Shellene M. Cook, MJ-LEL, Fall 2022
Often, when we think of an intersection, we think of a multi-way traffic stop, waiting for other vehicles to go, so we can go. Employment law is similar in application, which rule, ordinance, regulation, law, and/or mandate do employers have to follow, and which ones are subject to supporting ones? Sometimes the law is clear, other times it is not.
This paper follows the intersectionality of employment law regarding the legal use of marijuana, except when it intersects with employment rules, ordinances, or laws. How do employers comply with local or State laws where recreational (and medical) use of marijuana is no longer prohibited with Federal contracts that mandate a Drug-Free Workplace? This paper will look at which laws are primary, which are enforceable, and what is the best route for employers to equally apply them amongst their workforce.
Equal employment rights are also reviewed in this paper, looking at the reality of our fellow citizens of the U.S. Territory of American Samoa. Citizens of American Samoa receive the right to work in the U.S., albeit it not everywhere, and not for every employer. It is up to employers and those applying for work to know which jobs they are eligible to work for, and, unfortunately, which ones they are not. This is a dangerous employment intersection for employers to navigate, as failure to comply with governmental requirements may result in fines and even termination of contracts.
Employers and Human Resource professionals face these challenges daily and are required to know how to apply which law above another. These determinations are at times simple, and at other times can become complex. Continued education, training, and awareness will keep an employer compliant with these requirements. For further information regarding these two topics, you can read, Legal Intersection: When Employment Laws Intersect and Contradict One Another (see below). This paper will review the changing landscape around the legal use of marijuana, and eligibility to work in the U.S. for citizens of American Samoa.
LEGAL INTERSECTION: WHEN EMPLOYMENT LAWS INTERSECT AND CONTRADICT ONE ANOTHER © 2022 by Shellene M. Cook is licensed under CC BY-SA 4.0. To view a copy of this license, visit http://creativecommons.org/licenses/by-sa/4.0/
LEGAL INTERSECTION: WHEN EMPLOYMENT LAWS INTERSECT AND CONTRADICT ONE ANOTHER
Shellene M. Cook
INTRODUCTION ….. 2
I. LEGALIZED MARIJUANA ….. 3
a. Washington State Changes the Rules ….. 4
b. Employer’s Choice ….. 4
c. Escalating Conflict and Intersection ….. 5
II. ELIGIBILITY TO WORK IN THE UNITED STATES ….. 6
a. Who is a United States Citizen ….. 7
b. What it Means to Be a U. S. National ….. 8
c. The Conflict of Citizenship ….. 8
CONCLUSION ….. 9
LEGAL INTERSECTION: WHEN EMPLOYMENT LAWS COLLIDE AND CONTRADICT ONE ANOTHER
Shellene M. Cook
Professor Saru Matambanadzo, now Senior Director of Online Legal Education at Tulane University School of Law introduced me to Kimberlé W. Crenshaw, and her pioneering perspective of ‘intersectionality’, where different forms of discrimination overlap and compound upon one another. During this course, through learning Ms. Crenshaw’s perspective of overlapping and/or contradicting discrimination, I began to see an alignment with how employers balance varying laws affecting employment in a myriad of ways, some of which make employment decisions difficult, complicated, and possibly discriminatory.
Employers and human resource practitioners face these challenges constantly, as they balance Federal, State, and Local jurisdictions, regulations, and ordinances, often competing against one another for primary authority. Individually, some of the laws appear fair, balanced, and unbiased. However, once aligned with a contradictory regulation or ordinance, these laws begin to compete with one another, at times causing an unfair or biased working relationship within an organization. Employers face a paradox, to determine the appropriate law at the proper location, with the correct guidelines; yet decisions can oftentimes be confusing, cause for caution, and possible decision paralysis as employers weigh which to apply first. Depending on the timeliness of the law, this too may be contrary to the required implementation timeline and may also put an employer at risk.
Employers and organizations across the United States are faced with many jurisdictions, regulations, ordinances, and rules of operations. These laws can be Federal, State, County, or Local in origin. Whilst each impending legal requirement on its own merit may be soundly based, the contradiction that law may have on another law may cause conflicting requirements, resulting in an unfair working relationship between colleagues, unequal benefits, or even, the right to employment.
As we dig into these situations, this paper will outline two current ‘hot topics’ within the United States. Part I reviews individual state Legalized Marijuana (Cannabis), and the intersection of Federal Regulations around its (still) classified Schedule I drug category, , and how Federal Employers, or those working under Federal Regulations balance individual States where the use of marijuana has been legalized, such as in Washington State. Part II will review the limited right to work eligibility in the United States for American Samoans. Considered United States Nationals, they do not receive the same employment benefits as citizens in other U.S. Territories. Each of these topics may seem both superficial, and a state or local issue, not a concern for the federal government. However, each of these topics carry more weight than just a prima facie glance. These topics are at the forefront of many employers as they consider which laws to implement first, and which ones to regard with caution.
