[roc]

> "It manifestly did leave open the question of whether employers would have to allow employees to take one-hitters to their smoke breaks."

Is that unlike the open question of whether employers have to allow employees to have a martini or two at lunch?

[tptacek]

No, because unless you can get a medical professional to write you up as an alcoholic (in which case the ADA applies), you can be fired simply for handling a martini at lunch. That isn't an open question. Employment in California is at will, excepting:

* discrimination on the basis of race, color, gender, religion, or national origin

* discrimination over disabilities covered by the ADA (diagnosed drug and alcohol addiction notably included)

* termination over lawful activities conducted outside the work place.

Perverse as this sounds to me, you can in California be fired over a bad haircut, but cannot be fired for marching in a Nazi parade.

[roc]

> "termination over lawful activities conducted outside the work place."

What I mean to ask is: doesn't that statement right there cover any responsible person who might want a puff or drink during the work day? I'm not talking about having a martini or a smoke at your desk or on the loading dock.

I just don't understand

1: why anyone would be concerned that the law might allow someone to show up with marijuana in their system at a non-impairment level, when they might already show up with alcohol in their system at a non-impairment level.

2: why a law that explicitly re-iterates that you can't be fired for engaging in a particular lawful activity outside the workplace is viewed as a flaw, when the general case of any lawful activity is already law.

[tptacek]

Where to begin...

1. Employment in the US is (for the most part) at-will. Employers can fire you for having a bad haircut. This is a good thing: it lowers the barriers to starting new companies and taking on new employees.

2. In virtually every situation in which people are given protections beyond "at-will", the harms have overwhelmed the benefits (see: teachers, auto workers, municipal employees).

3. The very few exceptions to this practice mostly involve unconscionable discrimination: specifically and literally, race, color, gender, national origin, and religion. To these 5 protected classes we should add "pot smoker"?

4. To many employers, "protected class" is code for "excuse to get sued". Termination is already a minefield simply because of racial and gender politics. I'd argue that ending racial and gender discrimination makes the hazards worth it, but even as a legalization advocate I can't argue that ending pot discrimination is worth a dime to society.

5. It gets worse because in addition to the fact that every other state criminalized cannabis, huge companies operating out of those states (notable examples: the federal government, almost every major bank) have drug-free work policies that would overnight have become unlawful in CA.

6. California's "lawful activity outside the workplace" thing appears to be a CA quirk.

7. That quirk isn't settled in case law and may only apply to cases where companies try to suppress political speech or invade privacy.

8. It seems batshit crazy to me that I can, as a CA employer, fire someone for having a bad haircut, but I can't fire that person for being nationally televised for marching in support of Nazism. Let's not pretend that particular law was well-thought-out.

I can bring this discussion back to earth real quickly though. The problem is simply this: we're having a huge and tangled discussion involving discrimination, at-will employment, freedom of association, contract law, and so on. Meanwhile, tens of thousands of people are imprisoned because of marijuana criminalization. Many of them are now going to remain imprisoned for a longer period of time because the advocates of this measure overreached and tried to pass a "marijuana anti-discrimination act" instead of a "marijuana decriminalization act".

[roc]

> "1. At-will" For the most part, this is true. However, it is and has been abused and has its existing exemptions for very good reason. Protecting an employer's right to punish people for lawful activity they engage in outside of the workplace, that has no impact on how they perform their job, does not seem like a very good reason.

> "2. harms from exceptions have overwhelmed the benefits" You're conflating union contracts with legal protections. Also, we shouldn't overlook the ways in which employers would use their at-will rights to control employee voting, spending (company store) and living (company housing). Beneficial protections for employees from the at-will rights of employers go beyond the handful of explicit protected classes.

> "3. To these 5 protected classes we should add "pot smoker"?" No more than we should add "alcohol drinker". But it absolutely shouldn't be a protected right to fire people for engaging in lawful behavior that occurs outside the workplace and has no impact on their job performance.

> "4. "protected class" is code for "excuse to get sued"." Termination is pretty clean and easy so long as you document your decisions.

> "5. Existing policies unlawful" I believe the correct interpretation there is the specific sections would be rendered invalid/unenforceable and would need to be amended. I don't see it as such a huge deal. The very organizations that would experience a large cost in this endeavor are overwhelmingly the ones who have annual updates anyway.

> "6. CA quirk." But we're only talking about California. It's nonsensical to argue based on interstate applicability of a proposed State law.

> "7. That quirk isn't settled in case law and may only apply to cases where companies try to suppress political speech or invade privacy." Or it may not. Or firing people based on lawfully smoking weed might be seen as an invasion of privacy.

> "8. It seems batshit crazy to me that I can, as a CA employer, fire someone for having a bad haircut, but I can't fire that person for being nationally televised for marching in support of Nazism." You don't think freedom to political speech on your own time is a more important and sacred right than freedom of expression via appearance in the workplace?

> "Many of them are now going to remain imprisoned for a longer period of time because the advocates of this measure overreached and tried to pass a "marijuana anti-discrimination act" instead of a "marijuana decriminalization act"." I think the jury's out on how much of the opposition to this bill had to do with marijuana anti-discrimination.

I'll absolutely agree that it was bad strategy, particularly as the right seems to already be protected. I'm just not convinced that a critical reading of the proposal would sway voters away from it for its inclusion.

Arguments against the anti-discrimination sections were overwhelmingly emotional arguments. Those arguments, and those swayed by them, have never needed a rational basis. If it wasn't "they'll drive high" it would've been "they'll babysit high" or "the welfare queen will be high on your dime" or some similar scare-scenario.

[tptacek]

Concerns about having to choose between retaining a business relationship with your largest client who mandates a drug-free workplace and a rash of frivolous lawsuits is simply not an "overwhelmingly emotional argument".