Written by attorney Sean James Gavin

How Does Marijuana Decriminalization Affect Your Elegibility for Unemployment Benefits?

Last year, then Gov. Arnold Schwarzenegger signed legislation that reduces the crime of possession of an ounce of marijuana from a misdemeanor to an infraction. Senate Bill 1449 does not reduce actual penalties for possession of small amounts of marijuana. Under California law, misdemeanor possession of less than an ounce was already punishable as infraction – with offenders facing fines of $100. The newlaw took effect January 1, 2011.

How will this affect your eligibility for unemployment benefits if you are fired because of marijuana possession?

The answer is that, if you are fired for marijuana possession that occurred while on duty, you are still very unlikely to be eligible for unemployment benefits. This is because most employers have policies prohibiting the use of drugs and alcohol in the workplace.

If, however, you are fired because your employer learned that you are cited for marijuana possession outside of work, the question of eligibility for unemployment benefits is a much closer call. This is because the relevant inquiry will be whether you were terminated for “misconduct connected with the work." The California Unemployment Insurance Appeals Board has issued multiple Precedent Benefits decisions in the past that held, for example, that the disqualifying provisions were not applicable to: a janitor employed at an Air Force base who was convicted of drunken driving while off duty (Benefit Decision No. 6534); an assembler employed at an aircraft plant who was arrested on a morals charge for an event which occurred away from work (Benefit Decision No. 5439); or a leadman in a manufacturing plant who, although previously warned against gambling activities on the employer’s premises during working hours, was discharged for admitted gambling away from work during a leave of absence (Benefit Decision No. 5193).

Conversely, in Benefit Decision No. 5864, the CUIAB considered the case of a bookkeeper in a bank who routinely bounced checks from her own account. The CUIAB found that her conduct tended to substantially injure the employer’s interest and constituted misconduct in connection with her work because the financial integrity of a bank employee should be above question, and it could be taken for granted that questionable financial transactions on the part of a bank employee reflected on the integrity of the employer.

As the legality of marijuana possession in California continues to shift, you should be aware that your rights as an employee are affected. The CUIAB has addressed marijuana possession specifically, in Precedent Benefit Decision 217, but this was based on previous statutes. Therefore, in the event you have any question about your eligibility for unemployment benefits, whether your termination was based on marijuana possession or otherwise, contact an experienced unemployment insurance attorney right away to determine your rights.

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