Q: Could I be fired for posting marijuana pictures on Facebook?
A: There are actually several layers to this question, as it is not clear what types of “marijuana pictures” you mean. The context influences the analysis and my ultimate answer.
Related: Read all of our previous Ask An Attorney columns.
As a starting point, most employment in California is “at will” (meaning you do not have an employment contract for any set term) and your employer can fire you for any reason or no reason, as long as it is not an illegal reason. With that principle in mind, your question potentially implicates several California laws.
California employment law provides that employees can sue for lost wages if they are discharged, demoted, or suspended for “lawful conduct occurring during nonworking hours away from the employer’s premises.” (Labor Code § 96(k).) For this reason, employers should tread carefully when taking adverse action against employees based on off-duty social media posts. However, as relates to marijuana specifically, it is unlikely that off-duty marijuana use is “lawful conduct” under the Labor Code (so it follows that pictures of you smoking marijuana would not be protected).
First, the California Supreme Court has determined that employers can still terminate employees for medical marijuana use because marijuana is illegal under federal law. (The case, Ross v. RagingWire Telecommunications, Inc., came out pre-Proposition 64 but is still good law and would protect employers regardless of whether the employee’s use is medical or recreational.) Second, when the Colorado Supreme Court considered the specific question of whether marijuana use is “lawful activity” for the purposes of Colorado’s similar “lawful activity statute” in Coats v. Dish Network, LLC, it rejected that idea because of marijuana’s illegality under federal law. (Colorado law is not binding on any California court, but the Ross case, combined with the Coats case, is a good indication of where a California court would go, as long as marijuana is federally illegal.) In short, avoid posting any pictures on social media that show you actively violating federal law (aka using marijuana).
Moreover, as a practical matter, posting a picture of you smoking marijuana on social media would tip off your employer that you may be in violation of the company’s zero-tolerance drug policy (assuming it has such a policy). If you were then tested and failed, that would provide an independent reason for your termination. (Whether or not such a Facebook picture, by itself, would provide your employer with “reasonable suspicion” to believe you have violated their drug-free policy is an open question. As an employment lawyer who counsels employers, I would advise the employer not to terminate based on that picture alone. However, some employers might take a more aggressive approach than I would counsel. And, if there were reasons to believe you were under the influence while at work, that is a different story.)
To the extent the photos you reference are more in the nature of political advocacy, you are on safer ground. Employers in California cannot enforce any policies or rules that prevent employees from engaging in political activity. So, to the extent you are posting photos or content that, for example, advocates for marijuana legalization, protests incarceration rates for marijuana crimes, etc., your employer should not take action against you.
Ultimately, however, you do not want to be engaged in a legal battle with an employer about whether or not it was justified in terminating you for posting marijuana-related pictures on Facebook. Because that would mean you don’t have a job. So, the conventional social media rules apply in the marijuana context: Ask yourself, “Would I care if my boss saw this?”
Christina Semmer is an employment and business lawyer who counsels employers regarding Proposition 64 and workplace drug policies. Ms. Semmer practices law at Wilson Turner Kosmo, LLP, the largest certified women-owned law firm in San Diego. Disclaimer: This column is solely informational in nature and is not intended as legal advice.