[SFBayCannabisCommunity] Kellogg's company terminates athlete's contract due to marijuana use

Discussion
21

Glenn,

  While I agree with you, Chris, and Mike that employers should be legally able to make drug-testing a condition of employment if they want to, I also think such testing is nothing for us as libertarians to celebrate. It may not be a rights violation, but it is still paternalistic, and when practiced in the context of government waging an immoral and destructive "War on Drugs," could expose employees who test positive to wrongful government discrimination or prosecution. And as with Kellogg's termination of Michael Phelps' contract for smoking cannabis, it also contributes to the sick social climate that fuels Drug Prohibition by stigmatizing drug use and sending a false message that use of banned substances on your own time is incompatible with many types of work. Unless someone is getting high while on call for a sensitive job where being high would interfere with their ability to perform the work (e.g. a hospital surgeon), I can't think of any circumstances where attempting to regulate what employees do in their off time seems reasonable. And even testing under circumstances where it makes sense that you wouldn't want an employee being under the influence is probably a bad idea in terms of personnel relations, since your employees will probably be happier and more productive if you accord them the respect of trusting them in such matters unless there's an obvious problem. As William Safire said, just because you have the right to do something doesn't make doing it right, and I think this applies to most if not all drug testing.

Love & Liberty,
        ((( starchild )))

22

Wrong. The fact that someone owns a business or any other property
does not entitle them to violate another persons' rights. All
employees are essentially independent contractors who are selling a
service to an employer. The employer needs their services,
and 'conditions of employment' are contractual. And any contract that
violates a constitutional right is null and void.

--- In lpsf-discuss@yahoogroups.com, "Christopher R. Maden"
<crism@...> wrote:

ERIC wrote:
> I actually have a business and have had employees. Contrary to

what

> the pundits on talk radio tell you, employees do not forfeit

their

> rights by being employed.

The employer-employee relationship is (or should be) a private

one. If

a company makes testing a condition of employment, a prospective
employee can accept or reject that condition along with the job.

No one

has the right to a non-testing job, or any job at all, for that

matter.

23

Starchild:

  This is true, but there's a deeper issue involved. Often
corporations will willingly impose policies like this---ones that are
pleasing to the government---as attempts to curry favour with those
in power. For example, PepsiCo was one of the first coporations to
impose drug testing and did a lot of photo-ops and PR stunts during
the 80s with various drug warriors. At the same time, they were
lobbying Congress to limit all derivatives of the Coca plant (the
extract of which is used in their main competitor's product).

  More recently, we saw it happen with the FISA bill. The telecom
cartels voluntarily spied on their own captive consumers on the
Bushmen's behalf, in exchange for favorable regulatory concessions.

Glenn,

  While I agree with you, Chris, and Mike that employers should

be

legally able to make drug-testing a condition of employment if

they

want to, I also think such testing is nothing for us as

libertarians

to celebrate. It may not be a rights violation, but it is still
paternalistic, and when practiced in the context of government

waging

an immoral and destructive "War on Drugs," could expose employees

who

test positive to wrongful government discrimination or

prosecution.

And as with Kellogg's termination of Michael Phelps' contract for
smoking cannabis, it also contributes to the sick social climate

that

fuels Drug Prohibition by stigmatizing drug use and sending a

false

message that use of banned substances on your own time is
incompatible with many types of work. Unless someone is getting

high

while on call for a sensitive job where being high would interfere
with their ability to perform the work (e.g. a hospital surgeon),

I

can't think of any circumstances where attempting to regulate what
employees do in their off time seems reasonable. And even testing
under circumstances where it makes sense that you wouldn't want an
employee being under the influence is probably a bad idea in terms

of

personnel relations, since your employees will probably be happier
and more productive if you accord them the respect of trusting

them

in such matters unless there's an obvious problem. As William

Safire

said, just because you have the right to do something doesn't make
doing it right, and I think this applies to most if not all drug
testing.

