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

[presence]

Now we're talkin'.

http://www.ada.gov/pubs/adastatute08.htm#12112d

Following is the current text of the Americans with Disabilities Act of 1990 (ADA), including changes made by the ADA Amendments Act of 2008 (P.L. 110-325), which became effective on January 1, 2009.

Sec. 12112. Discrimination (a) General rule
No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
(b) Construction
As used in subsection (a) of this section, the term "discriminate against a qualified individual on the basis of disability" includes
(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;
(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration
(A) that have the effect of discrimination on the basis of disability;
(B) that perpetuates the discrimination of others who are subject to common administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(5)
(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).
(c) Covered entities in foreign countries
(1) In general
It shall not be unlawful under this section for a covered entity to take any action that constitute discrimination under this section with respect to an employee in a workplace in a foreign country if compliance with this section would cause such covered entity to violate the law of the foreign country in which such workplace is located.
(2) Control of corporation
(A) Presumption
If an employer controls a corporation whose place of incorporation is a foreign country, any practice that constitutes discrimination under this section and is engaged in by such corporation shall be presumed to be engaged in by such employer.
(B) Exception
This section shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer.
(C) Determination
For purposes of this paragraph, the determination of whether an employer controls a corporation shall be based on
(i) the interrelation of operations;
(ii) the common management;
(iii) the centralized control of labor relations; and
(iv) the common ownership or financial control of the employer and the corporation.
(d) Medical examinations and inquiries





(1) In general
The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.

(2) Preemployment
(A) Prohibited examination or inquiry
Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
(B) Acceptable inquiry
A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.
(3) Employment entrance examination
A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if
(A) all entering employees are subjected to such an examination regardless of disability;
(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that
(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and
(C) the results of such examination are used only in accordance with this subchapter.
(4) Examination and inquiry
(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
(B) Acceptable examinations and inquiries
A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
(C) Requirement
Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).

[Deborah K]

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

I don't WANT to slide down it. Sometimes the most effective way to make change is to refute these violations as they arise, and sometimes doing it by beating them at their own game. I know it isn't always effective, and I know the whole ancap spiel and ideal way to handle it: quit and find another job, yada yada, like that solves everything. Unfortunately, it doesn't, and sometimes we have to fight fire with fire.

I'd like to know from the Constitutional and State law types what they think about this situation.

[Deborah K]

http://www.ada.gov/pubs/adastatute08.htm#12112d

"A covered entity....." Is that what they call people nowadays?

[specsaregood]

I don't WANT to slide down it. Sometimes the most effective way to make change is to refute these violations as they arise, and sometimes doing it by beating them at their own game. I know it isn't always effective, and I know the whole ancap spiel and ideal way to handle it: quit and find another job, yada yada, like that solves everything. Unfortunately, it doesn't, and sometimes we have to fight fire with fire.

I'd like to know from the Constitutional and State law types what they think about this situation.

Well as a business owner, I resent the idea that you think I shouldn't be able to fire any employee for whatever reason and shouldn't be able to require drug testing as condition of employment. And I'm certainly no ancap.

[William Tell]

I don't WANT to slide down it. Sometimes the most effective way to make change is to refute these violations as they arise, and sometimes doing it by beating them at their own game. I know it isn't always effective, and I know the whole ancap spiel and ideal way to handle it: quit and find another job, yada yada, like that solves everything. Unfortunately, it doesn't, and sometimes we have to fight fire with fire.

I'd like to know from the Constitutional and State law types what they think about this situation.

From a Constitutional and State law perspective, you would need state law on your side. I don't know enough about California state law. But unless it specifically forbids discrimination against people for using certain drugs, I don't see the 10th Amendment case.

I'm not an Ancap just fyi.

[presence]

"A covered entity....." Is that what they call people nowadays?

no.

"a covered entity" is a business that employs a certain number of people and meets certain criteria. The nationwide company you mentioned is more than likely a "covered entity".

No covered entity shall discriminate against a qualified individual

[presence]

Well as a business owner, I resent the idea

Being a business owner does not necessarily make you a "covered entity" of the ADA

Only "covered entities" must comply with Title I of the ADA. The term covered entities includes employers with

15 or more employees

, employment agencies, labor organizations, and joint labor-management committees. For simplicity, this guide will refer to covered entities as "employers." For more information about covered entities, see the EEOC Compliance Manual: Covered Entities.

