Apple Employees Win Suit

A quick post to relay the results of a California court ruling.  

The California Supreme Court recently ruled in favor of Apple employees allowing them to be paid for after shift security searches. Apple requires employees of their product stores to be searched after their shift, checking for stolen company products. Employees filed a class action suit claiming that they should be compensated for the time required to complete the searches. Failure to comply with the search policy can lead to being fired.

A federal district court had earlier ruled in favor of Apple. Stating that the employees had to prove that they were being restrained from leaving. The case then went to the U.S. 9th Circuit Court, who returned the case to state court for an interpretation of state law regarding compensation. The California Supreme ruled in favor of employees and the case now returns to the U.S. 9th Circuit Court. The ruling, as of now, does not affect other states as it was not a federal court decision. However, once the U.S. Circuit Court considers California's Supreme Court decision it may rule in favor of employees. Compensation for requirements after an employee is "off duty" may be interpreted differently and cause a ripple effect through the U.S. regarding employee pay and overtime.

This is not the first time a California ruling has affected employee compensation. In 2018, The California Supreme Ruled that employers must pay employees for "off the clock" activities such as locking up, setting alarms, and other administrative duties. There is a federal rule called the de minimis rule that says that employees can be required to work small amounts of time, less than ten minutes say, that would be difficult to track administratively. However, California courts ruled that the federal rule had not been adopted under California wage laws and, therefore, did not apply.

De minimis Rule

The "de minimis" rule came from the Supreme Court in 1946, stating that employers, when considering amount of time worked, may disregard time worked over shift when it amounted to seconds or minutes. The U.S. Department of Labor adopted a similar rule under 29 C.F.R. § 785.47, which states, insubstantial or insignificant periods of time beyond the scheduled working hours may be disregarded. 

Under the Fair Labor Standards Act (FLSA) regulations, 29 C.F.R. § 785.11, if an “employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” The Portal-to-Portal Act, 29 U.S.C. §§ 251-62, amended the FLSA and relieves employers of the obligation to compensate an employee for activities such as: traveling to and from the actual place of performance of the principal activity and activities which are preliminary to or postliminary to the principal activity, which occur either prior to the time on any particular workday or subsequent to the time on any particular workday. 

This is a just a small sampling of the laws and precedents that would go into any court’s decision on compensation of employees after hours. There have been too many cases to cite here regarding compensation beyond work hours. Cases involving employee’s loading/unloading/resupplying company vehicles at home, answering phone calls, emails and texts. If California is the test, then the trend would lean towards the employee.

Small business owners have to take this into consideration as they apply policy. Whether for breaks, meal times, or after work communications, how employers pay employees may be changing.

Link for the Maryland Guide to Wage Payment and Employment Standards

Maryland bans the box

Maryland Bans the Box for private employers

NOTE: This article was initially posted in May 2013 and has been updated with new and current information.

As you may know, Ban the Box refers to removing the criminal convictions question from employment applications. Preferring that any discussion of criminal histories be done further along in the application process and in person. Hoping to make the process fairer for applicants.

In October of 2013, Maryland’s first Ban the Box law took effect. The law removed the criminal conviction question from State employment applications. At that time, there were only seven states with similar legislation.  Since then the Ban the Box movement has swept the nation with cities, counties, and states enacting laws. According to the National Employment Law Project, as of July 2019, there were thirty-five states and one hundred and fifty cities and counties that have Ban the Box laws. Thirteen states have laws that prohibit private employers from asking about criminal history on the application. As of January 1, 2020, Maryland became the fourteenth.

Maryland Private Employer law takes effect January 2020

The Maryland legislature passed a private employer Ban the Box law in 2019 only to have the law vetoed by the Governor. In one of the first acts of the 2020 legislature, the Maryland General Assembly voted to override the veto.

The new law states that, before the first in person interview, employers may not ask an applicant to disclose details about whether or not a criminal record exists. This law only applies to those employers with fifteen or more employees too include seasonal, temporary, and contractual employees.

So far only a few major corporations, such as Target and Walmart, have publically “Banned the box”.

Details of the laws procession through the legislative process can be found at http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0994/?ys=2019rs

CONVICTED? NEVER CONVICTED.

Note: This article was originally posted in 2014. It has been updated with new information.

