An Attempt At Journalism With Regards To Corporate Marijuana Policy In Colorado Post-Amendment 64


Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to

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64 Responses

  1. Burt Likko says:

    Nb: I am not licensed to practice law in Colorado state courts and my research consisted entirely of looking up one statute. But @jaybird is correct in reporting my assessment based on this not-very-exhaustive look at the law. This looks to me to be a significant shift from the “fire at will, except for a bad reason” scheme that prevails in California and (I believe) a majority of the states.

    As for marijuana policies, I expect part of the problem is the novelty of state law decriminalization in this jurisdiction, and the malleability of Federal acquiescence to decriminalization. With time and experience, (some) employers will modify their policies.Report

  2. zic says:

    Awesome on the ground reporting JB! Nice, nice job.

    Somewhat OT, but for anyone doing citizen journalism like this, I want to hone on on this graf:

    So then I called the next company’s 800 number and, sigh, got a Phone Tree. After a few minutes, I talked to a real human being in HR who, when I told them who I was and then asked my questions, sent me to Media Relations. I was asked to send an email (and a link to the blog) and so I sent an email with my questions and a cheerful description of all of us happy people here and… well. I’m still waiting on a response.

    Getting people to talk to you is the goal. And if you’re just joe schmoe, businesses generally will not talk. You’ve got to be somebody. In this graf, you were, even though it didn’t bring a result yet. I encourage any of you, working on a piece of citizen journalism like this, to say, I’m writing for an internet website called Ordinary Times; it’s a well-known blog, on the blog-rolls of serious writers like Andrew Sullivan and Jonathan Bernstein. We cover a wide range of topics, including politics and legal matters.

    Second, ask for Media Relations right off the bat, and tell them that you’re researching a piece for \*important blog\* OT, and ask them to arrange an interview with someone within the company who has the authority to speak on the topic; give them a choice of being on or off record. That’s a professional way to handle it, and is more likely to get you taken seriously.

    If companies opt to be on record; let them be on record, and get exact quotes, attributed to the person, and use them as exact quotes, mixed with paraphrase and summary.

    And a very valid response from any business would be that they’re reviewing their policies given the changes in the law. That can take some time.Report

    • Jaybird in reply to zic says:

      What’s weird, though, is that I only got an official answer from one company. (Incidentally, the smallest company that I called.) I had thought that there would be no shortage of companies pleased to say “We have a drug-free workplace!’

      The only companies that did so were the military contractors.Report

      • Kim in reply to Jaybird says:

        The smallest company wants it on record as a PR point. The military contractors want it on record… so they don’t lose governmental contracts. But they need to run it through to “somebody higher than HR flunkie” about whether they can tell “Mr. Blogger”.Report

      • zic in reply to Jaybird says:

        As a freelance writer, the single biggest challenge I had was convincing people to talk; preferably on record.

        That requires some sort of pedigree; a publishing company (or place), a list of prior publications, etc. You need to, in some way shape or form, prove you’re worth going on record for, even if it’s off record or what they say will be anonymous.

        For the small company, I’d bet size is the driver; they probably don’t have the fear of a media relations position drowned into them. The bigger the company, usually the bigger the pr machine and the more that machine filters everything anyone within the company says. This is one of the real challenges of business writing about privately owned companies (shares not traded on some sort of public market), where you have to get people to talk about stuff like sales and revenues and margins, too.Report

      • Jaybird in reply to Jaybird says:

        Zic, I kinda hope that there’s at least *ONE* “real” journalist out there who says “you know what? That’d make for a good story” and has enough stroke to actually get someone to say “My name is Charlie Bagadonuts and I work for ABC Conglomerate and our policy used to be to make people pee in a cup to test them for whether or not they’d agree to take the test but now we have them put together a 5 dollar Lego kit and weed out low-quality hires that way.”Report

      • zic in reply to Jaybird says:

        JB, I like the lego-kit test idea.

        Building a piece of Ikea furniture, too. Screen your future employees by having them build their own cubicle.Report

  3. NewDealer says:

    I am going to concur that a lot of novelty comes from the newness of the law and the limbo with federal restrictions.