I. THE TROUBLE WITH LEGALIZED MARIJUANA
The legal use of marijuana took its time. By the late nineteenth and twentieth centuries, medical professionals felt marijuana was similar enough to other narcotics like opium or cocaine to be regulated like them. The Harrison Narcotic Act of 1914 provided the first prohibition law regarding marijuana, followed by the Marijuana Tax Act passed in 1937, along with 23 states criminalizing its possession the same year. The Comprehensive Narcotics Control Act Title I §101introduced the first comprehensive marihuana (marijuana) law in the United States, forbidding possession, transportation, concealment, of any marijuana acquired or obtained.
In the early months of 2012, the use of legalized marijuana in any state (other than under physician prescription) was considered illegal, giving way to search and seizure, arrest and imprisonment, legal records of those convicted of its use, loss of job, residence, and loss of what is considered ‘good public standing’. Getting to medical use of marijuana took time. In 1978 New Mexico became the first State to recognize the medical use of marijuana, and other states soon followed.
The turn of public opinion regarding possession, sale, and use of marijuana began to shift. Obtaining a ‘medical card’ to legally purchase marijuana opened the door to changing public opinion, with a more positive view of the current Schedule I drug. Public figures began talking about drug use, including Jennifer Lawrence, Kirsten Dunst, Lady Gaga, Miley Cyrus, Zoe Kravitz, Ilana Glazer, Jane Fonda, Brad Pitt, Cameron Diaz, Harrison Ford, Matthew McConaughey, Snoop Dogg, Seth Rogen, and Presidential Candidate (then winner) Barak Obama. With an enforced acknowledgment of marijuana acceptance, use, and near promotion by so many, it seems the federal legalization of marijuana is anything but in the distant past. As of this paper, 19 states have decriminalized the use of marijuana for personal recreation.
A. Washington State Changes the Rules
In 2012, voters in Washington State passed Initiative 502, legalizing the use of marijuana for recreational purposes. The passed measure legalized the production, possession, delivery, and distribution of marijuana to people aged 21 and over. Adults can buy and possess up to one ounce of marijuana, 16 ounces of edibles, 72 ounces of marijuana-infused liquid products, and 7 grams of marijuana concentrates legally in Washington State. Initiative 502 protects people who are found with marijuana by forbidding forfeiture of property if a person is found guilty of having four or less marijuana plants, one pound or more of marijuana, gifting of marijuana to another adult, possession of marijuana, or an unlawful sale of marijuana. The Initiative also forbids operating a motor vehicle under the influence of THC concentration above 0.0, but below 5.0 within two hours, restricts the use of any marijuana product in the general public area (smoking, eating, etc.), restricts where (and when) marijuana can be sold or used, prohibits its advertising, and for the use of this paper, does not change an employer’s right to enact a drug free working environment, nor does it supersede any requirement federal contractors must follow in enforcing the Drug – Free Workplace Act. Although now legal, it seems there are still many questions around who can use marijuana, when, where, and at what cost.
B. Employer’s Choice
Employers in any of the 19 states where recreational marijuana is permitted face new conflicts around marijuana usage. They can voluntarily create a drug-free workplace, follow local/state laws and ordinances, or, if they are Federally required/mandated, they must continue to enforce and maintaining a drug-free workplace.
A drug-free workplace as required for federal contractors stands as a multifaceted program in which the company declares the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited, and actions will be taken against employees for violating these policies. A drug-free awareness program must be implemented, warning against the dangers of drug abuse, the policy of maintaining a drug-free workplace, available counseling, rehab, and EAP, and what the penalties may be for drug abuse violations. Additional guidelines state employees will willingly abide by these guidelines, will notify their employer of a criminal conviction due to drug use, the employer will notify the agency of an employee receiving a conviction, the offending employee will face sanctions and/or participate in a drug rehab program, and the employer continues in good faith to maintain a drug-free workplace. Employees may participate in pre-employment drug testing, random drug testing, and post-incident drug testing, and may face suspension, termination, or debarment for failure of drug testing and or found guilty of violating the terms and requirements of a drug-free employer.
But what happens when an employer is faced with multiple options? Which law is primary? How do you enforce it without being discriminatory, seen as uncommitted/unsure of what they are doing, or not muck it up at all?
For instance, an employer who has their headquarters in Seattle, WA., may also have multiple locations around the State of Washington. Seattle is a very friendly city regarding recreational drug-usage and is quite liberal in nature. The same employer operates in a few other locations that are Federally required to be a drug-free employer, because of their business. The other locations are more rural, conservative, and not as open about marijuana usage.
