Tobacco

Scott v. Scotts

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A Massachusetts smoker is suing the Scotts lawn care company for firing him after he tested positive for nicotine. Scott Rodrigues claims the company violated his privacy and his civil rights when it enforced its policy against smoking on or off the job. Scotts, which is self-insured, says the policy is aimed at controlling its health care costs.

As I've said before, a private company should be able to hire whomever it wants on whatever terms are mutually acceptable. No one has a right to a job, let alone a job on terms that he alone dictates. Rodrigues is especially unsympathetic because he knew about the no-smoking policy and agreed to abide by it when he started working for Scotts.

His lawyer warns of a slippery slope: "Next they're going to say, 'You don't get enough exercise' or 'Both your parents died of a heart attack at age 45 so we don't want to hire you because you're more likely to need medical care.' " It's worth noting that the prospect of increasingly intrusive health-related demands by cost-conscious employers is plausible mainly because of the artificial link between employment and health insurance created by a tax policy that favors health coverage over extra cash as a way of attracting employees. If this distortion of the job and health care markets were rectified, employers would be less likely to care about their workers' risky off-the-job habits (unless they affected job performance). But given that companies do end up paying for their employees' health care, I don't see why they should be legally compelled to ignore employee characteristics that raise those costs.

[Thanks to Paul Strigler for the link.]

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  1. Outstanding post Jacob. You hit the nail right on the head. Just one little nit to pick.

    If this distortion of the job and health care markets were rectified, employers would be less likely to care about their workers’ risky off-the-job habits (unless they affected job performance).

    No, even if it affected job performance, they would only care enough to pay them less (because they performed poorly). I doubt they would care enough to extract bodily fluids.

  2. No slippery slope. Sports teams have been doing this for years: many athletes have clauses in their contracts which prevent them from engaging in risky activities like skiing, motorcycle riding, etc.

  3. Lets say I own a company and want to hire only white men, since they have lower diebetes rates. Is that OK?

    What if I own a reastruant and will only hire watresses that will sleep with me, is that OK?

    What if I want to hire a low skill worker who is only worth $4.15 an hour, is that OK?

  4. “the artificial link between employment and health insurance created by a tax policy ”

    No, it was created by war suppliers during World War two as a way to keep and attract workers, and continued after that. Tax policy just encouraged and institutionalized it after that.

    That said, this is also due to the clueless idea that everyone should pay the same for health coverage. Why? We pay different rates for car, home, life and other forms of insurance based on our record of behavior, location and other risk factors. Why NOT health?

    Instead of firing the smokers, have them pay a surcharge based on the extra risk.

    Oh, I forgot. In this country being made to face the consequenses of ones choices or ones situation, voluntary or not, is heartless and evil.

    I have always wondered why it is not heartless and evil to make innocent bystanders, (in this case non-smokers), bear those consequences instead, by paying higher insurance rates to cover the break given to smokers.

    All the same can be said for those that do not exercise, have bad family health histories, engage in risky behavior like sky diving, drug use, bareback ANYTHING, etc.

  5. Good post – though there is a fix besides the tax code. Companies that keep too close an eye on employees’ off-duty habits may have a hard time attracting new hires away from their less stringent competitors, so they have a built in incentive to keep their intrusiveness to a minimum.

    Or so the theory goes. We’ll see how that all works in real life…

  6. sam_h
    Yes all those are OK

  7. This shows that it is not only government who thretens the liberty of individuals. Employment drug tests and other restrictions on private behavior off the job site are in my mind just as onerous and wrong as government restrictions. This will not be popular with the uber-libertarians here, but most people don’t care who is shackeling them just that they are being shackled.

  8. Yeah, I remember back in 19xx when Denny’s was accused of not giving good service to their black customers. They ended up loosing a lot of respect, getting picketed, boycotted, and had to invest millions of dollars trying to get back their family-friendly image.

    Isn’t that enough protection against racism? Why should they had to pay a 50 million dollar settlment on top of that?

  9. The difference, gee, is whether the association is voluntary, as in employment, or involuntary, as in gov’t enforced.

    Thanks for the teaching moment.

  10. gee,
    The difference is, in one case you consent to be shackled, usually in return for trinkets and shiny stuff. In the other, you’re being shackled by thugs with guns and riot gear, and they take your trinkets and shiny stuff too.

  11. Also, what’s to stop this guy from getting another job? This is the first case I’ve heard of where some one was fired for smoking ‘grits (I’m urban, yo), so I am pretty sure there is a large job market out there for ciggerates-smoking gardners.

