What's a Skiing, Motorcycle-Riding, Cheeseburger-Eating Smoker to Do?
Remember Weyco, the Michigan health benefits administrator that fired four employees who refused to take a test to prove they didn't smoke? The Drug Policy Alliance has put together a ridiculously slanted flash animation show on the topic, followed by an online poll that asks, "Is it OK to fire people because they smoke? or Is what you do in your private time and what you put into your body none of your boss's business?" Notice that one of the options is not, "Regardless of whether you think the policy is fair or rational, should companies be allowed to demand that their employees refrain from smoking?"
DPA says Weyco is setting "a dangerous precedent" by poking its nose into its employees' risky off-the-job habits on the ground that they raise its health insurance costs. Today it's smoking; tomorrow it could be motorcycle riding, skiing, overeating, or lack of exercise. Maybe so, but I find that prospect much less alarming than the government's determination to protect us from ourselves. There are many employers, after all, and those who make what are perceived to be outrageous demands will pay a cost in terms of recruiting difficulty, employee morale, turnover, and/or higher pay.
The same could be said, of course, for drug testing, which, like Weyco's nicotine screen, detects off-the-clock behavior that does not affect job performance. Although this practice arouses a fair amount of resentment, it is nonetheless quite common, partly because it is not usually done in a way that actually screens out illegal drug users: Any reasonably cautious pot smoker can avoid testing positive in a pre-employment urinalysis. But the major reason for drug testing's popularity is the war on drugs: If these substances were not illegal, employers would tend to treat them like alcohol, which they worry about only when it has an impact in the workplace.
The government also contributes to Weyco-style smoking policies: Employers would be less inclined to insist on healthy lifestyles were it not for the perverse policies that link medical coverage to one's job.
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I got the email from the DPA wanting me to take that survey. Much as I support smokers' rights, it is also their right to *not* work there.
If smoking is legal, and these people didn't violate any company policies at work, they have been wrongfully terminated.
I always hesitate at whether or not such things should be legislated or not. On the one hand, I don't believe in government imposing needless standards on businesses. On the other, I fear large corporations becoming a de-facto legislation, one that isn't even elected.
Has any business ever made a positive drug test result a pre-requisite for employment?
Do liberatarians realize how many people would give up on Democrats and Republicans if they would just get off the "legalize drugs" plank?
It's a shame...
Does anybody care? NOPE!
Seriously, the right to one's own body and what goes into it is fundamental: libetarians are unique in modern politics for accepting that notion, and it's not something I nor anybody else is inclined to give up soon.
Hey, do you realize, nope, how many people we would haveif we embraced the welfare state and free drugs for all? But we're not going to do that either.
The facts state that Weyco is fulla shit. They fired one employee who wasn't even enrolled in the insurance plan!
Wouldn't a better solution for Weyco have been to have smokers pay the difference between the insurance rates? That way, Weyco pays the same rate for all employees, and the smokers have the choice between paying more for insurance or their habit? It's certainly better than "your habit or your job".
It makes me think about one of Rangel's arguments against legalization is that companies would have to accept employees who did various drugs - this is making the case that the companies would not have to accept the employees.
I think the LP has other areas that they can compromise on but seeing the failure of the war on drugs ? I do not see this as being one of them. I would much rather have a system of regulated drug control verses a black market drug non-control.
David,
You have an interesting proposal, but then that same company could turn around and impose similar financial requirements on motorcycle riders, skiers, people who vacation in Mexico, and anyone else who chooses to do anything in life more dangerous than staying at home and sitting on their hands.
If companies were not required to provide health benefits, allowing the employees to purchase their own, this would no longer be an issue for either side.
Are companies required by law to extend health care benefits? I've had a few jobs where I was full-time and got nothing.
Insurance is inherently corrupt. Always has been. Only way to make it less necessary is to solve the problem of frivolous and excessive lawsuits which is what every type of insurance ultimately pays for. (Has anyone ever stopped to think the amount of liability you're required to carry on car insurance? You couldn't cause that much in property damage without some serious effort; it's there solely to pay off families if you kill someone).
That had always been my understanding. If I'm wrong, please disregard my previous rant.
No, David, they are not; however, if coverage is extended to one class of employees (say, all full-time emps with 36+ hours/week) they are required by law to extend that benefit to all such emps. For example, in the blue collar field I know best, a restaurant will offer health coverage to all employees, but will offer free/subsidized coverage only to the GM, the executive or sous chef and maybe a couple other top management level people; that's because those people are salaried instead of hourly.