    What sort of institutions require drug tests? Do they require them for all employees or just some employees? I.e. does the person driving the forklift in the warehouse get drug tested but the people in marketing or legal at Corporate HQ do not?

    I’ve never had to do a drug test for any job. Keep in mind that most of my jobs were office jobs, with small or medium sized companies, and they probably did not have the budget or need to do drug testing. I’ve worked as a freelance legal proofreader at large law firms but those jobs lasted a day or a few days at most.Report

    • Jaybird in reply to NewDealer says:

      Well, when I worked at one of the companies (that did, indeed, make me pee in a cup), I was doing Unix Admin work.

      (And I know I say this all the time but when I applied to Blockbuster back in the 90’s, they gave me a *HAIR* test.)Report

    • Fish in reply to NewDealer says:

      While I was active duty Air Force, not only did I get tagged twice to go pee in a cup (at the time for the DoD it was all “random;” don’t know if that has changed (“random” in quotes because while I was in Europe it seemed like anyone who went to Amsterdam would get “randomly” selected for golden flow)), but I also got tagged once as an NCO to go watch one of our Airmen pee in a cup. At least we males had it better than the female observers, who were obliged to get all “Johnny Bench” when they watched as we had to actually see the urine leaving the selectee’s body and entering the cup. Good times.

      A quick scan of my current employer’s employee handbook shows the usual language about illegal drugs being prohibited with exceptions for prescribed medicines along with the usual caveats about being impaired at work. Seems like a nice loophole there until you consider that security clearances are granted by the Feds and not by the states. That’s the “gotcha.”Report

  4. LeeEsq says:

    Corporations are probably going to be very cautious because of the ambiguities between federal and state law, especially if they operate outside of Colorado. We already know that banks are refusing to deposit money from the owners of marijuana related businesses because they fear they might be committing money laundring. Anything more substantial like providing a loan to a person that wants to open a marijuana related business is even more problematic.

    This shows the limitations on using states as laboratories of democracy when it comes to drug related issues. As long as its still possible to face prosecution under Federal law, many people and grouos are going to be very cautious. Your state might not prosecute you but a zealous Federal US Attorney could in Federal Court. The FBI can stilll go after you. Real reform in the drug wars has to occur on the Federal and state level.Report

  5. Michael Drew says:

    I second @zic: this is very cool, kudos on this, JB.Report

  6. Robert Chase says:

    Not so fast! Your legal gloss — “Colorado has said that they’re going to stop arresting people for weed” — is defective. You may have seen a recent report in the DP, picked up by other news outlets, to the effect that arrests for cannabis have “plunged 77%” (mostly hand-wringing on the part of cops). The innumerate people responsible never ask why arrests have not plummeted 100% — if cannabis were completely legal, one would expect there to be no arrests for it. In reaction to the decision of the People of Colorado in November of 2012 to legalize limited personal use and some retail sales of cannabis, Gov. Hack and the General Assembly reaffirmed all the felonies for cannabis, and even increased the maximum severity of cannabis-offenses to a Class 1 felony (akin to premeditated murder) for the first time in our history during the 2013 legislative session! Despite the declaration of the People in our Constitution that cannabis “should be regulated in a manner similar to alcohol” and the fact that the worst penalty under the Liquor Code is a misdemeanor, growing, selling, or distributing cannabis beyond the narrow limits in the Constitution is still a felony. Outside of Colorado’s overtaxed dispensary system, mostly located around Denver and along the Front Range, people have no means of obtaining cannabis, medicinal or otherwise, other than to grow it, and all the people who help to supply are still being subjected to arrests, prosecutions, and convictions for felonies. The drug-police-parasites know that further enforcement of these unconscionable, fundamentally unjust laws will fall disproportionately on the heads of the poor, people of color, and rural Coloradans, but their livelihoods depend on their continuing to prey upon whoever they can. Everyone who uses cannabis has an ethical obligation to fight to end felonies for it!Report

  7. j r says:

    Nice reporting and nice piece!

    Maybe the lawyers can add to this, but I would think that civil law and the threat of lawsuits and liability from drug addicted employees would be a bigger factor in deciding employment policies than criminal law.Report

    • Jaybird in reply to j r says:

      I can completely understand a policy that says “we will drug test our drivers and our metal press workers but we will not drug test our desk jockeys”.

