At last year's ACC West Michigan Symposium, we hosted a session to discuss the challenges that technology is addressing. Insights from the session, "Leveraging Technology to Enhance In-house Operations," continue to be timely and relevant now.

Key insights from the session

Last year's session featured insights shared by Kirk Goodwin, from leading home appliance manufacturer Whirlpool Corporation, and Jason Reid from HighQ, a legal technology provider. The hosts explored the current corporate legal landscape, barriers for technology adoption, and areas where teams should focus their technology efforts.

In large part, corporate legal teams were and are still embracing legal tech to manage low-value work. This allows them to use the time saved to focus on strategic projects and higher-value work. However, at the time of the session, there were still numerous barriers to creating true digital transformation. Among these barriers, the three most prominent were: lack of available budget for implementation, poor integration of legal tech solutions into existing systems, and the simple scarcity of time, coupled with the challenge of choosing the correct technology to address the needs of each unique legal department.

The session ended with the understanding that, in light of these barriers, it becomes essential to narrow the focus on areas that will deliver the most value to your team: collaboration and automated workflow, as well as AI and machine learning.

Deployment advice for legal tech and AI

So, how has the corporate legal landscape changed since the session? For the most part, corporate legal teams are still faced with the same challenges - namely, how they can cut costs and continue to enable and empower the strategic objectives of the business in the fastest and most flexible way as possible, all while using fewer resources.

Many companies have continued to address these challenges with technology. But one of the biggest hurdles to overcome is still simply deciding where to start. A good approach might be to determine where to start based not only on what the legal team's goals and objectives are, but also by considering what would have the most significant, positive impact for the organization on a broader level.

It is key to define a clear value proposition for the organization, which demonstrates that the legal team is a future-focused, strategic business partner. The stronger the business focus, the more likely it is that the team will obtain the budget and other resources needed to implement these essential technology tools.

In addition to the barriers to digital transformation identified in the session last year, there may be a fundamental lack of familiarity and knowledge about the types of technology tools available to in-house lawyers, especially concerning AI. For many GCs and in-house lawyers, it may also be difficult to relinquish control and trust that a computer can do something better and faster.

Overcoming challenges to reap the rewards of AI, workflow, and automation tools

The key to reaping immediate rewards with the use of AI and other automated workflow tools is to show the direct benefits of applying automation to solving real-life business problems with maximum return on investment. HighQ clients and others tackle these challenges by deploying the platform's capabilities to address solutions related to matter intake and using AI for initial contract review and analysis, legal service request portals, and general contract management.

In the future, it's likely that corporate legal teams will continue to be challenged to become even faster and leaner. For that reason, it's a safe bet that in-house legal teams will be using AI and automation on at least some level in the next year or two. Whether it is e-billing, workflow management, analytics, or document creation, AI and automation will be a critical part of how corporate legal teams protect their organizations and enable the key strategic initiatives of the business.

To set the stage for this probable future, corporate legal teams need to partner with in-house technology teams, add technology-based legal roles, and attend more tech-based training to overcome adoption challenges; and remember - the sooner, the better.

Employers Maintain Right to Prohibit Recreational Marijuana Use

Many anticipate that the MRTMA will result in more Michigan residents using marijuana at a higher rate.

The MRTMA does not preclude employers from continuing to prohibit their employees from possessing or using recreational marijuana. Subsection 3 of section 4 of the MRTMA (MCL 333.27954(3)) expressly permits employers to restrict their employees' use of marijuana. MCL 333.27954(3) reads as follows:

This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer's property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's violation of a workplace drug policy or because that person was working while under the influence of marijuana.

In other words, employers may still lawfully terminate an employee, decline to hire, discipline, or take other similar adverse action against a prospective or actual employee for:

Employers seeking to restrict or prohibit their employees from using recreational marijuana should review their drug free workplace policies to ensure that, among other things, their policies expressly prohibit marijuana or drugs that are classified as a Schedule I drug under the federal Controlled Substances Act. To the extent that employers seek to prohibit or restrict marijuana use under a policy that refers only to substances illegal under Michigan law, such policies may no longer be enough to ensure that an employer's drug free workplace policies lawfully prohibit marijuana.

Recent Legal Developments and Their Potential Impact on Employers.

In addition, the MRTMA and MMMA are subject to further legislative amendment and interpretation by the courts. Employers may want to consider two legal developments since the passage of the MRTMA that may affect the way in which they address marijuana in their workplace.

First, on March 1, 2019, Governor Gretchen Whitmer signed an executive order that abolished the Medical Marihuana Licensing Board. The Board was responsible for granting licenses to businesses seeking to manufacture and distribute marijuana. Critics asserted that the alleged politicized nature of the Board resulted in inefficiencies that hindered the licensing of businesses. In its place, Governor Whitmer's order establishes the Marijuana Regulatory Agency (MRA), which will be a division of Michigan's Department of Licensing and Regulatory Affairs (LARA). The MRA will be responsible for administering laws related to the MTRMA and MMMA. The public, and employers among them, can expect new administrative rules that will further regulate marijuana, which may affect the way by which employers prohibit or restrict marijuana use.

Second, on February 19, 2019, the Michigan Court of Appeals issued an unpublished per curiam decision, Eplee v. City of Lansing, No. 342404. In Eplee, the Court held that an employer does not violate the MMMA by revoking a conditional offer of employment extended to a prospective at-will employee where the prospective employee tests positive for tetrahydrocannabinol ("THC"), the substance in marijuana that is chiefly responsible for the "high" associated with marijuana use. Thus, while Michigan law provides that "qualified patients" are not subject to arrest or prosecution for lawfully using marijuana for medical purposes, the Michigan Court of Appeals held that employers are free to terminate the employment of an at-will employee (or not hire a prospective employee) for using medical marijuana, even if the employee or prospective employee used marijuana in a manner that would not result in criminal penalties.

 
More to Come?

These developments may be the tip of the iceberg in a wave of new rules and court decisions addressing marijuana use in Michigan. Employers should be mindful that the MTRMA is a new statute that Michigan will almost assuredly continue to interpret through new laws and administrative rules. Employers should review their corporate policies and handbooks to ensure they address employee marijuana possession and use in the new age of legalized marijuana in Michigan.

 

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Rebecca Perry CIPP/US/G Director of Strategic Partnerships
636.821.2251 | office  [email protected]

Rebecca has been assisting legal, compliance, privacy, and IT executives for over 25 years in the areas of information governance, data mapping, data minimization, records retention, and third-party diligence. She is a Certified Information Privacy Professional and a frequent speaker in the privacy community, including sessions with the FTC, Association of Corporate Counsel, Society of Corporate Governance, and IAPP KnowledgeNet.