Horizon Point Consulting

Author: Lorrie Coffey

The Confusion Over Cannabis
Written by: Lorrie Coffey, Horizon Point Consulting

Ten states plus DC have legalized marijuana for recreational use. Thirty-four states have legalized it for medical use. And CBD oil is readily available in most states.

But marijuana is still classified by the Drug Enforcement Agency as a Schedule 1 drug, which means it is still illegal to grow, buy or sell, possess, or use under federal law.

Oh, and while CBD shops popped up on every street corner as soon as the Farm Bill was signed back in late 2018, the Farm Bill did not legalize the general production, sale, or use of CBD oil. It only legalized it under certain circumstances outlined in detail in the Farm Bill. It is still classified as a Schedule 1 substance and thus is in general illegal under federal law. (The possession or use of CBD oil is reportable against federal security clearances.)

According to a 2017 study conducted by Statistical Brain, 56% of U.S. employers surveyed conducted pre-employment drug screens.

What does all of this mean for those employers that drug test? How can marijuana be both legal and illegal at the same time? Should employers continue to maintain a drug-free workplace policy? And what’s the legal liability if they do?

Unfortunately, the answer isn’t necessarily clear cut. While many states have legalized marijuana use in some form or another, very few states have offered any guidance to employers on how those laws impact drug-free workplace policies. So how do employers navigate through what I’ve come to refer to as the cannabis conundrum?
1. Do your research. Understand the laws in your state regarding marijuana use. Don’t believe everything you hear. For example, medicinal marijuana is NOT generally legal in Alabama. Yet. A bill was signed in June by Gov. Ivey to create a commission to study legalizing medical marijuana. Their findings are due in December. Look up case law to see if your state has set any precedents through court decisions regarding employers and employees. Find out if there is a state-supported drug-free workplace program (available here).
2. Get in line with your state. If your state does have a drug-free workplace program, make sure that your program is in line with state guidelines. Most states that have a program provide very detailed information on how to get your organization’s program approved or certified. Most states that do have a program offer a discount (usually 5%) on your Worker’s Compensation insurance if you are a certified drug-free workplace employer. And once you get certified, make sure you stick to the program. If you do, you’ll ensure that you are within the state law with regards to drug testing and how you handle positive tests.
3. Multi-state employers beware. If you have locations in multiple states, be sure to research each state. What’s acceptable in one may not be in another. You’ll also need to take into consideration if the employee works and lives in two separate states, if they travel extensively for work, or if they telecommute.
4. Evaluate why your organization drug tests. Here’s my unpopular opinion. If an employee enjoys marijuana on their own time in most cases it isn’t impacting the organization. Now, if an employee enjoys marijuana on their own time on their way to work and shows up to work under the influence, that can impact the organization. It may impact productivity, brand image, and most importantly could pose a safety risk to the employee or others. Understand why your organization drug tests when they test and ask yourself if the reasons are bona fide. If the answer is no, it may be time to rethink your policy.
While many states have legalized marijuana, they have not restricted the rights of employers to maintain drug-free work environments. However, that doesn’t mean that you as an employer don’t still need to be cautious before acting. And don’t be afraid to seek outside assistance if you’re still not sure how to maintain your drug-free policy or how to handle an employee situation. That’s what the experts are there for.
November 21, 2019
Killing the College Misconception
Did you know that Alabama has a “College Application Campaign”? A statewide initiative with the goal of having EVERY high school senior in the state apply to at least one college. I found this out last week thanks to the high school guidance counselor’s weekly email blast. I’ll be honest, as an HR professional, I had to hold myself back from sending her an email outlining the negative impact of such a campaign. I’m still tempted to.

I graduated high school many moons ago, in an era when high schools still had classes like shop, mechanics, and electrical design. I still have a lamp I made in Mr. Roberts’ shop class when I was in sixth grade (and it still works!). My high school had a separate vocational building that housed these classes and the students put their talents together each year to build a prefabricated home on the school grounds that they auctioned off; the proceeds going to charity and to the next year’s project. If students had issues with their cars, all they had to do was drop it by the garage at the school and the mechanics students would take a look at it.

I also graduated high school at a time when the push to attend college was ramping up. Students were told that college was a necessity if they wanted to get a good job. Vocational schools were starting to be looked down upon and going straight into the workforce after high school was deemed disgraceful.

And 20+ years later, we are seeing the impact of that push.
- According to data from the Huffington Post in the 20+ years since I graduated high school, student debt has almost doubled, going from approximately $18,000 up to almost $32,000. All while the median wage has barely budged, going from $39,000 to $43,000. We constantly hear about the rising cost of college and the increasing impact on those graduating these days.
- Based on a 2012 study conducted by EMSI, 53% of skilled workers were 45 or over, with 18.6% being between the ages of 55 and 64. Our skilled workforce is aging out and we’ve known it for years. But we aren’t doing enough to replenish that workforce.
- According to a 2016-17 US Talent Shortage Survey conducted by Manpower Group, the hardest jobs to fill in the US are those in the trade industries.
Our skilled trades are dying out as a result of our education system thumbing its nose at manual labor. Yet we continue to push high school students towards college and away from trade careers. We still trick them into believing that a college education is the only way to be successful, to earn your top salary potential, and to be happy in the career you choose.

