To my California friends [Prop. 19]

[Nametag]

That Chamber of Commerce analysis is ridiculous. There is nothing in Prop. 19 that enjoins an employer from doing as he damn well pleases when it comes to setting conditions of employment, same as now. Drug testing can still be a condition, and showing up stoned for work, or blazing up at work, can still be grounds for dismissal – the presumption that intoxication is inherently incompatible with productive work is not diminished.

[Yeticus_Rex]

It directly conflicts Federal Law regarding a drug-free workplace. Two sets of laws in conflict regarding employees and their workplace…ridiculous indeed!

[Yeticus_Rex]

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

Can anyone explicitly define the ambiguous phase “actually impairs job performance”?

And please don’t tell me “After an accident has occured.” That answer is unacceptable in an employer’s eyes.

[Chimera]

Alcohol is legal, but it is not legal to consume it and drive (well, above the accepted blood alcohol level). Is there any indication that this will not apply to Marijuana? Because from everything I have seen, the only question is one of testing, not one of “driving while intoxicated”.

[Measure_for_Measure]

@Locrian

My real question is how much hassle will there be to regulate this law? What will it cost?

Well, some municipalities have already passed revenue legislation contingent on Prop 19 passing. There’s reason to believe that the initiative will be a fiscal win for the state. It’s not clear to me whether this initiative will be overturned in whole or in part though.

@BrainGlutton

I have an extremely rare medical condition which causes me to develop glaucoma whenever I set foot in California . . . 

Whereas other tourists suddenly find themselves in need of medication for stress reduction…

Yeticus Rex: Right: that’s the bad language. But the other language says that any workplace legislation over-rides Prop 19. So if indeed Federal law mandates a drug-free workplace, then 11304 (c) is irrelevant anyway. Or not! IANAL.

[Stan_Shmenge]

@Yeticus_Rex

I’ve re-read the site, but I am not sure which section you’re referring to.

I’ll admit that the legal analysis comes from an employer backed organization; I mean after all, I would want to know more about this Prop w.r.t. small businesses and how they are affected if this passes. I personally don’t care if people smoke pot, but if it affects my business…damn straight I would want to know how we would be affected and what the risks are. This measure goes way too far in protecting users in the workplace and to the detriment of businesses. Some will say that this fear-mongering by businesses, but I would argue that it was written so ambiguously that from a legal standpoint, it is possible that these scenarios could exist if passed as is, and I certainly don’t want business to become the guinea pigs when the lawsuits are filed to see how the courts would interpret the law. California is not the most business-friendly state and this is just another step in the wrong direction. Leave businesses as is and to keep control over whether or not to keep their pot smokers employed. If it was worded like that, then I would reconsider my position.

I can see decriminalization in the future some day, and maybe would support a Prop more finely tuned and focused, but this Prop is way over-reaching.

So, you can legally protect your business from users who’s work is impaired. And since employment is “at will” in California, you can pretty much fire anyone at any time for any or no reason anyway, what is your problem?

[Stan_Shmenge]

@RandMcnally

Too late, I already voted against it, for very selfish reasons.

I hate the smell. I hate the smell with a damn passion. I’d rather huff in second-hand cigarette smoke than weed smell any day.

I’ve never smoked weed once, not even to try it. I’ve just never had the urge. Now, if it passes I’m not going to go protesting on the street or anything, but hey, I had my chance at the ballot box.

You DO know that smoking in public will still be illegal under the new law? You know that don’t you? And the penalties for smoking where children are present will increase?

[aruvqan]

@Yeticus_Rex

It directly conflicts Federal Law regarding a drug-free workplace. Two sets of laws in conflict regarding employees and their workplace…ridiculous indeed!

Be freaking real - so you are down with people coming to work so hung over they are ineffective, but someone who had a joint the night before is teh evil?

