Can a nation-wide corporation ignore a State's laws?

[Deborah K]

I know someone who works for a company that employs around 30k people nationwide. They have a policy of random drug-checks. All positive tests result in termination. In Cali, cannabis is legal to use with a Doctor prescribed medical-marijuana card. But this company states outright that it will not acknowledge the state legalization of cannabis because it is not federally legal.

In my mind, this company is violating the rights of California citizens. And the tenth amendment applies here somewhere as well, doesn't it? Am I wrong?

[Natural Citizen]

Hm. Well. I do know (from what has been released) that if the TPP gets passed then states and local governments will lose sovereignty to corporations with regard to these things. Of course, that is in the forward view. At the moment, I don't think they can do that. And I was reading something about federal position on pot changing in some recent legislation. I forget what bill, though. I think occams banana had posted something on that but I didn't read it. Just kind of glanced through it.

We are beginning to see the phenomenon develop of industry maneuvering with federal government and political networks/pacs to create industry backed legislation to specifically void state and local law. And they're being rather bold about it. An example of that is what is going on with Koch network, congressman Pompeo and some various companies. Of course, there are more examples but that is just on the fly off the top of my head here.

[Occam's Banana]

I know someone who works for a company that employs around 30k people nationwide. They have a policy of random drug-checks. All positive tests result in termination. In Cali, cannabis is legal to use with a Doctor prescribed medical-marijuana card. But this company states outright that it will not acknowledge the state legalization of cannabis because it is not federally legal.

In my mind, this company is violating the rights of California citizens. And the tenth amendment applies here somewhere as well, doesn't it? Am I wrong?

The Tenth Amendment doesn't have anything to do with private individuals or organizations. It only concerns powers that the US federal government is not allowed to exercise - namely, those powers that are "not delegated to the United States [federal government] by the Constitution, nor prohibited by [the Constitution] to the States." It says that all such powers "are reserved to the States respectively, or to the people."

So the Tenth Amendment does not apply unless a state is trying to do something and the US federal government is trying to stop them from doing it - or unless the US federal government is trying to do something and a state is trying to stop them from doing it.

In the scenario you describe, since the US federal government isn't trying to do anything (and isn't trying to stop California from doing anything), the Tenth Amendment does not apply and is not relevant.

IOW: The Tenth Amendment is strictly about what the US federal government is or isn't allowed to do. It doesn't apply to anything else (such as private companies' employment policies within any given state).

[helmuth_hubener]

In my mind, this company is violating the rights of California citizens.

Occam is completely right, but let's sum up more briefly and directly what you want to know:

No. This company is not violating the rights of anyone. They may hire and fire whomever they want. No one has a "right" to be employed by that company.

[Deborah K]

The Tenth Amendment doesn't have anything to do with private individuals or organizations. It only concerns powers that the US federal government is not allowed to exercise - namely, those that are "not delegated to the United States by the Constitution, nor prohibited by it to the States." It says that all such powers "are reserved to the States respectively, or to the people."

So the Tenth Amendment isn't relevant unless the state of California is trying to do something and the US federal government is trying to stop them from doing it - or unless the US federal government is trying to do something and the state of California is trying to stop them from doing it.

IOW: The Tenth Amendment is strictly about what the US federal government is or isn't allowed to do. It doesn't apply to anything else (such as private companies' employment policies within a state such as California).

I'm thinking in terms of a corporation using federal law to trump state law resulting in violating the rights of California citizens.

[Deborah K]

Occam is completely right, but let's sum up more briefly and directly what you want to know:

No. This company is not violating the rights of anyone. They may hire and fire whomever they want. No one has a "right" to be employed by that company.

They don't have the "right" to work there, but neither does the company have the "right" to violate their employees' civil rights.

This is the same argument the state uses on people who want to fly without their privacy being violated. They claim the airlines are privately owned, so if you don't like it, then take a boat, car, train, or bus. When corporations start acquiescing to the fed gov (and vice versa, I might add), this is how our rights get taken.

