Drug Policy Reformers Should Not Interfere With Employers' Choices, and Neither Should Prohibitionists

In a CNN opinion piece, Harvard economist (and Reason contributor) Jeffrey Miron suggests that one reason Proposition 19 failed is that "it overreached" by trying to "protect the 'rights' of employees who get fired or disciplined for using marijuana." In particular, the initiative included "a provision that employers could only discipline marijuana use that 'actually impairs job performance,'" which "is a much higher bar than required by current policy." That provision, notes Reason Contributing Editor Walter Olson, "would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all."

Miron may be right that the employment provision cost votes, since it was the California Chamber of Commerce's main complaint about Proposition 19, and some voters may have been concerned that businesses would be saddled with unproductive, unfireable stoners. Olson certainly is right that any such restrictions are objectionable on freedom-of-contract grounds. But it is worth emphasizing that Prop. 19 would not have been a license to get stoned at work, as its opponents claimed, since such behavior (like getting drunk at work) clearly affects job performance. The avowed aim of Prop. 19's backers was to put marijuana on the same footing as alcohol in this respect.

The fact that employers generally don't treat marijuana the same as alcohol is almost entirely attributable to the war on drugs, in the absence of which a policy of never hiring people who smoke pot in their spare time would make no more sense than a policy of never hiring people who drink in their spare time. (In practice, of course, employers are not really screening out all the pot smokers, but that is officially the goal of companies that require pre-employment urinalysis.) If the law treated marijuana and alcohol equally, employers generally would as well. So while I share Miron and Olson's objections to interfering with employers' choices in this area, we should keep in mind that drug prohibition is responsible for far more interference than Prop. 19 would have been. Here is how I put it in a 2002 Reason article about drug testing:

Today about half of all U.S. employers require applicants, workers, or both to demonstrate the purity of their bodily fluids by peeing into a cup on demand. For defenders of liberty, this situation arouses mixed feelings.

On the one hand, freedom of contract means that businesses should be allowed to set whatever conditions they like for employment. People who don't want to let Home Depot or Wal-Mart sample their urine can take their labor elsewhere. The fact that drug testing is widespread suggests either that applicants and employees do not mind it much or that it enhances profits enough to justify the extra cost of finding and keeping workers, along with the direct expense of conducting the tests.

On the other hand, the profit motive is clearly not the only factor driving the use of drug testing. Through mandates and exhortation, the government has conscripted and enlisted employers to enforce the drug laws, just as it has compelled them to enforce the immigration laws. In 1989 William Bennett, then director of the Office of National Drug Control Policy, cited drug testing by employers as an important element of the government's crackdown on recreational users. "Because anyone using drugs stands a very good chance of being discovered, with disqualification from employment as a possible consequence," he said, "many will decide that the price of using drugs is just too high." The Institute for a Drug-Free Workplace, a coalition that includes companies that supply drug testing services as well as their customers, echoes this line. "Employers and employees have a large stake and legitimate role to play in the 'war on drugs,'" the institute argues. "A high level of user accountability...is the key to winning the 'war on drugs.'"

Federal policies requiring or encouraging drug testing by private employers include transportation regulations, conditions attached to government contracts, and propaganda aimed at convincing companies that good corporate citizens need to take an interest in their workers' urine. From the government's perspective, it does not matter whether this urological fixation is good for a company's bottom line. And given the meagerness of the evidence that drug testing makes economic sense, it probably would be much less popular with employers if it were purely a business practice rather than a weapon of prohibition. If it weren't for the war on drugs, it seems likely that employers would treat marijuana and other currently illegal intoxicants the way they treat alcohol, which they view as a problem only when it interferes with work.

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  • ||

    At least one employer has prohibited tobacco use, on or off the job to save money on company provided insurance.

    As a smoker I think that kinda sucks the big wazoo but acknowledge his right to do so.

  • And so goes ObamaCare||

    With a federal mandate backed by a gun.

  • Recalcitrants need....||

    ObamaCamp reeducation. Smokers, Drinkers, Pot Users, Happy-Meal Eaters, Condom-Omitters, etc etc etc.

