Bloom & Bloom, LLC

An Analog Networker in a Digital World

I am unabashedly analog. I try not to lunch alone. I like to meet my clients in person. I use LinkedIn, sure, but I don’t use Facebook or Instagram or Twitter for marketing purposes. Am I a relic of an old boys’ and girls’ club? Maybe – but it works for me.

But what’s an analog networker to do in the age of social distancing – especially when schools, camps, and daycares are closed? Here’s what I’ve been doing:

Reaching out. If your schedule is like mine, your meetings – whether in-person or virtual – are being cancelled and rescheduled. The fluid situation with quarantines and closures has affected everyone’s life and work, and we increase our isolation from each other each day. Even if meetings are cancelled, there’s nothing like reaching out to your contacts and clients simply to check in with them.

You might also try reaching out with some information your clients will find useful. Last Friday, I touched base with some clients, sending them an article about an employer’s potential workers’ compensation risk for COVID-19 exposure. Some of those clients reached out with additional research projects on the effects of the Pennsylvania and Philadelphia directives on temporary social distancing measures.

Reading, writing, and posting. While the toddler naps and the fourth grader does online homework, I write, I read, and I try to post. Keeping up on LinkedIn is important, especially since people are posting more than ever. Liking or commenting keeps your profile active, and keeps your name in others’ feed.

While we all face a work slowdown (and an economic slowdown generally), try maximizing your time in a way that reaches the most people. I’ve been reading up on various issues and drafting articles for publication later. I can then post them over time. Posting on Cyber Job Central, LinkedIn, and my own law firm’s website allows the articles to reach a wide range of readers.

Keeping sane. Not only for my benefit, but for that of my clients. People will need help more immediately than ever before, and will expect work done more quickly since there are fewer distractions. Keeping sharp and active, even in your own home, is key to weathering the COVID-19 storm.

How does legal marijuana impact my business’s hiring practices?

In our last articles, we highlighted the confusing nature of marijuana, and when it is, or isn’t, legal to use. Now we turn to the issue which hits employers the most: how does legal medical marijuana use impact my business’s hiring practices?

Questions about medical marijuana and when to ask

An employer cannot ask questions of an applicant that are likely to reveal a disability before the applicant is offered the job. For example, the HR manager cannot ask questions about medical marijuana use during a first interview – or any questions that could reveal the existence of an applicant’s disability. Nor can an HR manager typically ask whether an applicant might need a reasonable accommodation. Those questions are only permitted after a job offer has been made, but before he or she begins to work.

Once the offer is made, the employer can request pre-employment drug testing, with the final decision on hiring pending the drug test results. It’s at this stage that the employer would typically learn of the prospective employee’s marijuana use. Upon questioning, the employee would be required to provide evidence that they have been prescribed marijuana. In general, if the employee’s marijuana use would impact their ability to perform the key aspects of their job, or if the employer would be required to spend a significant amount of money to accommodate the employee, then the employer need not hire that prospective employee.

How does this look in real life?

With that in mind, let’s turn to the issue of medical marijuana. Let’s say your business is in the process of hiring a cybersecurity expert, and an applicant who otherwise meets the criteria for the job (excellent experience, excellent credentials) is conditionally hired pending a drug test. That applicant tests positive, and she shows the HR manager a medical marijuana card. Must that applicant be hired? If she otherwise meets the criteria, and so long as the marijuana use will not occur during work hours, then the HR manager cannot discriminate against that applicant in deciding whom to hire.

Now let’s say that the business is hiring a professional driver. That applicant otherwise meets the criteria for the job, is conditionally hired pending a drug test. That applicant tests positive, and shows the HR manager a medical marijuana card. Must that applicant be hired? In that case, it depends on whether reasonable accommodations can be made, given that the employee will be driving – which could impact not only the safety of others on the road, but also would likely increase the insurance rates for the business. In that case, the HR manager can decline permanently hiring the applicant since reasonable accommodation could not be made.

What if an employee is prescribed marijuana after hiring?

