What Would Legalized Pot Mean to California Employers?

In the upcoming November election, Californians will have a lot to think about – and it’s not all related to choosing the next President of the United States. The 7th largest economy in the world may join Alaska, Colorado, the District of Columbia, Oregon and Washington in legalizing adult recreational use of marijuana.

On Election Day, California voters will decide on Proposition 64, which would legalize recreational marijuana for individuals over the age of 21. So what does this mean to employers if the proposition is passed?  How will the Act interfere with an employer’s ability to enforce their policies against drugs, including drug testing? The good news for employers is that passage of the law is not expected to interfere with enforcement of workplace policies.

Current California law decriminalizes the possession of one ounce or less of marijuana.  Proposition 64 would add to these rights including the legalization of recreational marijuana for adults (over the age of 21). Adults would be able to possess, process, transport, obtain or give away to other adults up to one ounce of marijuana.  The law would also permit adults to grow and process up to six living marijuana plants for recreational use.

Proposition 64 will permit a California employer to prohibit marijuana use at work and will not require the employer to “accommodate” the use of marijuana.  The Proposition states that the law would “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.”  In fact, the law expressly states that it will not restrict the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace or to accommodate the use of the substance.

The passing of this California Proposition does not change status of the drug as a Schedule 1 drug under federal law. In addition, consistent with a 2008 California Supreme Court decision upholding the right of an employer not to hire an applicant who tested positive for marijuana recommended by his physician, employers can continue to rely on federal law and enforce their workplace substance abuse policies.

Significance

This Proposition has not had a lot of attention in the media lately, but recent polls suggest that Californians are likely to vote in favor of the recreational marijuana. Interestingly, the California Medical Association is reportedly in favor of the Proposition. In order to prepare, employers should be reviewing and/or updating their substance abuse policies, including their drug-testing policies, to ensure they are clear as to their limitations on employee marijuana use.

Saul Macias, MBA, PHR – Vice President of HR Services

Disclaimer: Some information contained herein has been abridged from numerous sources and may be protected by various copyright laws. Such information should not be construed as consulting or legal advice. Please contact our office for specific advice and/or referrals.

Bay Area Human Resources Services

The Future of Paternity Leave

As work transforms into a 24/7 activity, paternity leave has become an important political topic as well as a popular differentiator for firms competing for talent. In a tight labor market, smart employers must create polices ahead of developing legislation and the expectations of Millennial workers.

Recent Legislative Developments – A Clear Trend

  • June 2014, President Obama jointly hosted the “Summit on Working Families”. This summit outlined proposed changes to labor law in an effort to bolster the economic power of targeted at-risk ‘working families’. The summit focused on raising minimum wages, retirement planning opportunities, overtime protections, and various leave laws. Among the leaves discussed was paternal leave. The summit included proposed legislation to strengthen reasonable accommodations for pregnant women. The summit also sent preliminary information to all state governors concerning feasibility studies for state administrated paid leave programs.
  • In January of 2015, the Obama administration released proposals to follow up on the Summit for Working Families. These proposals outlined a $2-billion-dollar funding initiative to develop state administrated family/medical leave programs, federally mandated paid sick leave legislation, and paternal leave. On the paternal leave front, Obama signed an Executive Order directing federal agencies to advance accrued sick leave for new parents, and asked congress to pass proposed legislation on paternal leave for federal employees.
  • A week later, the House introduced the Federal Employees Paid Parental Leave Act to provide federal workers with 6 weeks of paid paternal leave (both for births and foster/adoptions). The proposed bill did not require workers to use accrued or advanced sick leave. Since 2000, multiple similar bills from the House have been proposed with respect to paternal leave, however all have failed in the Senate.
  • September 2015, The Senate introduced the Federal Employees Paid Parental Leave Act to provide federal workers with 6 weeks of paid paternal leave (both for births and foster/adoptions). The proposed bill did not require workers to use accrued or advanced sick leave.
  • In February of 2016, President Obama’s 2017 fiscal budget included support for both the House and Senate proposed paternal leave legislation.
  • In April or 2016, New York signed legislation granting 12 weeks of paid family leave by 2021.
  • In April of 2016, San Francisco approved an ordinance requiring employers with 50 or more (phased over time to “20 or more”) employees to provide the remaining 45% of wages for paternal leave in conjunction with the 55% offered through the current California Paid Family Leave (PFL) program. The PFL program does not mandate job protection, while the San Francisco ordinance does.
  • In April of 2016, California Governor Brown signed a measure into law which would increase the paid benefits through PFL to cover up to 70% of an employees pay (up from 55%) by 2018.
  • In May of 2016 the White House hosted a summit on “The United State of Women”. This summit covered a broad range of issues, including ‘economic empowerment’. Amongst the issues discussed at this summit were equal pay, minimum wage, access to child care, labor force participation, access to healthcare, and last but not least paid leave (both of the Sick and Family varieties). The summit called on Congress to pass the Healthy Families Act bills. Additionally, Obama called on private companies to begin leading the movement by implementing family leave policies.

Private Business

While the legislation requires federal employers to comply immediately, Congress has not made the same rules compulsory for all employers. A Society of Human Resources Management (SHRM) 2015 survey found that only 12% of employers offered paternity leave, placing the USA below 70 other industrialized counties that offer paternity leave.

Some employers have progressively implemented Obama’s challenge, amongst them:

  • Wal-Mart: 2 weeks of paid paternity leave for salaried employees.
  • Coca-Cola: 6 weeks of paid paternity leave
  • Campbell’s: 10 weeks of paid leave for all primary caregiving employees, two weeks for secondary caregiving employees, Interestingly, this policy requires the employee to designate who is the primary caregiver.
  • Bank of America: 12 weeks of paid paternity leave, up to 14 additional weeks unpaid.
  • Wells Fargo, 16 weeks for primary, 4 weeks for secondary.
  • Yahoo: 16 weeks for birth mother, 8 weeks for fathers or adoptive parents.
  • Facebook: 4 months of paid paternity leave.
  • Twitter: 20 weeks paid paternity.
  • Spotify: 6 months of paid paternity leave for all employees globally.
  • Reddit: 17 weeks of paid paternity leave.
  • Etsy: 26 weeks of paid paternity leave.
  • Netflix: unlimited paid paternity leave for up to a year.

It remains to be seen how quickly the overall corporate culture of private employers will change – although pressure is mounting for paternal leave.

Time to Plan

It’s a safe bet to expect the paternity leave legislation will move forward. It’s also a safe bet that California (and especially the Bay Area) will continue to set the pace for progressive leave policies. Given the competitive war for talent, it may pay to be out in front on this issue, which is not a high cost policy for many employers. Even for non-tech firms, top benefits policies are a key consideration for top employees who have many choices in a tight labor market. Given that the legislative trends favor paternity leave, it may be advisable to get out in front of this wave and proactively enact a policy rather than losing credit for enacting a required change.

Tyler Piper, SPHR, SHRM-SCP – Technology Manager & HR Consultant

Disclaimer: Some information contained herein has been abridged from numerous sources and may be protected by various copyright laws. Such information should not be construed as consulting or legal advice. Please contact our office for specific advice and/or referrals

Bay Area Human Resources Services