  12. Gee’s hypothesis: The company causes Scott to be unemployed.

    Test: Take away the company

    Result: Scott is still unemployed

    Conclusion: The company didn’t _do_ anything against Scott. It just stopped employing him. Scott, gee, and I have been not employing each other for years.

  13. Warren,

    You stepping on my toes, you pot smoking Republican, you?

  14. Repeating myself:

    We will get some sort of national healthcare system, and it will be the major corporations and employers (private sector) who will push for it. They’re tired of picking up the spiraling insurance tab for their employees, and they wanna stick it back to the government, read taxpayer.

  15. What ever happened to that Micheal Moore project about Medicare that was supposed to come out? I think I read about it back when B4C came out.

  16. Jacob, highnumber,

    Post like this that say this is an example of free association completley ignore the fact that the drug testing regime that makes such a policy possible would not exist if it were not for government interference in the employment market.

    The government has spent millions of dollars and considerable governmental efforts mandating, encouraging, legislating, and subsidizing employment related drug testing.

    The feds are the root cause of this situation, and that is why free association arguments on this topic are ludricrous and stunningly ignorant of how the situation developed.

  17. The government has spent millions of dollars and considerable governmental efforts mandating, encouraging, legislating, and subsidizing employment related drug testing.

    The feds are the root cause of this situation, and that is why free association arguments on this topic are ludricrous and stunningly ignorant of how the situation developed.

    Whoa, that was nasty. True, but nasty. I love it!

  18. most people don’t care who is shackeling them just that they are being shackled.

    Most people also don’t mind shackeling others for engaging in behavior in which they don’t personally partake. For the Hillary crowd it’s recreational shooting and the Santorum crowd it’s recreational sex.

  19. “Sports teams have been doing this for years.”

    Pro sports are an institutionalized monopoly and can hardly be compared to wage paying jobs.

    “Instead of firing the smokers, have them pay a surcharge based on the extra risk.”

    This is the best solution, though the drawback is that companies would have to dig into every last risk factor to see who pays what. Do we hire private eyes to see if Sally the Secretary jay walks or speeds?

  20. Sorry Jacob, but I’m getting tired of the “freedom of contract” mantra as it applies to employment relationships. That “freedom” is often code for stronger parties to impose terms and conditions on others that they would never accept for themselves. And let’s face it, in most cases the prospective employer enjoys the upper hand- after all who asks whom for references. As long as employers can fire on a whim and send the victim’s life into turmoil, abusive conditions will always exist in the workplace. I know, I’ve been there.

  21. TJIT, you’re right, of course, that widespread testing for certain psychoactive drugs is a product of prohibition (a point I’ve made in Reason and elsewhere). But that does not mean companies like Scotts would never choose to test for nicotine as a way of enforcing a no-smoking policy if it weren’t for the war on drugs. Depending on the health care savings involved in avoiding smokers, the cost of the tests might still be justified.

  22. highnumber,
    What do you mean Republican? You’re killing my buzz.

    PS sorry about your tootsies but with a wry cool wit like mine people are gonna get hurt

  23. jtuf typed:
    Gee’s hypothesis: The company causes Scott to be unemployed.

    Test: Take away the company

    Result: Scott is still unemployed

    That’s one of the nicest logical counterarguments to employment-on-demand I’ve seen!

  24. This is the best solution, though the drawback is that companies would have to dig into every last risk factor to see who pays what. Do we hire private eyes to see if Sally the Secretary jay walks or speeds?
    On a side note, I recently read in the Miami Herald about how this one company is imposing a “fat tax” where the fatty food in the vending machine is an extra dollar to help fight raising health care costs.

  25. My first ever post here on Hit&Run!

    Philosophically I’m inclined to agree with the analysis here, that Employment at Will means nobody is entitled to a job and so he needs to get over getting fired. In practice, however, the state of Massachusetts has been more than willing to define any number of reasons why someone can’t be fired. It’s actually quite difficult in that state to fire anyone without getting sued for wrongful termination. So, in this case, I say go ahead and sue. To do otherwise would imply consent to the further demonization of a segment of the population who are engaging in a perfectly legal activity.

    Also, the courts have been pretty consistent that you can’t tell someone who is treated unfairly that they have to accept it because they chose to work there. It doesn’t work for women who sue over a hostile work environment and it doesn’t work for bar owners who want to allow smoking in their establishment. So again, while I understand the freedom of association argument in theory, legally it won’t fly.

  26. Am I the only person who sees the irony in a CHEMICAL SPRAY company banning smokers from their ranks?

  27. “That “freedom” is often code for stronger parties to impose terms and conditions on others that they would never accept for themselves. And let’s face it, in most cases the prospective employer enjoys the upper hand- after all who asks whom for references.”