Owning a business investigation company we often had clients who would come to us to perform self-background checks. They had had an indiscretion long ago and wondered if it would appear during an employment background check. Or they had records expunged and wanted to make sure that searches would not reveal the records. Every now and then we would find records that the client swore had been expunged.

The search techniques used and the diligence of the background check company can often uncover records thought to be vaporized by the delete key. As records become more digitized it is increasingly more difficult to erase yourself from the digital world. Just like the picture from a sophomore year party that a friend posted on your favorite social media page, once it’s out there-it’s out there. Removing it can be difficult and time-consuming.

EXPUNGED?

Similar to those unwanted pictures, records of your past, even expunged records, can be found in the digital world. The legal term “expunged” has different definitions in different States. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed” but the other details of the case are the same. In Maryland, it means to remove from public inspection. Although records are expunged, they are filed somewhere.  

Once you receive an order to have your record expunged and it is served, the judicial system possessing the record will remove it from its online court access. Anyone searching your name would not see the record. Contrary to what the fast working TV detectives would have us believe, there is not one government sourced database of criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. The closest to any semblance of a national database is the FBI’s fingerprint database, to which only law enforcement has access. See “National” record checks  Third-party vendors must rely on court reported data offered by State and local governments. 

As with your personal information and shopping habits, court data is downloaded, bought, and sold every day. Vendors collect the data from several sources. As the data is shared and stored and stored again it ends up in narrower access points allowing for the production of a single report.  If the vendor then resells that report, the record moves to another database. You get the idea. Just like the unwanted picture, although expunged from the government files, your record is sitting in who knows how many vendors databases waiting to be accessed.  

REMOVING THE RECORD 

The criminal record you had expunged was downloaded, bought, shared, compiled, stored, all the digital speak long before the record was expunged. The best, and least expensive, way to rid the record from existence is to deal with the source vendor directly. Most companies that deal with personal information are forthright about the data that they dispense and pride themselves on the accuracy, which means they are more than willing to help. Sending them a copy of the expungement order along with a request to have the record removed usually will suffice. The problem is finding all the places where the record is stored. This can be a tedious and long process for the individual. There are companies that will chase the record and do the work for you, but of course, fees are involved.

DISCLOSURE

Cities and states throughout the U.S. have enacted laws banning the criminal history question from employment applications. See Ban the Box 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years (Previously was five). Also, employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

The bottom line is, job seekers cannot be 100% sure that an expunged record will not turn up in a background search. If unsure, be honest about the existence of a record with the requester. Provide copies of the expungement order when the record is requested. However, know your rights within your state and handle the criminal records question per the law. You may not be required to answer.

Refer to the blog archive for more articles about criminal records in Employment

HIring in the Gen Z age

Look out workforce there's a new generation on the horizon. Employers are, hopefully, getting comfortable with the changing hiring landscape that Millennials have cultivated. But not too comfortable. For the first time since Millennials took over the top spot in the workforce, the next wave is coming of age. Gen Z, those born after 1996, are entering adulthood and will be submitting resumes.

The numbers

Millennials are persons born between 1981 and 1996. The Pew Research Center estimated that Millennials surpassed baby Boomers in 2016 and now are the "Old Salts" in the labor force. While Baby Boomer numbers are declining and Millennials are taking the mantel, Gen Z has been sneaking up. Bloomberg estimates that Gen Z will surpass Millennials in 2019 comprising 32% of the world's population. By 2020 they will be the majority in the workforce.

Millennials hit the workforce in such numbers and such differing personalities from Gen Xers and Baby Boomers that they changed the way business was done. Both in marketing and hiring. In order to court new hires from this generation employers had to change practices. The marketing world has gone to great lengths to shape campaigns to attract Millennial customers.  A generation literally changed the way business was done. Just as the business world had things were figured out it appears that changes will again have to be made. 

Who is Gen Z?

Millennials seemed to get a bad rap in the workforce but by sheer numbers were able to change how business is done. Every generation has its own idiosyncrasies. Technology advanced so quickly over the past thirty years children and grandchildren grew up much differently than their parents and even from each other. Gen Z is the first post 9/11 generation and the first generation in which smartphones are bodily attachments. According to Buzzfeed, here are a few things that Gen Z never heard of or are curious about: Payphones, Floppy discs, VHS and cassette tapes, The phrases-"Roll down the window" or "Hang up the phone", pound sign, pencil sharpener, film or film canisters, Gameboys or game system cartridges. At least some early Millennials may have come across these things or their remnants.

