Employers and weed crime pardons: background checks explained

Excerpted from a Bloomberg Law Blog by Paige Smith

President Joe Biden’s much-ballyhooed move to pardon people charged with federal offenses for simple marijuana possession could mean renewed hopes for thousands of people with these convictions who may have been denied employment opportunities.

The White House said the pardons could impact more than 6,500 people, but the Oct. 6 executive action doesn’t directly impact or change federal or state employment laws. Employers can use background checks in a nondiscriminatory way to screen applicants under federal law—one way an applicant’s past conviction could crop up. Biden also encouraged state-level offenses to be pardoned, putting the onus on governors to do so, and asked the administration to consider how marijuana is “scheduled under federal law.” Currently, it’s classified at the same level as heroin, according to a White House statement.

“It was a very small number of people, but there may be some small, direct impacts,” particularly when it comes to highly regulated work, or perhaps roles with security clearances, said Nancy Delogu, a shareholder with Littler Mendelson P.C. “This will help them get work, obviously.”

1. How does the promise of pardons impact workers?
From a worker’s perspective, it will be as if the conviction never happened, Delogu said. So for workers applying for positions in states where employers can ask about an applicant’s arrest and conviction records, there will be nothing to disclose. Many states have laws on the books that restrict pre-employment inquiries about these records, but some don’t, meaning an employer can ask an applicant before extending an offer.

2. Why is this coming now?
Biden promised to take this action during his presidential campaign and he’s fulfilling it ahead of the midterm elections. But this doesn’t go as far as to decriminalize marijuana. Unified, federal marijuana legislation—as opposed to individual so-called “snowflake” laws at the state level—would give employers more clarity, said Delogu.

3. Should employers change their hiring process?
The US Equal Employment Opportunity Commission has made clear to employers that requiring a background check under federal law isn’t illegal, as long as it isn’t done in a discriminatory manner. For example, an employer can’t just require background checks for Asian workers. However, the workplace civil rights agency advises against using information about a past criminal record if that information could have a disparate impact and isn’t job-related.

“For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee,” the agency said.

The White House executive action isn’t requiring employers to change how they’ve been handling marijuana convictions, because a conviction can only disqualify a candidate if that conviction may have an impact on the job the worker would be performing. But convictions at the federal level will no longer be available for employers to consider, Delogu said. That may encourage employers to reconsider how they’re using the information that an applicant has a marijuana conviction at the state or county level, for example, she said.

“In my experience, many, if not most, employers do not consider convictions for simple possession of marijuana and more jurisdictions are actually making it unlawful for an employer to do so, including in California, Virginia, and New Jersey,” Jennifer Mora, senior counsel at Seyfarth Shaw LLP, said in an email.

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