    Right on Bill. I too lean libertarian but cannot take their “employer is king” silliness. If one prizes ones liberty, then one should realize that in ones everyday existence it is your employer, not the government, who orders you around all day. People of unequal bargaining power are “free” to contract only in an absurd sense. They are free in the same sense as homeless people and rich people are “free” to not sleep in the park…A libertarian who wanted to maximize the liberty of people would urge restrictions on business as well as government, in fact, they would at times be willing to have the government tie businesses hands (at least we have SOME say over the government).

  28. Ken, Urge restrictions on business because we control government?

    In the market, if I am industrious, if I elevate my skills, get an education, form alliances, I can tell my lousy boss to kiss my ass.

    In the government arena, if I am curious, if I challenge the dogma of big government, if I associate with like-minded individuals, if I put a mildly intoxicating weed in my lungs, I get to go to jail, the government takes all my shit and I might get killed.

    Your premise is just Chomsky in blue jeans and flannel.

  29. “But given that companies do end up paying for their employees’ health care, I don’t see why they should be legally compelled to ignore employee characteristics that raise those costs.”

    So long to the fat, the black, the short, the tall, etc. And let’s see a little DNA there fella, so we can analyze it for possible genetic disorders or indications of future problems.

    Care to live the Gattaca life? Anyone, anyone, Bueller?

  30. (at least we have SOME say over the government).

    Wow, Hit and Run has people crossing over from parallel universes now.

    What a place!

  31. Sam_h

    “What if I own a reastruant and will only hire watresses that will sleep with me, is that OK?”

    I’d suggest you phone an ‘escort’ service. Cheaper overall and no long-term commitment.

  32. So let me get this straight social engineering my the government — BAD — social engineering by corporations — GOOD. I’m not sure I quite agree. If all the 100+ employee companies out there start monitoring what you eat and whats in your blood and whether you breast feed your kid or your house has too much mold in it and starts making demands — I got some real issues…sure its voluntary in the sense you could go work for a small company, start your own or join a commune but what if your profession/experience lends itself mainly to employment in a large company?

    Even in libertarian theory if this kind of private nanny state is peachy keen I hope it still makes most libertarians a bit queasy, it certainly does me.

  33. Care to live the Gattaca life? Anyone, anyone, Bueller?

    The “Bueller” line only works after you have waited for a response and not received one.

  34. Ken, when your boss blows down your door and seizes your treasure, I’ll try and buy your argument.

    Until then, I’ll take my imperfect freedom to contract over the coercive, armed hand of the the federal government.

    More regulation on businesses???? Perhaps the reason your are so presumably unsatisfied with your career is your job sucks.

    Consider this: the reason you can’t find a satisfying career is because the statist nannies at all levels of government have so restricted the ability of entreprenuers to follow their dreams, that the natural progress of the market-network has been bottled up.

    The nature of the market is to adapt, but your boss treats you like dirt in part because he knows that the government has made it so very difficult for the market to acheive efficient ends.

    Here, an efficient end might be you having a job that you don’t hate enough to actually ASK for government nannying to protect you from!

  35. So let me get this straight social engineering my the government — BAD — social engineering by corporations — GOOD.

    More or less, yes.
    While I have heard cogent anti-corporation arguments, this argument is not one of them. How difficult is it for a competing company to have policies that draw the trans fat slurping, bourbon chugging, cigarette smoking losers like myself?

  36. There is one core and critical question regarding health care that MUST be answered before wandering off into the wilds of whats, and wheres, and hows, and what’s best:

    1) Do you advocate allowing people to die due to inability to pay?

    That’s the critical first question that MUST be answered: If inability to pay — whether due to laziness, bad luck, chronic health conditions, whatever — means that treatment is denied and the fellow in question is left untreated — the conversation goes one way.

    If you cannot accept that, then the conversation has to go another way.

    Both mandate entirely different solutions.

    I’ve found asking that question — and it’s necessarily a blunt one — cuts through a lot of the crap. Too many people disengeniously try to have it both ways.

    So, to the group at large: Which is it for you?

  37. What if I own a reastruant and will only hire watresses that will sleep with me, is that OK?

    You should run for president, then getting blowjobs from your employees gets you respect, even from feminists.

  38. 1) Do you advocate allowing people to die due to inability to pay?

    No, that’s why I’m glad that there are charities and aid organizations and that doctors don’t refuse treatment for life threatening situations.

  39. Did that fix it?

  40. There is a huge difference between Dr. Jones saying “You can’t pay? I will treat you anyway.” and the government telling Dr. Jones “He can’t pay. You will treat him anyway!”