Generational differences

A Cultural trends report by Endeavor Global Marketing lists three major differences between Millennials and Gen Z. Gen Z is described as having non-binary beauty or gender fluid beauty concepts. They are a progressive foodie culture in which stories are part of the experience. The report says, "Expect to see a shift from photogenic, Instagrammable, food to the emergence of the stories of those behind the dishes". Gen Z will expect a more connected theater experience in which shows are releasing soundtracks early and streaming shows which generate more viral interest.

According to Inc.com, Gen Z prefers conversation to mass communication. Instead of being absorbed in social media they are more interested in quality, personal relationships. While Gen Z is less interested in their friend count, they are interested in getting their news via social media or the Internet. Compared to Millennials Gen Z is more interested in entrepreneurship.

Hiring Gen Z

What does all this mean to employers and hiring? Knowing what is coming next and how to adjust. Just as you know the qualities you are looking for in an employee you need to know what qualities the employee pool has to offer and is expecting. As you and your business age, the hiring pool is getting younger. Gen Z has aged in a different time from Millennials. Knowing about what will soon become the largest generational workforce is how employers will attract and retain employees.

Concordia University-St Paul released a study on what to expect from Gen Z in the workforce. Gen Z tends to be more like their grandparents when it comes to privacy and practicality. As mentioned, they have never known life without a digital connection at their fingertips. They are multitaskers, using on average of five screens. They believe that social media is a big part of their lives but crave more personal relationships and worry that social media erodes this. They are frugal shoppers and distrust big brands. 35% plan to start retirement savings in their 20's. 

The study continues with an assessment of Gen Z in the workplace. This generation is hard working. They are deeply driven by security and are motivated by salary and health benefits. They are willing to put in the extra hours if they are rewarded for it. They prefer to work independently and value skills and self-improvement. They feel that they are responsible for driving their own career. They view technology as a tool. They want to be coached and trained.

There you have it. Everything you need to know about hiring the perfect young candidate and providing them with a long and successful career. Well, not everything. But it's a good jump on knowing who will be sitting in your interview chair. The point is, there is so much more than just putting up the Help Wanted sign. Knowing your candidates will go a long way in making the proper hire and saving everyone a lot of headaches.  

More blogs on generations and the workplace at https://mazzellainvestigations.blogspot.com/search/label/millennials

Millennials are changing everything

The year 2019 will see Millennials overtake baby boomers as the largest generation. They already make up the majority of the U.S. workforce and are considered the world’s most powerful consumers. They are also the most technologically engaged. If your business has been overlooking them as potential employees or customers, you may be making a big mistake.

Hiring

My July 2018 post, A generation changes hiring explains how business has had to adjust their hiring process to attract this pool of candidates. Millennials are not shy about talking to bosses or jumping jobs. They’ll move until they find the right fit and expect salary increases and better working environments. 

Declines or poor planning

As far as consumers, they are driving the marketplace and causing change. A variety of recent studies regarding business and products have claimed that Milliennials are to blame for their decreased sales. A few examples are fabric softener, bar soap, canned tuna, casual dining, and department stores.

Proctor & Gamble believes that Millennials are unaware of what is the intent of fabric softener. Market research company Mintel found that 18 to 24 years believe that bar soap is full of germs. The Wall Street Journal reported in December 2018 that canned tuna sales have declined due to this generation’s decision that the cans are too difficult to open. There was also a report that breakfast cereal sales are declining due to claims of the product being too messy. This may also explain the lack of interest in casual dining restaurants, which have claimed that Millennials are not interested in sitting down for longer periods of time to dine. They’d rather eat on the go. Department stores may have trouble blaming a generation more than a technology phenomenon. While it’s true that Millennials are less interested in brick and mortar stores, e-commerce is probably more to blame. Consumer goods companies that have not adjusted are filing Chapter 11.

All of these products or services have seen sales decline. They’ve had to resort to price reductions, closings, or even bankruptcy to adjust. Are they looking for something to blame for declines or excusing poor planning? Some of the reports and research were based on interviews while others were based on declining sales and attributed to Millennials. Of course, claims run rampant on the Internet further fueling Millennials as scapegoats.

