Category Archives: legal issues

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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Non-Competes for Sandwich-Makers?

Fast-food chain Jimmy John’s Sandwich Shops bills itself as a place that makes good sandwiches “freaky fast.” Perhaps the formula behind “freaky fast” is so vital and unique that it’s worthy of being shielded behind the walls of Fort Knox, Ky.? That seems to be the gist behind an interesting issue revealed via a class-action lawsuit filed against Jimmy John’s and its franchisees: They apparently require employees to sign a non-compete agreement stipulating that, should they leave (or be fired from) Jimmy John’s employ, they will not seek employment for at least two years with any other establishment that derives at least 10 percent of its revenue from selling sandwiches that’s within a three-mile radius of any Jimmy John’s location.

The lawsuit in question is Brunner v. Jimmy John’s Enterprises Inc., and the details were first reported by the Huffington Post. The plaintiffs accuse the sandwich-chain’s franchisees and its corporate parent of violations under the Fair Labor Standards Act. In the lawsuit, the plaintiffs assert that the non-compete clause “effectively restricts an employee ‘from working in an area that is over 6,000 miles large, at innumerable types of business … in any capacity for a period of two years in 44 states and the District of Columbia,” according to the Workplace Prof blog, which analyzes the details of the non-compete clause.

Is a non-compete clause for fast-food workers enforceable? Unlikely, according to two attorneys interviewed by Politico. Rochelle Spandorf, a business-franchise attorney, said non-competes for low-level workers are quite rare and “very hard to enforce in court.” “I don’t think it’s a smart policy for any employer to apply a non-compete to lower-level employees who are taking directions from supervisors and who are not given independent access to really classified information,” she said.

However, Jimmy John’s and its franchisees — and indeed, many other organizations that require large numbers of their employees to sign these agreements — may have an ulterior motive that’s linked to the traditionally high turnover rates in their field, said Eric Fink, a professor at Elon University Law School.

“It’s not uncommon for employees to extend non-competes that are far broader than the law allows,” he told Politico. “Employees may be scared by this.”

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Screening in a Peer-to-Peer World

Does background screening have a role to play in shaping the future of peer-to-peer marketplaces?  HireRight certainly thinks so.

At this week’s HR Tech, the Irvine, Calif., company announced a new practice that aims to address the needs of “sharing” businesses.

Lyft_Pink_MustacheIn recent years, peer-to-peer marketplaces have been gaining traction, with big bets being made on enterprises like Uber, Lyft and Airbnb. But in order for these organizations to thrive, HireRight CEO John Fennelly believes participants are going to want to know that those they’re entering into a business relationship with are trustworthy.

Through its technology platform, HireRight is looking to provide those individuals with some level of comfort.

In some cases, HireRight’s press release says, a marketplace might mandate screening to help ensure consumer safety and mitigate risk, such as for drivers belong to a ride-sharing service. In other cases, it might offer screening as an option so providers can differentiate themselves, such as for clerical or personal-assistant services.

In the world of background screening, Fennelly says, self-verification is pretty much nonexistent today. But if it begins to catch on in the peer-to-peer world, he says, the approach could eventually transition into more traditional workplace settings.

It should be interesting to see if this indeed turns out to be the case.

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SCOTUS to Hear Headscarf Case

courtWhile the upcoming caseload for the United States Supreme Court’s fall term may not be as heavy on HR issues as in the past, there is at least one case that will examine the role of religious freedom in hiring .

The Court has announced it will hear the case of a Muslim woman who was denied employment at trendy clothing retailer Abercrombie & Fitch because she wore a headscarf.

The company has faced more than one discrimination suit in recent years over the policy, which has subsequently been amended, according to the Baptist Joint Committee for Religious Liberty.

In this case, according to the MSN News story:

Samantha Elauf, then 17, was refused a job at the retailer in Tulsa, Oklahoma in 2008 because she wore a headscarf, violating the company’s “look policy,” which outlines how store staff should be groomed and dressed.

While a federal judge hearing the case found Abercrombie & Fitch was liable for discrimination — to the tune of $20,000 — that decision was later appealed, where the 10th US Circuit Court of Appeals in Colorado ruled that the 1964 Civil Rights Act only protects employees who provide “explicit notice of the need for a religious accommodation.”

Under the act, no one can be refused employment based on their religion, unless the employer cannot accomodate the person’s religious beliefs without adversely affecting business, and court documents said she did not ask about how the company’s “look policy” could be adjusted to accommodate her religious dress at the time of the interview.