      I also suspect that such a policy would look awful in practice and would result in one hell of a lawsuit.Report

      • j r in reply to Jaybird says:

        It’s not just liability from employees. It’s the liability of employees.

        For instance, if your health insurance includes mental health or substance abuse treatment, it makes sense to screen out employees with substance abuse problems.

        Also, from a pure risk perspective, you may not have a problem hiring a recreational drug user, but you might have a problem hiring someone who can’t keep clean long enough to pass a one-time drug test. And there are probably lots of hassles to firing someone with a real drug problem.

        By the way, from an ethical standpoint, I oppose most employer drug testing, but we are a long way from my personal privacy standards.Report

  8. Kazzy says:

    I have never had to pee in a cup. Most of my jobs have been in education or similar such work, but I also delivered pizzas and worked in various roles of on-campus food service. Most institutions were small, but both the food service work and a day care position I held were part of a largish university. The former work was done as part of a work study program while the latter was a full-time position I had after graduation and which technically fell under the HR department. Still… no pee cup.

    Skimming my current employee handbook, I found the following:
    “Substance Abuse Policy: Possession and/or use of illegal or controlled substances by any student or employee of SCHOOLNAMEHERE is expressly prohibited and may result in immediate expulsion or termination. The Head of School and the President of the Board of Trustees will review any case arising under this policy and reserve the right to require counseling, treatment, or other therapeutic interventions as a condition of continued employment by the School or enrollment in the School.”

    The language makes it unclear whether it is exclusive to possession and/or use while on campus or if it extends beyond that. But even there, it is not cause for immediate expulsion. I don’t remember the specifics of such policies at past schools, but I can say that nothing stood out to me as being more strongly worded than the above. Then again, I haven’t indulged an illegal substance since high school so it isn’t something I tend to pay close attention to.Report

  9. Matty says:

    Is testing all employees standard in the States? I can’t think of any British employer who would drug test a staff member unless they were repeatedly acting stoned at work or in a role where it would affect safety like driver or air traffic controller. I’ve certainly never heard of it being done at hiring or randomly in an office.Report

    • Kim in reply to Matty says:

      I work in a hospital. Got a TB test too.
      (note: I also had a TB test when I worked at uni, along with a
      background check about working with kids).Report

    • Glyph in reply to Matty says:

      I think testing once prior to hiring is (or used to be, anyway) pretty standard at any large company. I think the costs to the company of testing were/are offset by lowered insurance costs.Report

    • zic in reply to Matty says:

      I think it varies wildly.

      For any company that deals with the risks of equipment, it’s probably standard as a way to control liability. Transportation companies, factory work, etc.; it’s likely. For large companies, it often just became part of company HR policy simply to eliminate the problems of who to test and who not to test. Plus, it’s a way of screening out potential addicts.

      Smaller companies will vary by what they do and the demands of their insurers; if they don’t have to pay for it, they’re not going to want to bother to pay for it. But it might be cheaper for them to insure their businesses if their work force was screened before they were hired, too.Report

      • Kim in reply to zic says:

        Drug tests only catch marijuana with any real accuracy, anyway.Report

      • zic in reply to zic says:

        I thought the picked up opiates, hence the problem of eating poppy seeds before you have a drug test. Pot does stay in the system longer, depending on the test used. I know most of my pot-smoking friends with job interviews coming up go clean for at least two weeks before a pee-in-the-cup test; I believe a hair test (required by some places; my son had one for a CNC job,) requires a lot longer. I know some people who just went clean for a few weeks, and get buzz cuts before interviews.Report

      • Kim in reply to zic says:
        Ah, it’s time based. That’s what I was remembering.
        Basically, for a lot of these it’s “don’t use it for a couple of days”
        … which picks up hard core addicts, but not others.Report

      • morat20 in reply to zic says:

        Anyone working under a DoT contract has very rigorous testing. X% of the employees under DoT contract tested per month, for starters.

        Drinking or using ON the job gets you fired, ASAP. Testing positive gets you suspended pending counseling, and you only get one chance – a second positive will get you fired.