I have no idea how often I have walked into work on previous jobs to find coworkers so hung over they should have just stayed at home. I couldn’t tell you how many people who had a joint sometime the night before I have worked with, unless they somehow mentioned it to me. Grass does not cause hangovers that I have ever witnessed in people at work the next morning. Alcohol does. Cigarettes let people go outside every hour on the freaking hour, yet me the nonsmoker has to argue to get a damned pee break? I don’t see people screaming that alcohol and cigarettes are going to ruin the work force … :rolleyes:

[Yeticus_Rex]

@Chimera

Alcohol is legal, but it is not legal to consume it and drive (well, above the accepted blood alcohol level). Is there any indication that this will not apply to Marijuana? Because from everything I have seen, the only question is one of testing, not one of “driving while intoxicated”.

Guess you didn’t read my cite:

Testing for Marijuana Use

Current law:

Pre-employment testing: Under the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA), employers may test applicants for illegal drug use, including marijuana. 42 U.S.C. § 12112 et. seq.; Cal. Gov’t. Code § 12940. Other tests (such as for alcohol use or legal use of a prescription medication) are medical examinations that can only be conducted after making an offer of employment, and if the test is “job-related and consistent with business necessity.” See EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations.
Also, cases interpreting the California Constitution suggest that an employer may conduct pre-employment drug tests, as long as the employer has a legitimate and substantial interest in determining whether an applicant is using drugs. See Loder v. City of Glendale, 14 Cal. 4th 1846 (1997); Pilkington Barnes Hind v. Superior Court, 66 Cal. App. 4th 28 (1998).

Post-employment testing: The California Constitution protects all individuals’ right to privacy, including private sector employees. Under the Constitution, an employer who wants to test for illegal drug use must balance its interests against the employee’s reasonable expectation of privacy. See Hill v. National Collegiate Athletic Association, 7 Cal. 4th 1 (1998). If an employer has a good reason to test (e.g., the employee caused a workplace accident in suspicious circumstances, the employer observes drug activity in the workplace, etc.) and the employee has no reason to believe the employer won’t test, such as a policy stating that the employer does not conduct testing, the employer can conduct the test.
Effect of Proposition 19:

Pre-employment testing: Proposition 19’s stated intent is to regulate marijuana “like…alcohol.” If that’s the case, an employer could only test for marijuana use after making an employment offer, and would have to show such testing is “job-related and consistent with business necessity.”

Post-employment testing: Even if an employer knows an employee is using marijuana at work, the employer could be prohibited from testing because the employee could argue marijuana use is private—after all, if the employer cannot discriminate based on marijuana use, why would an employee expect to be tested for it?

Even worse, an employer could not take any disciplinary action against an employee even if allowed to test, until the marijuana use “actually impaired” the employee’s performance—for example, by causing a workplace accident. So, even if an employee in a safety-sensitive position (e.g., forklift driver, bus driver, etc.) came to work reeking of marijuana smoke, an employer could do nothing unless employee’s work was “actually impaired.” If the same employee came to work reeking of alcohol, the employer would have good reason to test, discipline and even terminate. So, by requiring “actual impairment,” marijuana would be more protected than alcohol.

@Measure_for_Measure

Well, some municipalities have already passed revenue legislation contingent on Prop 19 passing. There’s reason to believe that the initiative will be a fiscal win for the state. It’s not clear to me whether this initiative will be overturned in whole or in part though. Whereas other tourists suddenly find themselves in need of medication for stress reduction…

Yeticus Rex: Right: that’s the bad language. But the other language says that any workplace legislation over-rides Prop 19. So if indeed Federal law mandates a drug-free workplace, then 11304 (c) is irrelevant anyway. Or not! IANAL.

One could hope that the Feds will squash this based on this section alone, but hey…It’s California!..anything that happens irrationally in California, stays irrational in California! Nevada is looking better as the years go by.

@Stan_Shmenge

So, you can legally protect your business from users who’s work is impaired. And since employment is “at will” in California, you can pretty much fire anyone at any time for any or no reason anyway, what is your problem?

