One of the biggest trends in the criminal background check world over the past few years has been the legalization and decriminalization of marijuana. Not too long ago, marijuana was an illegal drug nationwide, and possession, distribution, or use of the substance was considered a crime. In the past decade, though, there has been a substantial push across the United States to decriminalize marijuana, legalize it for medical purposes, or even legalize it for recreational use. Although more states have made moves to be more lenient on marijuana, the drug has remained illegal federally. That fact could finally change soon: The federal legislature is currently considering a bill to decriminalize marijuana at the federal level.
A federal move to decriminalize marijuana would be an extremely significant step in the legal treatment of this once-illicit substance. Today, 18 states – plus Washington, D.C. and Guam – have legalized marijuana for recreational use. Thirty-one states and D.C. have decriminalized marijuana, which means that first-time offenders are less likely to face jail time, fines, or criminal convictions, even in many places that haven’t yet legalized the drug.
Even more notably, numerous states that have legalized recreational marijuana have also passed bills that create easy, accessible pathways for the expungement of minor cannabis offenses. Those states currently include California, Illinois, Maryland, New Hampshire, New York, North Dakota, and Oregon.
These progressive gains in marijuana regulation have made a big difference for millions of Americans with criminal records because of marijuana possession. According to the American Civil Liberties Union, more than seven million Americans were arrested for marijuana possession between 2001 and 2010 alone. By providing inroads to expungement, marijuana legalization laws have helped many people rid themselves of their criminal records – including the stigma those records can have for employment situations, housing, and more. Expunged records shouldn’t appear on criminal background check reports and cannot be considered part of employment decisions.
Indeed, the past decade has brought significant changes in how legislators, law enforcement, and employers treat marijuana convictions. However, progress on this front hasn’t necessarily been rapid and has arguably been slowed down by one major asterisk: the fact that marijuana remains illegal at the federal level. In most cases, state legalization or decriminalization measures mean that states no longer have their own laws against marijuana and no longer enforce the federal statute. Still, the idea of the federal law as the “law of the land” may have prevented some state legislatures from pursuing marijuana legalization.
A federal decriminalization act could significantly move the needle on marijuana legalization, potentially bringing even more state laws to the table in the years to come. Employers should pay close attention to these trends and whatever changes they bring. Note that not all states that legalize marijuana have related bills that expunge past marijuana charges. Also, note that the results are only as good as the source files, even with the best background check. If a county court neglects to remove a record that has been removed from the public record, an expunged marijuana crime can show up on a criminal background check report. Employers can avoid considering the information they should ignore in their hiring decisions by staying updated with state and federal marijuana criminalization and expungement movements.
As for drug tests, employers typically have the freedom to demand drug-free workplaces even in states where recreational marijuana is legal. Just as employers don’t have to accept drunkenness at work just because alcohol is legal, they also don’t have to accept marijuana use at work because cannabis is no longer an illicit drug. However, employers may wish to consult their attorneys about drug test policies.
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About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments