By Linda Laderman
Legal News
In an era where new standards of behavior govern the workplace, employers need to be able to swiftly respond to the legal and moral challenges that affect them, said Jim Baiers, chief legal officer at Trion Solutions, a Troy-based human resources company.
Baiers said the environment in today’s workplace has changed so significantly that he advises his clients to err on the side of caution.
“Years ago, you could compliment someone on how they looked. Today, I tell my corporate clients, just don’t do it,” Baiers said, referring to the workplace issues raised by the “Me Too” movement.
“This is an area that we deal with every day. Through employee training sessions our clients present different scenarios to get people thinking about it, because some of these people may not even be aware they are doing anything wrong.”
A cultural shift in the workplace is necessary to bring about permanent change, Baiers said.
“There have been numerous studies that show, as employers, we’re not getting better at it. For the trainings to be effective, the culture has to change from the top down.”
Apart from the questions that have been brought to the forefront by “Me Too,” Michigan’s employers also area dealing with the impact of the recent passage of Proposal One, legalizing possession and use of marijuana for recreational purposes.
“Employees may have the misconception that because the use of marijuana is now legal in Michigan, although it’s not legal at the federal level, that they no longer can be discharged or denied a job if they test positive for marijuana. Employers need to know that they still have the right under the law to terminate people who test positive for THC,” Baiers said, referring to the chemical responsible for the drug’s psychological effects.
Notwithstanding the right to require employees to submit to a test, the dilemma employers face remains.
“It’s a difficult issue for employers because they have competing issues. They will probably see some increase in employees using marijuana. With a low unemployment rate, some jobs are difficult to fill,” Baiers said.
“Are employers going to take the stance that you can never have any marijuana in your system or are they going to limit testing to situations where they have a reasonable basis to believe that someone is under the influence or impaired on the job by marijuana?”
When employers do test, they have to determine which situations demand that employees have no trace of marijuana in their system and which circumstances merit a more lenient stance, Baiers noted.
“For instance, if you have a situation where an employee who might use marijuana on the weekend and then come in on Monday only to find out they have to be tested under the company’s random drug testing policy,
it doesn’t necessarily mean they were impaired or under the influence at work, so you have to make that decision. But if you have people involved in operating machinery, that employer may want to take a zero tolerance policy.”
What steps should employers take and employee work is affected by drugs or alcohol?
“We are going to have to train employers to recognize if someone on the job is impaired by marijuana. Alcohol use is easier to detect because a Breathalyzer test can be given on the spot,” Baiers said. “As an employer, you have to make sure you have a safe workplace for your employees.”
Baiers, an alumnus of the former Detroit College of Law, joined Trion 4 years ago after spending much of his 40-year career in private practice as a partner at Clark Hill.
“The difference in private practice is a lot of times clients come to you with a legal issue that has already occurred and you have to fix the situation as best as you can. When you’re in-house with a company you have the opportunity to be proactive to minimize legal risks,” Baiers said.
He said “small business America just can’t keep up with rapidly changing regulations, so it’s been very rewarding to help them navigate complex regulatory areas.”
Baiers also serves as a hearing panelist for the attorney discipline board of the State Bar of Michigan, where he has found that the substance abuse issues that employers are grappling with often mirror those affecting the legal profession.
“There are recent studies that show, that compared with the general population, attorneys have a higher rate of substance abuse. The State Bar has tremendous programs to get these attorneys the help, mentoring, and support they need to get better,” Baiers said. “This is important for our profession because we need to to do everything we can to increase our image and competency in representing the public.”
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