  • 0x90||

    Work for yourself. Don't hire anybody. You can still smoke at work in that scenario.

    For awhile.

  • Fist of Etiquette||

    Yet when I argue this, I'm called a dick.

  • guy in the back row||

    We just need a few more octogenerians to die and then it will pass.

  • ||

    We just need a few more octogenerians medical marijuana growers and retailers to die get busted and then it will pass.

  • SIV||

    I feel no pity for their dogs either.Let 'em catch flaming Frisbees in dog hell.

  • Long-Distance Trucker||

    Hey, as long as I don't kill nobody, I should be able to do all the weed, whites, and wine that I want.

  • employer entitlement||

    yes, better that people still go to jail and lose property for the right of employers to check my urine. Hey, maybe my employer wants to make sure i shit brown, can he stick his finger up my butt to make sure? It's their choice. It's nice to know you think my rights are subservient to an employer. Simple minds and authoritarian markets, that sure smells like freedom.

  • ||

    You must have missed the part about taking your labor elsewhere. And even if every employer required piss and shit testing on a regular basis it still wouldn't violate your rights. Open your own business.

  • employer entitlement||

    and now we come to the part where all types of thuggish, force inducing behavior is forgiven of our dear employers because we can just get lost. No, fuck you, employers don't have a right to know my life story, what i do in my spare time, or whatever may be in my urine. Since Im looking for a job or currently working, i must magically be in the position to start my own business. The thing i realized is that you are all just collectivist of a different color, replacing government force with employer/corporate force, just switch around a few terms, contract, contract, contract, it's ok to enforce a contract with the barrel of a gun. Seriously, don't hurt anyone in your quest for freedom, ok?

  • ||

    No, fuck you, employers don't have a right to know my life story

    Look, I get the anger, but the fact is that you don't have a "right" to a job either. I'm not defending drug testing, but employment is a voluntary situation, not a "right".

  • ||

    Who the hell are you to tell a business owner what they can and cannot allow in their business? Go fuck yourself. You're the one advocating force if you think any employer has to put up with your shit. No wonder you're unemployed. You're an asshole!

  • employer entitlement||

    lol, Im employed, and have added value to my work place so go stew in your biases and stereotypes. I may not have a right to a job, but that doesn't really translate into a right for an employer to know my life history, check my urine, and my bedroom. If that is construed as me telling an employer who they can or cannot hire, then that's just more ignorance on your part. Telling how quickly you ramp up the righteous indignation on behalf of employers. How absolutist of you.

  • ||

    I may not have a right to a job, but that doesn't really translate into a right for an employer to know my life history, check my urine, and my bedroom.

    Again, neither is a "right". It's a voluntary contract.

  • prolefeed||

    I may not have a right to a job, but that doesn't really translate into a right for an employer to know my life history, check my urine, and my bedroom.

    Your second assertion is an implicit claim to a right to a job.

    The employer should be able to ask whatever the hell they want. You should be able to tell them that's it's none of their damn business, and if they want to hire you, they have to make a waiver to that policy. And they should have the right to then not hire you if they don't value you highly enough.

  • ||

    yeah it's MUCH better to centrally command the employer/employee relationship,one size fits all, everything according to the benevolent determination of a house committee taking bribes from the very employers you want them to control.

    what could possibly go wrong?

  • ||

    I agree that voluntary (ie, not government-mandated) urine testing by employers should be legally allowable out of respect for freedom of contract, but I certainly don't think it's a moral undertaking. Freedom of contract would also allow an employer to require that workers abstain from alcohol, or sex, or TV, or political rallies, or trans fat, or any other lifestyle choice. None of these things are morally defensible choices.

    The answer to that is, of course, for the prospective employee to say "fuck this noise", and not legal structures preventing freedom of contract in certain situations. Still though, I have no love for drug testers and other asshole employers.

    By the way, I'm a wholly undeserved 4 for 4 on my pre-employment piss checks. That shit is very, very easy to beat.