  41. “In the market, if I am industrious, if I elevate my skills, get an education, form alliances, I can tell my lousy boss to kiss my ass.”
    Are you kidding? If the person who inherited capital wants to, he will hire his dumb-ass nephew, not you. In fact, he will hire you and make you serve his nephew. You say “Oh but he will suffer for hiring his nephew instead of my talented self.” Well, not if he has so much money that he has better advertising, etc. And he will whip the competitor who hired your oh so talented self. Who thinks Britney Spears is more talented than Beethoven? Yet she beats him in the magical mystical market every day….It ain’t perfect guys. And because of a lot of human imperfections the market ain’t perfect. Protections for workers are good, as the majority of people ARE workers and this maximizes liberty in the world.
    BTW-another person posted as KEN, but that wasn’t me…

  42. Morat20, Fair enough…I do not advocate death as a result of denial of care.

    On the other hand, I do advocate death as a natural consequence of living. If an informed individual chooses to engage in dangerous activities, they rightly ought to die sooner.

    The key is “denial”. No one should be denied healthcare, but if the provider says “stop eating ice cream for breakfast and jumping out of moving cars”, the recipient has a responsibility to cut it out or risk being denied next time.

    Rational individuals in any given market react to conditions in a way that maximizes their benefit and gives them satisfaction. If I want to fuck strangers, drink excessively, or eat everything in sight, I must be trusted to know what is right for me. If I know going in that my resulting medical issues may be ignored, I am okay with dying.

    Hope I die before I get old…

  43. Ken, no shit the market ain’t perfect.

    Instead lets appoint you in charge of income redistribution (no more rich uncles), popular culture(no more Brittney’s cooze), and the intrusive media (no more huge advertising budgets to ruin our…your good taste).

    Oh, wait the Soviets already tried that.

  44. I can almost buy the argument that says, corporations are too big and evil. Heck WallyMart has a larger ‘GDP’ than lots of countries and theoretically more power. The chink in that armor comes when you ask where they get that power and money from.

    They get it from customers, the “X” factor in the equation who have been, thus far, ignored. Customers have access to information and can vote with their dollars. If customers feel the corporate policy is evil they can vote for another company. Scott should complain to the corporate customers. Notice that a lawsuit does not necessarily involve customers and ideally, for the complainant, doesn’t want it customers on the jury because they might vote for a cheaper product or a lower pay rate for Scott.

    This can’t be said about gov’t because there often isn’t another choice. Moving may be a choice but if you have cash, Uncle Sam will still demand your payment because only poor people can surrender their nationality simply by telling a bureaucrat to piss off.

  45. “As I’ve said before, a private company should be able to hire whomever it wants on whatever terms are mutually acceptable.”

    As I’ve said before, the power imbalance between coorporations and their employees requires that the former be restrained in their behavior, or they will severely impinge on the liberty of the latter.

    “No one has a right to a job, let alone a job on terms that he alone dictates.”

    No corporation has the right to dictate how its employees behave on their own time.

    “It’s worth noting that the prospect of increasingly intrusive health-related demands by cost-conscious employers is plausible mainly because of the artificial link between employment and health insurance created by a tax policy that favors health coverage over extra cash as a way of attracting employees.”

    It is worth noting that the prospect of increasingly intrusive health-related demands by cost-conscious employers is plausible because of the artificial link between employment and health insurance created by a health coverage policy that favors tax breaks over a universal, public system of health care.

  46. Eddy,

    Customers can plausibly vote with their dollars about how they are being treated as customers. They have adequate to exercise power as customers interacting with suppliers, for the most part. The government, btw, has been an essential part of creating this situation.

    They cannot plausibly vote with their dollars about the internal business practices of corporations, even the ones whose customers they are. Their status as customers, which serves them so well in gathering the information they need to pursue their commercial interests as customers, is of little of no use in gathering the information they need as members of society interacting with, or being influenced by, corporations in non-transcatory ways.

    The love-hate relationship the public has with Wal-Mart proves that.

  47. Morat20, I think you need to rephrase that question a bit. No matter what health care system we use, there will always be some people who don’t get some treatment that could let them live some extra amount of time, since we don’t have infinite resources to give everybody every treatment he wants, even if we wanted to. I don’t have a really deep problem with the “guarantee everybody some minimal care, so that an otherwise-potentially-productive 25-year-old doesn’t die from pneumonia or an infected cut”-though I could make a case against it, and others on this board will. On the other hand, we don’t need to pay for multi-million dollar treatments that will on average grant the recipient an extra week or two of life. The question is where on that axis you want to draw the line.

