David R. Henderson  

California's Proposition 19

Pop Quiz... Pop Answer...

A commenter on my post yesterday asked me what I thought about California's Proposition 19, which would relax state and local government restrictions on marijuana. I voted for it because I want the government to let people do, in the late Leonard Read's inimitable phrase, "anything that's peaceful."

But I did have doubts and my doubts are due mainly to this one passage of the law:

11304 (c) No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act or authorized pursuant to Section 11301. Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.

I have been arguing this with my anti-drug war allies for a while now. I wrote a piece on the issue in July 2008 that pointed out that a clause like the above is wrong and counterproductive. Here's how I began the piece:
Imagine that you work for an employer whom you respect, and you like your job. Then you find out that your employer uses marijuana for a medical condition. On further inquiry, you learn that he uses it completely legally and, as far as you can tell, it doesn't affect his performance as an employer. Should you be allowed to quit your job?

If that gets you interested, read on. I ended as follows:
One thing most advocates of drug criminalization insist on is that employers be free not to hire those who use drugs, even if they don't use them on the job. In advocating drug freedom, I have always assured people that I also advocate freedom of association for employers. But the Drug Policy Alliance and the Marijuana Policy Project have confirmed some of the worst fears of legalization's opponents. The impression one gets is that these two organizations care only about drug freedom and are willing to trample on other freedoms. If they succeed in further restricting freedom of association, then, whatever their intent, they will make the drug-legalization hill even steeper.

If Proposition 19 is defeated, as I believe it will be, then, like Francisco d'Anconia, one of the characters in Atlas Shrugged, I will say to its proponents, although without any pleasure "Brother, you asked for it."

Update: Some of the comments below, in particular, those of Seth and chipotle, show that they didn't read my article I linked to. As regular readers know, I tend to answer commenters fairly often. I draw the line, however, when people's comments show that they didn't read the items I linked to. In chipotle's case, there's an outside chance that he/she did read the article but ignored it in raising his/her hypothetical.

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CATEGORIES: Labor Market

COMMENTS (36 to date)
John Goodman writes:

The solution to the employment question is to endorse the broader concept that all employment relationships are "at will." Either party (employer or employee) can end the relationship for any reason at any time --unless this presumption is modified by voluntary contract.

David R. Henderson writes:

@John Goodman,
You're right. BTW, that's what I say in the article I linked to.

Blackadder writes:

Let me see if I understand this. If Prop 19 passes, smoking marijuana remains a crime (since it is still against federal law and the feds have said they will enforce it regardless), but it becomes illegal to discriminate against drug users?

On balance I would say this is an anti-libertarian law, and ought to be defeated.

NZ writes:

There are currently laws requiring some employers to drug test employees and fire them, or not hire them, if they test positive (regardless of the likelihood of false positives in drug testing). I would love to see a Proposition to get rid of such laws.

But, for the sake of discussion...suppose we live in a world of extremes, in which either all employers are banished from hiring drug users just because they use drugs, or all employers are banished from firing drug users just because they use drugs. Which is worse?

David R. Henderson writes:

NZ asks, essentially, which set of repressive rules is better. My answer is that I don't know. That's what's so upsetting about this. The proponents could have gone for just eliminating repression and, instead, decided to impose their own.

Hyena writes:

Prof. Henderson,

Thanks, pretty much my thoughts on the subject. I think the issue with the DPA and MPP is that an element of status competition between drug and straight culture is in play.

I don't really buy the argument that this is a place where we need the government to curtail the petty tyrannies of the less powerful, either. At least in California, I don't see much concern about "drug free workplaces". In fact, even my Federal job didn't bother testing out here.

Dan Weber writes:

I'm reading the law much differently from others.

No person shall be punished, fined, discriminated against, or be denied any right or privilege

That seems more of a restriction on government than private citizens. In fact, they explicitly preserve the right of an employer:

Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.

Emphasis added by me. Of course, I'd wonder who has to prove that someone's job performance was "actually impaired," but I doubt showing up for work stoned is any different than showing up drunk.

