U.S. Attorney General Barr made a statement on April 10 that he would support making cannabis nationally illegal, but also stated he would support the framework set up by the STATES Act over what is currently in place.
For government employees, federal law trumps state law, but if the STATES Act passes will security companies still run background checks for cannabis or non-violent cannabis offenses? In light of the NY Times report, are security firms going to continue administering background checks for marijuana in New York?
A Drug Testing Company's Take On Legalization
JD Palatine (JDP) is a security company that conducts background checks of prospective employees for other companies. The types of industries they work with include healthcare, corporate, transportation, non-profit and volunteers, education including teachers and school employees, and Youth Sports Coaches (although this is focused more on background screenings than drug screenings).
Cannabis use has become a complex and dynamic topic in the pre-employment screening industry as of late. JDP’s progressive and consultative approach keeps its clients and partners aware of the environment and is watching this bill closely.
"This bill in particular, once signed, has a full year to take effect and will allow for everyone impacted by it to digest, analyze and formulate a plan with our current partners and clients," says a spokesperson for the company.
As an industry, the firm recognizes nuances that should be reviewed by legal counsel for guidance regarding employer policies and best practices. For example from this bill, in particular, it notes some exceptions including, “If workers appeared to be under the influence of marijuana at work, employers would still be permitted to administer a drug test.”
The Difference Between Being High At Work And High At Home Cant Be Determined By A Drug Test
Although the logic behind this exception makes sense, considering how long marijuana stays in the system versus another type of reasonable suspicion test, such as alcohol.
Someone may be accused of being under the influence of marijuana at work, but may not have actually used in weeks, and done so away from work, and it is still showing positive on the reasonable suspicion test while alcohol metabolizes and is undetectable much more quickly.
Many of JDP's current clients have expressed interest or have already begun to proactively remove THC from their drug testing panel, whether or not they reside in a state that has legalized marijuana for medicinal or recreational use.
"As it stands today, we support our client’s choice on whether to test for marijuana, on a client by client basis and have processes in place for both scenarios," says their company representative.
JDP will continue to monitor the progress of this, and other cannabis-related legislation and help their clients navigate this new environment and update any policies to support the decisions that are guided by any new laws. Although JDP is not a law firm and does not provide legal advice, they encourage their clients to openly discuss how new legislation impacts their company directly with their legal counsel.
"We will then work with our client and their legal counsel to tailor a solution to meet the needs of their business," says JDP's spokesperson.
JDP's Study On Employees Concerned About Drug Testing
JDP recently released a study ranking companies by how many employees are concerned about workplace drug testing. According to their article, "We analyzed search trends associated with more than 150 of America’s largest employers and best-known brands, to produce the list of 60 companies featured below.
Starting from the top, this list represents the companies where current and prospective employees are most concerned about workplace drug tests. The metric “employees per search” means there’s at least one Google search per month happening per listed number of employees." See the results of the study below.
How Did They Come Up With Their Rankings?
As for how does JDP determines the numbers for “Employees Per Search,” for each company, they established a total number of US-based employees –including corporate and franchisees, though the former is often a negligible number in comparison to the figure overall,– and then divided that by the recorded average monthly search volume on Google.
Using Aldi as an example, they are dividing 25,000 (employees) by 1,900 (monthly search volume). This method provides a relative metric to compare these companies. This task is an arduous, laborious process and the company says it "is admittedly quite rough in some spots." When looking for the size of a company’s US-based workforce, there were several consistently reliable sources: Corporate pages and media guides; Wikipedia, Statista, articles from reputable sources like Forbes, USA Today, Reuters, Bloomberg, and so on.
In some circumstances, it was impossible to find a reliable report on the segmentation of the workforce between the U.S. and abroad. However, in most of these cases (nearly fast food), they were able to establish the segmentation of locations. In these cases, they calculated the number of U.S.-based sites as a percentage of total areas and then applied that percentage to the overall size of the workforce, to get the size of U.S.-based workforce.
Moreover, in a handful of cases with fast food chains, several locations were corporate-owned rather than a franchise. JDP needed to use the industry average of employees per location in fast food, to estimate the total amount at those locations.
Corporate Employees vs Storefront Employees
The data that JDP analyzed does not show a distinction in the search results between corporate employees and storefront employees. They can’t even distinguish in search between current and prospective employees.
However, their analysis is not intended to make those distinctions; it is an analysis of each brand’s association with drug use among employees. In other words, they’re interested in drug use associations with both people who work there and people who want to work there. The security company "finds that equivalent for our purposes."
The rates of drug testing between corporate employees at these companies and storefront employees vary from one company to the next, but the spokesperson in most cases hourly employees are more at risk of being drug tested than corporate employees (assuming all other things are equal), JDP's spokesperson says anecdotally.
"We did spend some time looking into individual company drug policies, but they are, understandably, left very open-ended and subject to interpretation," JDP's spokesperson says.