Criminal background as a barrier to employment

[ken_sylvania]

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

I certainly think that any law prohibiting an employer from firing an employee for smoking pot ridiculous.

[Ken]

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

I certainly think that any law prohibiting an employer from firing an employee for smoking pot ridiculous.

Washington chose to legalize cannabis using the democratic in 2012 through a majority vote of the people when I-502 was passed which legalized cannabis.

Since then the state legislature has passed a myriad of laws regulating the production, distribution, use, and taxation of cannabis just like any other product. Also through the democratic process.

As part of that process, members of the public lobbied the legislature making the point that their right to legally use cannabis in the state of Washington was being undermined by employers who were prohibiting them from using cannabis on their own time away from the workplace. And requiring mandatory drug tests to enforce such prohibitions. The legislature held public hearings, took testimony from all sides, debated, the issue, and decided that this was an area of employer overreach that they were going to limit. And they did so through the democratic process. That new law just went into effect in 2024.

And note, this new law doesn't apply to a whole range of jobs including law enforcement, corrections, fire, other first responders, airline and maritime transportation, and doesn't supersede any Federal laws such as for jobs that require a security clearance, the military, etc. So its range is pretty limited.

In any event, that is how all laws get made and changed. Whether it is smoking pot on your own time, producing or consuming raw milk, or owning firearms.

You may think it is all ridiculous. But that would currently be a minority position in Washington State.

[Josh]

The last several employment contracts I signed place significant restrictions on what I could do OUTSIDE of work time. In fact, they also put restrictions on what I could do for a year after quitting, too.

I would expect those agreements to easily win in court.

[Josh]

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

I certainly think that any law prohibiting an employer from firing an employee for smoking pot ridiculous.

Washington chose to legalize cannabis using the democratic in 2012 through a majority vote of the people when I-502 was passed which legalized cannabis.

Since then the state legislature has passed a myriad of laws regulating the production, distribution, use, and taxation of cannabis just like any other product. Also through the democratic process.

As part of that process, members of the public lobbied the legislature making the point that their right to legally use cannabis in the state of Washington was being undermined by employers who were prohibiting them from using cannabis on their own time away from the workplace. The legislature held public hearings, took testimony from all sides, debated, the issue, and decided that this was an area of employer overreach that they were going to limit. And they did so through the democratic process. That new law just went into effect in 2024.

And note, this new law doesn't apply to a whole range of jobs including law enforcement, corrections, fire, other first responders, airline and maritime transportation, and doesn't supersede any Federal laws such as for jobs that require a security clearance, the military, etc. So its range is pretty limited.

In any event, that is how all laws get made and changed. Whether it is smoking pot on your own time, producing or consuming raw milk, or owning firearms.

You may think it is all ridiculous. But that would currently be a minority position in Washington State.

Let me give you an analogy, Ken.

Let’s say a state decided to legalise machineguns. (Montana tried this.) It passes the legislature overwhelmingly, enabling legislation and regulations are created, and so on.

Guess what? Federal law still applies. For all practical purposes federal gun laws are completely binding in what I choose to do in my basement with material that never leaves the state.

[Ken]

The last several employment contracts I signed place significant restrictions on what I could do OUTSIDE of work time. In fact, they also put restrictions on what I could do for a year after quitting, too.

I would expect those agreements to easily win in court.

Like I said, most employers can fire most employees for pretty much any reason EXCEPT for reasons that are prohibited by law. Those include things like race, gender, disability, religion, age, marital status, etc. And here in Washington state, using cannabis on your own time has been added to the list of prohibited reasons.

As long as your employment contract is consistent with state or federal law it will hold up in court. If your employment contract violates the law then it won't hold up in court.

For example, it used to be legal to fire women if they got married. In the 1950s and 1960s airlines put that into their employment contracts and required that their flight attendants remain single in order to keep their jobs. Sometime in the 1970s that sort of thing was prohibited and airlines can no longer mandate that flight attendants remain single. And if they put such a requirement in their employment contracts they would most definitely NOT stand up in court.

Here in Washington, smoking pot on your own time is one of those protected activities. Provided you are not in the class of jobs that are excluded from that new law. So no, a blanket prohibition on pot smoking on your own time is not going to be legally enforceable in employment contracts in Washington.

It really isn't that complicated.

[Ken]

I certainly think that any law prohibiting an employer from firing an employee for smoking pot ridiculous.

Washington chose to legalize cannabis using the democratic in 2012 through a majority vote of the people when I-502 was passed which legalized cannabis.

Since then the state legislature has passed a myriad of laws regulating the production, distribution, use, and taxation of cannabis just like any other product. Also through the democratic process.

As part of that process, members of the public lobbied the legislature making the point that their right to legally use cannabis in the state of Washington was being undermined by employers who were prohibiting them from using cannabis on their own time away from the workplace. The legislature held public hearings, took testimony from all sides, debated, the issue, and decided that this was an area of employer overreach that they were going to limit. And they did so through the democratic process. That new law just went into effect in 2024.

