Last month, the New York Times’ editorial board declared that it was “high time” to end federal prohibition of marijuana. The announcement was newsworthy as the latest social indicator of changing public attitudes about marijuana usage and criminalization. However, for the Times’ human resources department, the editorial stance in favor of marijuana legalization arguably has created more headaches than anything else.

Within 24 hours of the editorial board’s announcement, the Huffington Post and other Internet sites ran stories about the Times’ company policy of subjecting all new hires to a pre-employment drug screening that includes testing for marijuana metabolites. Additionally, a petition on change.org, urging the Times to make its internal policy consistent with its editorial board’s views on the need to “end legal discrimination against people who use marijuana” has received over 5,000 signatures.

I mention this anecdote not to criticize the company’s drug policy or to suggest that a newspaper’s editorial board has any business dictating a large media company’s personnel policy, but rather as an example of the way in which an employer can find itself pulled in mutually exclusive directions on the issue of marijuana.

Another example of the same phenomenon can be seen in the New Mexico Court of Appeals’ 2014 decision in Vialpando v. Ben’s Automotive Services. In the case, the court affirmed the decision of an administrative law judge ordering an employer to reimburse an injured worker for the cost of medical marijuana.

The court rejected the employer’s argument that the administrative decision was illegal because the employer “would be required to violate federal law in reimbursing (the) worker for his medical marijuana expenses.” Instead, the court reasoned, in light of the federal decision not to challenge Washington’s and Colorado’s voter-initiated decisions to legalize and regulate marijuana possession, production and distribution, it was appropriate to enforce the state’s Compassionate Use Act by requiring the employer to reimburse the employee’s medical marijuana expenses.

As states continue to relax marijuana laws, and public acceptance of marijuana continues to grow, these incongruous and internally inconsistent results will only become more common on the employment landscape.

Currently, 22 states and the District of Columbia allow for some form of medical marijuana. In November, Oregon is likely to become a state that allows for and regulates the production and sale of recreational marijuana. Other states are likely to follow suit. Indeed, according to the Pew Research Center, 54 percent of Americans favor legalization of marijuana.

So, how is an employer to respond? Unfortunately, there is no one-size-fits-all answer.

For many employers, if not most, compelling operational needs to strictly maintain a drug-free workplace will remain unchanged.

For example, employers that service federal contracts within the United States are subject to the federal Drug-Free Workplace Act; any relaxation in employer policy could jeopardize the contract. Similarly, employers that have employees performing safety-sensitive functions risk, among other things, potential liability on claims of negligent hiring or retention, were those employers to relax their marijuana policies and a workplace injury involving a marijuana-impaired employee were to occur.

Nonetheless, anecdotal reports suggest that in certain less-skilled industries and geographic areas, employers have challenges finding sufficient eligible applicants who can pass a pre-hire marijuana screening. In such circumstances, where there is not a specific safety or other operational need to safeguard against off-duty marijuana usage, it may make sense for an employer to tailor its policies on marijuana usage to capture on-duty impairment, but leave that employee to his or her own devices when off the clock.

As the law in this area is in a state of flux, employers are well-served to seek guidance from an employment attorney who can help develop a policy that meets the unique operational needs of the employer but also complies with operable laws.

José Klein is an attorney with Barran Liebman LLP. He advises and represents employers on a wide range of labor and employment law matters. Contact him at 503-276-2199 or jklein@barran.com.

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Until recently, Dewey Allen had a day job. The 40-year-old had worked more than 10 years as a firefighter in Baton Rouge, La. According to his lawyer, Allen performed well in the line of duty. Nonetheless, last summer, Allen’s career as a firefighter went up in smoke, when Fire Chief Ed Smith caught wind of a film that Allen co-produced in his off-duty time.

The movie, “Mississippi Shakedown,” is a rump-shaking crime drama that features scantily clad women, drugs and more four-letter words than a Scrabble dictionary. It also includes a scene that the Fire Department alleges was shot inside a Baton Rouge firehouse. Relying on a departmental policy that requires firefighters to notify their superior officer “of all matters coming to his attention affecting the interest and welfare of the department,” the department terminated Allen.