  • waffles||

    However, the threat of random tests is much more potent. The consequence for smoking a joint on a saturday night is four or so days of hoping your number isn't pulled, and they say pot causes anxiety. Sure the odds may be in your favor, but it has a powerful effect.

  • ||

    Yeah I wouldn't work for an employer who randomly tested. Like I said, fuck that noise.

  • ||

    Same here. I'll play the game to get hired, but I don't make enough to put up with that shit on a regular basis...and I don't even partake anymore.

  • prolefeed||

    I don't smoke weed, but any employer who claims the right to randomly make me piss in a cup is crossed off the list of prospective employers.

  • waffles||

    In my two years working here I've been drug tested once. There was no preemployment test. Random drug tests are just an industry (NRC) requirement without which a large percentage of our contracts would disappear (maybe). Still, "it's not that bad" is a poor argument. I condone 'for cause' drug testing, but the situation as it is, I will continue my abatement of the green leaf.

  • ||

    Still, "it's not that bad" is a poor argument.

    Totally agreed, and FTR it wasn't an argument at all, just a "by the way".

  • employer entitlement||

    yeah, because i don't need to eat this month. you may white wash it anyway you like, but you're advocating force against others.

  • ||

    .....huh? Not sure what you're trying to get at. Like I said, testing is immoral.

  • prolefeed||

    "initiating force" doesn't mean what you think it means.

    Asking you to piss in a cup as a condition of continued employment is not initiating force.

    Putting a gun to your head and telling you to piss in a cup is initiating force.

  • johnG||

    You. Are. An. Idiot.

    Way to self-refute your own comment. Moron.

  • Jordan||

    Your employer puts a gun to your head and prevents you from quitting?

  • ||

    The only gun-to-head drug testing is what we do to parolees and people on probation. Oh and DWI checkpoints. Oh and maybe what we do to little kids in school.

  • CrackertyAssCracker||

    Isn't there room for an employer to just be a shitty asshole of a boss, without crosssing the line into "immoral" territory?

  • ||

    It's his company. He can have whatever morals he wants and if I want to work there I should comply with his standards or seek work elsewhere no matter whether his reasoning is practical or personal. If I were the business owner I'd want that same freedom, to run my business as I see fit and hire whomever the hell I want for any reason I want.

  • employer entitlement||

    i hope one day you find out how ridiculous and dangerous you sound.

  • employer entitlement||

    You know what, Nick. I think your attitude has led to deaths somewhere, now where could it be. Employers using force against workers, killing, torture, hmmmmm. Oh Yeah, that place milton "only" gave advice to, chili. Long history of entitled employers colluding with others to use force against those pesky workers.

  • ||

    You guys should both tone it down a bit and enjoy the discussion. Just because it goes to 11 doesn't mean you need to put it there.

  • ||

    Where have I advocated force? Where have I granted employers a special privilege or benefit by threat of force? I completely respect the right of anyone who does not take a job because the employer asks them to do something they refuse to do. Or to quit the job at any time, or for the employer to withdraw an offer of employment or fire someone who does not comply with their standards.

    I won't take a job that requires me to join a union. I have quit jobs where the employer had made demands of me I did not want to fulfill. What I'm saying is if I were the employer and I wanted my business to operate a certain way, and my employees to dress a certain way, treat customers a certain way, or behave a certain way I would reserve the right to can their ass if they spoke to me like you're speaking to me now, even if it was off premises after hours. I may be very lenient and liberal with regard to drug policy but it's no concern of mine if other employers don't want to be.

    I disagree with the NFL's position on drugs and guns, that they'll suspend someone for possessing them. But I have no problem with that being a condition of employment. You don't want to comply with their requirements, do something else.

  • ola||

    you make sense wrt how an employer operates his business and how his employees dress, treats customers and behave WHILE ON THE FUCKING JOB. but how about smoking pot 2 weeks ago on vacation and it showing up in the piss test and getting fired for "DRUGS"? how would that be different from getting fired for dressed or behaved on your vacation two weeks ago?
    If you're stoned on the job you're fired. If you test positive for mj from two weeks ago while on vacation, it's none of the employer's beezwax.

  • ola||

    ........for how you dressed or behaved on .....

  • ||

    It would be his business if the employee was easily recognizable to others that he is associated with his employer. (I.E. wearing his uniform or work badge) Especially, if the employee was conducting him/herself in a way that was likely to cost their employer business, thereby jeopardizing both employee and employer's livelihoods.

    The way you conduct yourself 'off the clock' can still impact your business AND employer in very direct ways.

  • ||

    'that he is' = 'as being'

  • johnG||

    You'd make a great manager at the Triangle Shirt-Waist factory.

  • ||

    I dunno, most of the things I would call "immoral" are the sorts of things that would make me call a guy a "shitty asshole". Things like racism, sexism, nanny-style finger waving, etc. It's different than a direct violation of another person's natural rights, but it's still something I would term "immoral".

  • CrackertyAssCracker||

    I guess that is really just definitional impasse then. I've got different categories for "asshole" and "immoral". It doesn't get to immoral for me until you actually steal,trespass,assault,or do some fraudulatin'.

  • ||

    Yeah, I certainly consider those two different types of immorality -- personal versus objective. I certainly don't think the law should be involved in the former, but I still do subscribe to a loosely defined set of personal morals. Not being a dick is somewhere in there, I think.

  • IceTrey||

    The correct term for personal morality is "subjective". So you have subjective or objective morality.

  • ||

    Oh, that's the one correct way to express that idea, cool thanks.

  • CrackertyAssCracker||

    I dunno. I liked 'personal' better. If you are going to call it 'subjective' you might as well just call it 'social morality' and admit that you aren't talking about actual morality anymore.

  • ||

    Yeah I was only kidding -- the idea that there's only one "correct" way to describe a general concept like that is pretty ridiculous.

  • mad libertarian guy||

    I refuse to even apply to a job that drug tests in any form.

    Fuck those bitches. Unless it impacts how I am able to do a job, they have no right to know what I do at night in the privacy of my own home.

    That said, I'm not all "make drug testing illegalz" or anything either.

  • BenDU99||

    Prop 19 should have been one sentence: "Anyone 21 and over can possess, grow or sell any amount of marijuana to anyone else 21 or over."

  • BenDU99||

    Actually, I need to amend that since it sounds like marijuana possession is just some gift from the government, which deigns to give us another right.

    Make that "The government shall not prohibit anyone 21 and over from possessing, growing or selling any amount of marijuana to anyone else 21 or over."

  • ||

    18.

  • DJ Drugs||

    0

  • ||

    I dunno, the progressives shit their pants over the "lack of centralized control" in the initiative as it was worded. A more general statement like yours is better from a libertarian standpoint, but I'm not sure that statement would have garnered 46% of the vote. So it depends on your definition of "should".

  • BenDU99||

    I guess by "should" I meant "in the libertarian fantasy land in my mind."

  • ||

    Believe me, I'd like to live there as much as you. Unfortunately we need to use whatever tactics are available to drag the rest of these stupid goddamn mules to the drinking trough.

  • Exactly||

    I was YES on 19. The next time I would be more enthusiastic if it were rewritten like BenDU99 suggests. What about the TAXES that the twit-headed pot users were begging for -- ha, ha? Let them justify taxing "prescription pot" later. No other prescription drug is taxed in California.

  • MNG||

    Look, most people have to work for someone else or starve. So most people will have an employer. Given that, why not have some laws that give people more liberty to live their lives at their workplace? If liberty is good, let's maximize it. The expense to employers is small and numerically outweighed by the benefit to employees.

  • mad libertarian guy||

    How is it you can use "liberty" and "have some laws" in the same fucking sentence?

  • waffles||

    I believe there are laws that effect a net gain of liberty. Maybe laws against robbery and assault? But why bother, you're mad and I'm a breakfast food.

  • ||

    why allow for a broad range of employment options for all workers and employers rather than centrally mandate a single type of relationship that everyone must adhere to? Which do you think will generate more freedom of choice?