Dagny, you are wrong. I've seen a speeding car go though a living room (or try to anyway). When you damage a retaining wall, flooring, subflooring, drywall, electricals, and furniture, you sure as hell eat up a lot of the coverage, at least the state minimums.
Thanks for the info, cdunlea. I kind of thought that it was like that.
As to the people enganging in "high risk" activities, insurance rates don't seem increase for them(Yet).
I do see your point, and I think a more apt comparison would be based on age. However, since aging is not a choice, even that is a stretch.
As to the people enganging in "high risk" activities, insurance rates don't seem increase for them(Yet).
People with high risk hobbies (eg skydiving*) and high risk jobs (eg ironworkers) have paid higher life and accident insurance premiums for years. For those with high risk jobs it is one of the things reflected in their higher wages and higher workers comp rates that employers pay.
*A skidiver complained to me in the early 70s that insurance companies don't ask about skiing, which he thought unfair since skiers had much higher casuality rates. I wonder if that's changed.
Also try to get a life insurance policy at "normal" rates if you are a private plane pilot. Look at your life insurance policy sometime and take note of the exclusions.
All risks are insurable at the right price.
Do liberatarians realize how many people would give up on Democrats and Republicans if they would just get off the "legalize drugs" plank?
I think it's bad for the LP when the "legalize all drugs" plank is seen as the main thrust of the party, just as any other radical change tends to scare off a lot more voters than incrementalism. It's the main reason most people think libertarians are wacky. But I know an enormous number of Republicans and Democrats who support the legalization of marijuana. It's being idealist creatures with no hope of ever attaining power, versus compromising idealism and having a shot at growing the party. Libertarians are rarely a compromising bunch when it comes to the role of the state (in fact, many were Republicans or Democrats angry at their own party for not being idealist enough about something), so it's pretty much destined to be a party on the outside looking in, forever.
As a smoker, I certainly get sick of being increasingly marginalized for my (admittedly stupid) private habits. That said, this isn't surprising as companies have been "discriminating" against smokers for many years. It's really our one-size-fits-all bureaucratic insurance policies that are to blame. Insurance isn't a right, and if I engange in dangerous activities then I should pay more than someone who pays more attention to their health.
Regardless, outright refusing to hire or, worse still, actually firing good employess for smoking is ridiculous. There are about a billion other ways to offset the insurance costs that make more sense. Even lowering salaries is better than outright refusal of work. Seriously, what if the most talented person at Weyco is a smoker, and what if that person has led the company to great success? Should they be fired, and should the company suffer more for the loss of a great worker than they would for insurace costs?
At the end of the day, a private employer should have the right to hire or not hire as they see fit, and if a smoker will cost the company more money for the same productivity as a non-smoker, then they shouldn't be stopped from making a smart decision. I think a "zero-tolerance" policy is absurd and foolhardy, but I'm certainly not going to ask Washington to create smoker discrimination laws.
Excellent, Jacob.
Maybe I'll start a company that specifically recruits talented and productive smokers. I could even make some backdoor deals with insurance companies and take in a little kickback profit 🙂
I wonder what the brouhaha would be like if I outright refused to hire non-smokers. And if that were my company policy, I wonder if I could get an exemption from the workplace health rules?
Stretch-
I read on a news site this morning (though I can't remember which one) that a Michigan lawmaker, in response to the Weyco debacle, has proposed a law making it illegal for employers to discriminate based upon legal behavior. I fully support such a law, and hope it passes.
Has any business ever made a positive drug test result a pre-requisite for employment?
I suppose if someone were to refuse to take their medication, it could be a drain on health costs and therefore legitimately testable.
If corporations are legal persons, then they have a right to put whatever they want into their bodies.
Jennifer- A desire for such a law was my first reaction as well, but at bottom this isn't simply discriminating against legal behavior. Granted, in the cultural climate we live in, the issue becomes complex and true motivations are hard to ascertain.
However, if I have the choice between 2 employees, equal in job performance, and one will cost the company more money, why shouldn't I be allowed to hire the more efficient one?
Like I said, I think the blanket rule is absurd and a bad business practice, but if a worker costs more, then shouldn't I expect them to produce more? The line is (whether totally accurate or not) that Weyco is not simply discrimination based on culturally unacceptable but legal behavior, but simply based on cost.