Reviews

They read them and they give them.  Online reviews and apps like Yelp cannot be ignored. Millennials make informed decisions about large purchases and where they are going to eat. How many stars and positive reviews your business has can drive business as well as detract. If you’re noticing a decline of business from a certain demographic, check your reviews. 

Make sure your business has listings set up on Google, Yelp, and any other app that may service your industry. Encourage reviews and be interactive, for the good and the bad. If there are bad reviews try to respond in a way that shows empathy and what is being done to correct the problem.

Home delivery

Even fast food restaurants are getting into the home delivery game. Partnering with services like Grub Hub and Door Dash major franchises are providing home delivery. More than likely another way commerce is changing to accommodate a generation of buyers. To keep up or ahead, delivery or some sort of convenience offered to customers may be another consideration in your business model.

It is yet to be seen if the largest generation will become the next greatest generation, but, currently, they are a powerful economic force. Recognizing this and adapting could literally mean the future of your business. 

Visit the blog archives for more articles on how Millennials have affected the marketplace. http://mazzellainvestigations.blogspot.com/search/label/millennials

Ban the box update

NOTE: This post was originally published in August 2016 and has been updated with more recent data.

The Ban the Box movement was initially reviewed in this blog in the 2013 post, Should the box be banned? The movement continues to grow and this blog has updated the progress.
Since the last update in September 2018 there hasn’t been much in the way of new legislation. However, some states are refining their Ban the Box laws. Massachusetts passed a Ban the Box law in 2010, which included private employers when most states have laws only covering State job applications. 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years instead of five. Employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

While past private employer Ban the Box bills have failed in Colorado (Law already cover State employers), the 2019 legislature may be amenable to idea.

What is “Ban the Box”?

For the last several years there has been a movement to remove from employment applications the “box” that asks the question, “Have you ever been convicted of a crime” or any inquiry about criminal history. What has become known as  “ban the box”, the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed. Employers should meet applicants first, get to know them, give a chance to explain themselves and then get to the criminal history. The Equal Employment Opportunity Commission (EEOC) has updated its policies, issuing guidelines in 2012 suggesting that employers wait until after a personal interview before making inquiries about criminal history.

In January 2014, there were fifty-six cities that had “banned the box”. As of September 2018, that list included over 150 cities and counties, and 32 States (Eleven of which have laws that include private employers)

CURRENT STATE LIST

Arizona

California*

Colorado 

Connecticut *

Delaware 

Georgia 

Hawaii*

Illinois*

Indiana

Kansas

Kentucky

Louisiana 

Maryland 

Massachusetts*

Minnesota*

Missouri 

Nebraska 

Nevada

New Jersey*

New Mexico 

New York 

Ohio 

Oklahoma 

Oregon*

Pennsylvania

Rhode Island* 

Tennessee 

Utah

Vermont*

Virginia 

Washington*

Wisconsin

*States with laws that also cover private employers

The Society for Human Resource Management posted a good article that breaks down laws State by State, which can be viewed at Ban the Box Laws by State and Municipality .

Maryland Ban the Box

            Maryland’s law took effect October 1, 2013, and applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services. Baltimore passed a similar law in 2014, restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made.

In 2017, Louisiana became the first state to enact a ban the box law for state institutions. Maryland passed a law in 2017, but the Governor vetoed it. In January 2018, the Maryland legislature overrode the Governor’s veto, reinstating the law.

As the laws regarding criminal history continue to evolve the legislative season is a good time to review your interview and questions and job application content.

Click here for other posts relating to Ban the Box.

Experience v. Youth

Speaking to a friend about retirement she told me that she had a few more years to go. She wanted to get her financial foundation a little sounder before making the decision. She went on to say that she recently received a retirement assessment package from her employer outlining her current and future pension options. The package was personally addressed and written as a response to her inquiry. The thing was, she hadn’t made an inquiry. As time went by she heard from other employees similar to her age and seniority who had also received their “requested” retirement materials. When it came to hiring and promotions of late there appeared to be a bias towards younger people. Was the company sending a message with the retirement package mailings?

