I don’t particularly care whether Californians want to smoke more pot. If the legality of marijuana in California were the only issue raised by Proposition 19, I wouldn’t bother writing this post.
But if you’re really a libertarian, you should be against it. Here’s why. The proposition has this distinctly non-libertarian provision:
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.
That last bit might sound as though it takes care of any problems. But read it again. Under this law, courts may well rule that can employer has no right to take action to prevent marijuana consumption — even on the job — unless it “actually impairs” performance. This is a provision that goes beyond simply allowing people to smoke pot. It actually creates a new protected class (marijuana smokers) who may be entitled to sue if they are disciplined or fired for smoking marijuana . . . as long as the employer cannot prove that the smoking “actually impairs” job performance.
Are you a poor employee? Better start smoking marijuana! Now, if your employer wants to fire you, you have a potential lawsuit: maybe he fired you because you smoked marijuana! Because you, as a marijuana smoker, are now a protected class. That’s a great deal — one that drinkers don’t get. And really, we don’t have quite enough protected classes yet . . . don’t you agree?
As a legal analysis by the California Chamber of Commerce concluded:
Proposition 19 would allow marijuana users to claim that an employer’s actions are motivated by marijuana use. Just as with the FEHA, employers would be required to prove the employee’s poor performance, and not marijuana use, justified the personnel action. Inevitably, disgruntled employees’ claims of recreational marijuana use will draw employers into frivolous lawsuits and undermine the at-will employment relationship.
Real libertarians are against such silly restrictions on the employment relationship. Real libertarians want employers to be able to hire and fire who they want — and suffer the consequences if they choose poorly. Real libertarians should be against the new restrictions this proposition will burden employers with:
Employers would be prohibited from discriminating against marijuana users by taking marijuana use into account when deciding whether to hire an applicant. Any marijuana-smoking job applicant not hired could file a lawsuit claiming marijuana use was the reason, even if the employer had no knowledge of the use. Moreover, unlike alcohol use, which employers can prohibit entirely at work, under Proposition 19, employers could only take action for marijuana use that “actually impairs” work performance.
. . . .
Because an employer would only be permitted to act if an employee’s marijuana use “actually impairs” job performance, an employer’s hands would be tied to take any action based on the perception that an employee’s marijuana use is a potential threat in the workplace. Employers could do nothing to prevent users from smoking marijuana and operating heavy machinery or driving on company business unless such use “actually impairs job performance”, but would still have the responsibility to provide a safe workplace for employees and customers. This would impose an impossible burden on employers.
Keep in mind that DUI attorneys consistently argue that marijuana consumption does not necessarily impair driving. So now, if the employer can’t prove that it does, he may not even be allowed to prevent his employees from driving — at least, not without risking a lawsuit.
This is crazy — and it’s anything but libertarian.
If you want to empower the civil attorneys out there with a new weapon they can use to terrorize employers with, then by all means, vote yes. But if you’re sick of creating new protected classes — if you don’t think employees should be encouraged to toke on the job, to give them a new right to sue if disciplined or canned for bad or lazy work — then vote No on 19.
UPDATE: I should add that, contrary to what you might hear, there is no problem with jails or prisons in California being clogged with people who possess pot. You can’t go to jail in California for having under an ounce of pot; the maximum penalty is a $100 fine, and it’s nothing but an infraction. Defendants go to jail or prison only for dealing.
And with pot, unlike most other drugs, there are no extra penalties for dealing in quantity. This means that in the California state system, you can deal huge quantities (tons) and still get the minimum time available for any low-level felony: 3 years in prison maximum (not counting enhancements for priors, which can always increase any prison sentence). Of that three years, defendants serve only half. And most pot dealers are sentenced to the low term of 16 months, of which they serve only half: eight months.
So, there is no huge incarceration problem that needs to be fixed by screwing up employment law further.