Thursday, June 25, 2015

You Can be Fired for Smoking Pot!

The Colorado Supreme Court handed down a decision in a matter that should have been addressed in that state’s (and others) law on recreational and medical use of marijuana. It ruled that medical marijuana patients can be fired for using marijuana, even if they only use the drug when they’re off the clock. That this question had to go to that state’s Supreme Court is really a commentary on the short-sightedness of the legislators who wrote and passed the law.

Colorado has both medical and recreational marijuana laws on the books, as well as a "lawful activity" law. Such laws prevent employers from discriminating against employees who engage in legal off-duty conduct. While the state’s medical marijuana statute stipulates that nothing in the law "shall require any employer to accommodate the medical use of marijuana in a work place", this case hinged on the state’s lawful activity law. The state Supreme Court had to codify that since marijuana is still illegal under federal law, its use could not be protected under any state law governing it. 

So, in Colorado, at least, an employer’s right to maintain a drug-free workplace has been retained. Other states should be clarifying their laws, as well, before the issue becomes a court case wasting time and money on both sides.

I’m not really sure I ever understood the argument that if it is legal to use (at the state, or even eventually at the federal, level) you should be allowed to have said substance in your system while at work. Alcohol is legal, yet we don’t argue that an employer shouldn’t be able to prohibit you from drinking on the job, or being under the influence of alcohol, while at work. Prescription pain medicine is legal, yet we don’t argue that an employer shouldn’t be able to prohibit you from being under the influence of that medication while at work. Why should it be any different with marijuana? Is it because we don’t have a good\legal measure (like blood alcohol level) to know if someone is under the influence? Maybe. And I certainly agree that one needs to be developed. However, until that time, or even at that time, I still don’t think I want to have someone who may be affected by the use of a mind-altering substance making my food, building or fixing my car, caring for my child/parent, etc., etc., etc.

What defense is left to a business when an employee on a forklift mows down three co-workers, or at the least destroys thousands of dollars of your customer’s product? What defense is there when your pizza winds up with some toxic substance on it instead of the mozzarella or oregano? How will a business respond when your loved one is left to wander out into the street? "Umm, gee, sorry. You see, it’s legal and we can’t prohibit its use, so we also can’t really test for it, and we couldn’t do anything even if we could! Sorry you/your relative/property were injured/destroyed." I’m not thinking that will go over really well in a court of law when you get sued.

And then there’s this: the percentage of U.S. workers testing positive for illicit substances such as marijuana, cocaine and methamphetamine has increased for the second consecutive year. 

Quest Diagnostics, a national clinical laboratory, issued its report Quest’s Drug Testing Index (DTI) and it shows that the positivity rate for approximately 6.6 million urine drug tests in the general U.S. workforce increased overall by 9.3%, to 4.7% in 2014 compared to 4.3% in 2013. 2013 was the first year since 2003 in which the overall positivity rate increased for urine drug tests.

There had been a decades’ long decline in the abuse of illicit drugs in the U.S. workforce, Quest said, noting that overall positivity for oral fluid and hair drug tests, representing approximately 1.1 million tests, also increased between 2013 and 2014.

Marijuana is still the most commonly detected illicit drug, Quest noted. Positive tests in the general U.S. workforce increased 14.3% between 2013 and 2014, and 5% between 2012 and 2013. In the safety-sensitive workforce, marijuana positivity increased 6% between 2013 and 2014, compared to 5.6% between 2012 and 2013. Researchers also analyzed urine drug test data from the two states with recreational marijuana-use laws. In Colorado and Washington, the marijuana positivity rate increased 14% and 16% respectively, between 2013 and 2014, roughly parallel to the national average of 14.3%. Again, this is in the workplace.

The research also showed steady increases in workplace positivity for cocaine and amphetamines over the past two years, reversing a long period of decline. The positivity rate for cocaine in urine tests increased by 9.1% between 2013 and 2014. Tests also showed a 7.2% year-over-year increase in amphetamine positivity in 2014 compared to 2013. The positivity rate for amphetamines is now at its highest levels on record and the positivity rate for methamphetamine is at its highest level since 2007.

Given this information, along with general common sense, it doesn’t appear to be a very good idea to put roadblocks in place that would allow these numbers to continue to increase.

Thursday, June 18, 2015

Rachel Dolezal: Do We Care?

And if we do, why should we?

Unless you’ve been roaming the wilderness or chose to be completely unplugged recently, you’re no doubt aware of the Rachel Dolezal story, the Spokane chapter president of the NAACP who was recently outed by a reporter who discovered that she’s actually white, and not African American (or even Native American) as she’s presented herself.

Should we care that she’s chosen to identify with a race or ethnic group into which she wasn’t born? Not really. Not on the face of it, we shouldn’t. After all, we’re all free to support a mission, advocate for and even identify with any group we choose. That’s part of the beauty of being who we are, Americans and human beings. We can do that here. And many of us do just that. As reasonably intelligent adults, we don’t have to necessarily be of a group to understand that group and to support and advocate for that group. Certainly, the NAACP doesn’t care that she’s not African American. It has other non-African American chapter leaders across the country that do a fine job in their roles.

But that’s not what this is all about, is it? It’s really about the fact that she lied. It’s about integrity; it’s about misrepresentation; deceit. That’s why we should care. As HR pros, we view lapses in honesty and integrity quite seriously. Even one lapse can be a red flag. What else has this person been less than truthful about?

