Business bummed by bill to nullify pot test for job applicants

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Conundrum.

The word was repeated often Wednesday during the first hearing for Assembly Bill 132, which would prevent an employer from not hiring an applicant just because they test positive for marijuana.

Those representing business associations, who spoke during the hearing, acknowledged the need to take steps dealing with the legal quagmire recreational marijuana has puts on employers. However, they are yet to be convinced the proposed legislation is the solution. 

Assemblywoman Dina Neal, D-North Las Vegas, who sponsored the bill, said while lawmakers hope to find a balance between what an employer can do and what rights an applicant legally has, “not everybody is going to get their way.”

“You have to come to the table with a clear balance between an employee and their rights to work, and an employer,” she said. “All I heard (from opposition) is that an employer has the right to decide. That is not necessarily true.”

Since the bill was introduced Feb. 13, Neal said it has prompted much criticism and confusion about what is and isn’t included, such as whether it conflicts with the federal Drug-Free Workplace Act of 1988, which places mandates on places that receive federal grants or contracts.

“There is nothing in AB 132 that prevents an employer from having a policy prohibiting the possession or use of marijuana at the workplace,” Neal said. “The bill does not get into violating the supremacy clause or get into the business of usurping federal law and preventing rights of federal employees.”

However, during hours of testimony Wednesday, many opposed to the bill argued the practice of drug testing during the employment process is needed to ensure the best applicant is selected.

Assemblyman Paul Kramer, R-Carson City, said there are still businesses who would rather not hire someone who tested positive for marijuana. “I’ve been told there is a reluctance to hire someone who is on marijuana because their experience was that there was more turnover with someone who smokes,” he said.

Neal responded that “regardless of what you feel or what you think morally of a person who uses marijuana, it doesn’t matter. (Smoking) is lawful conduct.”

The legislation also saw its first amendment, which was proposed by the Nevada Trucking Association and would provide an exemption for safety positions.

Assemblywoman Maggie Carlton, D-Las Vegas, called the amendment too ambiguous. “I think there would be a little more of a definition of safety sensitive positions,” she said. “Some employers would use that and declare everyone they employed is in a safety sensitive position because they all have access to the cash register or some sharp instrument.”

Speaking mostly through televised participation in the Grant Sawyer Building in Las Vegas, those supporting the proposal — which included a mixture of marijuana users, the Nevada Justice Association and the Coalition for Patients’ Rights — talked about discrimination faced when applying for jobs. 

Those in opposition, who were split between Las Vegas and Carson City, included lobbyists from the Nevada Retail Association, the Nevada chapter of the National Federation of Independent Business and various chambers of commerce.

While the hearing mostly focused on drug testing during the application process, a section of the bill preventing employers from using character assessments, such as an evaluation of personality traits, as a condition of employment was also scrutinized. That section includes exceptions, such as law enforcement jobs or for jobs dealing with vulnerable populations. 

Neal said she had a constituent who applied for a retail association position to stock shelves and was subjected to a 50-question character assessment, which prompted her to add the provision to the bill.

Again, those representing the various business interests argued personality tests and character assessments were a needed tool in the application process.

“These tests are a great tool for companies to find the right employee, but also helps an employee find the right job,” said Randi Thompson, the state director of the National Federation of Independent Business. “In fact, there are several websites that help employees take these tests before they interview, so they know what to ask to make sure the workplace is a right fit for them.”

Neal said she is willing to work to address concerns. “I’m opened to finding a solution,” she added. “The solution needs to lead to people finding a way to get a job, not the opposite.”

Michael Lyle
Michael Lyle (MJ to some) has been a journalist in Las Vegas for eight years.  He started his career at View Neighborhood News, the community edition of the Las Vegas Review-Journal. During his seven years with the R-J, he won several first place awards from the Nevada Press Association and was named its 2011 Journalist of Merit. He left the paper in 2017 and spent a year as a freelance journalist accumulating bylines anywhere from The Washington Post to Desert Companion. While he covers a range of topics from homelessness to the criminal justice system, he gravitates toward stories about race relations and LGBTQ issues. Born and mostly raised in Las Vegas, Lyle graduated from UNLV with a degree in Journalism and Media Studies. He is currently working on his master's in Communications through an online program at Syracuse University. In his spare time, Lyle cooks through Ina Garten recipes in hopes of one day becoming the successor to the Barefoot Contessa throne. When he isn’t cooking (or eating), he also enjoys reading, running and re-watching episodes of “Parks and Recreation.” He is also in the process of learning kickboxing.

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