Marijuana

Colorado Supreme Court Says Businesses May Fire Cannabis Consumers

The justices rule that a state law protecting "lawful activities" does not cover marijuana use.

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Colorado Supreme Court

Today the Colorado Supreme Court unanimously ruled that businesses in that state are free to fire employees for off-duty cannabis consumption that is allowed under state law. The case involved Brandon Coats, a quadriplegic who was fired from his job with Dish Network in 2010 after he tested positive for nonpsychoactive traces of marijuana. Coats uses cannabis to relieve the seizures and muscle spasms he has suffered since he was injured in a car crash as a teenager. Such cannabis consumption was allowed by state law when he was fired but prohibited by federal law, which is still the case. Coats argued that his dismissal violated a state law that forbids employers to fire people for "any lawful activity" in which they engage on their own time outside the workplace.

The Colorado Supreme Court disagreed, affirming an appeals court ruling that said an activity is not "lawful" when it is a crime under federal law. "The term 'lawful' as it is used in [the statute] is not restricted in any way, and we decline to engraft a state law limitation onto the term," says the opinion by Justice Allison Eid. "Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a 'lawful' activity under [the statute]." 

Although this case involved medical use, today's ruling has obvious implications for newly legal recreational consumers employed by cannabis-unfriendly companies. As I've said before, Dish Network's "zero tolerance" policy regarding cannabis consumption is irrational and hard to imagine in a world without pot prohibition, where employers typically would treat marijuana like alcohol. Furthermore, the company's treatment of Coats is cruel and shameful, especially because he was a competent employee whose marijuana use did not affect his job performance. Yet anyone who believes in freedom of contract has to concede that employers have a right to adopt stupid drug policies, along with any other conditions of employment that people voluntarily accept when they take a job. Legally mandated intolerance of cannabis consumers is tyrannical, but so is legally mandated tolerance.

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  2. OTOH, the NLRB ruled a union worker can’t be fired for making racist remarks at replacement workers, in violation of company policy on racism, if he does so from the safety of the picket line.

  3. I think the real issue here is the freedom to fire hippies. Some employers mistakenly use pot use as a proxy for hippie status.

    1. That’s more or less what Jacob discovered & reported on yrs. ago. Employers are increasingly constrained as to the hiring & promotion criteria they can legally use, so they & their insurers will take any loophole they can get.

  4. Yet anyone who believes in freedom of contract has to concede that employers have a right to adopt stupid drug policies, along with any other conditions of employment that people voluntarily accept when they take a job. Legally mandated intolerance of cannabis consumers is tyrannical, but so is legally mandated tolerance.

    So what was the point of the article? To shame Dish Network for “wrong-think?”

    1. No, it’s enough to say that Dish Network are assholes for firing that guy.

    2. Maybe to point out that libertarians will happily endorse discrimination so long as they can wag their finger at it?

      1. Is there something wrong with that? I can easily say that I support legal prostitution, and still think that it’s morally wrong, and likely quite stupid to participate in…can’t I?

        Just because I don’t want to force others to behave in ways I’d approve of, doesn’t mean I wouldn’t prefer that they did.

        1. You can think it’s subjectively immoral but not objectively immoral.

      2. Love your work Belville but your wrong on this one. I won’t repeat the “freedom of contract” arguments from libertarians so I’ll cut to the chase. Listen, I’m just as pissed that somebody can safely have a glass of wine/not get tested but tokers don’t have that same guarantee. Thing is though there is no legal recourse found in the Constitution that specifies tokers as a protected class.

    3. There is also something about consistent and reasonable laws (yeah, I know).

      If employers were also free to fire people for taking aspirin or drinking wheat grass juice or enjoying water skiing, this would be fine. But they aren’t, so it isn’t. One segment of the population being subject to arbitrary restrictions like this isn’t very good.

      And yes, they should be shamed for wrong think. That’s how you change things without using force. It would be better if all of the employees grew some balls and refused to piss in a cup because it’s no one’s goddamn business, but that’s a lot of risk to ask people to take on.

      1. If employers were also free to fire people for taking aspirin or drinking wheat grass juice or enjoying water skiing, this would be fine. But they aren’t, so it isn’t.