        Pretty rigorous on when you can use even legal stuff — booze or valid prescriptions, since DoT stuff is generally about heavy machinery or transport.Report

    • Jaybird in reply to Matty says:

      I’ve peed in a cup for all but two of the jobs I’ve had since the mid-late 90’s (the two exceptions were 1) a company that I’d worked at before and came back to… they waived the drug test and 2) a company that explained to me that I would pee on command if it ever came to that and refusal constituted a resignation letter, but it never came to that). They’ve all been desk jobs. Even the two-month in-and-out contract that I had in Denver asked me to provide a urine sample first. I don’t know how interesting it is to point out “and same with everyone I worked with!” to that.

      Now, I *DO* have a bit of an interesting anecdote when it comes to one of the places where I worked… I know that they were interviewing a very good coder. One of those guys who dreamt in C++. They interviewed him, handed him the paperwork, told him about the urine thing and he said “Oh, I’m going to test positive for marijuana.” The manager kinda froze for a second and said “well, we really only test for cocaine, opiates, PCP, and meth.”

      The coder *DID* end up getting hired. (This was the same company as #1 in the above exception… maybe they waived the test? Maybe the manager was telling the truth?)Report

      • Shazbot11 in reply to Jaybird says:

        “I’ve peed in a cup for all but two of the jobs I’ve had since the mid-late 90?s.”

        Did they ask you to do that or did you just come to the interview with pee already in a cup?


      • Jaybird in reply to Jaybird says:

        I’m old-fashioned enough to pee upon request. If you just give it away without people even having to ask, they won’t appreciate it as much.Report

      • Mike Schilling in reply to Jaybird says:

        If he’s doing C++11 these days, he probably has graduated to opiates or meth. (If you’ve ever looked at a language and thought “there’s nothing worse than this”, just wait a few years.Report

    • Will Truman in reply to Matty says:

      I’ve been tested a couple times, I think. At one company where I wasn’t tested they instituted “random drug testing” that seemed to randomly select troublesome employees.

      It was actually comical, in a way. My peer and her husband were both tagged. The funny thing was that she was a very problematic employee who seemed to have made enemies of everybody. But of all of the problems that she had, being too laid back and kewl wasn’t one of them. But a problem (that her position was about to be eliminated) was solved. Her husband also tested positive, which answered the question that had already been asked “If we let her go, what about him?” One of the customer service agents was also tossed. The HR director could barely hide her giddiness as she supervised the desk-cleaning.Report

    • NewDealer in reply to Matty says:

      There seems to be no official policy. I have never had to do it for any job.Report

    • Mike Schilling in reply to Matty says:

      I’ve never had to do it, and I’ve worked for some fairly large companies.Report

    • Troublesome Frog in reply to Matty says:

      I’ve worked for a few different companies large and small and held security clearances while doing engineering stuff for DHS and national laboratories. Never been drug tested. Been intensively investigated and deeply scrutinized, but I’ve never had to pee in a cup. Now that I don’t have to take any one particular job, I’m not sure I’d ever agree to it any more than I’d agree to give my employer access to my Facebook account. I’m sorry for anybody who has to put up with that kind of indignity.

      I was surprised that my wife had to be tested to start her job as an engineer for a major microprocessor manufacturer. I just figured it was the type of thing you didn’t put high level technical employees through. The test, “Can you get through the technical interview and then do ASIC design with other engineers looking at your work?” seems to be a pretty good sobriety test.Report

  10. zic says:

    So I’m sorta curious about the notion that companies do drug-testing as screening for relatively stable employee. So I also wonder about credit checks.

    Did a job have you give permission for
    1) a background check
    2) a criminal background check
    3) a credit check
    4) and/or pee in a cup?Report

    • Jaybird in reply to zic says:

      To be honest, I’m kinda taken aback by all of the people who haven’t had to do these sorts of things… I thought that my experiences were close to universal! Anyway, yes to 1, 2, and 4 for those. Pretty much every single job I’ve had since the restaurant has requested me sign something giving permission to dig into my private life.

      I guess I just assumed that everybody who has worked for a Forbes 500 company has had to go through the same.Report

    • Matty in reply to zic says:

      A background check in the sense of asking for references and wanting to see the certificates for education you claim to have, yes of course.