Ultimately, I don't think adding yet another law to the already clogged books is an optimum solution. Will employers eventually have to start meeting "smokers quotas"?
Pavel, what I'm wondering is what would happen if a company owner decided he was only going to hire people who test positive for drug use. Obviously this would be done as a stunt, but I'm wondering where the most outcry would come from.
Wouldn't a better solution for Weyco have been to have smokers pay the difference between the insurance rates? That way, Weyco pays the same rate for all employees, and the smokers have the choice between paying more for insurance or their habit?
Many companies already do this -- when you enroll for medical coverage each year, you are given a choice between the "smoker's rate" and the lower "non-smoker's rate." To my personal knowledge, they typically put you on the "honor system" as to whether you actually smoke or not. I'm not aware that these companies typically do any testing. However, they do stipulate that if you sign up for the "non-smoker's" rate and the company somehow finds out you are using tobacco, you can lose your medical coverage and perhaps your job.
Enlightened companies also offer the "smoker's rate" vs. "non-smoker's rate" deal in conjunction with the opportunity to sign up for a company-sponsored smoking-cessation course.
Has any business ever made a positive drug test result a pre-requisite for employment?
I often wonder whether Sid & Marty Kroft Productions did.
Has any business ever made a positive drug test result a pre-requisite for employment? -Jeff
I often wonder whether Sid & Marty Kroft Productions did. -Stevo Darkly
Yep..."Land Of The Lost" was clearly the product of chemically enhanced imaginations...And don't even get me started on "Sigmund And The Sea Monsters"...
A friend of a friend once applied for a job at the corporate headquarters of Tower Books in West Sacramento. The job was in a department that gets advanced copies of new books and magazines to evaluate for potential sales. The job basically involved reading books and magazine and then filling out evaluation forms.
The interviewer asked: "So do you smoke lots of pot or drink?"
The applicant responded: "No."
Then the interviewed said: "You will after you've worked here for a while."
During a location-wide drug test marathon at the company where I worked, I came out of the ladies' restroom with a big smile on my face. My boss, standing in the mile-long line to go in, asked me with a laugh what I was so happy about. I told him, "I know for a fact I tested clean. But there's no way they're going to have another random test in less than a couple months. I guess this is my night to PAR TAY." The victims in line got a good laugh out of that, and I must have an innocent face because they didn't non-randomly test me after that. 🙂
if I have the choice between 2 employees, equal in job performance, and one will cost the company more money, why shouldn't I be allowed to hire the more efficient one?
Stretch-
It's not an issue of refusing to hire a smoker (I'd reluctantly agree with an employer's right to do that); it's an issue of firing somebody who was already there, for something which was NOT made an initial condition of employment.
Jennifer-
Well, now we get into some of the complexities of the issue. I absloutely agree that these people should not have been fired, but I fail to see how a new blanket law against "discrimination" will really make any difference. Truthfully, these people should have a case under current law that they were wrongfully terminated.
This isn't "the government protecting us from ourselves."
This is the the government protecting us from our employers.
Telling slip.
I think this thread indicates why libertarians will never be a majority among the American people--not even among groups like smokers and gun owners who feel victimized by government.
The reason is that these groups, like most Americans, have come to define "freedom" as the right not to have what they want to do thwarted by what they regard as unreasonable interference--whether from government or from private parties, like landlords and employers. For example, my guess is that a majority of smokers would find a small increase in a cigarette tax a lesser evil than the boss firing them for smoking. (This may not be true of the majority of smokers on this blog, but this is after all a libertarian blog, and therefore hardly a representative sample.) Yes, yes, they know that the government can tax you, fine you, or put you in jail, and that "all" the employer can do is fire you. But it isn't always easy to find a new job (especially if you're over a certain age) and there can be serious losses in doing so if it requires moving, etc. Come to think of it, many people might prefer a fine or sometimes even a brief jail sentence to losing their jobs.
Likewise, some gun owners are upset over some employer regulations forbidding leaving guns in your car in the workplace parking lot.
I am not denying that one can make a philosophical case distinguishing between public and private action in such cases, especially if the private action is *explicitly* authorized by contract (which it usually isn't--more often it at most comes under some boilerplate general powers of the employer or landlord being applied in a way the employee or tenant had never thought of when he or she signed the contract). All I'm saying is that this is not how I think most people see it.