    Mandating that no employer can demand a drug free employees is just an onerous and intrusive as mandating that all employers must demand drug-free employees.

  • ||

    why *NOT* allow, dammit. stupid typos

  • CrackertyAssCracker||

    They should just be able to stand there with their mouth open. And it can be be your job to bring them food and regurgitate it everyday like a mommy bird into their mouth. And if you don't do that, we'll get some goons to shoot you. Afterall, they have to eat somehow, and we are talking about liberty maximaztion here.

  • ||

    If liberty is good, let's maximize it.

    The question is whether banning drug tests (to use one specific example) would actually "maximize" liberty for workers. If the government can tell employers "you can't require the arbitrary bullshit behind door 1", what's to say the same government can't also say "you must require the arbitrary bullshit behind door 2?"

    Like Sullum said, this actually has happened with drug testing in certain employment situations. In those cases, allowing for government manipulation of freedom of contract has done anything but make employees more free.

  • Jordan||

    The expense to employers is small and numerically outweighed by the benefit to employees.

    Who cares about the expense? It's about not abridging their property rights. How about we let government determine who you can and can't kick out of your house?

  • prolefeed||

    If liberty is good, let's maximize it.

    Micromanaging an employer by people who have no fucking idea how to run a business, and backing up that meddling with the implicit threat of being thrown in a cage, is not "liberty".

    The expense to employers is small and numerically outweighed by the benefit to employees.

    Former or potential employees do not benefit from job-killing micromanagement by bureaucrats.

  • prolefeed||

    Oh, and do you think employers won't find ways around these allegedly liberty-enhancing infringements that will make people worse off? Do you really think that there can be no unintended consequences from employers looking for a work-around to such stupidity?

  • johnG||

    I hate to agree with MNG (no offense) but [s]he's right. The most fundamental tenet of libertarianism is ownership of the self. Contract obligations must come second to that.

    It CANNOT be a valid contract to sell yourself into slavery.

  • ||

    Consenting to piss and shit tests as a condition of continued employment != "selling yourself into slavery".

  • ||

    Consenting to piss and shit tests as a condition of continued employment != "selling yourself into slavery".

    Right, because slaves didn't have to take the whippings, they just really needed jobs. Douche.

  • ||

    Ohhhh shit reply fail, it's clearly johng who is douching around these parts.

  • Jordan||

    If I refuse to allow people into my home unless they provide drug test results, have I enslaved them?

  • prolefeed||

    It's about not abridging their property rights. How about we let government determine who you can and can't kick out of your house?

    MNG would likely oppose that, because it would abridge HIS liberty. He's fine with abridging other people's liberty if he (mistakenly) thinks he'll be better off.

  • CrackertyAssCracker||

    Plus, u might be a racist. And stopping stupid ignorance is way more important than property rights.

  • nfl jerseys||

    work

  • ||

    "But it is worth emphasizing that Prop. 19 would not have been a license to get stoned at work, as its opponents claimed, since such behavior (like getting drunk at work) clearly affects job performance."

    "Clearly affects" job performance? Can we take your word for it and fire people, Sullum? No! The job performance needs to be documented to withstand law suits by potheads. So, while I am for legalizing pot, I think Prop 19 overreached.

  • ||

    Federal Contract greater that $100K require the contractor to insitue a drug free workplace. The clause (52.223-6) does not require testing and only concerns drug abuse IN the workplace. But the contractor have found the best way to comply and not lose contracts is to test their employees.

  • ||

    Nick said,

    You must have missed the part about taking your labor elsewhere.

    Nick your ignorance of facts is telling. Try and get a job driving a commercial vehicle without drug testing.

    You can't because the feds mandate it.

    For decades government regulations and rent seeking businesses have pushed drug testing despite abundant evidence that it does nothing to improve safety and actually impairs employee productivity.

    As long as the government mandates drug testing pursuing regulatory efforts to ban employee drug testing are perfectly legitimate, appropriate and is the freedom supporting thing to do.

