What about the last 4 digits of your social security number?

Last week when onboarding a new consultant, he asked me if it is illegal for a recruiter to ask for his date of birth to submit his resume to a job. He said recruiters he didn’t know were asking and it concerned him.

In the Age Discrimination in Employment Act of 1967 (ADEA), it is technically not illegal to ask date of birth. However, it is risky to the recruiter who asked. This type of question may indicate an intent to discriminate and is closely scrutinized.

Unfortunately, some companies use date of birth as an ATS field. Usually, they only require the month and day and not the year. So, I would recommend only giving out the month and day in this part of the process.

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The stigma of marijuana use has slowly disappeared throughout society over the past decade, due to many states passing legislation concerning both medical and recreational use. The evolving marijuana laws across the country have created a dilemma for employees and the workplaces that employ them – especially since marijuana is still federally illegal. There are many situations that have and will continue to challenge and tackle many of these issues, but here is what we know so far.

Employer Rights

As it stands, employers in even the most progressive states like California, still have the right to enforce their drug-free workplace policies. Pre-employment drug screens and random testing show no signs of leaving any time soon, and companies still have a set of circumstances in which they are allowed to perform a drug test on an employee. Reasonable suspicion, working in positions that could threaten the safety of coworkers or the public if under the influence, workplace accidents, and fitness-for-duty exams are some of the situations in which an employer can conduct a drug test.

What About Medical Marijuana?

20 states have passed comprehensive medical marijuana legislation, with several just in the last year alone. Even with a prescription for marijuana use, a patient can find themselves fired from their job if THC is found in their system. Public employees may have more legal recourse in these matters, but that is only if the workplace’s policy specifically states exceptions for said situations. Take, for instance, the Dish Network case in 2015, where the Colorado Supreme Court upheld a ruling that allowed the company to fire a disabled employee for his medical marijuana use. Although they could not fire him for using a substance prescribed to him for use at home, the fact that marijuana is still illegal under federal law allowed them to do so.

What Are My Rights?

Even the Americans with Disabilities Act does not explicitly require employers to accommodate illegal drug use, so workplaces can still fire you despite your condition if you are found using marijuana. However, there are limited patient protections set in place by several states including Arizona, Delaware, New York, and Minnesota. In these states, a patient may have more legal recourse, especially if their job involves no safety risks to the public.

In summary, although medical marijuana is now legal in many states, it’s crucial to understand that employers can still terminate employees for failing a drug test. Most importantly, if you find yourself in a situation where your medicinal use could pose a risk to your employment, contact an employment attorney. As the laws are rapidly changing and evolving, enlisting in the assistance of an expert in the field is the best option to ensure you are legally covered.

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