Key Points

• On October 6, 2022, President Biden issued a full pardon for all federal convictions for simple possession of marijuana, urged state governors to pardon state-level possession convictions, and encouraged rescheduling of marijuana under federal law.

• The pardon only applies to simple marijuana possession convictions under federal law and the District of Columbia’s criminal code.
• The pardon does not extend to any state marijuana offenses or any federal offenses other than simple possession.
• Pardoned convictions will still appear on an individual’s record but will be accompanied by a certificate of pardon.
• Pardons “forgive” the conviction and remove any restrictions on a person’s right to vote, hold office, or sit on a jury that may have been imposed by the conviction.

Legal Landscape

The legal landscape surrounding marijuana varies greatly. Under federal law, marijuana is still illegal and is a Schedule I controlled substance; however, at the state level, marijuana use or possession can range from legal under state law, legal for medicinal use only, decriminalized, or still completely illegal. Even in states that have decriminalized or legalized marijuana in some capacity, the laws vary. Some states have allowed for expungements of state possession convictions, meaning the complete removal of a conviction from an individual’s record. Some states have issued pardons similar to Biden’s, and others have not retroactively expunged or pardoned convictions.

Similarly, state governors have reacted differently regarding Biden’s advice to pardon state-level possession convictions. Some governors are heeding Biden’s advice, while several governors have announced that they will not pardon state possession convictions. Others have announced they will not create a blanket pardon and their state will continue to pardon on a case-by-case basis, either because they don’t believe in sweeping pardons or because some governors do not have the ability to issue a pardon at all.

To add complexity, some states permit employers to consider past convictions in hiring decisions, others do not permit any consideration of past convictions, and some only permit consideration of past convictions if the conviction substantially relates to a material job function.

Practical Advice for Multistate Employers

The variation in state law can make it difficult for employers with multistate operations to set policies on whether to consider past marijuana convictions in hiring decisions. This determination will require several considerations, such as state laws on marijuana and state discrimination law.

Employers must first understand whether a state permits consideration of convictions, where it stands in terms of legalizing/decriminalizing marijuana, and whether any pardons or expungements are on the horizon. With federal-level possession convictions pardoned, many employers across the nation are moving away from considering state possession convictions in their hiring decisions.

If state law already prevents or restricts the consideration of conviction records in employment decisions, employers will feel very little impact; however, in states where considering an employee’s conviction record is permissible, employers should consider whether marijuana possession is a legitimate concern to their business or the safety of their employees. Depending on how an employer chooses to treat a pardoned federal conviction versus a non-pardoned state conviction for a nearly identical offense, it could bring rise to discrimination issues as well. This doesn’t mean, however, that employers may not consider any marijuana convictions, instead an employer might want to narrowly tailor which convictions are legitimate concerns when hiring, ensuring that such concerns are job related for the position and consistent with business necessity, in compliance with past EEOC guidance on the same and as long as there is not a state law or local ordinance to the contrary.

The EEOC recommends identifying essential job requirements and the actual circumstances under which the jobs are performed to determine whether specific offenses may demonstrate unfitness for performing such jobs. Additionally, EEOC guidance suggests taking extra care when basing employment decisions on background issues, such as past convictions, that may be more common among people of a certain race, color, national origin, or other protected group, as the same could create a disparate impact on certain categories of employees. In Biden’s statement related to the pardon, he explained that simple possession of marijuana convictions, state and federal, have impacted people of color at significantly higher rates than others despite marijuana use being relatively the same between the groups. Thus, if an employer’s facially neutral policy concerning the consideration of a simple possession convictions disparately impacts a particular protected group, an employer could face legal scrutiny from the EEOC or other legal challenges.

What This Means to You?

As much of the country moves toward decriminalization or legalization of marijuana, many employers, particularly those with multistate operations, have changed their hiring practices to no longer consider marijuana convictions at both the state and federal levels. Whether or not such a policy is practical for your company depends on a variety of factors and your business needs. 

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