“Before her interview, Ms. Elauf knew the position required her to model the Abercrombie style, knew the style of clothing that Abercrombie sold, and also knew that Abercrombie did not sell headscarves,” Abercrombie said in its court brief.

The EEOC said its cases involving complaints of religious discrimination have more than doubled in the past 15 years, according to MSN News.

SCOTUS is expected to take up the case in January, with a decision expected in June.

Stay tuned…

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Yes, a ‘Cantankerous Jerk’ Can Be Fired

177030950 -- angry bossCan a person be lawfully terminated just for being a hard-core grump? Yes, says the U.S. Court of Appeals for the Ninth Circuit in the case of Matthew Weaving v. City of Hillsboro.

Weaving, an officer with the Hillsboro (Ore.) Police Department, was cited several times over a period of years for conflicts with fellow employees. A formal report — issued after a departmental investigation of an officer’s grievance about him — concluded he was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (That’s quite a list.)

Based on the investigation, which also found Weaving had created a hostile work environment and did not possess the emotional intelligence to work in a team environment, he was fired Dec. 11, 2009, after three years with the force.

He sued under the Americans with Disabilities Act, claiming he had been diagnosed with attention deficit hyperactivity disorder, and this condition caused his work conflicts and limited his ability to work or interact with others (a requirement of his job).

He contended his ADHD was a disability, which a district court upheld, but the appeals court reversed. (For everything you ever wanted to know about Weaving’s contention and how both courts viewed the ADHD/ADA issue, see both links above.)

Considering Weaving’s argument that ADHD falls under the ADA, I thought I’d share several earlier blog posts from some of us at HRE that delve into other expansions of, or attempts to expand, the definition of disability under the law.

This one, by David Shadovitz, delves into an appeals court ruling establishing that temporary impairments are now allowed under the law so long as they’re severe enough.

This post, by Mark McGraw, also gets into the temporary-condition allowance, in a different lawsuit, and mentions the American Medical Association’s new definition of obesity as a disease, adding exponentially to the ranks of the disabled.

And this from me a few years back highlights an informal letter issued by the Equal Employment Opportunities Commission warning that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

Meanwhile, in this latest case, employers have good reason to breathe a sigh of relief, says Myra Creighton, a partner with Atlanta-based Fisher & Phillips. The case, she told me, “upholds the principle that employers can enforce their employee-conduct standards governing personal interaction without worrying that the employee will blame his or her bad behavior on his or her disability.”

The ruling doesn’t, however, rule out ADHD as a disability if the plaintiff can prove the condition limits his or her ability to work.

As the Practical Law piece in the first link above puts it, the Ninth Circuit majority held “that the employee’s condition … did not rise to the level of disability [and argued] that a different holding … would open employers to potential liability each time they take an adverse-employment action concerning a hostile employee.”

The dissenting minority, however, it says, notes that “employers are [still] left in the complicated position of having to determine whether an individual, who has been properly diagnosed with ADHD, should be deemed disabled or just a jerk.”

 

 

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Getting Out the Vote

Business groups are looking to make a difference in November’s midterm elections.

As a recent piece on the The Hill website reports, “Heavyweight groups such as the National Retail Federation, the National Federation of Independent Business, the National Association of Manufacturers, the Associated General Contractors of America and BIPAC are among those seeking to increase engagement in the political process this year.”

According to The Hill, more than 90 companies and industry groups are taking part in the Employee Voter Registration Week (which ends today), including the American Forest & Paper Association, Anadarko Petroleum, Caterpillar, eBay and a slew of state-level organizations.  Their hope is to break the gridlock and get employees registered and involved.

About 54 percent of American voters went to the polls two years ago, compared to around 38 percent in the 2010 midterms.

David French, the senior vice president of government relations at the National Retail Federation who discussed the initiative at a press conference the other day (see video), notes that …

“Any of these races could be decided by a few hundred votes, so a strong turnout from the business community could make the difference between a candidate who understands our concerns and a candidate who’s tuned to other voters’ interests.”

As The Hill piece explains, “trade groups and corporations will not be instructing their members and employees how to vote or who to vote for … but will be providing information about deadlines, how to register and where to vote.”

I asked Littler Shareholder Michael Lotito (who is based in San Francisco, but always keeps a watchful eye on what policymakers are up to in Washington) to share his thoughts on the significance of this effort.

Lotito sees it as a counter weight to what the American Federation of Labor does in getting out the vote through registration drives and email solicitations.

