Category Archives: legal issues

Marijuana Acceptance Marches On

It’s still highly unlikely that any employer will ever have to allow an employee to work while he or she is stoned, whether there’s a safety 146967521 - smoking dopeor security risk or not, but the chips seem to keep falling away from those sturdy walls that made marijuana unacceptable, illegal and disallowed for years.

The latest indication that pot is going mainstream comes in this Illinois Appellate Court ruling (found on the Canna Law Blog site) affirming a Circuit Court’s ruling that just because a worker was fired for violating his employer’s drug-and-alcohol-free workplace policy doesn’t mean he can’t collect unemployment benefits.

Seems this maintenance worker for the Jefferson County Housing Authority fessed up to his employer — just before a random mandatory drug screening — that he might not pass because he had smoked pot several weeks earlier while on vacation. He was fired, even though his tests results were negative, and was turned down for unemployment benefits because of the nature of his termination.

The Housing Authority’s policy prohibits employees from being under the influence of any controlled substance “while in the course of employment.” Both the Circuit Court and Appellate Court agreed “course of employment” was interpreted too broadly by the Illinois Department of Employment Security to include off-duty hours.

“Among the reasons the Circuit Court found the agency’s interpretation unreasonable,” the blog states, “was the fact that marijuana is now legal in some states and the fact that it unreasonably restricted off-duty time while serving no legitimate public purpose.”

Yes, indeed, marijuana is absolutely now legal in some states, as this news analysis and this blog post by me indicate. But it’s more than going legal, as I also indicate. It’s becoming big business. Make that a huge industry.

Just this month, news releases came across my screen announcing a Cannabis Career Institute opening in San Diego as well as three others in Florida, Illinois and Nevada, all designed, as the releases state, to teach “ganjapreneurs how to succeed in the marijuana industry as the green rush continues.”

Attorneys and experts I’ve talked to assure me employers will always have the legal right — and responsibility — to keep their workplaces safe and drug-free. I just wonder how all this nudging from the “cannabusiness” community and the courts is going to impact how those employers sleep at night.

 

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2014’s Top 10 Posts

Here at The Leader Board, it was another interesting year covering the HR arena, with issues ranging from the controversy surrounding the HR certification, to lawsuits based on a worker’s commute, to HR leaders’ efforts to ensure their organizations’ compliance with the Affordable Care Act and various other legal requirements, just to name a few.

Below are links to the top 10 most-read posts of 2014, according to Google Analytics.

When viewed together, the posts create an accurate mosaic of the issues HR leaders are faced this year and are likely to continue dealing with into the new year.

Enjoy!

  1. SHRM Rolls Out New Certification (May 13)
  2. HR Plaintiffs Build Their Case Against Lowe’s (Jan. 24)
  3. Google Tackles Incentives and Rewards (April 29)
  4. More Restrictions on Criminal-Background Checks (Feb. 10)
  5. Employers Missing ADA Coverage in FMLA Cases (June 30)
  6. Friedman Shakes It Up at SHRM (June 23)
  7. ‘The 27 Challenges Managers Face’ (July 28)
  8. Who’s Leading the Way? (Nov. 13)
  9. Woman Sues Ex-Employer Over Commute (July 2)
  10. Giving HR the Boot (April 9)
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NLRB: Targeting McDonald’s as ‘Joint Employer’

I suspect most of you have been following, to some extent, the fast-food worker protests of the past couple of years. As recently as Dec. 4, fast-food workers from around the country demonstrated in front of their restaurants, continuing their fight for a $15-an-hour wage. 486860229

Well, the latest update in the story came on Friday, when the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, as joint employers, alleging that they violated the rights of employees participating in the protests by making threats and retaliating against them.

Kendall Fells, organizing director of the Fight for 15, a group formed to advance the cause of a $15 living wage, told the Chicago Tribune (registration required) that “McDonald’s exerts such extensive control over its franchised business operations that, for all intents and purposes, McDonald’s is the boss. It’s obvious that the company should share responsibility with franchisees for the treatment of its workers.”