[jmdrake]

I know someone who works for a company that employs around 30k people nationwide. They have a policy of random drug-checks. All positive tests result in termination. In Cali, cannabis is legal to use with a Doctor prescribed medical-marijuana card. But this company states outright that it will not acknowledge the state legalization of cannabis because it is not federally legal.

In my mind, this company is violating the rights of California citizens. And the tenth amendment applies here somewhere as well, doesn't it? Am I wrong?

Well there are companies that bar employees from smoking and that's legal in all 50 states.

[William Tell]

They don't have the "right" to work there, but neither does the company have the "right" to violate their employees' civil rights.

This is the same argument the state uses on people who want to fly without their privacy being violated. They claim the airlines are privately owned, so if you don't like it, then take a boat, car, train, or bus. When corporations start acquiescing to the fed gov (and vice versa, I might add), this is how our rights get taken.

What rights are being violated by the corporation?

[Deborah K]

What rights are being violated by the corporation?

Their right to do with what they want with own bodies on their own time.

[Deborah K]

Well there are companies that bar employees from smoking and that's legal in all 50 states.

Smoking at all? Or smoking at work?

[helmuth_hubener]

They don't have the "right" to work there, but neither does the company have the "right" to violate their employees' civil rights.

What is a civil right? If the civil right being violated = the right to not be fired for whatever reason (or lack therof) the company deems fit, then that "right" does not exist, exactly as you agreed with me. They don't have the "right" to work there. Period. The company can fire them for any reason, at any time, in accordance with their contract. Period.

This is the same argument the state uses on people who want to fly without their privacy being violated. They claim the airlines are privately owned, so if you don't like it, then take a boat, car, train, or bus.

And were it legal for me to start Fly 'N' Die Airlines where every passenger must openly carry a firearm and nobody's searched, this argument would be perfectly valid and true. Since it's not,... it's not.

[jmdrake]

Smoking at all? Or smoking at work?

From 2005:

http://www.nytimes.com/2005/02/08/bu...08smoking.html
By JEREMY W. PETERS

Published: February 8, 2005

OKEMOS, Mich. - Warning: Cigarette smoking may be hazardous to your job.

That is what employees at Weyco, an insurance benefits administrator in this small central Michigan town, found out.

Under a new policy that legal specialists say is the first of its kind, Weyco began testing its 200 employees for smoking in January. And the company put workers on alert: In the future, they will be subject to random testing. If they fail, they will be fired.

Rather than take the mandatory breathalyzer test, four employees left the company.

And while Weyco's strict no-smoking policy is drawing the ire of civil liberties groups, it is within the bounds of employment law in Michigan. The state is one of 20 that has no laws preventing employers from firing workers who smoke even when they are not at work.

"What's next?" Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, said, speculating on other behavior that could cost workers their jobs. "Sitting in the sun? Getting pregnant?"

In fact, employers in 46 states have significant legal leeway to tell workers what they can and cannot do once they leave the office. As a result, companies have done more than tell workers not to smoke.

Until the mid-1990's, the airlines enforced policies that limited how much a flight attendant could weigh. In the 1980's, Electronic Data Systems, the computer software company founded by Ross Perot, had a policy barring facial hair, and fired an employee who said that he wore a beard for religious reasons. In 1989, a company in Indiana fired an employee for drinking after work, a violation of the company's no-alcohol policy. And just last September, a company in Alabama fired a woman who drove to work with a Kerry-Edwards bumper sticker.

But firings for behavior away from work have been isolated, and legal specialists say that no company has ever gone as far as Weyco.

"They're actually testing," said John F. Banzhaf, a professor of public interest law at George Washington University and the executive director of Action on Smoking and Health, an antismoking group. "Most of the companies as far as I know simply passed the policy and rely on the fact that employees made the pledge." Employers have targeted smokers for years. Since the mid-1980's, Alaska Airlines has refused to hire smokers and tells job applicants that they will be tested for nicotine use. In 2004, Union Pacific decided to stop hiring smokers and now asks applicants to disclose whether or not they smoke. But these companies and others that prohibit their workers from smoking rely on their employees to honor the policy. As long employees have said they do not smoke, that has been proof enough.