Hyena writes:

There are two issues in play: a general right of employers to set the standards for their employees and the issue of lawsuits. In the latter case, defense can be expensive regardless of whether the defendant is correct. There is also an asymmetry of recovery: a plaintiff with an attorney on a contingency fee can't be recovered from for the most part, no matter how costly the defense.

liberty writes:

I agree with Dan Weber - it took me some time to even figure out what you were concerned about.

Floccina writes:

I hate the way the bill is written but it is better than nothing.

Eric Falkenstein writes:

"actually impairs performance" will always be up to debate. Most pot smokers think it does not affect their responsibilities. Entrepreneurial lawyers will make obvious pot heads like the disabled or elderly, very hard to fire, and so not as many kids with pot-smoking correlated signals will be hired.

But, it probably won't pass.

Blackadder writes:

"actually impairs performance" will always be up to debate.

Exactly. In addition, the motivation for a firing is always up for debate. Sure, an employer might say that he fired a pot smoker for other reasons, but this could be a pretext, and so will have to be litigated.

Functionally what this means is that people who use drugs can only be fired for cause, whereas people who don't can be fired for any reason. Which is absurd.

Seth writes:

"Should you be allowed to quit your job?"

I'm confused. Are you saying that you shouldn't be allowed to quit your job?

Dan Weber writes:

Seth, it was a bait-and-switch. You should be able to quit at will, and your boss should be able to fire you at will.

liberty writes:

"Functionally what this means is that people who use drugs can only be fired for cause, whereas people who don't can be fired for any reason. Which is absurd."

No, I think what it means is that everyone can be fired for any reason except a few reasons: you can't be fired for being too old or gay (both already illegal) or for smoking pot. Let's consider what the non-pot-smoker might have done to get fired that was not-for-cause. Lets say he failed to laugh at his boss's joke. The pot-smoker could get fired for that too. It has nothing to do with pot smoking (hence it isn't discrimination), so it isn't protected by the clause.

I agree that employer and employee alike should be able to quit/fire for ANY reason, including bad reasons or idiosyncratic reasons. I also agree that some could use clauses that protect gays or minorities or women or pot smokers WRONGLY to argue that it WAS for that reason that they were fired. Hence these clauses MAY make it harder for employers to fire "not for cause" - but this is a different argument.

One could say that in this case it is very unlikely to be abused because the court would expect evidence that a drug test just occurred and the employee simultaneously had a high performance review (or similar) to show that the only cause was drug use; whereas the other protections against discrimination are much more hard to show, and hence can be abused more often.

Aaron writes:


It's not a different argument. That's the argument he was making....

David R. Henderson writes:

@Dan Weber,
You're misusing language. It was not a bait and switch.
If you want to resolve your confusion, read the article I quoted from.

Peter writes:

Prof. Henderson,

Let's say that the labour law provisions of prop 19 are equally repellent to the labour law prior to prop 19. I would then consider the labour provision a wash (though certainly a missed opportunity), and proceed to look to the rest of the bill, to see what its impact on liberty is. The answer there is resoundingly positive.

We are talking about eliminating the prohibition of the substance for which more people are imprisoned than any other. This is a huge advance for liberty, and despite a stupid labour law clause, should be advocated with as much vigour as we can muster.

RPLong writes:

Prof. Henderson, you're confused.

Advocates of drug legalization don't want freedom, they want drugs.

Your solution is objectionable to them because you replace a bad law with something POSITIVE, namely social pressure to maintain some semblance of virtue.

Aside from people who want to legalize drugs for your reasons, people who favor legalization are really just self-absorbed children who do drugs. Drug abusers have a notoriously egotistical psyche and a persecution complex. It's not a matter of principle for them, it's a matter of drugs, plain and simple. They want them and think they deserve them, end of story.

I favor legalization for libertarian reasons, and my beliefs echo yours. But the mind of a drug abuser is a pitiful black hole. You can't reason with these people. As libertarians, we can acknowledge the fact that legalization would solve many, many problems associated with the black market for drugs. But as human beings we must be **UNEQUIVOCAL** in condemning the hideous disease of drug abuse.

