employment laws and affecting the hiring practices they must follow.

One small misstep could be very costly, so it is important that HR professionals keep up-to-date with the latest legislative actions in their state.

Ban the Box Legislation

Back in 1998, when Hawaii first passed the groundbreaking law that prohibited employers from considering the past criminal history of job candidates until after a job offer was made, it didn’t seem like it was going to gain any traction on the mainland. It took a full decade before Minnesota enacted similar legislation.

Effective January 1, 2020, Nevada’s new law HB 132 goes into effect which prohibits Nevada employers from denying employment to job applicants who test positive for marijuana in pre-employment drug screening tests, 35 states, the District of Columbia, and more than 150 cities have passed laws banning the box, and giving prior offenders equal access to job opportunities.

It is thought that this is the best way to provide those with a criminal history a second chance to rebuild their lives and support their families, instead of letting them fall prey to recidivism.

Marijuana Legalization

The movement to legalize marijuana has taken a somewhat parallel course. In 1996, California became the first state to legalize medical marijuana. Although cannabis is still illegal under the Controlled Substances Act of 1970, wherein it is classified as a Schedule I drug with a high potential for addiction and having no accepted medical use, one-by-one, the states have taken matters into their own hands.

In 2014, President Obama signed legislation that prohibited the Justice Department from interfering with the implementation of state marijuana legislation.

Today, 11 states and the District of Columbia have fully legalized marijuana for both medical and recreational use. Only three states, Idaho, Nebraska, and South Dakota prohibit any type of marijuana use. All the other states allow at least some level of medical marijuana use. As legal marijuana use becomes more widespread, employers must figure out how to avoid discriminatory practices toward users.

What Is New On the Horizon in 2020?

Here are the legislative examples and changes anticipated in these two evolving areas of interest in 2020:

Ban the Box

The Colorado Chance to Compete Act (HB19-1025), affecting employers with 11 or more employees, took effect in September 2019. It will roll out to all private employers in the state between now and September 2021. By law, employers must wait until they receive an initial hiring application to inquire about a candidate’s criminal history. Public criminal records can be searched at any time.

The Maryland state legislature passed HB994, which took effect on January 1, 2020. Under the law, employers with 15 or more full-time employees are prohibited from requiring a candidate to disclose their criminal history before their first in-person interview.

The American Civil Liberties Union of Idaho will be pushing the Fair Chance Employment Act in the 2020 legislative session. The Act would require employers to delay inquiries into a candidate’s criminal background until there is a personal interview or a conditional offer of employment, if there is no interview.

Marijuana Legalization

New Jersey voters will be making the decision on whether to legalize marijuana in 2020, after the legislators voted to put it on the ballot. The constitutional amendment would legalize possession and regulate marijuana sales.

New Mexico nearly passed a bill to legalize marijuana in 2019. This bill will likely be revived and put to the vote in 2020.

New York will likely bring up marijuana legalization again this year. A bill nearly passed in 2019, but failed when the governor and lawmakers disagreed on the allocation of marijuana sales revenues.

Although Vermont has had legalized growth and possession of marijuana on the books since 2018, it is still illegal to buy or sell it. This could change in 2020.

Arizona voters narrowly defeated marijuana legalization in 2016. With support by at least 50% of voters, it is likely that there will be another vote in 2020.

Florida voters may get to decide on marijuana legalization, as there are two campaigns pushing to get it on the ballot. It will be a struggle, because it will require a constitutional amendment, which requires 60% approval.

What Else Is Coming For Employer Drug Testing Law Changes?

New York City: Many employers in New York City will no longer be able to test job applicants for marijuana or THC—the psychoactive ingredient in cannabis—under a rule that was just adopted. The New York City Council passed Int. 1445-A, which restricts many employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana).

Effective January 1, 2020, Nevada’s new law HB 132 goes into effect which prohibits Nevada employers from denying employment to job applicants who test positive for marijuana in pre-employment drug screening tests.

It is very difficult to keep up with the constantly evolving legislative landscape surrounding these two issues. Working with an accredited background check company can help assure that you are in full compliance with the current laws.

Reach out to Crimcheck to see what options are right for your needs.

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