        Maybe not in the state you live in. In a RTW state like Texas, they can fire you, without notice, for any reason or no reason, and you can quit, without notice, for any reason or no reason. Basically, employment only occurs when there is ongoing consent between the employer and the employee. Which is the most libertarian approach.

        1. Simples. What’s in the guy’s contract?

          If there’s a clause indicating that the company will sanction employees and reserve the right to terminate personnel who turn up to work in a “fucked up state” (of course, we need to determine what ‘fucked up’ really means), then the guy has no complaint.

          If they do, he needs to suck it up and find a less discerning employer.

          I think it’s pretty pusillanimous of Dish if they want to hide in the penumbra created between federal and state law on the issue. And I think that if their employment contract doesn’t explicitly forbid staff from working on its dime “under the influence of non prescription pharma”, then they deserve condemnation and a lawsuit.

      2. If employers were also free to fire people for taking aspirin or drinking wheat grass juice or enjoying water skiing, this would be fine. But they aren’t, so it isn’t. One segment of the population being subject to arbitrary restrictions like this isn’t very good.

        Which is the bigger problem from a libertarian point of view. Jacob didn’t address that as strongly as he could have, and that is a shame.

  5. Certain jobs require total sobriety while at work. Unfortunately, THC stays in the system a long time and testing currently is not concerned with sobriety but usage. Until the testing process is properly calibrated, people such as airline pilots, heavy machinery operators, etc. will continue to use responsibly at their own risk.

  6. Coats argued that his dismissal violated a state law that forbids employers to fire people for “any lawful activity” in which they engage on their own time outside the workplace. The Colorado Supreme Court disagreed, affirming an appeals court ruling that said an activity is not “lawful” when it is a crime under federal law.

    Good thing MJ is “legal”, huh?

    1. According to the feds, it’s not.

      1. Serious question: What other substances/actions/situations are considered legal by some state but not by the feds?

        1. Serious answer. I can’t think of any right off.

        2. Gambling.

        3. At any given time there are probably a few obscure controlled substances in that category. Maybe some non-obscure ones too, like human growth hormone (not covered by the CSA & DEA regs, but weirdly covered by FFDCA in a use-oriented manner) & some anabolic steroids.

        4. Maybe some of the designer drugs?

        5. I’m sure there are lots of things in this category. If the federal government passes a law saying X is illegal, there’s little point in states passing the same law whether they agree with it or not. So, if they don’t, X would be legal under state law and illegal under federal law.

          An example might be the mandate to buy health insurance. Failure to buy it is sort of illegal under federal law, but not under state law. I say sort of because you don’t have to buy it, you are just subject to the penaltax if you don’t.

  7. I think most libertarians can agree on the following:

    1. A business should be able to fire anyone for any reason that they want.

    2. A business that would fire someone only because of something like that, is a place I don’t want to work at.

    Really, I don’t care too much about this story.

    1. agreed

    2. Indeed. I file this under the same place as Disney’s “no facial hair” policy.

    3. What if that’s their official reason for firing someone, but you know it was just an excuse for some other reason they can’t admit for legal reasons?

      1. Like, you know, someone’s acting like they’re impaired on the job, but can’t prove it’s the result of intoxication (& maybe really think it’s not), so use their suspicion as an excuse to do a urine test? Or they realize someone’s costing too much for insurance?

      2. 1. A business should be able to fire anyone for any reason that they want.

  8. Dish Network just showed Colorado companies a potential loophole to purge cripples from their labor force before their health care costs become a driver of their plan choices.

    1. Good point. If federal prohibition ended I wonder if this person can sue under the federal ADA.

  9. Freedom to contract has all sorts of limitations – I can’t choose to hire only black people and I can’t choose to fire all the disabled people. Once again, marijuana exists as a special exemption to common sense understanding of fairness and non-discrimination. If Coates had been fired for his use of prescription drugs to treat his disability, we’d all be screaming about discrimination against the disabled. But since it’s the demon reefers, the courts don’t consider it discrimination against the disabled, but rather a right to empower employers to enforce federal prohibition.

    1. You’re completely mistaken about our position here.

      If Coates had been fired for prescription drug use we would have the exact same response – its a private association (between Coates and his employer) and *either* party may terminate that association at any time (subject to actual contract details) for any reason.

