Marijuana legalization and employment law

by Walter Olson on November 4, 2010

I’ve got some thoughts at Cato at Liberty on the overreaching way California’s Proposition 19 tried to curtail employers’ liberty in employment decisions related to pot smoking — which might have contributed to the measure’s defeat at the polls on Tuesday. Earlier here. Jacob Sullum points out that much of employers’ tendency to treat off-job marijuana use more harshly than off-job alcohol use is itself stimulated by government mandates and exhortation, prominently including drug testing programs (& welcome Instapundit readers). More: Nancy Berner, California Labor & Employment Law Blog (“Merely smelling marijuana on a worker’s clothes after lunch would not be sufficient to justify a write-up” had the measure passed.)

{ 1 comment }

1 David Schwartz 11.05.10 at 3:43 am

I would find this argument sensible if we actually had anything resembling real at-will employment. But with the number of exceptions, complaining about this provision just doesn’t make much sense. That ship has long since already sailed. If you can’t fire an employee because he chose to stop going to church , why should you be allowed to fire him because he chose to start smoking pot?

Also, if pot consumption is legal, time the employer prohibits the employee from smoking pot is time that employee cannot engage in all of the normal activities of living. This means that time must be counted under California’s minimum wage law.

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