Activists for workers rights argue that unless employees are engaging in off-duty behavior that interferes with their work, employers have no business stepping in. In 30 states and the District of Columbia, it is illegal for companies to impose smoking bans on their employees when they are off duty. And while 13 states prevent companies from banning alcohol use off the job, only California, Colorado, New York and North Dakota have broader worker privacy laws that prohibit employers from regulating most legal activities when their workers are off the job.

"Once you cross the line and allow employers to control any type of behavior that's not related to job performance, there's no limit to the harm that can and will be done," said Lewis Maltby, president of the National Workrights Institute, an employees' rights organization based in Princeton, N.J.

Howard Weyers, the soft-spoken, silver-haired president of Weyco, said he initially approached a smoking ban with a similar attitude. "I'm with a client one day and he told me, 'We're going to stop hiring smokers.' And I said, 'You're kidding me,' " Mr. Weyers said in an interview from his office at Weyco's headquarters. "I reacted just like everybody else did: 'You can't do that.' Oh, yes you can."

Mr. Weyers, 70, is a former college football coach who exercises five times a week. He says the smoking policy is not so much an issue of workers rights as a health issue. "I spent all my life working with young men, honing them mentally and physically to a high performance. And I think that's what we need to do in the workplace."

As a medical benefits administrator, Mr. Weyers has also seen how health care costs have risen, in part because of the high cost of treating smoking-related illnesses. A 2002 study by the Centers for Disease Control found that annual productivity losses and health care costs were $3,391 a smoker. Mr. Weyers said he could not afford anything beyond the $750,000 to $800,000 he already spends on health care costs each year.

So a year ago, he told his employees they were all going to be charged a $50 smoking fee. The company would waive the fee for employees who passed a nicotine test or, if they failed, agreed to take a smoking cessation class. The company brought in a smoking counselor, and Mr. Weyers said that as a result, about 20 employees kicked the habit.

For those who did not quit smoking, Mr. Weyers told them they had until Jan. 1, 2005. After that, mandatory testing would begin, and anyone who failed would be fired.

"You work for me, this is what I expect. You don't like it? Go someplace else," Mr. Weyers explained in an interview.

After 14 years at Weyco, Anita Epolito decided she would go someplace else rather than be forced to give up smoking.

"You feel like you have no rights. You're all alone. It's the most helpless feeling you can imagine," Ms. Epolito, 48, said. She is now searching for a new job. "I never, ever from day one conceded to go with his policy because I knew that it had nothing to do with smoking. It had to do with my privacy in my own home."

For Christine Boyd, 37, a Weyco employee and smoker of 10 years, the threat of losing her job was enough to get her serious about quitting. "I had to choose between whether I wanted to keep my job and whether I wanted to keep smoking. To me it was a no-brainer." On Jan. 27, Ms. Boyd celebrated a year of being cigarette-free.

[William Tell]

Their right to do with what they want with own bodies on their own time.

I don't get it, Deb. I don't like them doing what they are doing, but nobody is forcing anyone to work for the company.

[jkr]

Smoking at all? Or smoking at work?

at all

[presence]

the Americans with Disabilities Act, amended in September 2008,

prohibits asking employees about prescription drugs

unless managers have seen workers acting in a way

that compromises safety or suggests medication use impacts job performance.

http://www.adn.com/article/20101121/workers-can-be-fired-using-legal-drugs



There are some other exemptions. I don't have the source text; here is a .gov "guidance-inquiries" report:


http://www.eeoc.gov/policy/docs/guidance-inquiries.html

In most instances, an

employer's need

to make disability-related inquiries or require medical examinations

will be triggered by evidence

of current performance problems or observable evidence suggesting that a particular employee will pose a direct threat. The following questions, however, address situations in which disability-related inquiries and medical examinations of employees may be permissible absent such evidence.
18. May employers require periodic medical examinations of employees in positions affecting public safety (e.g., police officers and firefighters)?
Yes. In limited circumstances, periodic medical examinations of employees in positions affecting public safety that are narrowly tailored to address specific job-related concerns are permissible.⁽⁶⁶⁾