"This is not about race," said Kitara Johnson, a member of the Spokane chapter of the NAACP and organizer of the petition to remove Dolezal. "This is about integrity."


Ms. Dolezal went to some pretty serious extremes to create her chosen persona, and then to hide her origins. Take a read of the article linked above. It’s a pretty astonishing story.  And it seems more astonishing each day since....

If there’s one question that I think all of us legitimately have, it’s why? Why did she lie? Why did she build this fabrication? She didn’t need to in order to be successful. By all accounts she did a bang-up job as the Spokane chapter president. Her efforts made a success of the chapter and got it recognition and reputation it didn’t have prior to her leadership, in a very short period of time. Did she think she couldn’t do that if she wasn’t black? Her efforts and abilities are not tied to her race. If she really thought so, doesn’t it negate what we’ve all been working for – to recognize that the color of our skin shouldn’t and doesn’t matter?

Integrity. She began working as a part-time professor in the Africana studies program at Eastern Washington University in 2010 but a spokesman has now said that she is no longer employed by the university. She taught a class, using her "personal experiences" as a black woman. Many of her students are now questioning the value of her teaching in light of her deception. And I imagine the university did that as well before it didn’t renew her contract this week.

So, the answer is no, we shouldn’t care that she identifies with and advocates for a group into which she wasn’t born. But yes, we should care that she built all this around a lie – a very elaborate lie, a serious misrepresentation of facts that now calls into question much of what she has accomplished. That’s a terrible shame. We may never know what she felt she gained by this deception. But she now knows what she lost. 

Thursday, June 4, 2015

What Would HR Do….

With the TSA failure?

In almost any discipline, when a failure occurs (system, process, product), an effort is made to identify the source.  Root cause analysis is often employed (formally or informally) as a method for identifying the root causes of the failure. A factor is considered a root cause if its removal from the environment prevents the undesirable event from recurring; this is in contrast to a causal factor which is one that affects an event's outcome, but is not a root cause. Removing a causal factor can benefit an outcome, but it does not necessarily prevent its recurrence.

Human resources management is really no different when confronted with issues in the workplace. We try to identify the true (root) cause of failures within our workforce.  What would HR do if confronted with a 95% failure rate in our workplace?  What do we hope the powers that be at TSA will do?

This week a report was leaked that revealed undercover federal agents were able to sneak fake bombs and real weapons past TSA screeners with ease in 67 out of 70 “tests”.  Initial responses from TSA attributed the failure to both human and technological errors. This, despite the billions spent on both equipment and training of personnel. This also appears to be only the latest of several such failures.  In May, Homeland Security Inspector General John Roth revealed that his office had conducted a total of eight similar tests on airport screening operations since 2004 and turned up a number of security failures that persist today.  It has also been reported in recent months that hundreds of TSA employee security badges have gone missing at airports in Atlanta and San Diego. No one knows what has happened to them.

A Washington Post article quotes John Pistole, former head of the TSA as saying “The bottom line remains that it’s just completely unacceptable to have such a high failure rate.”  Pistole came to Washington to discuss the matter with John Roth (TSA’s Inspector General) and DHS Secretary Jeh Johnson. He went on to say “there’s no way [the Red Team] should be getting through as much as they did. Did the technology work properly? Were the [standard operating procedures] adequate for what the evolving threats were, and how did the officers behave?”

Pistole said Johnson would look at all three areas. “Is there a pattern of new employees, or are they senior officers and they’ve been on the job 12 years and maybe they’ve become complacent?” Pistole said. “Then you look at the technology. When was the last time the machines were recalibrated? Are they performing to specifications? All those things form part of that context in looking at this.”

This is certainly at least the beginning of a proper root cause analysis.  A causal factor may be TSA Administrator Melvin Carraway, who was reassigned on Monday to the Office of State and Local Law Enforcement at the Department of Homeland Security headquarters.  Although I fail to see how reassigning him anywhere, let alone another law enforcement division, will positively affect any outcome.

Other immediate actions the TSA will take are reported to be:

1. Immediately revising standard operating procedures for screening
2. Conducting training for all transportation security officers, and intensive training for all supervisory personnel
3. Retesting and re-evaluating the screening equipment currently in use at airports across the United States
4. Continuing to conduct random covert testing

While passenger screening doesn’t appear to be up to snuff, DHS has found that checked baggage screenings are also failing to catch warning signs. A review released in September found “vulnerabilities” related to human error and technological failures, this despite $540 million for checked-baggage screening equipment and another $11 million for training invested since 2009, in addition to millions more on check point passenger screening and training.

Going back to asking what HR would do in a similar situation, when faced with an employee who fails at the job, or a task of the job, we often ask such questions as:

  • Did the employee have at least the basic qualifications (experience, education) to perform the job?
  • Did the employee receive the proper, or enough, training to do the job?
  • Was the employee provided with the right tools/resources to perform the job?
  • Was the employee corrected/coached upon any previous failures or deficiencies?  Was the employee given a clear understanding of what the expectations for performance are?
  • Was the employee informed of possible consequences for continued failure? Have any consequences been applied?

See where I’m going here?  While John Pistole’s comments in reference to analyzing personnel are on target, hasn’t this been done after previous failures?  What were the results of those analyses and what were the consequences?  What will be the results this time around, and what will be the consequences?   I have a pretty good idea of where I’d be starting to focus my attention in this situation.  What would you do?