And note, this new law doesn't apply to a whole range of jobs including law enforcement, corrections, fire, other first responders, airline and maritime transportation, and doesn't supersede any Federal laws such as for jobs that require a security clearance, the military, etc. So its range is pretty limited.

In any event, that is how all laws get made and changed. Whether it is smoking pot on your own time, producing or consuming raw milk, or owning firearms.

You may think it is all ridiculous. But that would currently be a minority position in Washington State.

Let me give you an analogy, Ken.

Let’s say a state decided to legalise machineguns. (Montana tried this.) It passes the legislature overwhelmingly, enabling legislation and regulations are created, and so on.

Guess what? Federal law still applies. For all practical purposes federal gun laws are completely binding in what I choose to do in my basement with material that never leaves the state.

Lets carry your analogy forward.

Montana could pass an amendment to their EMPLOYMENT laws that prohibit employers from firing people for owning machine guns. And Montana could, in fact, enforce such a law.

Such a law doesn't mean that it is legal to own machine guns in Montana. You can still certainly be arrested by the ATF and prosecuted by the DOJ for owning a machine gun in Montana. It simply means that under state law, employers can no longer fire people for owning a machine gun. In other words, the state is saying that the responsibility for enforcing the federal ban on machine guns lies with the federal government and not employers within the state of Montana. And while it might still be the Federal Government's business if you own a machine gun. In Montana it is no longer your employer's business.

And if the employer wants to make it their business they can certainly still drop a dime and turn you in to the ATF for owning a machine gun. They just couldn't fire you for it (under such a hypothetical law).

[Josh]

I would seriously doubt the constitutionality of such a law. Particularly when some of the work we do requires having contractors or employees who are in a state of compliance with federal laws. (Some customers put that clause in and simply require it.)

So that's basically a catch-22... guess it's a good thing I'm not hiring anyone in Washington State anytime soon.

[Ken]

I would seriously doubt the constitutionality of such a law. Particularly when some of the work we do requires having contractors or employees who are in a state of compliance with federal laws. (Some customers put that clause in and simply require it.)

So that's basically a catch-22... guess it's a good thing I'm not hiring anyone in Washington State anytime soon.

So far to my knowledge, no one has challenged the constitutionality of the law. But it just took effect in January 2024 so it is early yet.

In Washington, it doesn't really matter what customers want of their contractors or subcontractors, they can't expect or require that the company they are contracting with to violate state law.

So, for example, if you are a customer in Washington who is dealing with a contractor. You can't demand:

1. That your contractor only provide you with white employees
2. That your contractor only provide you with un-married female employees
3. That your contractor provide not provide you with employees that have a disability
4. That your contractor not provide you with any Jewish employees
5. That your contractor not provide you with any workers over age 50.
6. That your contractor monitor what their employees do on their own time outside of work and fire any who smoke pot on their own time.

If you are a customer in Washington and you expect to be able to require any of those things of your contractors then you are doing business in the wrong state.

[Josh]

I’ve had a customer before that required employees to pass random drug tests, including off duty hours for random tests if they ever drove on the job (since the contract involved going to job sites to do work, the trip to / from the job site was part of the job duties).

I think you are very mistaken about the constitutionality of whatever law this is. It is absolutely acceptable for an employer to require complying with (for example) federal laws that require employees to be substance free, or not be drunk, when driving, or even having a small possibility of driving as part of their job duties.

Oh, and guess who else required this? My workers comp also required submitting to random drug tests to maintain our experience rating.

I suspect WA’s law was written by some leftist potheads and wouldn’t ever survive a court challenge.

[Ken]

I’ve had a customer before that required employees to pass random drug tests, including off duty hours for random tests if they ever drove on the job (since the contract involved going to job sites to do work, the trip to / from the job site was part of the job duties).

I think you are very mistaken about the constitutionality of whatever law this is. It is absolutely acceptable for an employer to require complying with (for example) federal laws that require employees to be substance free, or not be drunk, when driving, or even having a small possibility of driving as part of their job duties.

Oh, and guess who else required this? My workers comp also required submitting to random drug tests to maintain our experience rating.

I suspect WA’s law was written by some leftist potheads and wouldn’t ever survive a court challenge.

You would be wrong about that.

It was a normal bill that passed both houses of the state legislature, underwent the normal legal review by House and Senate legislative counsel office and was signed into law by the governor.

Here is the law https://lawfilesext.leg.wa.gov/biennium ... 0526133248
And here is a legal analysis by an employment law firm: https://ogletree.com/insights-resources ... juana-use/

We are a nation of 50 different states. And they are largely free to manage their own affairs. Ohio is free to do things differently.

And no, there is no Constitutional right to fire people for smoking pot in their off hours. You will find no mention of that (or anything remotely related) anywhere in the Constitution. Go ahead and look.