The NLRB’s General Counsel, Richard Griffin, issued 78 charges against McDonald’s and its franchisees. In response to the NLRB announcement, McDonald’s issued the following statement

“McDonald’s is disappointed with the Board’s decision to overreach and move forward with these charges, and will contest the joint employer allegation as well as the unfair labor practice charges in the proper forums. These allegations are driven in large part by a two-year, union-financed campaign that has targeted the McDonald’s brand and impacted McDonald’s restaurants. McDonald’s has taken the appropriate measures, working properly with its independent franchisees, to defend itself against that attack on its business. McDonald’s serves its 2,500 independent franchisees’ interests by protecting and promoting the McDonald’s brand and by providing access to resources related to food quality, customer service and restaurant management, among other things. These optional resources help entrepreneurs operate successful businesses. This relationship does not establish a joint-employer relationship under the law—and decades of case law support that principle.”

On Friday afternoon, I asked Marshall Babson — counsel in the New York and Washington offices of Seyfarth Shaw, who served as a member of the NLRB from 1985 to 1989 — for his take on the board’s move. “I can’t imagine what evidence the general counsel at NLRB has to justify the issuance of the complaints, but for more than 50 years, the general view has been that you can’t be a joint employer unless you’re an employer,” he said.

“My understanding is that if you’re McDonald’s and most [other] franchisors, you don’t become engaged in the hiring and firing of these employees,” he went on. “You don’t set their wages, benefits, and terms and conditions of employment on a day-to-day basis. You don’t say that [someone] should be terminated for this or that. … So [the NLRB complaints] represent an extraordinary departure from the past.”

In the 40 years he’s been doing employment law, Babson said he doesn’t recall a single instance when an otherwise legitimate relationship has been challenged in this manner. Babson said his advice to employers continues to be the same: If you’re a franchisor, keep focusing on brand integrity: What kind of uniforms people should wear and the way products should be prepared; and don’t act in the capacity of an employer.

“If it takes the Supreme Court or Congress to once again remind the board that the common-law definition of employer applies here, then [so be it],” he said. “But, in the meantime, it’s unfortunate that this has the potential to disrupt long-term traditional business relationships.”

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DOJ’s Move to Protect Transgender Individuals

Even if you’re not a state or local public employer, you still might want to make note of the following news out of the Justice Department yesterday.

185232263In a memo to the DOJ’s component heads and United States Attorneys, Attorney General Eric Holder said the DOJ is now taking the position that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status, thereby clarifying the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals. Put another way, it will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.

According to Holder …

“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status. This will help to foster fair and consistent treatment for all claimants.  And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”

As most of you already know, the move follows a final rule released by the Department of Labor earlier this month that implements President Obama’s July 21 Executive Order 13672 prohibiting federal contractors and subcontractors from discriminating in employment practices on the bases of gender identity and sexual orientation.

As might be expected, Mara Keisling, executive director of the National Center for Transgender Equality, told the Associated Press she welcomed the news. But she also noted that, rather than breaking new ground, “it mainly affirms a position the Equal Employment Opportunity Commission has been taking since 2012.”

Earlier today, I asked Thomas B. Lewis, shareholder in the Princeton, N.J., office of law firm Stevens and Lee, to share his thoughts on the move.

Lewis suggested private employers should pay attention to this, because the “natural progression” will be for these protections to be applied to the private sector.

“These protections already [exist now in some states, such as New Jersey] and I think it’s only natural that other states will follow suit with expanding discrimination protections involving transgender individuals,” he said.

“So if you’re a private-sector employer,” he added, “you have to look at this with an eye toward following the directives of the federal government and stopping any form of discrimination based on somebody’s gender identity and orientation, because it’s not healthy for the workplace environment.”

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Unemployment Discrimination Rears Head Again

76806723 -- unemployedHaven’t seen one of these for awhile.

With the economy slowly, but surely making its way back (at least for now), cases involving unemployment discrimination have taken a back seat to recruiting and talent management, as stories go.

But as this New York Post piece from earlier this month suggests, the issue appears alive and well in a Manhattan-based staffing agency. In her recent lawsuit filed with the Supreme Court State of New York, County of New York, Valerie White claims she was turned down for an HR-coordinator position with Solomon Page Group in late July of this year because she’d been out of work for more than a year.