Your article frankly gives drug abusers too much credit.

Blackadder writes:

Let's consider what the non-pot-smoker might have done to get fired that was not-for-cause. Lets say he failed to laugh at his boss's joke. The pot-smoker could get fired for that too.

This is not how employment discrimination law works in practice (I say this as a former judicial clerk). In practice what happens is that the pot smoker files an action claiming that he was fired for using drugs. The boss says that it had nothing to do with his drug use, it was because he didn't laugh at my jokes. Well of course he would say that, says the pot smoker, he can't say that he fired me for using drugs; that's illegal. So he came up with the laughing thing as a pretext, but the real reason he fired me is that I smoke pot.

Thereupon you have a year or two of protracted litigation trying to establish why the guy was really fired. In general the way it works is that if employer can show that he had a good reason for firing the person (i.e. you had cause) then the employer wins. If not, then whatever reason is given is likely to be deemed a pretext, and the guy wins.

David R. Henderson writes:

Your comment is incoherent. You write, "Advocates of drug legalization don't want freedom, they want drugs." You don't say "some advocates." You say "advocates." Then a few sentences later, you say that you're an advocate of legalization. So am I. I want freedom. I'll decide later whether I want drugs.

RPLong writes:

I may have been inconsistent in my wording, in the interest of rhetorical flare, but hardly incoherent. I thought I made my point reasonably well. Perhaps I shouldn't have started with "you're confused," though.

David R. Henderson writes:

In case you're wondering, your statement "you're confused" didn't get to me. You did make your point well. The reason I said it was incoherent is that you didn't sufficiently hedge. You can't both maintain that all crows are black, A is a crow, and A is not black. That's what I was responding to.

Growing Weed indoors writes:

Let's consider what the non-pot-smoker might have done to get fired that was not-for-cause. Lets say he failed to laugh at his boss's joke. The pot-smoker could get fired for that too.

chipotle writes:

David Henderson,

I understand where you are coming from but you are taking your libertarianism beyond the point where it is realistic. You're being doctrinaire.

Suppose a public school district in a conservative community (perhaps a very small one) decided that no one could teach children who had sex outside of marriage. It wouldn't be permitted.

Suppose a McDonald's had an owner whose father had died from smoking tobacco. He sternly tells his employees that they are forbidden from smoking cigarettes, not just on the job, but 24 hours a day and 7 days a week. One Saturday he catches an employee outside a shopping mall puffing on a Marlboro. Should he be able to fire him on the spot?

Simply because you sign an employment contract does not mean that the employer may dictate any and all terms of your life.

Professor Henderson: An employment contract is not a title of ownership to a pet! (Nor should it be!)

odinbearded writes:


The smoking example already exists, or at least it did a few years ago.

See: Weyco, Inc.

That case was in response to rising health insurance costs. Weyco was bought out by another company, and I'm not sure if the policy is still in effect.

RPLong writes:

Prof. Henderson - why hedge, in this case?

Why go out of my way to delineate which group of drug abusers I happen to be speaking about, as compared to which group of libertarians? My point about the argument your making stands, no matter who feels offended by my calling drug abusers the social scourge that they are. Those who don't abuse drugs have no reason to feel offended or inadequately provided for in my reasoning.

Anyway, why do I need to equivocate so darn much for a simple blog comment?

Your article resonated with me because, unlike most articles on this topic, you make a case for discouraging drug consumption via the only effective means of doing so: social pressure. This is right and natural - the drug laws merely encourage crime.

At the same time, you seem to be speaking to your "anti-drug war allies." You're not making a case for legalization, you're making a case for liberty.

I'm suggesting that your target audience (in this case) doesn't really care about liberty as much as you suppose they do. They care about drugs. Those most likely to be persuaded by your reasoning are those who already agree with you. Those who disagree really don't care about liberty. (If they did, they'd stop consuming drugs as a means to stop supporting the corrupt, violent, tyrannical governments that drugs fund.)