    On the other hand, you’re right that a lot of people don’t want to admit the tradeoff. For instance, some people frame the issue as if there’s a binary choice between “letting people die from an inability to pay” and not, when in fact the former is impossible. If you claim either that 1) we can provide all the treatment people want so that no one has to die, or 2) that no one will ever go without necessary basic treatment even if there’s no subsidy, is being disingenuous.

  48. I understand the abstract philosophical arguments here.

    If person A is not violating person B’s rights by refusing to give person B something, or by acting in a way such that person B lacks certain options;

    then it follows that…

    Person A would not be violating person B’s rights by threatining to refuse to give person B that thing or threatining to act in that way in order to get something from person B.

    This line of reasoning applies to alot of areas and explains many of the libertarian conclusions that a majority of people find absurd. I would however, like to consider the following hypothetical situation:

    Suppose libertarian utopia is established. A person is looking for a job and is willing to do any kind of work for any wage that allows him or her to earn enough to meet his/her basic needs. However, nobody anywhere will hire this person, and the person does not own anything except the clothes on his or her back. Also, there is not enough charity to go around so this person cannot depend on private philanthropy.

    According to libertarian theory, it seems that the only thing this person has a right to do (and also in practice the ability to do) to stay alive is go out into the wilderness and hunt and gather food.

    So now, the job-seeker is in the store of the last employer in the world (for argument sake). It happens to be a food store. The employer says “Yea, I could hire you for this position, and it would be a good deal since you’re willing to work for a low wage, but I just feel like turning you down.”

    My 3 questions are:

    Would this person (who is out of money) be justified in taking some food and running (if it makes any difference assume its a negligable percentage of the store owner’s bottom line)?

    Would you blame the person for doing so?

    Is there any penalty you would feel comfortable imposing for such theft that would be likely to deter a rational person in this situation?

  49. joe,
    All too true, but my point was that Scott may find that the interest of consumers lies closer to that of the company than his. As is the case here, internal business practices… aren’t, otherwise this topic wouldn’t exist.

    Worse yet, even if we assume the consumer has perfect information, they will side with the company since it will likely adversly alter their own bottom line. People are basically animals and for the most part talk a good game with respect to “doing the right thing” (whatever that means) but their dollars say otherwise. As Wal-mart love-hate thing so aptly describes.

    Given perfect information, consumers have the ability to alter business practices because business is directly accountable, right now, whereas government is not.

  50. BG,
    My three answers are:
    No
    personal opinion, yes
    The store owner has that option, not me.

    That said, the problems with your arguement are many. First you assume the person has no ability at all. Willingness is not the same as ability. If they have no ability they would not be able to hunt or gather either.

    You also assumes that there is insufficient charity in a “libertarian utopia” without reason or evidence. Many people assume that the US is a bunch of cheapskates compared to the rest of the world when it comes to international aid because they only look at the money that comes from government. They ignore the fact that gov’t is a poor institution for distribution of charity. Also ignored is the billions of dollars given from US residents to charitable NGOs that international citizens simply can’t match even taking purchasing power parity into account.

    There is nothing stopping any person with ability from creating on their own business other than government roadblocks which wouldn’t exist in a libertarian utopia.

  51. Ken,

    Maybe we should live by your standards for a few years and see what kind of a world it turns into. Let’s have every misserable and every benevolent inhabitant vote over what things are good and what things are bad.

    But wait! First we should educate everyone in a massive way about what people like you (the majority) think these young folk should learn….in fact we should gather all of those born and put them in state institutions for 13 years; molding them into what we see fit for public use and display.

    Let’s have this go along for saw a couple hundred years. Let’s smother individualism bit by bit until we all have the same ‘majority’ views that people like yourself hold.

    This is the kind of bullshit we end up with. Thanks.

  52. As I’ve said before, the power imbalance between coorporations and their employees requires that the former be restrained in their behavior, or they will severely impinge on the liberty of the latter.

    Bullshit. If a corporation didn’t have people working for it, or perople buying from it the corporation would no longer exist.

    And even if it were true, the idea of men with guns coming to rectify the problem is the thinking of a petty, potential Stalin.

  53. So long to the fat, the black, the short, the tall, etc. And let’s see a little DNA there fella, so we can analyze it for possible genetic disorders or indications of future problems.

    Hello to liberty and efficiency.

    I tend to believe if business were given a free hand to do as it pleased that inequality would increase but the economic pie would get so much bigger that everybody’s living standard would go up regardless.

    Anyone who has ever worked a real job sees the difference between the efficient and inefficient. One wouldn’t expect Hollywood or academia to understand.

  54. joe: “No corporation has the right to dictate how its employees behave on their own time.”