Here is the actual lawsuit filed, alleging that the company’s director of accounting operations, who joined White and Solomon’s recruiting director for the interview, told White, ” ‘I don’t think you can do this because you have been out of work for a year.’ ”

White claims in the lawsuit she was “extremely humiliated, degraded, victimized, embarrassed and emotionally distressed” by what happened — sentiments echoed in other stories about this issue that we’ve written and come across.

I wrote a news analysis earlier this year about the push from the White House against long-term-unemployment discrimination, including President Obama’s vow during his Jan. 2014 State of the Union address to give more long-term-unemployed Americans a “fair shot” at a job.

At the time of that story, New York was one of 10 states mulling a state law banning such discrimination. New York City, meanwhile, had already enacted, in June of 2013, one of the nation’s most aggressive bans, creating “the first law in the United States that defines a job applicant’s unemployed status as a protected class along with age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation and alienage/citizenship status,” according to this report from the Society for Human Resource Management.

The SHRM piece says the NYC law is broader in scope than other laws (and bills being considered in some states) by providing plaintiffs with the right to pursue private civil claims and by treating unemployed applicants in the same way members of other protected classes are treated under nondiscrimination laws.

I was hoping to get something from Solomon about all this — about its view of the case and about doing business in New York with this law on the books — but Paul Coller, vice president of human resources at Solomon and the company’s chief human resource officer, could only say he and his colleagues “are confident the facts will show that these allegations lack any merit and, due to pending litigation, we have no further comment at this time.”

I guess it remains to be seen just how aggressive this anti-unemployment-discrimination push will be in the months and years to come. I guess it will be economy-driven. For now, my story and this subsequent column from our legal columnist, Paul Salvatore, spell out some things HR should be thinking about and doing around the push .

Salvatore’s reminder:

“HR leaders should consider the best practices released by the White House [during that State of the Union] and signed on to by many large employers. They include:

* Making sure advertising does not discourage or discriminate against the unemployed,

* Reviewing screens or procedures used in recruiting and hiring processes so individuals are not disadvantaged based solely on their unemployment status,

* Reviewing current recruiting practices to ensure a broad net is cast and to encourage all qualified candidates to consider applying, and

* Sharing best practices.”

Granted, the rate of unemployment is lower now than earlier this year, and much lower now than in the five previous years, according to the Bureau of Labor Statistics. But it’s also well above the years just preceding the Great Recession and there’s really no telling how many people out there have been out of work for so long they’ve essentially given up hope.

Best to remain vigilant, not to mention compassionate and fair, whichever way the legislative and administrative winds are blowing.

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EEOC Adds Pregnancy Cases to Controversy

Just an update for those who are following the recent pregnancy-discrimination guidelines issued by the Equal Employment 490128943 -- pregnanct employeeOpportunity Commission — despite the controversy some think the agency created amidst the pending U.S. Supreme Court consideration of Young v. United Parcel Inc.:  The EEOC isn’t waiting on the high court before filing or settling pregnancy-discrimination lawsuits either.

According to the EEOC’s website, press releases were issued on nine lawsuits filed and two settlements since the agency issued its updated Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14.

Here, for your information — should you choose to venture into this much reading — are all the cases the EEOC has filed and listed on its website against employers accused of pregnancy discrimination since the guidance was issued, from most recent to oldest:

All the suits in question accuse the businesses of violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

“I am surprised that this issue continues to be a recurring theme in the workplace in this day and age,” says Robert Canino, regional attorney for the EEOC’s Dallas District Office, which filed the Pharmacy Solutions lawsuit. “We hope that by continuing to increase public awareness through our law-enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and to earn a living when she is expecting and during her maternity leave.”

But critics of the EEOC’s assertiveness and timing in issuing its guidance — which was the focus of this HREOnline news analysis I wrote back in July — say adding cases to the pregnancy-discrimination docket only clutters an already-cluttered legal landscape.

“With its new pregnancy enforcement guidance still in its first trimester, the EEOC has set about vigorously pursuing companies that do not comply,” thereby filling the courts with more to work on as the Supreme Court hearing has yet to be scheduled,  says Philip Voluck, managing partner in the Blue Bell, Pa., office of Kaufman Dolowich & Voluck.