Love & Liberty,
        ((( starchild )))

> Chris,
>
> Your response to Eric was even keeled and factual.
>
> As you said below, Eric has a right to flip burgers at a place

that

> won't test him for drugs, as well as the right to pursue a more
> lucrative knowledge based opportunity at a private employer that
> does require (lawfully) drug and alcohol testing.
>
> I find Eric's approach to Libertarianism a curious one.
>
> All police are pigs, and all private employers have no rights
> whatsoever to have a clean, sober, safe workplace..............
>
> I say to you Eric
>
> Whatever
>
> Gman
>
>
>
> ERIC wrote:
> > I actually have a business and have had employees. Contrary to

what

> > the pundits on talk radio tell you, employees do not forfeit

their

> > rights by being employed.
>
> The employer-employee relationship is (or should be) a private

one. If

> a company makes testing a condition of employment, a prospective
> employee can accept or reject that condition along with the job.

No

24

ERIC wrote:

Wrong. The fact that someone owns a business or any other property
does not entitle them to violate another persons' rights. All
employees are essentially independent contractors who are selling a
service to an employer. The employer needs their services,
and 'conditions of employment' are contractual. And any contract that
violates a constitutional right is null and void.

Which constitutional right is violated by drug testing? The fourth
amendment to the US Constitution prohibits the government from
unwarranted search and seizure, and the fifth amendment protects the
right of individuals not to be compelled to testify against themselves
in criminal cases. Neither of these applies to a condition of a contract.

Like Starchild, I am not a fan of businesses testing, and I am glad that
Kellogg’s is taking heat over this, but employment testing is not and
should not be against the law.

~Chris

25

Are you arguing here that private parties are not bound by the same
laws as the government? That's the reasoning behind corporate statism-
-and the reason why Bush & Co. were so fond of 'contracting out'
government services to exclusive 'private' contractors who
theoretically were not bound by constitutional restraints.

  By definition, violating the rights of others constitutes a
criminal activity. When any entity does so, their own rights to
enforce a criminal contract are nullified.

--- In lpsf-discuss@yahoogroups.com, "Christopher R. Maden"
<crism@...> wrote:

ERIC wrote:
> Wrong. The fact that someone owns a business or any other

property

> does not entitle them to violate another persons' rights. All
> employees are essentially independent contractors who are selling

a

> service to an employer. The employer needs their services,
> and 'conditions of employment' are contractual. And any contract

that

> violates a constitutional right is null and void.

Which constitutional right is violated by drug testing? The fourth
amendment to the US Constitution prohibits the government from
unwarranted search and seizure, and the fifth amendment protects the
right of individuals not to be compelled to testify against

themselves

in criminal cases. Neither of these applies to a condition of a

contract.

Like Starchild, I am not a fan of businesses testing, and I am glad

that

Kellogg’s is taking heat over this, but employment testing is not

and

26

Eric,

  The Fifth Amendment right to remain silent and not testify against oneself in a criminal proceeding illustrates that Constitutional rights may be waived by the individual -- you can choose to waive that right and testify against yourself. Similarly, if you want to waive the Fourth Amendment protection against unreasonable search and seizure, you can choose to work for an employer that requires drug testing. That doesn't mean it's a good idea! An appropriate response to inappropriate drug testing might be for prospective employees and customers to boycott the employer engaging in such testing, and launch a publicity campaign against them.

  Now it does seem to me that there might be a theoretical point at which the nature of contracts pose such a threat to a free society, that disallowing them becomes reasonable. For instance, people selling themselves into slavery for life, where the slave owners tell them how to vote in elections, on jury panels, and so forth. But I can't immediately think of any real-world contracts that would seem to rise to that level.

Love & Liberty,
        ((( starchild )))

27

ERIC wrote:

  Are you arguing here that private parties are not bound by the same
laws as the government? That's the reasoning behind corporate statism-
-and the reason why Bush & Co. were so fond of 'contracting out'
government services to exclusive 'private' contractors who
theoretically were not bound by constitutional restraints.