“Businesses have been largely quiet in this regard,” he says. “But often, the employees would benefit from hearing from their employer as to how the positions of candidates and state and local propositions may impact the company and, either directly or indirectly, the employees who depend on the company.  Many companies are not engaged in this process, not even encouraging their people to register and vote, let alone modify work schedules on election day to make sure people can vote.”

Lotito also suggests that HR might want to be more than just a bystander in this regard. “Let HR be the leader for the identification of issues, how those items will impact the company, which candidates (regardless of party) advances those interests, and then advising how a person can register to vote, obtain absentee ballots and go to the polls on election day.”

At the end of the day, it’s probably going to be tough to know how much of an impact any of this will have, but with voter turnout for the midterms being as pitiful as it is, it would seem to me that any effort to get citizens more engaged (if I can borrow a word from the HR lexicon) in our electoral system should be viewed as a good thing.

In case you’re wondering, the midterms are November 4—so, if you haven’t yet, mark it down.

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A Hospital Employee’s Offensive Tweets

We’ve written before about the “bring your own device to work” trend, commonly referred to as BYOD. Experts have cautioned about the potential risks employers face when allowing employees to bring devices that can be easily used to share and disseminate potentially confidential information. Now comes news of a Philadelphia-area hospital employee whose Twitter postings will no doubt cause more sleepless nights for medical-center HR and legal staffers.

Kathryn Knott, an emergency room technician at Lansdale Hospital in Lansdale, Pa., apparently liked to write about the patients and their medical conditions she encountered — and her personal opinion of their conditions — during the course of her work. Her Twitter posts include these gems (as reported by the Philadelphia Daily News):

“Babysitting a 36 yo 30pillxanax overdose and holding the urinal for him is definitely what I wanted to do today #winninglikeVegas.”
Knott’s June 10, 2013, photo of an X-ray of a busted pelvis is captioned, “why would you clean your gutters in the rain? #ouch.”
Another, on Feb. 20, 2013, shows a clear bag containing something lumpish. Its caption reads, “A patient gave me a bag of ice with his two fingers in it!” Yet another, posted on New Year’s Day 2013, shows a small spring – X-rayed in what appears to be an abdomen – captioned, “Kid had way too much fun at lacosta last night. Swallowed a pen spring. #rage.”
Knott’s Twitter postings came to light during the course of a police investigation of a brutal event involving her and a large group of friends, who were captured on video allegedly beating and verbally abusing a gay male couple in downtown Philadelphia recently. Knott, whose Twitter posts also included ones denigrating homosexuals, has been suspended from her job by Abington Health, which owns Lansdale Hospital:

 We can confirm that Kathryn Knott has been employed at Lansdale Hospital since May 2011. Because of the nature of the charges against her, she has been suspended from her job as an Emergency Room tech.”

Abington Health is also investigating her Twitter account.The tweets could violate the hospital’s patient-privacy and social-media policies, according to the statement from Abington Health

Daily News columnist Ronnie Polaneczky interviewed a nurse who’s also a lawyer, who told her that while Knott’s tweets may be deeply unprofessional, they don’t appear to violate the Health Insurance Portability and Accountability Act because “patients’ names and other identifiable was not shared.” However, medical ethicist Art Caplan told Polaneczky that he disagrees. If there’s information in the tweets for others to deduce who’s being discussed, he said, then it’s a clear HIPAA violation and a legal liability.
Now is probably a good time for HR leaders in the healthcare industry to review their BYOD and social-media policies, and perhaps schedule some refresher training.
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Bullying Touches All Races and Roles

467291571 -- bullying2A fairly comprehensive — and concerning — report on bullying was released by CareerBuilder on Thursday, showing office bullying knows no partiality when it comes to who the victims are.

The survey of 3,372 U.S. full-time, private-sector employees, conducted by Harris Poll on behalf of Chicago-based CareerBuilder, shows 28 percent of respondents have felt bullied at work and 19 percent of them left their jobs because of it.

More importantly, while the prevalence of bullying is higher among certain minorities and workers with lower incomes, the study finds workers in management roles, those with post-secondary education and other workforce segments are not immune.

“One of the most surprising takeaways from the study was that bullying impacts workers of all backgrounds regardless of race, education, income and level of authority within an organization,” says Rosemary Haefner, vice president of human resources at CareerBuilder.

“Many of the workers who have experienced this don’t confront the bully or elect not to report the incidents,” she says, “which can prolong a negative work experience that leads some to leave their jobs.”