It is not unheard of. Some corporations feel older employees are more expensive due to their salary and benefits. Younger, newer hires do cost companies less money. They can be hired for a substantially less salary and are willing to accept it. Many companies are eliminating pension programs, instead, offering new employees 401(k) matches and other savings programs. Saving the company money in the long term. Companies embracing a youth movement are looking for new ideas from employees who are more familiar with current technology. 

Targeted “retirements”

In March 2018, ProPublica, an independent non-profit newsroom, published a report claiming that IBM systematically laid off 20,000 employees age 40 and over between 2013 and 2017. Up into the 1980s, IBM was the technology giant. As the technology rapidly changed over the next twenty years and companies like Apple challenged IBM, they were faced with a massive and aging workforce. To compete, IBM felt that they needed to reduce their workforce and begin hiring younger, more tech-savvy employees.

ProPublica’s investigation revealed, in part, that IBM devised performance point-rating systems that favored younger employees with fewer years on the job. Older employees were rated as their skills being out of date. These employees were offered retirement packages or were relocated to an office across the country with the ultimatum to move or retire.

The Older Workers Benefit Protection Act (OWBPA) was passed by Congress in 1990. The OWBPA prevents employers from discriminating in benefits based on age, firing only older workers when cutting staff, or demanding that older workers waive rights and without taking safeguards into consideration. However, the burden of proof is on the employee to show that the company let them go based solely on age. Without records, overt acts, or documentation this can be difficult for an individual employee to prove. In the IBM case, the corporation went so far as to have employees who accepted packages to sign agreements that they would not take part in any future class actions.

But what about experience? 

Is it worth pushing out experienced workers to make room for youth? Does cost cutting make up for the loss of institutional knowledge? Older employees have a lot to offer. They’ve been with the company through thick and thin. They are able to mentor younger employees in systems and procedures. Historically, older employees are dedicated to doing the best possible job and are often the ones who find and correct errors. Errors that could cost the company lots of money if overlooked. While a new set of eyes is always welcome, past experience can sometimes save hours of work that will eventually end up at the same conclusion.

Savings?

Cutting bloated salaries and benefits might sound good but the overall cost of turnover may not justify it. Jack Altman, CEO of Lattice, posted an article in the Huffington Post in January 2017, How much does employee turnover really cost? Altman cites research by the Center for American Progress who determined that the average economic cost to a company of turning over a highly skilled job is 213% of the cost of one year’s compensation for that role. He uses the following example, ”If you are a 150 person company with 11% annual turnover, and you spend $25k on per person on hiring, $10k on each of turnover and development, and lose $50k of productivity opportunity cost on average when refilling a role, then your annual cost of turnover would be about $1.57 million.”

Altman summarized by saying that companies should analyze four major areas:

·       Cost of hiring

·       Cost of onboarding and training

·       Cost of learning and development

·       Cost of time with an unfilled role

He also provided this link to Calculate the Cost of Employee Turnover for yourself. 

The quick decision to cut costs through salary and benefits should be closely examined. There are not always textbook answers to everyday issues. You need veterans of your business to lead and show the way. 

Smoke 'em if you got 'em? {Marijuana in the workplace}

Note: This article was originally posted in 2017 and has been updated with current information on the topic.

Oklahoma passed a medical marijuana bill in 2018 becoming the thirtieth state (Including Maryland) to do so. State by state the legalization of marijuana for medical and recreational purposes is gaining ground. The chances of employees being high at work are definitely increasing. Businesses are scrambling to adapt.

Decriminalization v. Legalization

So far thirteen states have decriminalized marijuana, allowing recreational use. Up from just eight in 2017. Those are Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, and Rhode Island. Nine states have legalized marijuana for recreational use (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington) 

While this legislative activity is taking place on the state level, the drug still remains illegal under Federal law. In fact, it remains a schedule I drug alongside opiates and synthetics drugs. The court battles that were expected with the U.S. Justice Department after Colorado legalized marijuana have not occurred.

Decriminalization does not mean legalization. Decriminalizemeans that possession of small amounts no longer carries criminal penalties. Most states offer a civil violation or no violation at all. Legalizedmeans that marijuana is completely legal to possess. In this case, states have set limits as to the amount that can be possessed and qualifications regarding trafficking.