Do the same rules apply to an employee who is only authorized to use medical marijuana after becoming employed? An employee authorized to use medical marijuana cannot be discriminated against for their use in considering that person for a promotion. The issue is much the same – if the employee can’t do the job given that they use medical marijuana, and they can’t be reasonably accommodated, then they need not be employed.

Bottom line: an employer need not accommodate workplace use of marijuana, whether medical or recreational. If an employee arrives at work high, or gets high at work, their employer can penalize them. However, where an employee is permitted to use marijuana (whether recreationally or medically), the employer cannot penalize the employee for off-duty marijuana use.

SOURCES:

Pennsylvania’s Medical Marijuana Act (Act 16 of 2018, 35 P.S. §§ 10231.101 et seq.).

Susan M. Heathfield, What Information is Stored in Employee Medical Records? HR’s Legal Obligation to Protect Medical Information About Employees, https://www.thebalancecareers.com/medical-file-contents-1918186 (last visited Feb. 7, 2020).

Eddie Miller and Boris Tsibelman, 5 Tips to Help Employers Deal With Legal Marijuana Use at Work, https://www.thebalancecareers.com/employers-legal-marijuana-use-1917551 (last visited Feb. 7, 2020).

The U.S. Equal Employment Opportunity Commission, Job Applicants and the Americans with Disabilities Act, https://www.eeoc.gov/facts/jobapplicant.html (last visited Feb. 7, 2020).

The U.S. Equal Employment Opportunity Commission, Pre-Employment Inquiries and Medical Questions & Examinations, https://www.eeoc.gov/laws/practices/inquiries_medical.cfm (last visited Feb. 7, 2020).

When must medical marijuana use be accommodated in the workplace?

In my last article, we learned that marijuana is not unequivocally legal everywhere. Now we’ll discuss when medical marijuana use must be accommodated by an employer or prospective employer, and how the issue arises.

Disability and Accommodation

The Americans with Disabilities Act, or ADA, has been used to address the use of medical marijuana. An employee who is permitted to use medical marijuana is treated as an employee who is disabled. Under the ADA (which applies to employers employing fifteen or more employees), any applicant, including one with a disability, must be able to meet the requirements for the job. An applicant with a disability must be able to perform the ‘essential functions’ of that job, either on her or his own, or with a ‘reasonable accommodation.’ The employer cannot discriminate against an applicant who, with that accommodation, could perform the job – but the employer still has the discretion to hire the applicant of their choosing.

So, then, what is a ‘reasonable accommodation’ at law? It is one that would not cause ‘undue hardship’ to the employer – meaning, which would be significantly difficult to implement, or expensive.

Timing of Marijuana Use

Finally, a point of clarity! An employer need not accommodate an impaired employee in the workplace. No matter if that employee has a medical marijuana card, or if recreational use is permitted – an employee who comes to work high can be sent home. It may be that the employee’s being sent home is not an adverse employment action – but they can be sent home nonetheless.

In practice, this means that an employee cannot show up to work impaired, even if they are prescribed marijuana. An employee would be limited to use medical marijuana after working hours. If the effects of the marijuana last through to the workday, and impair the employee – or make it hard or dangerous for her to perform the essential functions of the job – then the employee cannot be reasonably accommodated and can be sent home.

Biography

Nella Bloom, Esq. is the Managing Member of Bloom & Bloom, LLC, a Philadelphia-based law firm specializing in small and emerging businesses. Ms. Bloom acts as outside general counsel for clients in varied industries and in all places in their life cycles. Ms. Bloom helps businesses start up, thrive, and prepare themselves for sale. Ms. Bloom is licensed to practice law in Pennsylvania, New Jersey, and Delaware. For more information on Bloom & Bloom, LLC, visit http://www.bloomandbloom.net.

SOURCES:

Pennsylvania’s Medical Marijuana Act (Act 16 of 2018, 35 P.S. §§ 10231.101 et seq.).