Here’s how the percentages of respondents who say they are currently being bullied break down in the study:

Job Level

  • Management (manager, director, team leader, vice president and above) – 27 percent
  • Professional and technical – 21 percent
  • Entry-level/administrative and clerical– 26 percent

Highest Level of Education Attained

  • High-school graduate – 28 percent
  • Associate’s degree – 21 percent
  • Bachelor’s degree or higher – 23 percent

Compensation Level

  • Earning less than $50,000 – 28 percent
  • Earning $50,000 or more – 19 percent

And here’s what I found to be a pretty interesting breakdown as well, the varying ways bullying victims felt bullied on the job:

  • Falsely accused of mistakes he/she didn’t make – 43 percent,
  • Comments were ignored, dismissed or not acknowledged – 41 percent,
  • A different set of standards or policies was used for the worker – 37 percent,
  • Gossip was spread about the worker – 34 percent,
  • Constantly criticized by the boss or co-workers – 32 percent,
  • Belittling comments were made about the person’s work during meetings – 29 percent,
  • Yelled at by the boss in front of co-workers – 27 percent,
  • Purposely excluded from projects or meetings – 20 percent,
  • Credit for his/her work was stolen – 20 percent, and
  • Picked on for personal attributes (race, gender, appearance, etc.) – 20 percent.

And you might find this surprising. I did. Comparing the public and private sectors, workers in government were nearly twice as likely to report being bullied (47 percent) than those in the corporate world (28 percent).

Meanwhile, as David Shadovitz reported back in July, the nation’s road to anti-bullying legislation at the state level — starting with Tennessee — appears to be a slow one, despite the fact that 28 states have introduced such legislation this year.

In fact, as Mark McGraw posted on this blog a little later that month, one of those states — New Hampshire — went in the opposite direction, when its governor — Maggie Hassan — vetoed the bill pending there because its definition of abusive conduct was too broad.

The silver lining there, McGraw says, is that both the governor and the bill’s sponsor acknowledge workplace bullying is a problem that needs to be dealt with.

My guess is the people in that camp far outweigh those questioning the problem’s seriousness. CareerBuilder’s certainly in the former. So what’s it gonna take to get more laws on the books?

 

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Drug Testing Index Reverses Direction

Most employers may have zero tolerance when it comes to drugs in the workplace, but if we’re to believe the latest data from Quest Diagnostics in Madison, N.J., fewer job candidates and workers are taking such policies to heart these days.

200273910-001For the first time in more than a decade, the percentage of positive drug tests among American workers in Quest Diagnostics’ Drug Testing Index increased, climbing to 3.7 percent in 2013 from 3.5 percent in 2012 (based on 7.6 million urine drug tests), according to Quest. The increase was fueled primarily by a rise in positive tests for marijuana and amphetamines.

As you might expect, the two states that have passed recreational-use marijuana laws—Colorado and Washington—experienced the greatest jump in marijuana-positivity rates, climbing 20 percent and 23 percent between 2012 and 2013, respectively. For the general workforce in all 50 states, the increase averaged 5 percent.

But it should also be noted that those two states experienced dramatic increases in marijuana-positivity rates prior to legalization at the end of 2012. From 2009 to 2010, Colorado experienced a 22-percent increase and Washington a 10-percent decline in positivity. From 2011 to 2012, Colorado experienced a 3-percent increase and Washington an 8-percent increase in positivity.

Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions, says he’s not sure why the steep increases and declines in those two states preceded the legalization of marijuana. “It is possible that relaxed societal views of marijuana use in those two states, relative to others, may, in part, be responsible for the recent increase in positivity rates,” he says. “Yet this doesn’t explain why both states also experienced steep rises—and declines—in positivity in recent years.”

In light of these findings, Quest says it will be paying close attention to how the data evolves over the next year or two.

But what “we do know,” he adds, “is that workforce positivity for marijuana is definitely on the rise across the United States.”

In addition to these findings, Quest reports that use of amphetamines showed an increase across all three specimen types and oxycodone positivity declined 8.3 percent between 2013 and 2012 and 12.7 percent between 2012 and 2011 in the combined U.S. workforce. (In fact, four states actually experienced double-digit declines in oxycodone-positivity rates in both 2013 and 2012: Florida, Massachusetts, New Jersey and Ohio.)

Of course, the rise in positivity rates could be aberration. After all, it’s just one year — and hardly the kind of move employers need to get worked up about. But that said, it’s still something they’re probably going to want to keep a close eye on, especially if more states decide to follow in the footsteps of Colorado and Washington and pass laws legalizing the recreational use of marijuana.

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