High on the job

A survey of 10,000 California cannabis users revealed 58% of working professionals use daily and 31% consume while working. (Eaze Insights)

Some businesses not only allow the consumption of marijuana at work, but they also encourage it. Those that do say that it helps employees with stress and anxiety promoting longer work days and creativity. It should be noted that these businesses are mainly in the legal cannabis industry or tech fields.

What is at odds are company drug policies and making accommodations for those with disabilities. Companies want to be inclusive but want to maintain standards as well as workplace safety. Medical marijuana users are looking to the American Disabilities Act for protection.

American with Disabilities Act

The American with Disabilities Act  (ADA) was signed into law in 1990. Succinctly, the ADA prohibits employers from discriminating against those who are disabled and requires employers to provide reasonable accommodations to a qualified individual with a disability to perform the essential duties of their job. Illegal drug use is not covered as a disability. However, the ADA does allow for the use of drugs taken under the supervision of a health care professional. Marijuana may be legally prescribed under state law but remains illegal Federally. Then there’s the Drug-Free Workplace Act of 1988 requiring that Federal contractors provide drug-free workplaces as a condition of receiving a contract.  The ADA states that employers can require employees to conform to the Drug-Free Workplace Act. Further, under the ADA drug testing is not considered a medical examination, allowing employers to test for the use of illegal drugs. 

What the courts have found is that while marijuana remains illegal under federal law the ADA cannot be applied to individuals with disabilities. However, state disability laws may apply in states where medical marijuana use has been legalized.

Court challenges

Rights of the employer and the employee vary state by state. As examples: Arizona, Connecticut, Illinois, Minnesota, and New York laws prohibit employers from discriminating against employees who use medical marijuana and must make accommodations, some further citing-unless the employee is under the influence at work. Florida’s recently passed law does not require an employer to accommodate on-site medical marijuana use. California passed Proposition 64 in 2016, which allows for the recreational use of marijuana. However, the law protects an employer’s rights to enforce workplace drug policies. Rhode Island’s law protects the employer’s right against accommodations for on-site consumption but protects the medical marijuana cardholder against hiring discrimination. 

A 2017 Rhode Island court case ruled that employers could not refuse to hire medical marijuana cardholders even though the person would knowingly not pass the employer’s pre-employment drug test required of all applicants. (Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, Rhode Island Superior Court, May 23, 2017)

Another twist to the saga is the off-site or off-duty use of marijuana which may be legal in the specific state but against company policy. In one of the first court cases of off-site medical marijuana use, the Colorado Supreme Court heard the case of Coats v Dish Network in 2010. The court upheld the firing of a man who failed an employer random drug test for marijuana use. Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient after he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case was the first to look at whether off-duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off-Duty Activities Statute. The statute states that employers cannot fire employees for doing legal activities while not at work. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supported employer rights to enforce their drug policies. Since this case, courts in California, Oregon, and Washington have also ruled against employees. 

In July 2017 and went against the employer. In Barbuto v Advantage Sales and Marketing, LLC the Supreme Judicial Court of Massachusetts ruled in favor of an employee to use medical marijuana outside of work. The employee claimed that since they have an ADA qualified disability (Crohn’s disease) the employer must make accommodations for an employee to use medical marijuana off duty. The ruling was based on the state’s anti-discrimination law. The court rejected the employer’s argument that marijuana is illegal under Federal law and to allow accommodations would be unreasonable.

Maryland

Maryland is still getting going on its version of medical marijuana. The law was passed in 2013 and took effect in 2016. Dispensaries began opening in 2018. Maryland decriminalized possession of fewer than 10 grams of marijuana in 2014.  Marijuana is still considered illegal but possession of smaller amounts will result in a civil citation rather than arrest. Each year since there have been bills introduced to further decriminalize marijuana. In 2016, a law passed making possession of paraphernalia a civil offense. In 2017, those convicted of marijuana offenses may petition to have their records expunged. 

What to do, what to do…

While the use of marijuana is becoming more openly acceptable in society and states have either made it legal or decriminalized, businesses are still within their legal rights to set drug use policies and restrictions.

Confused? Don’t feel bad. It’s a tricky topic that is evolving almost monthly. Employer’s need to have hiring policies as well as policies to guide employees. These policies have to be living documents and open to change. Having employees and dealing with human resource issues is difficult, especially for small businesses. The rules are constantly changing. There will always be challenges to any policy or rule. You have to stay ahead of the curve and aware of what’s taking place. 