Example A: A fire department requires employees for whom firefighting is an essential job function to have a comprehensive visual examination every two years and to have an annual electrocardiogram because it is concerned that certain visual disorders and heart problems will affect their ability to do their job without posing a direct threat. These periodic medical examinations are permitted by the ADA.

Example B: A police department may not periodically test all of its officers to determine whether they are HIV-positive because a diagnosis of that condition alone is not likely to result in an inability or impaired ability to perform essential functions that would result in a direct threat.

Example C: A private security company may require its armed security officers who are expected to pursue and detain fleeing criminal suspects to have periodic blood pressure screenings and stress tests because it is concerned about the risk of harm to the public that could result if an officer has a sudden stroke.

If an employer decides to terminate or take other adverse action against an employee with a disability based on the results of a medical examination,

it must demonstrate

that the employee is unable to perform his/her essential job functions or, in fact, poses a direct threat that cannot be eliminated or reduced by reasonable accommodation.⁽⁶⁷⁾Therefore, when an employer discovers that an employee has a condition for which it lawfully may test as part of a periodic medical examination, it may make additional inquiries or require additional medical examinations that are necessary to determine whether the employee currently is unable to perform his/her essential job functions or poses a direct threat due to the condition.

"Direct threat" means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. §1630.2(r)(1998). Direct threat determinations must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence. Id. To determine whether an employee poses a direct threat, the following factors should be considered: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and, (4) the imminence of the potential harm. Id.

[jmdrake]

Their right to do with what they want with own bodies on their own time.

Vanessa Williams lost her Ms. America job for erotic pictures taken of her before she ran. And female teachers have been fired after being found out to be former pornstars. People get fired for criticizing the Obama girls on Facebook. I'm not saying any of this is "right" but it happens all the time. What kind of company is this? One response could be a boycott of the company by all who support medical marijuana.

[jmdrake]

the Americans with Disabilities Act, amended in September 2008,

prohibits asking employees about prescription drugs

unless managers have seen workers acting in a way

that compromises safety or suggests medication use impacts job performance.
http://www.adn.com/article/20101121/workers-can-be-fired-using-legal-drugs



There are some other exemptions. I don't have the source text.

Hmmmmm.......with some creative lawyer work and argument based on ^that might actually fly. Then again it might give the SCOTUS a prime opportunity to strike down state marijuana laws.

[Deborah K]

What is a civil right? If the civil right being violated = the right to not be fired for whatever reason (or lack therof) the company deems fit, then that "right" does not exist, exactly as you agreed with me. They don't have the "right" to work there. Period. The company can fire them for any reason, at any time, in accordance with their contract. Period.

And were it legal for me to start Fly 'N' Die Airlines where every passenger must openly carry a firearm and nobody's searched, this argument would be perfectly valid and true. Since it's not,... it's not.

I'd like to take this out of the realm of theory and ancap application, if you don't mind, and consider the issue at hand. What are the possible avenues that could be taken in order to preserve individual freedom? Let's argue the reality of this situation and the potential legal avenues.

No matter how you couch this, the legal right to use cannabis is being taken away from employees at this company over a bogus stance. Let's look at that point and not dredge up ancap theory for once.

[William Tell]

I'm thinking in terms of a corporation using federal law to trump state law resulting in violating the rights of California citizens.

The thing is, in my opinion, this is not about federal law. If they want to make compliance with federal law one of their standards, its still not about federal law. Anymore than permitting smoking would be about compliance with the Tobacco lobby.

[Deborah K]

I don't get it, Deb. I don't like them doing what they are doing, but nobody is forcing anyone to work for the company.

