Criminal background as a barrier to employment

[barnhart]

But what you cannot do is discriminate against someone in violation of state law. In Washington that includes someone who smokes pot on their own time away from work. So you couldn't enforce any provisions of your employment handbook in a manner that violated state law.

A while ago there was a big argument thread about the Mennonite cabinet maker near Fort Francis Ontario who refused to recognize the right of his employees to unionize. This seems like a similar category.

You are not required to operate a business and hire people in a given legal zone, but if you decide to do that you must follow the legal structure you are operating under. The law creates a zone where business can thrive by stabilizing currency, defending from theft by prosecuting thieves, providing legal title to land and property, educating the workforce, providing transportation and access to markets ECT.. In return the business operator must either comply with regulations or choose not to operate in that legal zone.

If feels like a having your cake and eating it too when people want the economic opportunity but feel they are morally above the legal responsibility.

[Judas Maccabeus]

So you’re telling me it would be illegal to have in your employee handbook, “Employees may not break federal laws”?

My guess would be that you can put anything you want in your employment handbook. It is just a book and doesn't carry any legal weight. You could fill it with Japanese anime or the Unabomber Manifesto if you wanted.

But what you cannot do is discriminate against someone in violation of state law. In Washington that includes someone who smokes pot on their own time away from work. So you couldn't enforce any provisions of your employment handbook in a manner that violated state law.

Unless there is a superseding federal law. I am thinking transportation and some areas that require licensure.

[steve-in-kville]

So you’re telling me it would be illegal to have in your employee handbook, “Employees may not break federal laws”?

My guess would be that you can put anything you want in your employment handbook. It is just a book and doesn't carry any legal weight. You could fill it with Japanese anime or the Unabomber Manifesto if you wanted.

But what you cannot do is discriminate against someone in violation of state law. In Washington that includes someone who smokes pot on their own time away from work. So you couldn't enforce any provisions of your employment handbook in a manner that violated state law.

Unless there is a superseding federal law. I am thinking transportation and some areas that require licensure.

A company that claims to be ab "at will" employer can kind of do whatever they want. At least that has been my understanding.

[Josh]

So you’re telling me it would be illegal to have in your employee handbook, “Employees may not break federal laws”?

My guess would be that you can put anything you want in your employment handbook. It is just a book and doesn't carry any legal weight. You could fill it with Japanese anime or the Unabomber Manifesto if you wanted.

But what you cannot do is discriminate against someone in violation of state law. In Washington that includes someone who smokes pot on their own time away from work. So you couldn't enforce any provisions of your employment handbook in a manner that violated state law.

So you’re saying that my employee handbook needs to say:

“Employees are ALLOWED to break certain federal laws.”

I am actually not kidding about this. Currently my employer handbook says that employees are expected to comply with federal, state, and local laws, and violations can be grounds for immediate termination.

It is hard for me to imagine being told by one law that I MUST allow employees to break another law.

[Ken]

So you’re telling me it would be illegal to have in your employee handbook, “Employees may not break federal laws”?

My guess would be that you can put anything you want in your employment handbook. It is just a book and doesn't carry any legal weight. You could fill it with Japanese anime or the Unabomber Manifesto if you wanted.

But what you cannot do is discriminate against someone in violation of state law. In Washington that includes someone who smokes pot on their own time away from work. So you couldn't enforce any provisions of your employment handbook in a manner that violated state law.

So you’re saying that my employee handbook needs to say:

“Employees are ALLOWED to break certain federal laws.”

I am actually not kidding about this. Currently my employer handbook says that employees are expected to comply with federal, state, and local laws, and violations can be grounds for immediate termination.

It is hard for me to imagine being told by one law that I MUST allow employees to break another law.

Like I said, you can put anything you want into your employee handbook. Or not even bother to have one. None of that changes the fact that you need to follow the employment laws of your state.

But your authority as an employer really only extends to matters that pertain to the operation of your business. You can most CERTAINLY demand that employees follow federal, state, and local laws while they are on the clock and working for you. And fire them if they break laws while on the job. But you aren't a federal, state, or local police. And you don't have the authority to regulate your employees' private lives on their own time when they are not working for you. And employees don't give up their right to privacy or to have private lives when they take a job. We don't live in Stalinist Russia where we have no privacy.