Shall the employer have two different policies, allowing the Seattle office to remain neutral to recreational drug-use, whilst in their other locations have a drug-free policy that allows random testing and up to termination for drug test failure? What about the employee who travels from one location to another? Does that employee remain drug-free in Seattle because of the possibility of getting tested when she returns to the other location? Or the employee in Seattle who goes to the other location and gets randomly selected for a drug-test, but went to a party over the weekend and smoked a joint? Is that employee in jeopardy of losing her job? Is it justified to discipline one set of employees for using marijuana, and yet, not a different group? Does that mee the requirement of discrimination? Is it fair and equal? How does an employer balance the need for Federal compliance with the permissive nature of a recreationally free state, where the marijuana trade is a booming business?
C. Escalating Conflict and Intersection
California just passed legislation protecting off duty marijuana use beginning in 2024, which prohibits discrimination ‘in hiring, termination, or other term or condition of employment’ regarding to recreational drug use,, and Washington State Senator Karen Keiser introduced a similar bill prohibiting employers from pre-employment, and employment drug screens to protect the State’s recreational marijuana-use policy. Whilst both laws protect employees from drug-testing, and termination, they both continue to recognize and submit to Federal Contractor/Mandated employers who still have to abide by the drug-free policies required. Employers are again, still caught in the crossroad of what to do. Do they implement an all-inclusive drug-free workplace, or do they implement site specific drug policies, potentially opening the door to discrimination, with criminal or civil consequences?
This creates a massive conflict of interest. For any employer to impose one rule on one group of employees, and a different rule on another is the legal definition of discrimination. Having one set of rules for some employees sets a stage for lawsuits employers are averse to participate in. The only balance here is to enforce a drug-free company to avoid a discrimination lawsuit. But is that fair? Is it okay to say, no – we do not recognize your right to party on the weekend, we want you to comply with the rules half our employees must comply with to create an equitable working situation? California, and possibly Washington is poised to protect both the recreational user, and the employer who is Federally mandated to remain drug-free, but still no guidance nor protection for the employers (and employees) caught in the gap of both laws at the same time.
Hence, this is legal intersection Where two laws conflict with one another, causing chaos, confusion, and possible misinterpretation and implementation.
II. The Right to Work in the United States
Another intersection of employment law is that of the eligible employee with the right to work in the United States, probably not an immediate concern of colliding and conflicting laws. However, there are a group of individuals whose citizenship is questionable, and whose rights are restricted, whilst another group of individuals have free reign to work for any employer, without limited rights.
For any employee in the United States, their first day of employment is usually a well-orchestrated event welcoming them, introducing them to their colleagues, workstation, and an enormous amount of paperwork. Embedded in that mound of paperwork is Form I-9, with the probable use of E-Verify. The Form I-9 is to verify the identity and employment authorization of individuals hired for employment in the United States, of which all employers must use, and employees must attest to employment authorization. Whereas, E-Verify is a web-based system through which employers electronically confirm the employment eligibility of their employees. Employers create cases based on information taken from an employee’s Form I-9, and E-Verify electronically compares that information to records available to the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). The employer usually receives a response within a few seconds either confirming the employee’s employment eligibility or indicating that the employee needs to take further action to complete the case.
The Form I-9 employee declaration section recognizes four types of employees eligible for work in the United States: a citizen of the United States; a noncitizen national of the United States; a lawful permanent resident of the United States; and an alien authorized to work in the United States. This seemingly innocuous section determines not only if a person can work in the United States, but also where they may work in the United States.
A. Who Is a United States Citizen
The Fourteenth Amendment grants citizenship to any person born in the United States; however, citizenship status to those born within the United States did not come easily. Discrimination came in many forms to many people. Prior to the Civil War, Mr. Dred Scott sued to claim his freedom (from slavery in Missouri) as a resident of Illinois. In Dred Scott v. Sandford, the Supreme Court denied Mr. Scott’s claim, stating slaves (of African descent) were property not persons, and thus could not be recognized as a citizen of the United States. Native born Indians were not recognized as citizens of the United States, and a child born in Canada to parents born in the United States who were born into slavery at the time of their birth was also not considered a citizen. Wong Kim Ark, a child born in the United States to Chinese parents (who were not U.S. Citizens, but immigrants under the Chinese Exclusion Act) was denied entry back into the U.S. after a visit to China, when immigration officials failed to recognize him as a U.S. Citizen despite having been born in San Francisco, California. The Supreme Court ruled in Mr. Ark’s favor reiterating, ‘the citizenship clause of the Fourteenth Amendment automatically makes him a U.S. citizen’, and establishes the concept of jus soli, the citizenship status of children born in the United States to non-citizens.