[Deborah K]

No, but we are talking about drug testing as a condition for future employment.

No, I'm talking about random drug testing on already hired employees. I agree that there is nothing wrong with employers not wanting to hire addicts. They can manage that with drug testing I suppose, but a more stringent vetting during the hiring process would probably serve them better.

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

This isn't a "right to be employed" issue. This is an issue where a nationwide company does not want to adhere to a state's law, and enacts a prohibition using federal law to validate it.

[willwash]

I agree that ancap ridiculousness gets touted as gospel way too often here (STFU about "private security firms" FFS!), but at the same time I don't think it's too much of a reach to say a company should be able to make refraining from smoking marijuana a condition of employment. Anyone who wants to be able to work there and smoke marijuana anyway (no matter the reason) should not appeal to the force of government to compel this company against its will. That's the only "slippery slope" I see in this debate.

[Deborah K]

Well as a business owner, I resent the idea that you think I shouldn't be able to fire any employee for whatever reason and shouldn't be able to require drug testing as condition of employment. And I'm certainly no ancap.

That is not what I am stating. Please re-read what I have written.

[presence]

I don't think it's too much of a reach to say a company should be able to make refraining from smoking marijuana a condition of employment. Anyone who wants to be able to work there and smoke marijuana anyway (no matter the reason) should not appeal to the force of government to compel this company against its will. That's the only "slippery slope" I see in this debate.

prescribed paxil, xanax, and oxycodone perfectly ok though right?

[William Tell]

This isn't a "right to be employed" issue. This is an issue where a nationwide company does not want to adhere to a state's law, and enacts a prohibition using federal law to validate it.

I don't see how they are not adhering to state law.

[helmuth_hubener]

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?

I do not think that this person's freedom is being taken away at all, whatsoever, period. So the first, practical, real-world-application step is for this person to realize that. He needs to take full responsibility and accountability for his life and his choices and not play any kind of blame game. That is a trap. An anti-freedom trap. By being wrapped up in wanting this company to respect what he sees as his "rights," he is taking way his own freedom from himself, working himself into a box rather than being empowered and liberated. These are "rights" that we both have agreed do not even exist -- just as you and I both said, "They don't have the 'right' to work there." -- but even if they did exist, pining for them, blaming the company for violating them, being upset at them for being wrong, is unproductive. It's a trap.

So step one is to stop blaming and start self-empowering. Have an attitude of empowerment, not of whining and petitioning.

Step two is for this person to ask himself what *he* can do to achieve his goals in life. Not what This Company I Hate should do, what *he* can do. He can only control the actions of one (1) person in all this great, wide Universe: Himself. He should do so. Control himself. Chances are very good, for instance, that there is some way to conceal his drug use from the company if his goal is to continue working there and at the same time to use marijuana. If he applies his mental energies to that problem, he will find a solution much quicker, much more effectively, and much easier than some misguided attempt to force the hated company to bend to his will.

How's that for practical?

[Deborah K]

no.

"a covered entity" is a business that employs a certain number of people and meets certain criteria. The nationwide company you mentioned is more than likely a "covered entity".

duh...I guess I need to spend some quality time actually reading what you posted instead of skimming it.

[jmdrake]

I don't WANT to slide down it. Sometimes the most effective way to make change is to refute these violations as they arise, and sometimes doing it by beating them at their own game. I know it isn't always effective, and I know the whole ancap spiel and ideal way to handle it: quit and find another job, yada yada, like that solves everything. Unfortunately, it doesn't, and sometimes we have to fight fire with fire.

I'd like to know from the Constitutional and State law types what they think about this situation.

Well I kind of already told you what I thought, but I'll expound a bit. Remember the California law didn't grant any new "rights." It barred state prosecutors from going after people for marijuana use under certain circumstances. So, basically you're that a federal law (the ADA) will stop a company from using a federal law (drug laws) from punishing people who are now free from punishment under state law. I don't see this as winning.

[specsaregood]

./

[Deborah K]

I agree that ancap ridiculousness gets touted as gospel way too often here (STFU about "private security firms" FFS!), but at the same time I don't think it's too much of a reach to say a company should be able to make refraining from smoking marijuana a condition of employment. Anyone who wants to be able to work there and smoke marijuana anyway (no matter the reason) should not appeal to the force of government to compel this company against its will. That's the only "slippery slope" I see in this debate.

Smoking it on the job, I can see. But if a company can dictate what a person does off the job, where does it end?