Do you not see the slippery slope there? Can we get our heads out of theory for a minute please?

[Deborah K]

From 2005:

http://www.nytimes.com/2005/02/08/bu...08smoking.html
By JEREMY W. PETERS

Published: February 8, 2005

OKEMOS, Mich. - Warning: Cigarette smoking may be hazardous to your job.

That is what employees at Weyco, an insurance benefits administrator in this small central Michigan town, found out.

Under a new policy that legal specialists say is the first of its kind, Weyco began testing its 200 employees for smoking in January. And the company put workers on alert: In the future, they will be subject to random testing. If they fail, they will be fired.

Rather than take the mandatory breathalyzer test, four employees left the company.

And while Weyco's strict no-smoking policy is drawing the ire of civil liberties groups, it is within the bounds of employment law in Michigan. The state is one of 20 that has no laws preventing employers from firing workers who smoke even when they are not at work.

"What's next?" Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, said, speculating on other behavior that could cost workers their jobs. "Sitting in the sun? Getting pregnant?"

In fact, employers in 46 states have significant legal leeway to tell workers what they can and cannot do once they leave the office. As a result, companies have done more than tell workers not to smoke.

Until the mid-1990's, the airlines enforced policies that limited how much a flight attendant could weigh. In the 1980's, Electronic Data Systems, the computer software company founded by Ross Perot, had a policy barring facial hair, and fired an employee who said that he wore a beard for religious reasons. In 1989, a company in Indiana fired an employee for drinking after work, a violation of the company's no-alcohol policy. And just last September, a company in Alabama fired a woman who drove to work with a Kerry-Edwards bumper sticker.

But firings for behavior away from work have been isolated, and legal specialists say that no company has ever gone as far as Weyco.

"They're actually testing," said John F. Banzhaf, a professor of public interest law at George Washington University and the executive director of Action on Smoking and Health, an antismoking group. "Most of the companies as far as I know simply passed the policy and rely on the fact that employees made the pledge." Employers have targeted smokers for years. Since the mid-1980's, Alaska Airlines has refused to hire smokers and tells job applicants that they will be tested for nicotine use. In 2004, Union Pacific decided to stop hiring smokers and now asks applicants to disclose whether or not they smoke. But these companies and others that prohibit their workers from smoking rely on their employees to honor the policy. As long employees have said they do not smoke, that has been proof enough.

Activists for workers rights argue that unless employees are engaging in off-duty behavior that interferes with their work, employers have no business stepping in. In 30 states and the District of Columbia, it is illegal for companies to impose smoking bans on their employees when they are off duty. And while 13 states prevent companies from banning alcohol use off the job, only California, Colorado, New York and North Dakota have broader worker privacy laws that prohibit employers from regulating most legal activities when their workers are off the job.

"Once you cross the line and allow employers to control any type of behavior that's not related to job performance, there's no limit to the harm that can and will be done," said Lewis Maltby, president of the National Workrights Institute, an employees' rights organization based in Princeton, N.J.

Howard Weyers, the soft-spoken, silver-haired president of Weyco, said he initially approached a smoking ban with a similar attitude. "I'm with a client one day and he told me, 'We're going to stop hiring smokers.' And I said, 'You're kidding me,' " Mr. Weyers said in an interview from his office at Weyco's headquarters. "I reacted just like everybody else did: 'You can't do that.' Oh, yes you can."

Mr. Weyers, 70, is a former college football coach who exercises five times a week. He says the smoking policy is not so much an issue of workers rights as a health issue. "I spent all my life working with young men, honing them mentally and physically to a high performance. And I think that's what we need to do in the workplace."

As a medical benefits administrator, Mr. Weyers has also seen how health care costs have risen, in part because of the high cost of treating smoking-related illnesses. A 2002 study by the Centers for Disease Control found that annual productivity losses and health care costs were $3,391 a smoker. Mr. Weyers said he could not afford anything beyond the $750,000 to $800,000 he already spends on health care costs each year.

