Delaware State Chamber of Commerce seems to take aim at equity plan in marijuana bill

Forget the weed — the current controversy over HB 150 is about social responsibility and diversity.

The Delaware State Chamber of Commerce has been clear on its stance on legalized recreational marijuana. During a Legalized Marijuana Roundtable at the Chamber-sponsored Manufacturing Conference in March, this statement was read by panel moderator Rustyn Stoops, executive director of the Delaware Manufacturing Extension Partnership:

“The State Chamber position on the legalization of marijuana can be summed up this way: We respect the rights of the adults to do what they want, when and where it’s appropriate. Employers, however, want to have the ability to preserve their own unique policies on this topic, and prefer to wait for technology that provides a spot test for impairment and immunity from liability.”

HB 150, the legal recreational marijuana bill that passed the Delaware House Health & Human Development Committee and could be passed into law this year, does give employers the right to make its own rules about marijuana use. In the bill itself, in section 1305: “Places of employment,” where it notes that “nothing in the chapter is intended to affect the ability of employers to have policies restricting the use of marijuana by employees at work,” and that employers can discipline employees for being under the influence.

Last week, the State Chamber made another statement about the bill by taking aim at a the process of applying for a license to sell legal marijuana under HB 150 — specifically, that applicants may be asked to outline their diversity goals, including plans to recruit and hire people of color, women and veterans.

The Chamber’s “Weekly Report” newsletter featured two opinion articles that discuss the bill’s equity provision: “Weed and Work: Beware of Employment-Related Provisions in Delaware Marijuana Legislation,” by Connolly Gallagher LLP partner Tim Holly, which appears in the May/June issue of the Chamber’s Delaware Business magazine and warns of “provisions amounting to social engineering regarding unions and sex and color-based hiring,” and a continuation of the conversation warning that following the “repugnant” equity provisions could be grounds for discrimination lawsuits. (The link to the first article download is at the previous link.)

Technical.ly reached out to the State Chamber last Friday to ask if the articles represent its stance. A spokesperson responded after this story was published on Monday: “We have regular contributions in our publications by member companies. This was one of them. It is not an official stance of the State Chamber.”

At the Legalized Marijuana Roundtable in March, it came up that if a company has any federal contracts, it is required to have a “drug-free workplace,” which includes marijuana. This was part of the explanation for why businesses should retain strict rules against marijuana use.

Although it wasn’t mentioned during the roundtable, a company with 50 or more employees and at least one federal contract of $50,000 or more is also required to have an affirmative action plan to recruit and advance qualified minorities, women, individuals with disabilities, and protected veterans. This requirement was first enacted when President Lyndon Johnson issued Executive Order 11246 in 1965.

HB 150 (section 1323) says, in plain English, that if there are more applicants than available licenses, licensees will be selected by a scoring process where applicants will have to submit a social responsibility plan as part of an overall operations plan. The scoring process will take specific location into account.

The social responsibility plan a minor provision in HB 150, which also includes the distribution of social equity licenses, in addition to regular open licenses and microbusiness licenses. To qualify for the social equity license, one must live in an area disproportionately affected by drug arrests, and/or have been convicted of a marijuana crime (excluding sales to a minor). The application fee is reduced from $5,000 ($3,000 for microbusiness) to $1,000. Similar licenses have been created in other states, including California, where they have not always had the intended result — which is at least partly why subsequent bills like HB 150 take steps to make sure that communities that were harmed by marijuana criminalization are not left behind by marijuana legalization.

You can read the entire document of HB 150 here.