The U.S. Equal Employment Opportunity Commission, Job Applicants and the Americans with Disabilities Act, https://www.eeoc.gov/facts/jobapplicant.html (last visited Feb. 7, 2020).

Medical marijuana in the workplace, part 1: Is marijuana legal?

Is marijuana legal? If so, where? Or under what circumstances?

The most pressing question is this: is marijuana legal? No, it’s not unequivocally legal.

Federal Law Prohibits Marijuana Use

Marijuana is classified by the Federal government as an illegal drug. Federal law often preempts state law, so the general rule is that marijuana is illegal. Around twenty states, including Texas, Wisconsin, and Virginia, completely prohibit marijuana use. If an employer receives Federal dollars for their operation, that employer may also not be permitted to accommodate an employee’s marijuana use.

Location, Location, Location

That said, medical marijuana has been approved for use in many U.S. states, including New York, Florida, and Illinois. A patient who has been issued a medical marijuana card may use marijuana to treat various conditions, including fibromyalgia, glaucoma, epilepsy, multiple sclerosis, and other disorders. These states may have laws protecting employees who are prescribed medical marijuana. For example, Pennsylvania (my home state) recently implemented a Medical Marijuana Act, which provides that an employer may not fire, retaliate against, or refuse to hire an employee solely on that person’s authorized use of medical marijuana.

Recreational marijuana has been approved in many U.S. states as well. Recreational use isn’t only for Pacific-coast states like California and Oregon. Maine, Massachusetts, Michigan, and Washington, D.C. are some of the lesser-known states permitting both recreational and medical uses.

Does that mean that marijuana is legal for all purposes where someone is permitted to use it? Does it mean that an employee is allowed unrestricted use of marijuana? Again, no – it depends on the type of work that the employee performs and the timing of the employee’s use. In the next article in the series, we’ll explore when an employer must allow for the use of medical marijuana.

This is the first of three articles originally published on Cyber Job Central on February 18, 2020 (https://cyberjobcentral.com/news/256366).

SOURCES:

Pennsylvania’s Medical Marijuana Act (Act 16 of 2018, 35 P.S. §§ 10231.101 et seq.).

The U.S. Equal Employment Opportunity Commission, Job Applicants and the Americans with Disabilities Act, https://www.eeoc.gov/facts/jobapplicant.html (last visited Feb. 7, 2020).

Oh, WeWork. You should have known better.

My office is in a WeWork. I love coworking. I do NOT love bad business decisions. And I think WeWork just took the cake for bad business decisions.

We’re all familiar with the story by now. Juggernaut WeWork was set to take over the coworking world, maintaining space for the small, the solo, the transient, the international. They have free coffee! Free BEER! Comfy seating, secure spaces, fun events, flavored water, someone cleaning your office, and more. I rather enjoy it, to be honest. Especially the coffee.

Then came WeWork’s S-1 filing, which was the business equivalent of juicy gossip. Between the $5.9 million to WeWork’s founder for the licensing of the “We” trademark (which seems, I don’t know, rather excessive), to the refusal to loosen the reins of control by ensuring that voting power remained with the founder and his family, to a new valuation method seemingly designed to obfuscate the numbers, it raised red flags. And that doesn’t count the conflicts of interest. Or the massive, massive, MASSIVE losses, with no plan to get profitable.

In addition, there’s the business model itself: WeWork has significant long-term liabilities, but not long-term assurance of income. After all, we WeWorkers are shorter term – we can rent space month-to-month – but WeWork is on the hook for years to come. Again, does that show profitability? Nope.

I don’t practice securities law. But even I knew that WeWork was not in shape for a public filing. Which leaves two logical conclusions: either nobody told WeWork that the S-1 was a horrible idea, or WeWork’s C-suite didn’t care. And either way, they should have known better.

Oh, WeWork. May it survive in spite of itself.

Career Day

I love Career Day. I love it because I love talking about my work as outside general counsel, and I love meeting people. I got to design my business, and my job is helping other people design their businesses. It’s a great job! I inevitably sign up to present at Career Day.