      Criminal records check, I don’t think so unless working with children or vulnerable adults in which case it is mandatory though they are looking for relevant crimes so being busted for pot ten years ago probably isn’t going to mark you as a potential abuser.

      Credit check, why would they do this? The employer is not lending you money, why should they care how much of your paycheck goes on repayments as long as you earn it? I suppose it might make sense if you are handling money since those in debt may be more tempted but otherwise I don’t see it.Report

  11. Randy Harris says:

    I am a self-employed professional with a small staff. In my many years as an employer, I have never given a serious thought to drug trusting employees. If they smoke pot on their own time (I doubt any of them do) I’m not going to worry about unless they show up to work high.Report

    • Jaybird in reply to Randy Harris says:

      Randy, that’s awesome (and strikes me as the way to go). Would you mind telling us if you are in Washington or Colorado?Report

      • Randy Harris in reply to Jaybird says:

        Actually, I’m in New Mexico, which has medical marijuana (“Randy Harris” is a pseudonym, so don’t Google me). If an employee smokes pot and doesn’t have a medical marijuana card, I’m still not going to worry about it.Report

      • Jaybird in reply to Jaybird says:

        Totally cool. I just wanted to know what the underlying dynamic was. It’s one thing to say that you don’t test in a state where they don’t even have MMJ (yet), another to say that you don’t test in, well, Colorado.

        Thanks for answering!Report

  12. What's the frequency, Kenneth? says:

    The State of Colorado can only do so much to get out of the way, and they’re not even doing that. This is because the A64 people invited the state to regulate pot. They basically assured that A64 would not change your employer’s basic right to sever your contract with them at will, which is the same right you have. That’s basically the “good” news–that things didn’t get worse.

    Unfortunately, most employers would some day like to sell a product or service to the government. This means they comply with the Drug Free Workplace Act. This means they must make a good faith effort to determine whether you take any “illegal drugs,” and presumably, must fire you for doing so.

    Start there. That’s the biggest problem.Report

    • NPR was reporting the other day that Denver was trying to figure out how to tax not yet harvested plants.

      Yes, these plants would be taxed when they were harvested (of course!), but the radio talked about how Denver couldn’t figure out what it wanted to do with the not yet harvested ones with regards to taxation.

      Colorado wanted regulation, and so it shall get regulation. Good and hard. I’m hoping that the golden eggs get all over the country before the states kill the goose. Hell, gosling.Report

  13. zic says:

    @jaybird, I think you should request membership to this blog:

  14. North says:

    Great work Jay. I can’t say I’m surprised to be honest. The law moves sllllloooooow and policy shifts ripple down the cultural and legal ladders like frozen molasses. In this case the law also is moving very incrementally so the ripples are even slower and more hesitant.Report

  15. James Hanley says:

    Did you call your old firm, Focus on the Family? I’m sure they’d love to talk to you about their drug policies.Report

  16. Damon says:

    Yeah, the results weren’t too surprising, especially the Defense Contractors and large corporations. I don’t imagine they’ll change their policies at all, if only to not have Colorado employees a special exception to the general corporate policies. And for Defense Contractors, no one wants a Washington Post headline that reads “Company’s employees high on dope while making bombs”.

    I’ve been tested several times, one even when moving WITHIN the same corporation to another operating company. Background checked as well.Report

  17. Zane says:

    This was really great, Jaybird! I’m sure that it will be a while before there’s any uniformity in approach on these issues.

    Speaking of testing for cannabis, Barbara Ehrenreich made the point in “Nickel and Dimed” that unskilled, minimum-wage jobs very often require drug-testing in the US. Cannabis and (to a lesser extent) opiates are pretty much the only things “usefully” tested for, while alcohol is almost never tested for. It all has to do with what stays within the body long enough to detect.

    Home Depot makes a point of plastering big signs around their entrances about how they drug test all their workers. I buy from there as rarely as possible. Even as a teetotaler from all substances, I think that’s a terrible policy.Report

  18. Matty says:

    Actually I’ve just remembered the only time I was tested. This was a construction site that partly overlapped with a major chemical plant and there was a certain amount of paranoia about what could go wrong. The test was based on saliva rather than urine and consisted of chewing a stick which was then matched against a colour chart.Report