[specsaregood]

prescribed paxil, xanax, and oxycodone perfectly ok though right?

In my ideal world, the business would be just as empowered to prohibit employees from using those as well.

[helmuth_hubener]

prescribed paxil, xanax, and oxycodone perfectly ok though right?

OK in what sense?

These are all substances. People all have the perfect and absolute right (and uninfringible ability!) to have whatever attitudes regarding these substances they wish. And people have the right to associate with other people taking into account whatever they wish, including whatever attitudes they have regarding these substances.

[Deborah K]

I don't see how they are not adhering to state law.

Read my OP again. They view cannabis users under a federal law lens rather than the State law lens.

[Deborah K]

prescribed paxil, xanax, and oxycodone perfectly ok though right?

I think you may be the only one who understands where I'm coming from here.

[presence]

duh...I guess I need to spend some quality time actually reading what you posted instead of skimming it.

parsing legalese is a bitch, no shame

[William Tell]

Read my OP again. They view cannabis users under a federal law lens rather than the State law lens.

And? they can view them how they like. Unless, like I have been saying, California says they must employ cannabis users or forbids drug testing. If that is the case then your friend would have state law on his/her side.

[willwash]

Smoking it on the job, I can see. But if a company can dictate what a person does off the job, where does it end?

I guess we just see it two different ways. I ask the fundamentally reverse question: if an employee can dictate what his employer must tolerate in terms of employee behavior (on or off the job), where does *that* end?

[Deborah K]

Well I kind of already told you what I thought, but I'll expound a bit. Remember the California law didn't grant any new "rights." It barred state prosecutors from going after people for marijuana use under certain circumstances. So, basically you're that a federal law (the ADA) will stop a company from using a federal law (drug laws) from punishing people who are now free from punishment under state law. I don't see this as winning.

It's unclear if the ADA would be the avenue to take with this. But, it sets a precedent, so that helps.

[Occam's Banana]

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

Insofar as the company is citing federal law in defense of its policy, the Tenth Amendment still does not apply - because the US federal government isn't doing anything here, one way or the other. The Tenth Amendment ONLY applies to what the federal government may or may not do - nothing else.

And even if the Tenth Amendment did apply, all the company would have to do to get around this is to change its defense of the policy so that it did not make reference to federal law at all. (For example, they might defend the policy on the grounds of avoiding exposure to legal or civil liabilities due to the actions of drug-impaired employees. Or if the compnay was privately owned, perhaps the owner might have religious or conscientous objections to drug use. Or etc.)

Also, the company is not "trumping" state law in any case. The company's policy does not conflict with or contradict the state's decision to stop prosecuting and imprisoning marijuana users. Just because the state of California is saying that it will no longer jail marijuana users, it does not follow that employers are therefore forbidden from adopting discriminatory policies with respect to the employment of marijuana users ...

[Deborah K]

I guess we just see it two different ways. I ask the fundamentally reverse question: if an employee can dictate what his employer must tolerate in terms of employee behavior (on or off the job), where does *that* end?

It ends at the punch-in clock. The employer owns the employee 's labor while he's on the clock. He doesn't own his blood and urine.

[presence]

I guess we just see it two different ways. I ask the fundamentally reverse question: if an employee can dictate what his employer must tolerate in terms of employee behavior (on or off the job), where does *that* end?

I think the ADA is pretty clear on that.

unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Recreational substance use? Fire at will.

Medically prescribed substance use? Prove its causing a job related problem, else defer to patient-doctor privledge.

[Deborah K]

And? they can view them how they like. Unless, like I have been saying, California says they must employ cannabis users or forbids drug testing. If that is the case then your friend would have state law on his/her side.

So, in your opinion, we need another law that forces employers to hire people who use cannabis? I think this issue could be solved in a better way.

I think, a bigger issue here, based on the comments is, if we're ever going to be a society that believes people have the right to do what they want on their own time, like drinking raw milk (to use one of Ron's examples) or go to a whore house, etc., how is that ever going to happen if employers have the right to dictate to you what you do in your own time? How are they any better than the government?

[specsaregood]

I think, a bigger issue here, based on the comments is, if we're ever going to be a society that believes people have the right to do what they want on their own time, like drinking raw milk (to use one of Ron's examples) or go to a whore house, etc., how is that ever going to happen if employers have the right to dictate to you what you do in your own time? How are they any better than the government?

And we go back to: find a different employer or start your own business.