After I sign up, I remember that I’m a little intimidated by Career Day. My job can be hard to explain to kids. What do I do all day? I help businesses start up, wind down, and address the issues in between. Sometimes I have trouble explaining it to adults, much less children. As I was preparing my Career Day presentation I was nervous. How do I summarize my job? More importantly – and channeling my inner second-grader – why did I choose my job?

We all face these questions regularly. What do any of us do all day? Why did we choose it? How do we see it in the greater picture of what everyone else does? We dedicate years to our specialized education, we pay hundreds of thousands of dollars, we spend years climbing corporate ladders or creating new opportunities. It’s not easy or quick or always fun.

To me, the answer is clear – we find meaning in work.

We contribute a part of ourselves to our work, to our success and our clients’ success, to doing what we do and doing it well. We want to tell other people about our jobs, because it reminds us that even if work is a grind sometimes, we’re doing it for a reason.

Career Day isn’t just good for kids. It’s an exercise in self-reflection. It’s a chance for us to remember how many other types of jobs and career paths there are, and to think about how they all fit together. The best part, I think, is getting to answer the question, “why did you choose your job?” If we can’t answer that, perhaps it’s time for a change.

Her Success Story!

Listen to my Her Success Story on itunes!

Monet and Manufacturing- Painting a Picture of Employee Satisfaction

Is manufacturing meaningful? Are employees destined to feel like the cogs they install? Or can a company successfully show employees that they matter to the bigger picture?

One summer during college I got a job as a research assistant. I was hired to perform sociology field work at a manufacturing plant and to take notes on the employees’ satisfaction with their work. I was assigned to Golden Artist Colors, a paint factory in upstate New York.

An all-staff meeting happened to be held on my first day. The workers gathered in the break room and the new employees (mostly college kids on summer break) introduced themselves. Each said his or her name and hometown, and stated his or her favorite hue. One new employee, an art student, said she liked Payne’s gray best and the seasoned employees all chuckled knowingly. The president of the company said, “The artists always like Payne’s gray best, because it’s really blue.” The veterans nodded and smiled.

Wait! I thought. Why does everyone know that? Is everyone an artist but me?

No, they weren’t artists. Instead, everyone working at the factory, from the president to the workers hand-filling buckets of gesso, had a fascinating philosophy about the company. They weren’t making paint. They were making art. Photographs and prints of works made with the company’s products hung on the walls. Employees were encouraged to take home samples to try out. Every employee – eventually, even I – could name professional artists who used the products in their work.

I visited nearly everywhere in the plant: the manufacturing floor, filling room, marketing workshop, formulation lab, and rooms where employees hand-painted each color sample chart and paint-jar label. I interviewed as many people as I could about their jobs. Nearly everyone truly enjoyed working at the company, because they believed that making paint was making art, and art changes the world.

The company successfully fostered a sense that the employees’ work meant something. Paint wasn’t just paint; it was possibility, beauty, creativity. All it took was time and focus by the management team. The hard costs seemed minimal – some extra product, a few minutes’ extra worth of time in a staff meeting – and resulted in extraordinary staff loyalty, cutting down on turnover. The real trick was in the world view. Management encouraged employees to feel proud of their work at every opportunity.

Why isn’t everyone using this model? I still don’t know. It seems so simple: find the company’s greater purpose, and put employees’ work into that context.

To find the company’s greater purpose, look at the company as you would a Monet. Stand back from the pointillist details until a picture emerges. If you sell cheese, are you supporting mom-and-pop cheesemakers? Investing in organics? Enhancing sustainability? If you are a lawyer, are you helping to support investment in cutting-edge technologies? Protecting families? Creating a fresh start? What is the greater story, and how does it fit into the world?

Now that the picture is clear, make sure that every employee knows his or her role in creating it. Bringing in clients or customers to explain how the company helped their business shows workers how their labor changed things for the better, and at a minimal cost to the company. If workers get feedback that their work is useful and helpful, they are likely to become more invested in the company’s success. Implementing this process can set the company apart from its competitors in two key ways: by increasing employee satisfaction, and by sharply defining its mission.