“Since the EEOC first gave birth [pun intended, no doubt] to the guidance in July, it has inserted itself as plaintiff in at least nine federal-court lawsuits against employers [allegedly] discriminating against pregnant employees,” he says. “Each decision is accompanied by rather strong remarks from the [agency], which state quite clearly its intent to induce an ‘awakening’ by employers and erase ‘archaic prejudices’ still held by companies toward pregnant women.”

The issue up for consideration in Young v. UPS is whether an employer — in this case, UPS —  is required under the PDA to offer light-duty work to pregnant employees with restrictions, even if light-duty work is available for certain categories of nonpregnant employees.

“This is precisely the issue the Supreme Court has yet to take up,” Voluck told me back in July, “and that decision won’t come out until next year some time. “I honestly have no idea why this was issued at this time,” he said then. “A power move? I have no idea.

“It’s like the Perfect Storm, these two entities colliding,” he said, referring to the 2000 movie, “though my crystal ball tells me there’s no doubt the Supreme Court will expand the rights of pregnant women.”

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EEOC’s Honeywell Suit Draws Protest

124666886 -- wellness biometricsThe National Business Group on Health says the Equal Employment Opportunity Commission’s recent lawsuit against Honeywell International over that company’s use of biometric screening in its wellness program “will have profound implications for any employer that offers employees wellness programs with incentives for biometric screenings.”

Employees at Honeywell could face as much $4,000 in lost incentives and surcharges in 2015 should they decline to participate in voluntary screenings of their cholesterol levels, body mass index and other measures, the Wall Street Journal reports. Other companies have similar programs in place; at Honeywell, it’s the potential size of the penalties that caught the EEOC’s attention, says the WSJ.

However, the EEOC is at least partly to blame for failing to provide the business community with clear guidelines regarding how to ensure their wellness programs comply with laws such as the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act, said NBGH President Brian Marcotte.

In a statement, Marcotte said employers have been “seeking guidance from the EEOC for years” regarding this issue, yet the EEOC has failed to provide it. “Their lack of clear guidance, plus the recent legal action, conflicts with the message of HIPAA and the Affordable Care Act, which encourages the adoption and expansion of programs that benefit the health of employees and their families,” he said.

Honeywell’s troubles are just the latest example in what appears to be an ongoing battle between employers and the EEOC over what companies can and can’t do with regard to wellness programs. Last month we reported on the agency’s lawsuit against Orion Energy Systems — the EEOC contends the company’s policy of requiring medical exams and screenings violates the ADA.

What should HR leaders do? Well, in addition to working closely with legal counsel when designing and implementing wellness programs, they need to ensure they’re being applied uniformly, regardless of age, race or disability, attorney Anna Maria Tejada of Kaufman Dolowich & Voluck told reporter Kecia Bal.

“You can’t just say everyone can do it and then require a health screening or blood test. Then you exclude certain people. You can’t, in my view, make the wellness program a requirement that will affect the terms and conditions of a person’s employment. And, if someone refuses to do it, you can’t fire them.”

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Lost in the Email

emailEmployers may be starting to feel as if they’re running out of acceptable ways to send FMLA disclosures to employees.

In August, we reported on Lupyan v. Corinthian Colleges. In that case, an appeals court left a jury to settle a dispute over whether an employee ever received an FMLA Designation Notice that her employer claimed to have sent via first-class U.S. mail.

At the time, Ellen Storch, a Woodbury, N.Y.-based partner at Kaufman Dolowich & Voluck, told HRE that employers and HR should “do more than the law requires when providing employees with FMLA notices,” sending them in multiple ways that create evidence of receipt, such as certified mail or an overnight carrier.

Just don’t send them by email. Or at least not only by email, anyway.

That’s what a Michigan district court recently said in Gardner v. Detroit Entertainment, LLC, sending the case to be decided by a jury, after determining that email is not a reliable way to ensure an employee has received FMLA notices, as the defendant company couldn’t provide proof the employee had gotten them.

Some background:

According to the suit, Summer Gardner, who had been an employee at the Detroit Entertainment-owned MotorCity Casino since 1999, “was on and off intermittent medical leave for various reasons” from 2004 to 2011. In September 2011, Gardner was absent on intermittent FMLA leave nine times, which was “five more than anticipated by her physician, and … she also had called off work every Sunday that month,” court records indicate.