All I'm saying is that this is not how I think most people see it.
Clearly we are right and they are wrong and that is all that matters! 😉
David-
I agree with you. I know I've posted this many times before, but I think it bears repeating: Governments are not the only organizations, and heads of state not the only individuals, whose power over those beneath them must be kept in check to ensure a free society.
Most Libertarians seem to disagree, and that's why Libertarianism isn't a viable political party; the majority of Americans will NEVER willingly vote in a mandate which says their employers can invent any damn rules they want. If you're in the mood for some eye-rolling good fun, look through the "Hit and Run" archives for the thread about the Bill O'Reilly phone-sex scandal; many posters claimed O'Reilly had the RIGHT to sexually harass his employee, unless her employment contract specifically said otherwise.
What David T wrote, that's what I was saying.
I didn't realize I was saying it until I read his comment, but that's what I was saying.
Jennifer, on a previous thread, I has some Randroid argue to me that an immigrant laborer, with no English skills, and a family with children, living in a company town that had no roads out and only a company-owned railroad, heavily indebted to the company store, 60 miles from was in no way infrigned in his liberty by his employer, because it was technically feasible for him to quit, walk the distance to the next town, and try to secure a job. No kidding.
Joe-
I don't doubt it at all. It's almost as if these folks have lost the ability to make distinctions; they see your immigrant's power over his company and the company's power over the immigrant as entirely equal, with the CEO spending his nights worrying about what would happen to his helpless little company if the immigrant decided to make that sixty-mile trek through the wilderness.
"Governments are not the only organizations, and heads of state not the only individuals, whose power over those beneath them must be kept in check to ensure a free society."
So what makes the government the one that should hold everyone else in check, while having limitless power for itself? I can, and would, walk away from a job. And before the screaming starts about how unfair that is, let me say that the only place I ever experienced ongoing, degrading sexual harassment that no one did a thing to stop was in a government school, where the choice to leave was not open to me. That's the SAME government that is magically going to keep my horrible employer in check. I could exercise my choice to dump a job in about five seconds if the experience I had at that public school was ever repeated in a workplace, but there's no limit to the ways in which the government can screw me in the name of "protection".
LisaMarie-
When did I say anything about giving the government "limitless" power? On the contrary, I specifically mentioned government as an organization whose power needed to be limited.
I am glad to hear that you feel you are in a position to be able to walk away from your job at any time and have no difficulty securing an alternate means of making a living, but I am sure you are not such a solipsist as to assume everybody is as well-off as are you.
S"o what makes the government the one that should hold everyone else in check, while having limitless power for itself?"
Who claimed government was the ONLY means by which we hold each other in check?
But to answer your question, only the government is 1) powerful enough to check the other big powers in society (big business, mob action, big labor), and 2) subject to democratic control.
The basic issue here is what the default assumption should be when an employment contract is silent on a matter. Should the boss be able to impose any rule not explicitly allowed in the employment contract, or should the employee enjoy any privilege not explicitly denied in the employment contract?
My understanding is that most (all?) US states have the concept of at-will employment, meaning that unless an employment contract specifically states otherwise, and with certain exceptions spelled out in discrimination law, you can quit at any time or be fired at any time. The basic rationale is that an employer is better equipped than a court to determine if somebody is performing, and that you shouldn't need a lawyer to fire the asshole who demands to know "Where in the employee handbook does it say that I can't write 'my boss is a jerk' all over the restroom walls?"
Of course, it also means that some real assholes can use their power to enforce their whims in ways that have zero connection to job performance, e.g. the guy who fired somebody for having a Kerry bumper sticker on his car.
As to whether and how this should be changed, I'm going to tick off both sides:
In principle I would have little objection to a law stating that you can't fire somebody for petty matters that don't have any real connection to work. I know, I know, freedom of association, but I would have a hard time getting upset over a law that only affects assholes who abuse their power over others.
In practice I worry that the cure might be worse than the disease. For every asshole boss who can't dictate your bumper sticker anymore, how many asshole co-workers will decide to test the new limits and see just how far they can push? And how many of them will make your job more difficult in the process? In principle such a law shouldn't make it any more difficult to fire the guy who's disruptive and impossible to work with, but in practice we all know that such a law will make it harder for a lawsuit-averse employer to fire him without thorough documentation.