In stepping back from the day-to-day of production and looking at the bigger picture, I saw firsthand the art of meaningful manufacturing. It took time and effort, but each dot and detail fostered a sense of greater purpose, leading to enhanced employee satisfaction.

Communicate discreetly!

Increasingly, our communication takes place online – via pixel and text and upload. I’m sure all have heard this a million times, but I add my voice to the analog multitude:communicate discreetly. Oh goodness me, please, please communicate discreetly.

From examples as costly and major as the implosion of mega-conglomerate-law-firm Dewey & LeBoeuf, to the Twitter debacle of Justine Sacco, we all have to watch what we say and how we say it. Our written words, whether in email or otherwise, will live forever.

Justine Sacco: if it’s funny to you, is it offensive to someone else? Remember Justine Sacco? She posted a snarky racist tweet on the way to meet her family in South Africa. When she got on the plane, she had 170 Twitter followers. For eleven hours, she was offline. When she disembarked in Cape Town, her tweet had been re-tweeted bazillions of times, she had brought shame on her family, and she had been fired from her job. Her best friend deleted her account, but it made no difference – the damage had been done.

Dewey LeBoeuf: emails hastened their demise. This mega-conglomerate-law-firm, the unhappy marriage of Dewey Ballantine and LeBoeuf, Lamb, Greene & MacRae, failed for so many reasons it’s hard to count them all. However, indiscreet communication was key to its failure. Some key partners sent insulting or crude emails naming others and suffered no adverse consequences; other partners learned via email that their colleagues received sizable financial guarantees which were unrelated to actual earnings. Still other emails reflected that marketing information on earnings were grossly inflated, and financial information and invoices were falsified. This led to a loss of confidence in management, and may have led some lawyers to leak information to the media. It also contributed to defections, instability, and layoffs, and ultimately to bankruptcy. Worse yet, the Manhattan District Attorney filed criminal charges against the firm’s chairman, executive director, and chief financial officer of falsifying business records, conspiracy, securities fraud, and other charges. The incriminating emails were at least part of the information upon which charges were based. As of the time of this writing, the jury was deadlocked on many of those charges.

If you’re a person, a huge business, or anywhere in between, discreet communication is key. Email can be forwarded and searched. Tweets and posts can be searched. Failure to practice discretion can negatively affect an ongoing dispute or a future dispute. It can affect your personal life. Anyone can be a media story for all the wrong reasons.

Preventing unexpected internal losses

Last Tuesday, my colleague John Capizzi, Principal of Internal Audit Services, Inc. International and I presented to the Diversified Real Estate Investor Group (or DIG) at the London Grill, on unexpected internal business losses – otherwise known as internal fraud or theft. Here are a few of the highlights.

If you experience a business loss, it may be due to inattention or expectation. Perhaps a business owner trusts others to handle his books and records for him so he can concentrate on other things – like the back nine at Bala Golf Club. But a small business owner depends on that business’s profitability not only for income now, but also for his retirement – so why delegate it to someone else? An owner may be complacent or absent, causing employees to believe there are no repercussions if they take from the business. An owner’s attention may also be diverted because of an internal power struggle, an emergency, or a shift in management. That’s no excuse for not watching your business’s profitability closely.

The owner may also expect to lose money in the short term. Think about a business that’s expanding into a new product line. An owner will expect to see money being spent on new equipment, furniture, attorneys’ fees, employees, accountants, and supplies, and may expect to see a loss in the short term. That loss may be accelerated by employees who pad bills, issue phantom invoices, or slip their own phone bills in with the business’s bills.

How can you protect against internal loss? Just a few ideas: Be vigilant. Open business bank account statements. Double-check figures. Spot-check invoices on a monthly basis. Most importantly, make your employees feel appreciated and acknowledged.

If you have questions about business loss or suspect internal theft, call Bloom & Bloom.