    Sorry, but that’s one of the more idiotic things you’ve written, because you know it’s not the least bit true.

    Let me introduce to you a common law concept called a CONTRACT.

    A corporation has every right to dictate an employee’s behaviour on his/her own time, if said employee signs a contract including such terms.

    To convince me (and a court of law) that the corporation has no legal right to expect the employee to abide by the terms of the contract, you would have to demonstrate one of the following:

    The employer misrepresented the terms.
    The employee did not receive consideration.
    The employee was not a competent adult.
    The employee signed the contract under duress.

    FYI, “duress” is defined as “threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.”

    So, do you still want to argue your point, or can you just admit that you don’t know what you’re talking about.

  55. Eddy

    This was a hypothetical example, not a prediction of what would actually result from the consistent implementation of libertarian policies.

    You might be correct that there would be sufficient voluntary charity in an fully libertarian society so that nobody would end up in a situation like the one I described.

    In my example, I was not suggesting that all employers were necessarily rational in rejecting the applicant. So I am not necessarily assuming that the person has “no ability at all”. Also, to start most businesses you need at least some startup capital, so unless someone was willing to loan this person money for such a venture, starting a business poses some of the same problems as
    finding a job.

    I agree that in a completely free market, where all (or at least most) economic actors were completely rational, it would be easier both to start a business and to find some kind of job.

    The idea behind my question was to apply abstract principles of justice to a hypothetical situation to determine what would be just or unjust.

    The store owner has that option, not me

    Ok, what penalties should the store owner be allowed to impose if the person is caught after having eaten the food?

  56. One point that I haven’t seen covered here:

    1) The employee [Rodruguez] entered into a contract with the company in exchange for the benefits of working for that company.
    2) Rodriguez violated that contract and was dismissed.
    3) Rodriguez is claiming that, despite that violation, the company had a) No right to do the tests that led to the discovery of the violation & b) No right to enforce the sanctions for violation implicit in the original contract.

    Assuming we were to accept Rodriguez’ position and require that the company continue to employ him, the logical consequences are:

    I) The company’s group insurer would determine that it could not provide the coverage at the present price & would therefore raise the premium substantially.

    II) If the company could not afford the new premium, it would have to cancel the benefit.

    III) ALL employees of the company would therefore lose their coverage because Rodriguez violated a contract.

    Is that what you want, Joe et al?

  57. A few things:

    1) According to the article:

    He had previously received a written warning after a supervisor saw a pack of cigarettes on the dashboard of his car. At the time of the test, Rodrigues — who was aware of the policy when he was hired — was trying to kick the habit and had cut back to about a half-dozen cigarettes daily. He believes the Nicorette anti smoking gum he had been chewing may have contributed to his elevated nicotine levels.

    The contract says that he agrees not to smoke. It doesn’t make it clear if the contract also bars nicotine gum. If somebody fails the nicotine test and claims that he was using nicotine gum to help refrain from smoking, what rights does the business have here in regard to investigating his after-hours activities?

    Now, my question is somewhat moot here, because he has admitted to smoking. Granted, he was at least moving toward full compliance with the contract, but he wasn’t yet in full compliance, so, well, that’s how it breaks down. But let’s consider this as a hypothetical?

    Now, I know what the standard answer will be: “Depends on the terms of the contract.” Fair enough. But if there’s any ambiguity, any matter on which the contract is silent, I would say that the presumption should go to him. If the contract says that flunking a nicotine test is cause for termination, even if the nicotine didn’t get into his bloodstream from smoking, well, that’s how it goes.

    But suppose the contract just says something like “We will do blood tests to verify that you aren’t smoking” (translated from legalese, of course), and the blood test that they use doesn’t distinguish between nicotine gum and cigarettes (or other smoked products that have the health effects the company is trying to avoid), I would say that the company is in violation of the contract. The contract says they can do a test to see if he’s smoking. If the test is incapable of distinguishing a smoker from a gum user, then the test isn’t consistent with the terms of the contract.

    Well, could they do something else, like search his house? Again, if the contract says so then, yeah, that’s how it goes. But if the contract is silent on that, it would seem like he has every right to say “Mind your own business, this isn’t part of the agreement.”

    I’m all in favor of adhering to contracts, but on matters of personal privacy it would seem to me that the presumption should favor personal privacy, unless the contract is very, very specific. Contracts may be privately negotiated, but they are enforced by courts and cops. Unless the contract is very, very specific on a matter that infringes on personal privacy, it would seem to me that a party to the contract should be able to say “Sorry, you don’t get any leeway there. This is my own private matter.”