Problem? You try to define what constitutes “impairment”. Impairment with alcohol is considered at .08% BAL. Please tell me you know how to measure a person’s BTHCL level so I got something concrete to PROVE impairment. Otherwise, I (and other businesses) will be mired on what the definition of impairment is…and I really don’t want to shell out court costs to find out what it is…IT SHOULD HAVE ALREADY BEEN STATED IN THE PROP. It doesn’t. So, now you know what the problem is. Plus:

Taking Adverse Employment Actions
Current law: If an employer takes an adverse action against a poorly performing employee, such as demotion or termination, the employee may claim the adverse action was motivated by discrimination protected by the FEHA. If the employee proves a minimal case for discrimination, the employer must demonstrate a legitimate, nondiscriminatory reason for its actions or face a trial.
Effect of Proposition 19: 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.

@Stan_Shmenge

You DO know that smoking in public will still be illegal under the new law? You know that don’t you? And the penalties for smoking where children are present will increase?

Ah…another who didn’t bother to read:

Smoking Marijuana at Work
Current law: Current law prohibits smoking “tobacco products” in the workplace. See Cal. Lab. Code § 6404.5.

Effect of Proposition 19: Because the current anti-smoking law only applies to tobacco products, the proposition would not prohibit employees from smoking marijuana in the workplace. In fact, employers would be required to allow marijuana smoking at work because Proposition 19 would prohibit denial of “any right or privilege” granted by the Act, without defining what that means.
Just as confusing, the Act specifies that users can “possess” or “share” marijuana in a “non-public place,” but does not define what a “non-public place” is. In other contexts, California courts have interpreted “public place” narrowly, so most locations are “non-public places.” For example, recently, a California court found that even a grocery store was not a public place. Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8, 2010 Cal. App. LEXIS 1171 (2010). So, users would be able to smoke in virtually any workplace.

Again, irrational shit in California where public is private and private is public. Yeah, and I’ve seen kids in a Ralph’s store…so everyone could reasonably consider another lawsuit to either fix what’s broken or continue our trip down Lawyer’s Lane.

@aruvqan

Be freaking real - so you are down with people coming to work so hung over they are ineffective, but someone who had a joint the night before is teh evil?

<shakes head>
I really don’t want to torch you up since your a fellow guildie, but…

1. I am being real. I see it from the position of great liability (boss) while you are seeing it from the eyes of an employee, who has considerably less liability.
2. I do give my employees benefit of the doubt. I really don’t want to know what they do off hours. But if I see them smoking during breaks, how the hell am I gonna be impartial to those who smoke weed with respect to privacy?
3. Employees will never admit to being hungover to a boss. Instead it would be some other excuse…“I’m sick”, “The baby kept me up all night.”, “I was in the emergency room with my mom.” Yeah, I could just tell them that they are lying and accuse them that they are hung over, but I can’t prove it. What I can do is send them home anyways because they are a detrimental liability. But if they smell of skunkweed, (i.e.-smoking before coming in), then I’m right back in that gray zone that I mentioned in #2 and the reply to Stan.
4. I never said it “teh evil”. Stop jumping to conclusions. But it does quite complicate the way I have to run my business.

I have no idea how often I have walked into work on previous jobs to find coworkers so hung over they should have just stayed at home. I couldn’t tell you how many people who had a joint sometime the night before I have worked with, unless they somehow mentioned it to me. Grass does not cause hangovers that I have ever witnessed in people at work the next morning. Alcohol does. Cigarettes let people go outside every hour on the freaking hour, yet me the nonsmoker has to argue to get a damned pee break? I don’t see people screaming that alcohol and cigarettes are going to ruin the work force … :rolleyes:

Again, you’re stuck with this notion of “the morning after”. Is there really a certain time of the day (4:20…NOT!) that weed smokers prefer? I’ve seen guys pound down a lot of beer and smoke weed during lunch at the last job I was at and some of them did drive equipment. I really don’t have issue with those that smoke after work before bedtime. Problem is, there are those who smoke anytime of the day. But how the hell am I gonna follow with what’s proposed with those employees?

[Yeticus_Rex]

@Yeticus_Rex

Can anyone explicitly define the ambiguous phase “actually impairs job performance”?

And please don’t tell me “After an accident has occured.” That answer is unacceptable in an employer’s eyes.

Still waiting for an answer on this one…this is the main flaw of the prop.

Anybody?

Bueller?

Bueller?

Bueller?

[Morgenstern]

The employer determines if the job performance has been impaired. They have been doing it that way for years.