See the blog archive for other posts regarding workplace discrimination and medical marijuana.
Which came first... February 2017

Languages spoken? June 2017

Ban the Box update August 2016

Health History Discrimination May 2016
Medical marijuana in workplace May 2013

How AI affects finding a job

AI hiring is making finding a job difficult

When my children were looking for jobs I so wanted to tell them to print a bunch of resumes and go door to door. That was five plus years ago and the old ways of applying for jobs had already changed. October 2018 had the news that Amazon was abandoning its use of AI (artificial intelligence) recruiting software. 

Watching my kids search I realized how hard it was to get yourself in front of a real person in order to sell yourself. Being at the end of a long career and not having had to look for a job in a long time, I felt for them in this new world. A majority of companies have online applications. Which saves a lot of time and effort as applicants can sit at home and get their resume to as many businesses and recruiting companies as they can. The problem then and now is knowing how to write your resume and complete the applications. Not that’s its any great discovery, but I long suspected that companies used algorithms to filter the resumes. If your application doesn’t hit the right marks it may never make it to a hiring manager.

AI Recruiting

In November 2018, Amazon admitted to having a secret AI recruiting tool that showed bias towards women. Reuters reported that Amazon had been developing software since 2014 that would review applications. The hiring tool would assign candidates scores of 1-5. Developers realized that the program “learned” by reviewing resume patterns over the last ten years. During that period a high number of resumes came from men. The models developed skewed towards assigning men higher scores. The system taught itself to rank lower the word “women” and downgrading women colleges.

Amazon tried to program in gender-neutral terms but eventually abandoned the project in 2017. Amazon officials told Reuters the program was an experiment to find a way to aid in recruitment of the best candidates. The AI program was never used in actual hiring. Reuters reported, however, that Amazon did not deny that recruiters reviewed the recommendations made by the program. 

The Reuters article cited a 2017 CareerBuilder survey of U.S. human resources managers finding that 55% would be using AI over the next five years.

Application tracking

Until AI is further developed, hiring managers will continue to use Application Tracking Software (ATS). Very simply, ATS reviews applications by word according to parameters set by the company. Back to my rather obvious suspicion online applications are filtered. If your resume doesn’t hit the right notes, your application goes nowhere. It’s also the reason applicants rarely hear back from companies after submitting a resume. It never reached a person who could reply with a polite, “Thank you, but no”.

A JobScan blog posted in 2016, The History of Applicant Tracking Systems credits the first ATS to Canadian Martin Ouellett who created an early form in 1996. Since that time ATS has been refined and developed. As of 2016, over 300 ATS are being used by 90% of companies.

You can definitely feel for people looking for jobs today. The market is tight and getting your resume in front of a real person is difficult. Knowing the playing field and learning the rules of job hunting is a job within itself. If not an education.

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Seasonal hires

Hiring seasonal workers may be more difficult this season. With wages increasing and applicants looking for better benefits and long-term employment, you may have to change your tactics.

CNBC reported that while job openings are on pace with last year, lower unemployment rates mean that there are fewer people to fill those openings. There appear to be twice as many openings as applicants. Leaving many retailers shorthanded as a booming economy sends shoppers out in full force this holiday season. 

You will be fighting for the same applicants as the mall retailers and bigger corporations. Some of the big names like Kohl’s, Target, and Macy’s began seasonal hiring campaigns as early June. They are also raising wages and offering bonuses similar to those afforded permanent employees. You may need to do more than put a sign in the window.

Think about what makes your business unique over your competition, including those vying for the same applicants. Don’t be so prideful as not to negotiate. These are different hiring times and a new generation of workers. Just because it’s seasonal and may not be permanent doesn’t mean you will have to put in an effort. Applicants looking for seasonal work have too many options and may use that against you in negotiating a position and benefits. 

Monster suggests these five tips for seasonal hiring.

Hire your customers- They already love your brand, why not offer them a job

Start hiring efforts before the competition

Write specific job descriptions-The company, the skills, attitude, schedule, incentives

Ask existing employees for referrals

Attract retirees

As a job seeker, you should take in all that is offered and draw comparisons between employers. Don’t jump at the first offer. Employers need to be aware of their competition and find ways to be more attractive to a smaller pool of applicants. 

Good luck and Happy hunting!