  By definition, violating the rights of others constitutes a
criminal activity. When any entity does so, their own rights to
enforce a criminal contract are nullified.

You specifically said “constitutional right”; the US Constitution only
empowers and constrains the actions of the government, and has nothing
to do with private contract.

As for other rights — whether or not protected from government
interference by the Constitution — they are only violated by force. If
you force me to disclose my chemical consumption practices, you have
violated my rights. If you offer me a job in exchange for that
disclosure, I can take it or leave it; no force, no harm, no violation
of anyone’s rights.

The practice of hiding government power under a so-called “private” hat
is a thoroughly distasteful one, but should not be used as an excuse to
constrain *actual* free enterprise. As far as I know, Kellogg’s is not
paying Michael Phelps with redirected tax money.

~Chris

28

I can think some do rise to that level. When corporations have
reached such a point of power and priviledge that they become laws
unto themselves, then any contractual relationship is practically
void.

For example: suppose you work for a company and then---after you're
employed they require drug testing or some other invasion of your
rights. Your only option is to submit or look for work elsewhere; and
that may not be a viable option for many people.

Also, there is no reciprocity in these arrangements. If a
corporation demands things like background checks, drug testing &c.
on its employess---why don't the employees have the same right to
information on the CEO's private lives?

The idea of boycotts are not feasible because under corporatism, the
consumers are held hostage in much the same way employees are. If you
don't like having your privacy invaded by airlines, banks, &c, you
don't have a realistic alternative.

Eric,

  The Fifth Amendment right to remain silent and not testify

against

oneself in a criminal proceeding illustrates that Constitutional
rights may be waived by the individual -- you can choose to waive
that right and testify against yourself. Similarly, if you want to
waive the Fourth Amendment protection against unreasonable search

and

seizure, you can choose to work for an employer that requires drug
testing. That doesn't mean it's a good idea! An appropriate

response

to inappropriate drug testing might be for prospective employees

and

customers to boycott the employer engaging in such testing, and
launch a publicity campaign against them.

  Now it does seem to me that there might be a theoretical

point at

which the nature of contracts pose such a threat to a free

society,

that disallowing them becomes reasonable. For instance, people
selling themselves into slavery for life, where the slave owners

tell

them how to vote in elections, on jury panels, and so forth. But I
can't immediately think of any real-world contracts that would

seem

to rise to that level.

Love & Liberty,
        ((( starchild )))

> Wrong. The fact that someone owns a business or any other property
> does not entitle them to violate another persons' rights. All
> employees are essentially independent contractors who are selling

a

> service to an employer. The employer needs their services,
> and 'conditions of employment' are contractual. And any contract

that

29

Christopher:

  'You specifically said “constitutional right”; the US
Constitution only empowers and constrains the actions of the
government, and has nothing to do with private contract.'

  If that were true then only the government could be capable of
breaking laws. Private parties would be under no legal restraint
whatsoever.

  'As for other rights â€" whether or not protected from government
interference by the Constitution â€" they are only violated by
force. If you force me to disclose my chemical consumption
practices, you have violated my rights. If you offer me a job in
exchange for that disclosure, I can take it or leave it; no force, no
harm, no violation of anyone’s rights.'

  Which might work in a free market, but not when corporations
collude to set industry-wide policies, or limit opportunities for
employment. Even then it would be questionably legal.

  'The practice of hiding government power under a so-called
“private” hat is a thoroughly distasteful one, but should not be
used as an excuse to constrain *actual* free enterprise. As far as I
know, Kellogg’s is not paying Michael Phelps with redirected tax
money.'

  Maybe not, but I'm certain that Kellogg's is either participating
in, or heavily invested in government contracts. If they had taken a
principled stand and stood by Phelps, they might have paid a heavy
price for it.