Anyway, if those who want more restrictions on firing people can prove to me that the cure is better than the disease then I'll jump off the libertarian bandwagon in a heartbeat. I only joined this bandwagon for practical reasons anyway; it's never been a religious matter for me like it is for some. But, sadly, we all know how frequently new laws fail to live up to expectations: Even more frequently than the asshole in the cubicle next to you.
Thoreau-
I agree that just about any law can be abused; hell, we need laws against rape even though there HAVE been men falsely accused of it, but the number of people who suffer with the law is less than the number who would suffer without it.
How about this, for starters: "People cannot be fired for off-the-job behavior which does not affect on-the-job performance?" This way, the guy who spray-paints "My boss is an asshole" at work can still be fired, as can someone who gets drunk every weeknight and arrives at work too hungover to do his job, but the lady with the Kerry bumper sticker, or the Weyco employees who smoke on their own time, cannot.
the number of people who suffer with the law is less than the number who would suffer without it
Is it? I don't know enough to say one way or the other. There are a number of factors to consider:
The easiest to measure is the number of frivolous lawsuits created by such a law. Those frivolous lawsuits are just part of the cost of compliance (which also includes measures taken to avoid even more lawsuits). Compliance costs tend to increase the cost of doing business, and anything that increases the cost makes it harder to expand a business or start a business (and hence create jobs). I'm not saying that such a law would lead to an immediately measurable jump in the unemployment rate, but every factor that increases the cost of doing business helps to slow job creation. It all adds up, even if it's tough to point to any single factor and say that this is the straw that broke the camel's back. Also, any increase in the cost of doing business gets passed on to consumers.
I don't know how to measure this, but I understand that economists have ways to estimate costs associated with things like regulatory compliance.
Finally, I know that countries with more heavily regulated labor markets generally have higher unemployment rates. I don't know if any of the regulations in those countries are specifically analogous to what you would support, but I think the issue needs more study before we assume that the only effect (or even dominant effect) of a law would be to rein in assholes who abuse their power.
Finally, I want to emphasize that my concerns are pragmatic: Regulation frequently increases costs to consumers and increases unemployment. You'll never hear me say the stuff that a lot of H&R posters say, like "Suck it up! If you don't want to put up with constant harassment and humiliation then go find a new job and stop complaining!" I'll never say "It's every employer's absolute right to treat people like shit unless he's signed a contract specifically forbidding the shitty acts in question."
If you can prove to me that this regulation will mostly just rein in some assholes while creating relatively few costs (that result in fewer jobs and more expensive products) then I'll concede your point. For me the merits of the free market are something that I deduce from observations of how it tends to benefit workers and consumers, not somethin that I assume as an article of faith.
Oh, I should say something about data and the burden of proof:
The general trend seems to be that more heavily regulated labor markets result in higher unemployment rates. Because that is the general trend, the burden of proof should be on people who want to argue that some particular regulation will actually improve the overall well-being of workers. If the general trend was that regulations had little or no negative impact then the burden of proof would be on people who oppose new regulations.
Also, I want to emphasize that my concern here is societal well-being. Some libertarians seem like they would be happy to argue for laissez-faire even if it led to some sort of scorched-earth nightmare where a handful of plutocrats rule over the starving masses, i.e. a capitalist version of North Korea. If that were the case, if free markets really did lead to some sort of nightmare scenario, I would ditch the free market without hesitation. It embarasses me when some libertarians argue that the nightmare scenario would be just and moral because it's free: Not only are they morally repugnant, they're dead wrong on the facts.
Finally, Jennifer, what percentage of firings do you think would or should be covered by laws like the ones that you have in mind? If the percentage is tiny, I have to wonder whether it's worth risking unintended consequences for such a tiny number of cases.
Thoreau-
I'll admit I have no idea how many folks get fired for bogus reasons. If Weyco and the anti-Kerry-bumper-sticker guy turn out to be the only companies that fire people for reasons unrelated to work, I'd oppose passing a law just for the sake of those five people. But I don't think that's the case.
Human nature being what it is, I think there WILL be more bogus firings, and eventually there WILL be a law passed to stop them. When all that happens, we'll see what we'll see, I guess. I'd settle for a law stating that requirements for employment must be stated up-front in the contract, and can't be added later. I have no complaints about Weyco not hiring smokers; it's firing the ones already there who stick in my craw.
By the way, I never thought you were one of the "Scorched-earth" libertarians.