    2) BG poses a very unrealistic scenario. I would like to say that his scenario is so unrealistic that it should not be taken seriously. What’s fascinating, however, is that when scenarios like this are offered on Hit and Run we often get people who take the bait and adopt rather horrifying stances, rather than just calling BS on the scenario. Which says something rather disturbing…

  58. Shorter version of what I just said:

    If I were him, I wouldn’t have admitted to smoking. I would have said that they have no proof that I was smoking, since the test would also be consistent with use of nicotine gum. (Unless the contract also bars nicotine gum, of course.) And if they tried to fire me based on the test I’d take them to court and say that they have no evidence that I’m in violation of the policy.

    Of course, with “at will” employment they could just can me anyway (unless the contract says otherwise, yadda yadda yadda), but that’s a separate issue. The issue here is the enforcement of a particular policy that the company is citing as the reason for dismissal.

  59. Of course there is another way to deal with the dictatorial social meddling of corporations in the private lives of employees – the workers can always organize. That would be OK by me, although it would upset some of the uberlibertarians who can envision no abuse of power or denial of liberty by the bosses as long as they control the money.

  60. Lots of people don’t see or are ignoring the elephant in the living room.

    The government has spent millions of dollars and considerable governmental efforts mandating, encouraging, legislating, and subsidizing employment related drug testing.

    This firing would not have happened if it were not for government interference in the employment market and government advocacy for drug testing .

    All the arguments about free association and contracts are right out the window because government coercion is at the root of this situation.

  61. You guys must have faulty BS meters.

    It’s pretty obvious that a company that employs a large number of working-class men is not going to be able to find a totally smoker-free workforce.

    The whole smoking thing is a pretext for firing people for other reasons, possibly illegal ones.

    Also, what is up with everybody talking about contracts when it doesn’t appear that Rodrigues
    was a contractor?

  62. There is nothing stopping any person with ability from creating on their own business other than government roadblocks which wouldn’t exist in a libertarian utopia.

    Except for, you know, not having any money.

  63. People are getting away from the facts of the case…not that there’s anything wrong with that…

    “Scotts’s policy was announced last year by chief executive Jim Hagedorn, a former two-pack-a-day smoker, and went into effect Oct. 1 of this year, giving the company’s roughly 7,000 employees nearly a year to prepare. All employees are now asked to certify in writing whether they use tobacco, and to update the company if their status has changed. If a non smoker later begins to smoke, that person could be fired, “but that’s not the goal,” said King, the Scotts spokesman.

    “Our goal is not to terminate anybody; our goal is to provide tools to people to stop smoking,” he added, noting that Scotts will pay for employees and their family members to take part in smoking cessation programs. “What we’re trying ultimately to create is a smoke-free workforce, as well as workplace, in states where state laws allow us to do that,” King said.

    Rodrigues said he was treated particularly unfairly because he was fired before the policy had officially taken effect and he was never offered help to quit smoking.”

    To wit:
    “I) The company’s group insurer would determine that it could not provide the coverage at the present price & would therefore raise the premium substantially.

    II) If the company could not afford the new premium, it would have to cancel the benefit.

    III) ALL employees of the company would therefore lose their coverage because Rodriguez violated a contract.”

    The company is self insured.
    The company is violating its own policy (stating that it will help people quit smoking before firing them)
    The company fired Scott before the policy took place.

    This doesn’t change the arguments about the reach of contracts, but it does in regards to the particulars of this case.

    FWIW, it is clear that a contract mutually agreed upon does not allow one party or the other to violate basic rights or commit crimes. If there is reason to believe the company is requiring things as a condition of employment that are violations of rights or laws, they have no cover by pointing to the consent of the other person in the contract.

  64. It’s pretty obvious that a company that employs a large number of working-class men is not going to be able to find a totally smoker-free workforce.

    The whole smoking thing is a pretext for firing people for other reasons, possibly illegal ones.

    There should be no illegal reasons for firing people any more then there are no illegal reasons for not letting somebody into your house.

  65. The question is not whether the government should “allow” employers to set such conditions for at-will employment.

    The question is what kind of FREE MARKET would allow it.

    We need to eliminate all the kinds of government intervention that restrain competition among capitalists so that workers are competing in a buyer’s labor market, so that jobs are competing over workers for a change. Workers need to be the ones with the power to walk away from the bargaining table, and the laws are set up to tilt the balance in the other direction. As Adam Smith said, when government regulates the relation between workmen and their masters, it usually has the masters for its counselors.