My father has owned his own construction company in Virginia for almost 50 years. He is 68 years old and still works five to six days a week, still flips homes on the side, and still enjoys his passion for woodworking on the weekends. He never went to college. Yet he has made a great career out of something he has always been passionate about and he is well known, respected, and sought after for the work he does. Growing up I spent a lot of time helping him and in the process learned to love it too.

Local school systems are starting to see the need to revive vocational courses in education and are focusing on establishing Career Technical schools. But these efforts are not enough if we are continuing to push students to go to college and continuing to turn our noses up at trade careers. Instead, we need to encourage students to take their own path, whether that’s college, a technical school, or going straight into the workforce.

Some schools across the country are starting to do it right, like Connally ISD in Waco, TX or Powhatan High School in Richmond, VA, who both participated in the first National Signing Day sponsored by SkillsUSA and Klein Tools. It was designed to recognize students who are signing letters of intent for job offers, accepting apprenticeships, or attending technical schools after graduation.

And employers aren’t exactly helping either. The majority of jobs posted today require a minimum of a Bachelor’s Degree to even be considered. Yet when I speak with clients, many of them say they don’t care what major that degree is in, just that the candidate has one. What does that say about the requirement? The response I often get is “it shows the candidate has initiative.” But does it really? Or does working hard and advancing in a career show initiative? Does being self-taught, seeking out education through training courses, certifications, or apprenticeships not show initiative? We as employers need to rethink our requirements as well. Does a position truly require a degree? Or do we need to give more consideration to experience over education?

What will happen in the next twenty years if we don’t shift our way of thinking if we don’t encourage students to explore alternatives to college and continue pushing them into thinking that a Bachelor’s Degree is the only way to be successful?
October 31, 2019
Can I Get Your Attention?

I’m the mother of three boys. Two teenagers and one about to hit that “preteen” stage. Most days I want to bang my head against the wall. I feel like I need a support group for moms of teens. I miss when they were little and hung on my every word. Now I’m lucky if I can get them to take the earbuds out long enough to hear anything I say.

We recently went on vacation and I forced them to put their phones away and engage in conversation with me. That request got me dirty looks and eye rolls. Then we started playing twenty questions on our four-hour drive to our destination, which led to lots of laughs, some light-hearted banter, and even some great conversation. And the best part, they even ASKED to play again on our way home a few days later and voluntarily put their phones away!

I will readily admit that I hate technology. I think that while it’s a necessary evil and has definitely advanced our society and most of the tasks we do daily, it has also created a disconnect between us as people. We struggle in every aspect of our lives just to get someone’s attention, to get them to look up from their phones, computers, video games, or whatever screen they are glued to. According to a 2016 Nielsen study, adults spend over ten (10) hours per day staring at a screen!

A Careerbuilder study showed that 55% of participants surveyed said that their cell phone was their #1 distractor at work, followed closely by the internet and social media (both of which can be accessed on a cell phone). Is allowing employees to have cell phones on their person during work hours costing your organization, both in productivity and in lost customers? In just the last few weeks I can count multiple times when I went to a retailer or fast food restaurant and had to wait because the employee was distracted by their cell phone.

This inability to give and receive undivided attention extends into leadership as well. In his blog post Attentiveness (One of the Overlooked Leadership Skills), Jason Barger talks about the distracting times we live in, the expectation to always be multi-tasking, and valuing the individual moments. Those leadership skills that are most valued are those that tie back to leaders who give their undivided attention, who truly listen, and who show interest.

Steven Madenberg’s compares our lack of attention to how Charlie Brown and the gang always heard their teacher, Mrs. Donovan (who knew she had a name?!) in his blog post Leaders and the Gift of Undivided Attention. How often do we walk away from a conversation and realize we only heard half of it because we were distracted?

I recently had a manager come to me upset that during a candidate interview another manager on the panel was visibly texting on his cell phone. We talked through coaching that manager on appropriate interview etiquette. A couple of weeks ago while eating lunch at Panera I heard the gentleman at the booth behind me talking on the phone. He was conducting a phone interview and ended up having to end the call because he was distracted by the lunch crowd in Panera. He didn’t set himself up in a position to be able to provide that candidate with his undivided attention and as a result, may have given the candidate a bad impression of the organization.

Think back over the last few weeks, what are some situations in which you realize you were distracted? What could you have done differently to ensure that you were giving your undivided attention?

October 17, 2019
Why Counter Offers Upon Resignation Rarely Work
Your top employee or best manager just walked into your office holding that dreaded piece of paper. You know, the one with the words “thank you for this great opportunity, I respectfully resign my position” typed neatly on it.

As you read it, your mind starts brainstorming “what can I do to get them to stay?!” You can’t lose them, they’re the best of the best. You’ll never be able to find someone with their skill set and knowledge of the organization. You’ll spend months training their replacement just to get them up to speed. You’ve invested so much into them, how can they quit?

And then without hesitation, the words “would you reconsider if I put a counteroffer together for you?” comes out of your mouth. They graciously say “sure” but in their mind, they’re thinking there’s nothing you can offer them to stay. It’s too little, too late.