This is why I say you're giving them too much credit.

Hyena writes:


What's the problem in your scenarios? Being an complete douche bag isn't a crime. While arguments could have been mad 20 years ago that people needed toe protected from tyrannical behavior of this sort, it's now perfectly possible for people to make it known on the Internet that some employer isn't worth the frustration.

Seth writes:

@David - Thanks. That did clear up my confusion.

Douglass Holmes writes:

Thank you, Professor Henderson, for reminding us that employment is a voluntary association. As chipotle's post indicates, most people view employment as an asymmetrical relationship in which the employee needs protection from the employer.

If I don't like the way my employer behaves, I can quit. No one is in a legal position to accuse me of wrongdoing for arbitrarily ending the relationship. But if the employer decides to end our relationship, he had better be prepared to defend his decision in court. I know I'm 'outside the mainstream' but I just don't believe that is fair.

liberty writes:

@Aaron - No, it wasn't. He was making the argument that employers should be free to fire whomever they please. This is an entirely different argument than one about whether an employee fired for some other reason than using pot would use the law to argue that he was in fact fired for using pot.

@David Henderson - I actually had not read the article closely when I first posted, and I think you make a very good case in it. I have long been against anti-discrimination laws that restrict the freedom to hire and fire but I had not initially read the law as very restrictive. However, I now feel that you make a good case.

Brent writes:

I'm with Peter. This provision is a drop in the 50 gallon barrel of existing employment regulation. Proposition 19 is a big net win for liberty.

That being said, it is useful for introducing the long-forgotten idea of freedom of association.

David R. Henderson writes:

I agree with Brent, which is why I voted for it.

rpl writes:

Douglass (and I guess David, to some extent),

You should at least acknowledge the counter-argument here. The consequences to an employee from getting fired are usually a lot worse than the consequences to the employer from having an employee quit. It's a rare employee that is so critical to his employer's operations that the employer couldn't get by without him for a while. On the other hand, an employee that finds himself suddenly without a job typically will have a serious problem providing basic necessities like food and shelter for himself and his family. In light of that, it's hard to argue that there is no asymmetry between employers and employees in terms of their negotiating position.

Now, you could argue that the asymmetry is not a problem worth addressing, or that there are better ways to address it (e.g. through a social "safety net"), but to appeal to the supposed symmetry between the employee's and employer's positions seems specious to me.

Ben writes:

You have to differentiate between use and abuse. Personally, I smoked for a long time, and ran circles around the drunks at my job. I could have been fired at any time for using on the job, but wasn't because I was performing my job above and beyond the others that had come before me. A blanket statement such as "all drug users are abusers" is absolutely absurd. Abuse is defined as any activity that has a negative impact on your personal, professional life, or your health. None of those 3 applied to me or to many of my friends. I have met more people who did not use pot who I would not trust to change a light bulb, let alone perform the complex and sometimes dangerous jobs that they did. I am so tired of the straw-man argument that anyone who smokes pot is a lazy piece of crap who deserves to live in the gutter. Sure there are people who smoke pot that do deserve to live in the gutter, but I guarantee you there are a lot more who drink alcohol and smoke cigs that ARE living in the gutter!

JDU writes:

The fact that Proposition 19 could end up violating employers' rights to free association is my biggest reservation about it. There's also the possibility that it would make it impossible for California employers to comply with federal drug-free workplace laws, which could cost thousands of jobs in California simply through the loss of federal contracts.

On balance, however, I still thing it's worth voting for. Hopefully, these problems, which are the result of clumsy drafting, the fact that supporters of drug tend to fall on the left on the political spectrum (making them more hostile to the rights of employers), or some combination of the two, can be mitigated through subsequent legislative action. Assuming, of course, that they actually cause major problems.

But as it stands now, Prop 19, warts and all, is what we've got. I don't see a better option coming along any time soon, and Prop 19's failure would likely put the breaks on marijuana legalization for years, perhaps decades, to come.

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