Marijuana decriminalization has been trending across the United States since Colorado first legalized marijuana in 2012. Since then, the National Conference of State Legislatures says, “Seventeen states, two territories, and the District of Columbia have legalized small amounts of cannabis (marijuana) for adult recreational use.” Thirty-three states have followed suit, having legalized some form of marijuana use, and in 2021 alone, five additional states have passed recreational marijuana laws.
However, marijuana remains a Schedule I, illegal substance at the federal level, despite recent efforts that introduced the “Marijuana Opportunity Reinvestment and Expungement Act (the “MORE Act”) and the Secure and Fair Enforcement Banking Act (“SAFE Banking Act”).” The MORE Act is an effort to deschedule marijuana from the Controlled Substance Act and implement several social justice reforms. In June 2021, the Leadership Conference on Civil and Human Rights sent a letter to Congress “in the face of a growing national dialogue on discriminatory law enforcement practices, including the disproportionate policing of drug use in communities of color...”
Whether federal reform or further decriminalization at state legislatures, it is undeniable that attitudes towards cannabis are changing at systemic levels. As social and legal standards change, how should employers approach hiring someone who has marijuana offenses on their record?
If a candidate has a marijuana charge on their record, the situation is most likely more complex than that simple data point. The national patchwork of laws has made marijuana charges inconsistent at best and predatory at worst. For example, beginning this year, a 38-year old man in Mississippi will be serving a life sentence for possession of 1.5 ounces of weed, but in Washington State, possession of a similar amount could result in about 3 months of jail time and/or a fine.
If someone is qualified for a role, has interviewed well, and has an isolated marijuana offense on their background check, employers should do further digging to understand the situation. One chemical engineer, Kimberly Cue, lost a job offer due to her marijuana record and explained her frustration, “I’ve lost all confidence in the process. I’m so frustrated and so irritated. I should be able to be upfront and honest with my employer.”
When employers don’t try to understand the situation, they may miss out on ideal candidates who are simply caught up in a systemic issue that has nothing to do with the role they’ve applied to. Especially in a tight job market where finding employees is difficult, employers must consider the broader context to make a smart hiring decision.
Some states, such as Nevada and Maine, have passed legislation prohibiting employers from revoking employment based on a positive marijuana test. “From a legal perspective, it’s fascinating. From an HR perspective, it’s, ‘Oh my gosh, could you do anything to make my life more complicated?’” says Lauraine Bifulco, president and CEO of Vantaggio HR Ltd., a human resources consulting firm.
Companies must work to understand the legal limitations in their specific region; The Nolo Network has a directory by state. They should also put in place a policy that defines how they view smoking off duty, testing positive on a drug test for cannabis, and a legal charge for marijuana. Employers need to make sure they will not make any ethical or legal violations as the laws evolve.
Marijuana use is a gray area in background checks because of mass decriminalization, an issue that intersects with other systemic problems like racism in hiring practices and in the legal system. According to the ACLU, “Of the 8.2 million marijuana arrests between 2001 and 2010, 88% were for simply having marijuana. Nationwide, the arrest data revealed one consistent trend: significant racial bias. Despite roughly equal usage rates, Blacks are [nearly 4 times] more likely than whites to be arrested for marijuana.”
Given these facts, employers need to carefully consider if denying employment based on a marijuana charge is justified. They can refer to similar guidelines for knowing when to overlook a criminal background.
As with other legal offenses, context is necessary -- both systemic and personal context. Employers should use these questions to guide whether or not they should overlook a marijuana offense on a background check:
Regardless of what an employer decides, policies need to be in place for when or when not to hire based on marijuana charges. Most marijuana charges are based on broader systemic issues and should not be used as a foundation to deny employment. However, consistency is critical: apply the same standards in the hiring process for all candidates to avoid discrimination and bias.
To make these decisions, background checks should be specific and give the employer an understanding of what exactly a candidate was charged with so they can make an informed decision. In the vast majority of cases, marijuana possession or use will not have a negative impact on job performance, and employers should focus more on the qualifications, personality, and skills that may make a candidate ideal for their team.