On Oct. 7, the casino sought recertification of Gardner’s degenerative spine disorder, emailing a letter to Gardner requesting that her healthcare professional re-certify the basis of her leave by Oct. 25, 2011. Gardner maintains that she did not open—and thus did not effectively receive—the email in time to respond by the specified deadline.

As such, Gardner did not submit the recertification paperwork in time. An automatically generated follow-up letter was sent to Gardner, advising her that her intermittent leave was now only approved from July 1, 2011 to Oct. 6, 2011, and that her leave request from Oct. 7, 2011 to Dec. 12, 2011 was denied, “due to the lack of recertification documentation.”

Gardner was ultimately let go for what were now considered unexcused absences. She sued, claiming her firing violated the Families and Medical Leave Act.

I asked Storch for her thoughts on this case, and her message for HR leaders was much the same as it was in August: use multiple channels to send disclosures, ensure that notices were received, keep meticulous notes and documentation, and carefully consider the intended purpose of the FMLA before terminating an employee who has exceeded the leave entitlement or has failed to comply with a technical obligation under the Act.

“Use multiple methods of communication, at least one of which can be used to prove receipt by the employee,” says Storch, noting the employer in both the Gardner and Lupyan cases used just one way to send notices, which created an issue of fact precluding dismissal of the complaints on summary judgment.

“Make every reasonable effort to ensure the notice is actually received by the employee before terminating an employee on an FMLA technicality,” she adds. In MotorCity Casino’s case, the organization “could have simply asked the plaintiff in person about the requested recertification.

“Had the employer done so,” continues Storch, “it would have learned the employee had not received the request, and the suit could have been avoided.”

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Microsoft CEO Touts Equal Pay after Apology

Satya_NadellaIt seems Microsoft Chief Executive Officer Satya Nadella (at right) is still in apologetic mode after making some ill-advised comments at a recent conference that, in essence, discouraged female employees from asking for raises.

Apologizing immediately afterward, Nadella now says in this Oct. 20 Time magazine online article, that men and women at Microsoft are paid equally. Clearly, the need for more positive spin is still there.

Here, in case you missed it, is Josh Eidelson’s Oct. 13 post on Bloomberg Businessweek‘s Politics & Policy site about whether Microsoft’s female employees have grounds for a complaint with the National Labor Relations Board, based on what Nadella said onstage at the recent Grace Hopper Celebration of Women in Computing Conference in San Francisco.

The post also mentions that Nadella apologized and retracted what he said just hours later in a companywide email, calling his gaffe “completely wrong.” For the record and according to Eidelson, here was his egregious response to a question someone at the conference posed about what he would tell women who are hesitant to ask for a raise:

“It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along. And that, I think, might be one of the additional superpowers that quite frankly women who don’t ask for a raise have. Because that’s good karma. It’ll come back, because somebody’s going to know that’s the kind of person that I want to trust. That’s the kind of person that I want to really give more responsibility to.”

Wilma Liebman, who chaired the NLRB during President Obama’s first term and now lectures at Cornell University, says in the post, “You could make a very clear argument that [such a comment] means, ‘Don’t ask for a raise, and if you ask for a raise, you’re not going to be trusted.’ And ‘you’re not going to be trusted’ translates to ‘you could be in some jeopardy.’ ”

The issue raised in the Businessweek piece, of course — since it considers NLRB review and possible enforcement of Section 7 of the National Labor Relations Act — is whether Nadella’s message explicitly chills a protected concerted activity; i.e., a group of Microsoft women banding together in search of higher pay.

Lawyers are mixed on that one. “If a group of women said these comments chilled them from seeking together to get better pay in the workplace, they could file an unfair labor practice claim with the NLRB,” Paul Secunda, director of the Labor and Employment Law Program at Marquette University Law School, is quoted as saying in that story.

On the other hand, the story says, Samuel Bagenstos, a University of Michigan law professor and former Department of Justice official, doubts Nadella’s comments would merit NLRB review, considering he didn’t specifically address that kind of group activism. “Asking for a raise for oneself only would count as concerted activity if there was an argument that the employee was asserting a grievance that was or could be expected to be shared by others,” Bagenstos is quoted as saying.