And in reality, in most cases it is. Yet, in many industries, counteroffers are becoming increasingly common.

What does a counter offer really say to an employee?
1. You weren’t worth my time then, but you are now. You didn’t take the time to gauge their satisfaction with their job when it would have counted. Instead, you assumed they were happy with their position in your organization, with your head stuck in the sand, until they abruptly informed you that they were not happy in the form of their resignation. And suddenly trying to make them happy has become a priority, where ten minutes prior it wasn’t even on your radar.
2. It will cost me less to retain you than to replace you. It’s estimated that replacing an employee costs between 100-300% of their annual salary. That includes recruitment, onboarding, and training. By proposing a counteroffer you’re telling the employee that you’d rather pay them more to stay than to have to put out the money to replace them. It’s cost-effective. That tells the employee they aren’t what’s important to you, the cost savings are.
3. I’ll offer you more money to stay in a job you’re obviously not happy in. Counteroffers most often include incentives in the form of a higher salary, extra vacation time, and other perks that aren’t available to the general employee population. What they too often don’t include is training opportunities, strategic plans for advancement, or any other resolution that would improve the work situation the employee aims to change by leaving. Three of the top reasons employees leave is the work they are doing, no room for advancement, or their leadership. Offering them financial incentive to stay won’t impact those things.
So how can you proactively keep your top employees from slipping you that piece of paper?

Start by assessing your key talent through a people review. This should include their strengths and areas of improvement as well as their risk for leaving the organization and a succession plan if they do. Then sit down with them and have a conversation, or what we in HR sometimes call a stay interview. Find out what their career goals are and see how that matches up with the succession plan you designed. A succession plan won’t work if you haven’t taken into consideration where your employees want to be in three to five years within your organization. During that stay interview also ask them what they like about working for the company, what their pain points in their position are, and give them the opportunity to share their ideas. And finally, assess your wages on a regular basis. Are you lagging in your industry with regards to wages? If so, what can you do to improve that?

What steps has your organization taken to ensure that your key employees don’t walk out the door and leave you in a panic?
August 8, 2019
Taking the Guess Work Out of 1099s
In fifteen years as an HR practitioner, there’s one question I can probably pinpoint as the most asked question I have gotten over the years.

“Why can’t I just classify them as an independent contractor?”

It’s estimated that by 2020 40% of the US workforce will be freelancers or temp employees, up from 30% in 2006. With that number growing, it’s even more important for organizations to understand the independent contractor classification and when it can be used. The penalties for misclassifying employees as independent contractors can include back payment of taxes, interest owed to employees for wages not paid, fines, and even criminal or civil charges. It’s a costly mistake, and yet it’s one I see way too often.

Here are just a couple questions I’ve answered in the last few weeks alone:
1. “I have a candidate that would like to be classified as a 1099, can I do that?” Simply put, no, you cannot classify someone as an independent contractor just because that’s how they prefer to be classified.
2. “We have a candidate that we want to bring on as an employee, but we’d like them to complete a trial period. Can we classify them as an independent contractor during that trial period and then hire them as an employee at the end of that period if they are a good fit for the position?” No, you cannot temporarily bring someone on as an independent contractor to see if they’re a good fit for your company if you’re otherwise going to treat them as you would any other employee. You can certainly have a probationary or trial period during which time you evaluate them and they get to evaluate the company, but you have to pay them as you would any other employee.
So when can an organization pay someone as an independent contractor? Here are a few questions to ask yourself about the assignment:
1. How will the work be assigned and completed? Will regular direction be given or will an overall scope of work be provided? Who will dictate the work schedule? Where will the work be completed? If there will be regular direction given or delegation of tasks to which specific deadlines are set and the company dictates when and where the work is to be performed, chances are they should not be classified as an independent contractor. If an overall scope of work is agreed upon and they determine their own work schedule and where the work is completed, then move on to the next question.
2. Who will provide the necessary resources to complete the work? Will the company provide necessary equipment such as computers, phones, etc.? If the company will be providing the necessary resources and equipment, there is a strong chance the position does not qualify as an independent contractor. There are some exceptions to this, for example, they provide their own computer, but the company provides them with access to software programs required to complete the work.
3. How will they be compensated for the work completed? If they are paid as any other employee of the company, chances are they should not be classified as an independent contractor. If they are paid a set contract amount, even if paid in equal intervals such as monthly, or they provide an invoice for work completed that is then paid through accounts payable, it is possible that they are in fact an independent contractor.
For more detailed information on evaluating the independent contractor classification, you can go to the IRS website. Many years ago the IRS designed a 20-Factor Test for Independent Contractors. They no longer support the test on their website, but it’s still floating around out there and I still recommend it to clients as the best source for helping to determine 1099 status. The information on the IRS website is not as clearly defined in my opinion as the test is.

I recommend that if your organization currently has independent contractors, you check their status against the 20-Factor test. If the position does not meet the requirements of the test, proactively take action to remedy the error and classify them correctly as an employee and ensure that they are afforded all of the benefits that an employee receives.
July 25, 2019