Allen has appealed the termination to the Municipal Fire and Police Civil Service Board, asserting that the termination infringes upon his First Amendment rights and amounted to an impermissible attempt “to censor the off-duty activities of its firemen and impose (the Fire Department’s) perceived moral standards on its firemen.” The hearing on Allen’s appeal is set for Nov. 21.

How the board will rule is, of course, unknown. However, the case provides a salient reminder of the often vague boundary between an employee’s right to own his or her off-duty time and an employer’s need to protect its business interests.

As a general proposition, an employee’s off-duty conduct is not the employer’s concern. However, an employer may discipline an employee if it can establish a nexus between the objectionable off-duty conduct and the employer’s legitimate interests.

Such a “workplace nexus” may exist if the off-duty conduct: 1, harms a company’s reputation or product; 2, renders the employee unable to perform his or her duties; or 3, leads to refusal, reluctance or inability of other employees to work with the employee. For example, one court found that the “workplace nexus” was satisfied when a teacher became involved in a bar fight with her student.

Courts and arbitrators have required that the adverse effect of the off-duty conduct on the business be reasonable and discernible and not merely speculative. In practice, however, the line between speculative and actual harm can be difficult to define.

Conduct that has been found to satisfy the actual harm requirement includes behavior that impacts an employee’s job performance (e.g., drug or alcohol use, criminal convictions or moonlighting), casts a negative light on the business (e.g., subversive activity, consumption or storage of pornography on company equipment, or negative blogging), and conduct that jeopardizes the company’s proprietary or trade-secret information. In each instance, the discipline must be imposed on a case-by-case basis and should be consistent with the employer’s past practice and stated policies.

Even if the employer can establish a “workplace nexus,” there are a number of legal limits that restrict an employer’s ability to regulate off-duty conduct. For example, employers cannot interfere or discriminate against employees who engage in off-duty union activities. The union activities may include use of social media. However, for the use of social media to be protected, the employee must seek mutual aid from fellow employees.

Posts that are solely by and on behalf of the employee himself or herself, without any inducement to collective action, will not be protected, and an employer may impose discipline for the off-duty misconduct. For example, the National Labor Relations Board found that a Facebook post calling a supervisor a “super-mega-puta” was not protected concerted activity.

Another consideration is a new Oregon law (effective Jan. 1, 2014) that prevents employers from requiring an employee or applicant to provide access to his or her social media accounts.

Likewise, with some narrow exceptions, Oregon law prohibits employers from obtaining or using an applicant’s or employee’s credit history for employment purposes. Additionally, the Fair Credit Reporting Act requires employers using outside agencies or investigators to provide advance notice to and obtain authorization from an employee before performing background checks or certain investigations or taking any adverse action against an applicant or employee based on information subsequently obtained.

Public-sector employees like firefighter Dewey Allen also enjoy certain constitutional protections from adverse employment actions for off-duty conduct. These employees have a First Amendment right to engage in free speech. However, that speech is protected only when made as a private citizen (i.e., not as part of the employee’s official duties) on a matter of public concern. Even so, the employee may be disciplined for otherwise protected speech that prevents the employer from being able to operate efficiently and effectively. Public-sector employees also have constitutional privacy protections that may prevent the employer from investigating or imposing discipline for some off-duty conduct.

In sum, employees have the right to live their private lives away from work, and employers have the right to insist on a safe, productive workplace. The balance of those interests can be exceptionally delicate. Employers may be well-served by consulting with an employment attorney before taking the step to impose discipline for off-duty conduct.

Regardless of whether they seek attorney input, employers should make sure that their policies clearly state expectations for employee conduct on and off the job. Such policies should reflect the business’ culture and must be applied consistently when meting out discipline.

Without such clarity and consistency, an employer’s otherwise legitimate efforts to preserve its business interests through the discipline of its employees for off-duty misconduct could be construed by courts and arbitrators as an impermissible shakedown – Mississippi or otherwise.

José Klein is an attorney with Barran Liebman LLP. He advises and represents management in employment law matters. Contact him at 503-276-2199 or jklein@barran.com.

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