Hope B. Eastman, principal at Bethesda, Md.-based Paley Rothman and co-chair of its employment law group, who I spoke with about this, concurs. “The fact that Nadella has apologized and retracted his statement, and the fact that his comment was in the context of an individual woman asking for a raise,” she says, “makes it unlikely that the NLRB would take this on … .”

That said, she adds, “there have been studies suggesting that women do not negotiate salaries as well as men; this is an issue that needs attention.” So the silver lining, I guess, is that this issue was given new light through Nadella’s comments.

The Businessweek piece also brings up another story we followed in 2011 on this blog, when the NLRB issued a complaint against Boeing, claiming executives’ public comments about striking employees in the state of Washington suggested they were to blame for the company’s intended move to a new South Carolina site at the time. (Here’s one other mention of that story on this blog.)

As Eidelson points out, that Boeing story establishes “precedent for investigating public comments from an executive as alleged discrimination.”

And — aside from staying on that apparently long, arduous road toward equal pay — what’s the message for HR in all this? I guess check with your C-suiters on absolutely everything they intend to say publicly before they take the podium or stage …

If that’s even possible.

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Cannabis Business Charges Full Steam Ahead

It came to my attention recently — actually in the writing of a news analysis last month — that there’s a big business growing around 465923899 -- cannabismarijuana, with 23 states now allowing for its medical use and two, Colorado and Washington, allowing for its recreational use.

(For the record, here’s that Sept. 29 news analysis — which actually aired Sept. 30 — examining the issue and what employers can really expect as more laws are passed. It was written just before the Colorado Supreme Court was to hear the case of Coats v. Dish Network and the issue of whether the plaintiff’s positive drug test should have been allowed under the state’s medical-marijuana statute. The court has yet to decide.)

With a keener understanding of this railroad coming down the tracks that is marijuana legalization and the business opportunities on board that train, I took special notice of the Hartford Courant‘s recent coverage of callback selections for a new web series called “The Marijuana Show,” aimed at giving specially selected and very “lucky ganjapreneurs” the chance to become “the next marijuana millionaire,” as the story puts it.

I also happened to notice in the piece that a handful of even-luckier finalists just finished participating in “an intense three-day business boot camp” that ended last Sunday, Oct. 12, prior to the finalists then pitching their marijuana-money-making ideas to investors in hopes of receiving financing, mentorship and attention on the show after the entire process has been filmed. (Here, too, is the Cannabis Business Times’ version of all this.)

So I reached out to co-producers Wendy Robbins, also the show’s director, and Karen Paull, to find out what I could about the boot camp. Their comments did nothing to quell the notion that there’s a most-definite marijuana-business movement afoot.

The camp, says Robbins, included “attorneys, an accountant [and] a branding expert [among others, and focused on] financial help with valuations, regulations, business-plan help, pitching advice and [of course] social media too.” Five out of the 10 finalists were even offered financing and some got mentoring help with their ideas — which ran the gamut from cannabis retail or leisure outlets to supply and distribution centers to growing establishments.

“Most shows have one winner, so we were blown away that half of the contestants got some sort of deal,” Robbins says.

“This is not a scripted show, nothing is predetermined,” adds Paull. “It’s a very organic process.” Indeed.

Looks like airing begins in December.

My story in September also references a Cannabusiness Accelerator job fair held in Seattle Sept. 19, “with the support of the [fast-growing marijuana] industry’s leaders to serve as a locus of networking and informational know-how [for job seekers], as well as a showcase for program partners, all suppliers to the new industry,” according to that company’s release about the event.

But the story does also include employment attorneys’ cautionary comments about the need for employers to not get too worked up. They needn’t, they say, ready themselves for all this marijuana-legalization and cannabis-business momentum to lead to across-the-board pot-induced workplaces (though statistics do show more employees are showing up for work under the influence).

Marijuana, they say, is still against federal law and employers still have every right, and responsibility, to maintain zero-tolerance policies because of that, and for safety and productivity reasons.

As Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace and a Reston, Va.-based senior partner at Jackson Lewis, told me for that piece:  “This is not a crisis for employers. Their backs are not up against the wall.”

Not yet anyway, legalization supporters and cannabusiness entrepreneurs would probably say.

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