So a year ago, he told his employees they were all going to be charged a $50 smoking fee. The company would waive the fee for employees who passed a nicotine test or, if they failed, agreed to take a smoking cessation class. The company brought in a smoking counselor, and Mr. Weyers said that as a result, about 20 employees kicked the habit.

For those who did not quit smoking, Mr. Weyers told them they had until Jan. 1, 2005. After that, mandatory testing would begin, and anyone who failed would be fired.

"You work for me, this is what I expect. You don't like it? Go someplace else," Mr. Weyers explained in an interview.

After 14 years at Weyco, Anita Epolito decided she would go someplace else rather than be forced to give up smoking.

"You feel like you have no rights. You're all alone. It's the most helpless feeling you can imagine," Ms. Epolito, 48, said. She is now searching for a new job. "I never, ever from day one conceded to go with his policy because I knew that it had nothing to do with smoking. It had to do with my privacy in my own home."

For Christine Boyd, 37, a Weyco employee and smoker of 10 years, the threat of losing her job was enough to get her serious about quitting. "I had to choose between whether I wanted to keep my job and whether I wanted to keep smoking. To me it was a no-brainer." On Jan. 27, Ms. Boyd celebrated a year of being cigarette-free.

With Obamacare kicking in, I can see why companies would do this, although it's wrong in my mind to dictate what people can and can't do off the clock.

[Deborah K]

The thing is, in my opinion, this is not about federal law. If they want to make compliance with federal law one of their standards, its still not about federal law. Anymore than permitting smoking would be about compliance with the Tobacco lobby.

But this is the official excuse this company is using.

[Deborah K]

http://www.adn.com/article/20101121/workers-can-be-fired-using-legal-drugs



There are some other exemptions. I don't have the source text; here is a .gov "guidance-inquiries" report:


http://www.eeoc.gov/policy/docs/guidance-inquiries.html

Now we're talkin'.

[William Tell]

Do you not see the slippery slope there? Can we get our heads out of theory for a minute please?

I don't like what they are doing. If you want to make a 10th amendment case, you should find out if California has a law that says employers cannot fire based on use of substances used in a legal manner. I don't think such a law would be in keeping with the intent of the constitution, but at least you could make an argument against the corportation.

[specsaregood]

Do you not see the slippery slope there? Can we get our heads out of theory for a minute please?

There are 2 sides to that slippery slope, you simply seem to want to slide down the govt authority side.

[William Tell]

But this is the official excuse this company is using.

And I think legally they can make any excuse they like.

[Deborah K]

And I think legally they can make any excuse they like.

Even if it violates someone's rights?

[jmdrake]

I'd like to take this out of the realm of theory and ancap application, if you don't mind, and consider the issue at hand. What are the possible avenues that could be taken in order to preserve individual freedom? Let's argue the reality of this situation and the potential legal avenues.

No matter how you couch this, the legal right to use cannabis is being taken away from employees at this company over a bogus stance. Let's look at that point and not dredge up ancap theory for once.

Well I mentioned the only legit and viable tool I can think of. The boycott. Well...public shaming plus a boycott. That forced Paula Dean off the air and Donald Sterling to sell his team. Otherwise you're putting one federal law (illegal drugs) up against another federal law (Americans with Disabilities Act) and hoping for a good outcome. Besides, imagine if the company in question was a Christian church school that had a morals clause in it and people violating that clause for all sorts of reasons (being gay, running a pornographic web cam business, etc) were suing to force the company to let them continue working?

[jmdrake]

With Obamacare kicking in, I can see why companies would do this, although it's wrong in my mind to dictate what people can and can't do off the clock.

Yeah...but it started back in 2005 when Bush was still in office.

[William Tell]

Even if it violates someone's rights?

No, but we are talking about drug testing as a condition for future employment. If they were tazering people and doing drug tests that would violate rights. But since nobody has a right to be employed, the company can make whatever silly rules they like without violating rights.