      But we would also point out that the employers is an arse and people should not buy from them.

      As we’ve done here.

      And we would (and do) say the exact same thing for racial/sexual/religious/’protected categories’ discrimination.

      This is a *(l)ibertarian* site, not a liberal one.

    2. I can’t choose to hire only black people and I can’t choose to fire all the disabled people.

      But you should be able to.

      And fire them for using prescription drugs you don’t want to have employees on Ritalin that’s your business.

      This is what *we* mean by freedom of contract. Actual freedom of contract.

      1. Besides, suppose someone’s been employed there for a while, then has an accident & suffers brain damage, & keeping them on the job costs the biz $ compared to either not having anyone on the job or hiring someone new w/o brain damage? Suppose the insurer won’t pay them disability, & you’re stuck w them?

  10. one need not criminalize reprehensible behavior in order to rnder such behavior unprofitable. People dont generally asssocaite with engage in commerce with A**holes. So it should be with Dish networks. All that is necessary is to publicize their behavior, hopeully at least one of their competitors will take advantage of Dishes corporate character . “Hey we offer the same or better service as Dish offers you AND we dont fire competent crippled folks who work for us for fun . Why not get your service from people who aren’t evil ?”

    1. It may take a while, but if you hit them in the pocketbook they’ll change policies.

      There are exceedingly few racists that are willing starve for that ‘principle’.

      Look at Comcast – they’re getting hit hard on customer service and are working to change things around. Keep hitting them (because they’re still shite), don’t let up the pressure, and they’ll even go so far as a major management purge if that’s what it takes to change the CS culture and keep the money rolling in.

      1. dont u have a subpoena to worry about or something?

  11. In construing undefined statutory terms, we look to the language of the statute itself “with a view toward giving the statutory language its commonly accepted and understood meaning.”

    FYTW.

  12. The Colorado Supreme Court disagreed, affirming an appeals court ruling that said an activity is not “lawful” when it is a crime under federal law. “The term ‘lawful’ as it is used in [the statute] is not restricted in any way, and we decline to engraft a state law limitation onto the term,”

    So, I disagree with the statute but . . .

    Say marijuana becomes legal under federal law also – could you still be fired for using it because its illegal in Arizona?

    What about Mexico?

    I mean, the statute is not restricted in this way, right?

    I wish, wish, wish, that courts would take their (and the legislator’s) jurisdictional limits into consideration when ruling on stuff like this. The legislature *can not* say anything about federal law.

    This is an example of where the judiciary reached the right conclusion for the wrong reasons.

    1. I think if it’s lawful federally and in the state in question, that is considered “lawful.”

      1. But, according to the court, the legislation does not *specifically* say that. And since the courts are saying the legislators can make rules referencing *federal* law (which they have no jurisdiction over) then why couldn’t it be read to cover laws from other jurisdictions.

        It would just seem to me that a plain, simple, lowest common denominator interpretation of state laws would ignore anything federal statutes have to say, not incorporate federal law into state civil disputes.

        1. Well, maybe if the biz had a presence in such a jurisdiction & could say they’d like the option of being able to xfer employees there.

    2. What if we legalize at the federal level, but are still party to treaties saying its illegal?

      Would it be “lawful” then?

      1. Treaties aren’t self-executing. They don’t make it illegal, they have no authority that enforces it on the individual, they just say signatory countries shall make laws making it illegal. Then the only entity breaking the law would be the gov’t, not the individual.

  13. All the legislature has to do is add the words “under Colorado state law”.

    1. They wont because many in the legislature opposed legalization and the governor opposes it as well.

      1. Yeah, but they might hate business worse. Esp. if they don’t think businesses will use it as a reason to locate in, or not in, Colo.

  14. So if you live in CO users and dealers of cannibas are criminals, regardless of the state law. So can a CO state court prosecute you because federal laws trump state laws?

  15. I agree with freedom of contact but I doubt that the court was motivated by such concerns. The justices are probably part of the elite who want to undermine the expressed will of the people to expand their freedom.

    1. No, I think they want to allow the employer any loophole they can find. The legislature, not so much.

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