[Yeticus_Rex]

If the prop passes as is, that too will change.

[Measure_for_Measure]

@Yeticus_Rex

But it does quite complicate the way I have to run my business.

I’ve got this proposal for California: brace yourself, because it’s way out in left field. I call it… “Representative Democracy”. The idea --I know it’s crazy-- is that laws are passed by a limited number full time paid employees of the state rather than by 18 million volunteers offering up or down votes on laws written exclusively by lobbyists and interested parties. Oh, and these “Representatives” get to consult with those affected by these proposed laws (I call them “bills”) and even make adjustments and modifications based upon “Hearings” and “Committee Meetings”. I’ll even give them control of the state’s budget – none of it would be mandated by propositions passed 20 or 30 years ago! And if the populace doesn’t like the results, the Representatives get “Voted out of office”. I know it’s nutty, but it just might work!

[Nametag]

@Yeticus Rex

Guess you didn’t read my cite:

Cite? You mean The California Chamber of Commerce editorial? That’s not a rational (or even coherent) analysis, no one with half a brain is going to accept it as a cite, and you’re going to keep hearing crickets if you keep trotting it out. No one wants to argue with the crazy people (meaning the authors of that…thing).

[jsc1953]

@Measure_for_Measure

I’ve got this proposal for California: brace yourself, because it’s way out in left field. I call it… “Representative Democracy”.

We tried that. It didn’t work.

[Morgenstern]

@Yeticus_Rex

If the prop passes as is, that too will change.

The funny thing is that those people who partake of the dubage are probably, as you read this, toking away. I doubt much of anything will change either way.

[hajario]

@Morgenstern

The funny thing is that those people who partake of the dubage are probably, as you read this, toking away. I doubt much of anything will change either way.

Yep. It’s decriminalized here. That means that if I get caught with a baggie, I will get the equivalent of a parking ticket assuming that the police officer gives enough of a shit to bother with writing me one. You can avoid even that by paying a doctor $99 for a prescription.

If Prop 19 passes, it will be a pain in the ass for all involved for the several years it will be in the Courts. There is enough precedence for them to side with the Feds and that will be that. I give it no more than ten days for the new law to be in effect before it’s shut down while the Courts decide. I almost never smoke anymore but you better believe that I’ll go down to the dispensary to buy some while I can just for the novelty of it.

My favorite thing about this mess: One of the largest groups against Prop 19 are the big growers in Mendecino and Sonoma Counties. Those fucking hypocrites are afraid that it will cause prices to drop.

[Captain_Midnight]

That’s my plea, Californians, please vote yes for marijuana. Legalize it and tax it. Just try it. If it doesn’t work out, it can be recriminalized. I don’t think it would be.

The anti-pot people are dickwads and fascists. Fuck them in the ass with a frozen rabbit. These are the assholes who want to put you in prison for possessing one ounce of a plant that can be grown anywhere in the World. I say no more. Legalize it.

California stoners, get your ass out and VOTE. VOTE! Every cop, churchie and prohobitionist are. The victory is ours. Smoke a joint, go to the polls, celebrate with some Taco Bell. You are the frontline and this legalization bill can be our invasion of Normandy and a tidal wave that cannot be stopped.

Please vote YES for marijuana.

[Morgenstern]

A pot in every pot!!!

[Measure_for_Measure]

Well, like all propositions, #19 will go to court: no problemo, we do that all the time. I predict that the Chamber of Commerce’s fears will be worked out soon or in a couple of years, either in the judicial or legislative branches – #19 carves out a lot of room for state and local regulation and tax. I’ve seen worse.

I trust that Yeticus Rex will enjoy a couple of extra quarters or years of legal uncertainty – hey he’s a businessman in CA: he must love punishment! The big growers in Mendacino might be pleasantly surprised after the new industrial scale operations opening in big liberal urban areas are raided by the Feds. Those who know how to maintain a low profile might have an edge in this new era. If they’re smart, they will cut a deal with the local pols to tax their inputs in such a way to maintain implausible deniability. For indoor operations, high-use electricity users could pay a 20% supplemental tax.