    If you don't push back against statist regulations you get more statism

    Licensing is Anti-Competitive — This Time, Its Personal

    Why was he busted? Because a) the truck/boat combination apparently weighed a tad more than 10,000 pounds and b) the boat was being moved for a commercial purpose (i.e. it was a business asset).

    Unknown to me, the combination of these two takes this transport event to the realm of “commercial carrier,” which requires a Department of Transportation (DOT) license and a slew of regulatory responses.

    Months later, I am still going back and forth with the cops in Wyoming. But in the mean time I decided that since I was likely to move my stuff across state lines again, I might as well get my DOT number. So I started that process.

    By the way, the issue that is likely to kill the deal totally on our getting a DOT number is the government mandate that I drug test my employees.

    The relationship I wish to have with my employees is not one that encompasses my demanding samples of their bodily fluids on a regular basis. I have turned down at least two potentially lucrative management contracts because both had drug-testing requirements and I am not going to do it.
  • Nausicaa||

    I don't know. On the one hand I sympathize with employers that they should be able to hire and fire who they please without having to worry about ruinous wrongful termination suits over an employee's drug use. On the other hand, I sympathize with pot smokers who have to navigate a labor market that is exceedingly hostile to one of their lifestyle choices.

    Ultimately, I think some of the 'well, just find an employer who doesn't drug test' arguments are flawed in that, especially these days, it isn't that easy for most people to just quit and find another job, or turn down offers that materialize. Generally, employers have the upper hand here in that they usually have a large pool of applicants to select from while most employees only occasionally get job offers. If you interview for ten positions, and get offers from two, both of which drug test, you're SOL.

    Now, at the moment I don't think this is a huge problem, simply because very few workplaces utilize random drug testing, and pre-employment tests are easy to beat. But I can envision a future where hair tests, almost impossible to fake, are the norm.

    In the end, I have to side with the smokers. I just don't see how banning employment terminations predicated exclusively on a person's off-the-clock lifestyle choice is a big problem for employers. Especially if that choice is perfectly legal. At the same time though, while I do think hiring and termination decisions should be based primarily on job performance and qualifications, I don't agree with the provision in Prop 19 which requires an employer to demonstrate 'affected job performance', which would be very difficult to do. If they want or need to fire someone, they should be able to.

    Where I draw the line is allowing them to collect urine sample from their employees and firing people (or turning down employment) for no reason other than they peed trace amounts of the wrong chemicals. I think employees deserve some level of protection, even though their continued employment isn't a right.

  • ||

    Ultimately, I think some of the 'well, just find an employer who doesn't drug test' arguments are flawed in that, especially these days, it isn't that easy for most people to just quit and find another job, or turn down offers that materialize.

    It's not supposed to be "easy" though, and that's really not an argument against freedom of association.

    I totally agree with the sentiments you expressed here. Requiring that employees have no inactive cannabis metabolites in their system is the same thing as requiring that they abstain from sex. It's absolutely ridiculous, and the fact that drug testing has been normalized while other lifestyle control has been avoided is entirely thanks to the drug war. If people were subjected to that sort of inquiry in other lifestyle habits, they'd be quitting en masse. There's no defending drug testing as currently utilized.

    It's a shitty situation without a good solution, but I tend to fall on the side of allowing maximum freedom of contract and trusting that eventually, employment markets will punish employers who insist on inspecting the precious bodily fluids of their workers.

  • ||

    I believe but cannot prove that Walmart, Target and Home Depot may prove to be the LAST employers to give up testing for THC. The high tech and financial sectors will race to hire gold standard college graduates from Stanford and Cal that insist on skipping the new hire ritual of pissing into cups. The economic disincentive - there is absolutely no upside in a piss test - will create falling dominoes in California that MIGHT even be noticed in "punch a hippie in the face" Texas. That's just my opinion, I could be wrong.

  • ||

    I actually agree with employer's rights to test. Marijuana stays in the system quite a bit longer than alcohol, so somebody who gets high every night has impaired functioning pretty much all the time.

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