[Josh]

In my state, employment is “at will”. It is definitely reasonable to expect employees not to be frequent lawbreakers, including in their own time. And I’m not aware of any Ohio laws that say “you aren’t allowed to tell employees not to break the law”.

Examples of things I wouldn’t tolerate is being a drug dealer, illegal gun running, or abusing children, even if done on their own time.

[Ken]

In my state, employment is “at will”. It is definitely reasonable to expect employees not to be frequent lawbreakers, including in their own time. And I’m not aware of any Ohio laws that say “you aren’t allowed to tell employees not to break the law”.

Examples of things I wouldn’t tolerate is being a drug dealer, illegal gun running, or abusing children, even if done on their own time.

Yes. Read what I wrote. You seemed fixated on employee handbooks. You can put anything you want into an employee handbook but it doesn't carry any particular legal weight and certainly doesn't supersede state, federal, or local laws. And if, for example, you have a business in Washington you have to comply with state law that says pot smoking on your own time is a protected activity and you cannot discriminate against people who do that.

However rape and sexual assault are NOT protected activities under the laws of any state that I'm aware of. Neither is drug dealing or abusing children. So rapists and sexual predators are not a protected class and there are no laws against firing a sexual predator in any state. The only place where sexual predators seem to be a protected class for employment is within the Republican party.

[Josh]

I think a state law that says you HAVE to tolerate breaking other laws is unconstitutional on its face and is a ridiculous law. Smoking weed and selling it and distributing it are all 100% illegal. Nobody should ever have to tolerate substance abusers and drug addicts.

[Ken]

I think a state law that says you HAVE to tolerate breaking other laws is unconstitutional on its face and is a ridiculous law. Smoking weed and selling it and distributing it are all 100% illegal. Nobody should ever have to tolerate substance abusers and drug addicts.

When you hire someone you are entering into a contract with them in which they agree to give you a portion of their time and labor (say 40 hours per week) and in exchange you pay them for their time and labor. You can most certainly regulate what they do on YOUR time and while they are working on YOUR premises. And if you don't want them smoking pot on YOUR time and on YOUR premises you can most certainly prohibit that and fire them if they break your workplace rules.

But we generally don't believe that employers have a right to insert themselves into your private life when you are not on the clock and not on work premises. We don't live in Stalinist Russia where all employers are an arm of the state and no one has a private life. It just isn't your business what your employees do on their own time. That is their time, not yours.

That said, you can still fire people for pretty much any reason or no reason at all in most states. Except for reasons that the state has determined are protected activities. That includes things like religion, disability, gender, race, marriage status, ethnicity, and so forth. And in Washington they have extended that using cannabis on YOUR OWN time.

It's really not that complicated. And no, such laws are not unconstitutional on their face. And neither are they ridiculous.

[RZehr]

I think a state law that says you HAVE to tolerate breaking other laws is unconstitutional on its face and is a ridiculous law. Smoking weed and selling it and distributing it are all 100% illegal. Nobody should ever have to tolerate substance abusers and drug addicts.

When you hire someone you are entering into a contract with them in which they agree to give you a portion of their time and labor (say 40 hours per week) and in exchange you pay them for their time and labor. You can most certainly regulate what they do on YOUR time and while they are working on YOUR premises. And if you don't want them smoking pot on YOUR time and on YOUR premises you can most certainly prohibit that and fire them if they break your workplace rules.

But we generally don't believe that employers have a right to insert themselves into your private life when you are not on the clock and not on work premises. We don't live in Stalinist Russia where all employers are an arm of the state and no one has a private life. It just isn't your business what your employees do on their own time. That is their time, not yours.

That said, you can still fire people for pretty much any reason or no reason at all in most states. Except for reasons that the state has determined are protected activities. That includes things like religion, disability, gender, race, marriage status, ethnicity, and so forth. And in Washington they have extended that using cannabis on YOUR OWN time.

It's really not that complicated. And no, such laws are not unconstitutional on their face. And neither are they ridiculous.

I’d say there is exactly zero percent chance of that right to smoke pot standing up in any federal court. We know tobacco use is an activity that is legal to discriminate against - even on one’s own time, not just on company time and premises. And tobacco use is federally legal. Pot is not. Washington can
say whatever they want, just like an employee handbook can. And they will wind up overruled just like Colorado did.