Citizens born in organic territories, or a commonwealth in connection with the United States are considered American Citizens but cannot vote in presidential elections and waive certain government programs (such as social security) and are free from Federal taxes traditional states and citizens are required to pay. Citizens in an unorganized or unincorporated territory are not considered citizens of the United States, they are considered an American National. Whilst Nationals and Citizens born in territories are eligible to work in the United States most of the time, there are situations where they are not permitted to work, creating division in the workplace, and another area of intersection.
B. What it Means to be an American National
American Nationals, whilst considered a citizen of an unorganized or unincorporated territory of the United States do not receive the full jurisdiction of the United States Constitution, nor the full protection a citizen of the United States would receive. American Samoans, who, are American Nationals are allowed to live and work in the United States, receive a United States passport designating their citizenship as ‘Nationality – USA’, and can apply for full citizenship. They cannot vote, cannot hold elected offices, may be barred from public employment, cannot sit on a jury, and are not allowed to work in some areas of an employer. American Samoan’s also rank first in recruitment for enlistment in armed services amongst states and territories of the United States, however, they cannot hold the title or position of an Officer.
C. The Conflict of Citizenship
For most employers, hiring an American National is the same as hiring any employee. However, for some, the hiring of an American National comes with carefully considered potential conflicts. Federal contractors are businesses or organizations who enter into an agreement to perform a job, supply labor or materials, execute the sale of products, and or services with any department or agency of the United States Government. These contractors must meet contractual obligations and are required to comply with affirmative action in hiring, promoting, retention, compensation, and contain an Equal Employment Opportunity (EEO) Clause, may have to comply with the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) of 1974. Some of these requirements are met with certain monetary thresholds in the agreements, whilst others are standard obligations.
Employers who hold federal contract projects may find certain projects to be classified as: Critical Sensitive, Non-Critical Sensitive, Confidential, Secret, or Top-Secret. These projects must be completed only by qualified individuals. An American National can (mostly) work for any employer, they share this right and protection as any other citizen. However, if an employer is hiring for a position where the work is on a federally contracted project requiring security clearance, the American National does not qualify for the role, because a non-U.S. Citizen is not eligible for a security clearance. Employers who are regulated by ITAR (International Traffic in Arms Regulations) & EAR (Export Administration Regulations) can hire an American National for general employment, but authorization may be required if they are to have access to technology under ITAR/EAR.
This intersection where a U.S. Person does not meet eligibility for any job can be complicated. Both the candidate and employer participate in the hiring process in good faith. The employer is looking for the best qualified candidate, and the candidate is looking for their next position. The tragedy of the hiring moment where the employer finally looks at the now new employees I-9 documents realizing their new employee is not a U.S. qualified person can cause a moment of internal panic, and an ‘oh no, now what’ moment. The new employee is now realizing they may not have the job they were counting on, is also wondering, ‘oh no, now what’.
Moments like this can change, we can offer citizens of territories the right to work in the U. S. for any employer, for any position, without mandating they go through the immigration process. Citizens of American Samoa are truly ‘nationless’ they are not Samoan, nor are they American – they are caught in a sea of bureaucracy, our legal system can correct. Justice Gorsuch called the court’s precedents on Insular Cases, ‘rotten, based on ugly racist stereotypes’, hoping to bring to Insular Cases to an end. Unfortunately, SCOTUS declined certiorari on October 17, 2022, re: Fitisemanu v. United States. John Fitisemanu requested the district court in Utah to declare American Samoans were American citizens, the court agreed and so declared. Appellants, the United States federal government, the American Samoan government aske the Tenth Circuit Court of Appeals to reverse the decision, and the decision was reversed. With denial of certiorari, it is up to Congress to finally grant citizenship privileges to the American Samoan people, or return Samoa to its own nation, and give their citizens a home nation, ending the confusion and question of their eligibility to work in the U.S.
The rights and responsibilities of employers are set by our government, at the Local, State, and Federal level. Our leaders determine which rules, regulations, ordinances, laws, decrees, and mandates are to be administered and complied with. Most of the time, these requirements live harmoniously within organizations, but sometimes they don’t. Sometimes these laws intersect and conflict, and cause employers pause, concern, and question which laws to apply, and which may cause conflict, discrimination, and or perceived retaliation.
By taking time to read the intersecting regulations, ordinances, laws, decrees, or mandates, employers can carefully decide which to set as preeminent, and thus comply with. The burden does not sit with employers alone. Employees are just as liable to know their rights, to know what standards they are being held to, and why. Ensuring both employees and employers know the expectations level the playing field, and compliance becomes easy, and the risk of misapplying legal intersection decreases.
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