With job growth as high as 30% in 2021, cannabis job market statistics are genuinely astounding. But statistics for the US criminal justice system are arguably even more dramatic.
According to US Justice Department statistics, more Americans have criminal records than college degrees. These Americans total as much as a third of the overall workforce. And since 90% or more of employers perform background checks on applicants, the ramifications for their job prospects are immense.
For would-be cannabis industry professionals, a background check is likely to be a part of the job process. But is a cannabis charge on your criminal record a deal-breaker?
Cannabis legalization and criminal records
Although it remains illegal on the federal level, 37 states have a legal medical cannabis program, and 18 have legalized recreational (adult-use) and medical cannabis.
In many states, legalization initiatives have also included steps to help residents clear their criminal records of convictions related to cannabis.
In a 2020 post, the National Conference of State Legislatures wrote that 41 states and the District of Columbia have record-clearing laws that can apply to prior cannabis convictions. This includes seven states with laws that apply specifically to cannabis.
In one of the most recent examples, under New York’s 2021 cannabis legalization initiative, the state will automatically expunge records involving the possession of up to 16 ounces or the sale of fewer than 25 grams of cannabis.
When cases are expunged, they should not show up on a background check. Once these records are expunged, job applicants can answer “no” when asked if they have a conviction on their job application.
What does the law say?
The restrictions relating to criminal records in the cannabis industry largely relate to licensing for would-be business owners and operators.
These restrictions disproportionately affect people from minority and low-income communities that have traditionally been targeted more heavily by law enforcement. This is widely considered one of the reasons for the relative lack of diversity among marijuana executives.
Under California’s legalization law Proposition 64, authorities can reject a cannabis business license application or renewal if the person has a felony conviction for possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance.
Some states have taken measures to alleviate this issue. In Washington, in late 2021, state officials approved a new rule under which people with a felony conviction won’t automatically be denied a license. The new rule also states that a Class C felony won’t be sufficient cause to deny an application.
Criminal records and cannabis employees
In several states, people with criminal records may have trouble entering the legal marijuana industry - and not solely as business owners.
In many states, the cannabis authorities require some form of certification or licensing for would-be industry employees.
For instance, in Nevada, all employees, contractors, volunteers, owners, and board members of a business must carry a state-approved “Cannabis Agent Card.”
Conviction of an “excluded felony offense” (a crime of violence or a controlled substances charge that was punishable as a felony) is grounds for rejection unless the sentence for the charge was completed more than ten years prior.
In Oregon, Liquor Control Commission regulations state that all workers must have a Marijuana Worker Permit. Applications can be denied for several criminal background-related reasons, including if the applicant has a controlled substance felony conviction from three years prior.
But even if previous criminal charges aren’t automatic grounds for rejection, they can still present some difficulties. In many states, job applicants must provide documentation of their criminal record.
For instance, in Illinois, dispensary applicants must attain a Dispensing Organization Agent Identification Card. To get one, applicants must provide disposition forms for any previous criminal offenses and a fingerprint consent form for a criminal history record check. In Colorado, cannabis workers must attain a Marijuana Employee License. This requires submitting a background check and providing court records from any felony arrest or charge.
Drug testing and cannabis jobs
Beyond criminal history, there is another potential stumbling block for cannabis industry workers: drug testing.
Although it may seem counterintuitive, even if marijuana is legal in your state, you can still be subject to a pre-employment drug test - including for a cannabis job.
Twenty-one states have laws prohibiting employers from discriminating against employees who use medical marijuana. Several, like Nevada, also have laws that protect recreational cannabis users. Nonetheless, people applying for “safety-sensitive jobs” are likely to find these protections irrelevant. These jobs include positions that involve operating motor vehicles or heavy machinery.
“Repairing the harm of prohibition”
In a 2019 position paper, the National Cannabis Industry Association gave a series of recommendations for correcting the harm caused by decades of marijuana prohibition.
“People of color were disproportionately targeted under the enforcement regime and are therefore disproportionately excluded now under these new collateral consequences. The most basic step lawmakers can take to stop banning people with drug convictions from the cannabis industry. Society recognizes that the punishment regime attached to prohibition was unjust, and we should not carry over the harms of the previous system to the new, legal regime.”
The paper calls on state and local governments to automatically expunge or seal criminal records for cannabis offenses and resentence people convicted of these crimes.
It also calls for removing felony licensing restrictions and the use of previous cannabis convictions from consideration as justification for denial of a license.
It states that such moves are “vital to helping impacted individuals find jobs and live productive lives after their incarceration, whether in the cannabis industry or any other industry.”
Some states have pursued these corrective, “social equity” actions as part of their legalization process. For instance, Illinois, where adult-use cannabis became legal on January 1, 2020. The state has a program to “provide technical assistance and individualized support” for people who meet their social equity criteria.
These include if they come from an area that was disproportionately harmed by the war on drugs. They may also be eligible if they or their immediate family members have a criminal record for cannabis offenses that can now be expunged.
How to hire someone with a criminal record in cannabis
If a state’s laws allow hiring people with cannabis convictions, then employing them is up to the business owner’s discretion.
If such bans are in place, employers can assist the would-be employee in getting their records expunged to ensure they can meet the state employee licensing requirements. The employer can also examine if they can contact the licensing authority and make a special request to allow the hiring of the employee.
But businesses must also decide that they want to include people who would otherwise be boxed out of the industry. The result would be opening the job pool to a more diverse group of applicants who may bring relevant insights into the cannabis market.
As Kobie Evans of the Boston cannabis company Pure Oasis told MJBizDaily in March, “people with (criminal records) are definitely very valuable in this industry – especially with cannabis – because you really want subject-matter experts, people who can speak intelligently about the product.”
That sentiment was echoed by Shawnee Williams, the co-founder of Illinois Equity Staffing, in a phone call with Rootwurks.
Williams said that “justice impacted” people “just want a job and if they got the opportunity they’d be loyal and very excited for the opportunity.”
Like Evans, Williams said that such people have a history with cannabis that provides them with first-hand knowledge valuable to the industry.
“In my opinion, I think they would be probably better than anyone else,” Williams said, adding “if you look at the data most justice impacted people entered into the justice system with cannabis and they know cannabis.”
Williams also said that she believes that the expungement process “is a scam” because “the system that put you through all this now wants you to pay to remove the charge that they gave you. The root of the problem is the actual charges themselves.”
She added that state regulators “didn’t take into account that the very folks who literally carried the industry on their backs for the last 30 years are the ones that now can’t even get into the legal market.”