  66. Regarding the hypotheticals above, any time someone refers to a libertarian utopia, you can start ignoring them.

    (If you’ve ever referred to a libertarian utopia, don’t feel bad. Going forward just remember that libertarians are not trying to achieve utopia, just a fairer system than we have now. We don’t want to perfect the world, we just want the gov’t to stop screwing it up.)

  67. highnumber

    I didn’t think too carefully about the technical problems entailed by using the term “libertarian utopia”.

    So, to make the thought experiment something that is not automatically ignored, replace “libertarian utopia” with “society in which the government consistently adheres to libertarian policies” or something like that, without any utopian implications.

  68. Revoke my membership if you want, but fuck the employer in this one. They have every right to place non-smoking contingencies on their health insurance perks, but to require a blood test as a condition of employment is retarded at best, and Godwin-bait at worst. I may deny the coming of libertopia, but I can point to any number of reasons why the right to compell blood tests shouldn’t be a part of any contract, without demonstrable cause.

  69. Regarding the hypotheticals above, any time someone refers to a libertarian utopia, you can start ignoring them.

    Why? Libertarians have an set of ideals, and it seems fair to hypothesize about what life might be like if those ideals became policy.

    I mean, if you’re going to say “markets should be totally free”, then expect somebody to say “well, here’s a problem that might come up if that were the case”.

    Ignore them if you like, but that’s going to be seen as something of a concession, isn’t it?

  70. AOL Time Warner just introduced a new quirk in their employee health insurance policy. They raised their premiums, and then introduced a voluntary program where, in exchange for agreeing to fill out a bunch of health questionaires and agree to monitoring by one of the nurses in the program, the company would rebate most of the cost of the increase. So employees could agree to more intrusive monitoring by the employer, or agree to pay more for their health insurance.

    … at least it was an either/or scenario, instead of “you’ve got drug testing!”

  71. tomWright | December 8, 2006, 4:54pm | #
    “the artificial link between employment and health insurance created by a tax policy ”

    No, it was created by war suppliers during World War two as a way to keep and attract workers, and continued after that. Tax policy just encouraged and institutionalized it after that.

    Tom, you’ve almost got this right. The reason employers piled on fringe benefits during WWII was because they were operating under wage and price controls. Offering $X worth of health insurance premiums was a way to evade the controls. The Feds could have ruled that the cost of health insurance be counted as part of a worker’s wages for the purposes of the control regime, just as IRS could have declared it taxable compensation. But the New Dealers running D.C. liked the idea of universal coverage, and were fine with treating health insurance as an untaxable fringe benefit until such time as a comprehensive government system could replace it.

    That said, surcharging those who participate in high-risk behaviors (or giving discounts to those who avoid them – same difference!) isn’t unknown. Life and auto insurers do that.

    Kevin

  72. Russ, you have no right to bully joe here, because you are leaving out quite a bit about contract law. Courts have actually created a ton of protections for weaker bargainers, including employees. It’s part of a long tradition of common law in the area of contracts. I happen to think they are right about this.
    I also want to respond to all the slippery slopers whose reply to anyone who wants the government to do something is “take a look at Communism.” Hey, even dogmatic libertarians think government should do SOMETHING (usually like enforce contracts, police, etc). But hey, won’t having police lead to Russia? No, and we can have reasonable liberty maximizing government regulations without “smothering individual freedom” bit by bit. Sometimes to tie one persons hands may free up thirty persons hands. Corporations have immense advantages over labor when bargaining (they have combined resources, interestingly when individual laborers counter this with combined numbers and concerted action, i.e., unions, libertarians start to go ape-shit). Government can sensibly bring some balance to this in a way that maximizes liberty for the many without too much violation of fundamental rights for the few (so the corporation loses its precious right to have non-smoking employees…big deal).

  73. Jesus Christ, libertarians really are a business-worshiping cult. This is too creepy even to troll in.

  74. Unions are no more un-libertarian than corporations, joint-stock companies or business partnerships. The only thing we minarchists kick at is the mess of restrictions on rights of both individual employees and employers that is labor law. I’d even allow closed shops in the private sector, as long as employers weren’t forced to agree to them.

    Kevin

  75. Dan T.
    Except for, you know, not having any money.

    I managed to start an LLC for about $200 just last year and all of that money went to the state. The bigger hassle was dealing with all the nanny government B.S. paperwork. I hate to think how much more I’d have to do if I had employees. So perhaps you should say, except for not having ability and will.

    To get back on topic. I find it a bit funny that the same people who will make up the jury pool will be the same ones who agree with crazy high cigarette taxes. Oddly they won’t see the parallel.

  76. JB, if you think that libertarians are “business worshipping”, then you should stick around and see what we say about corporate welfare queens like Bechtel, Haliburton, and ADM.

    You’re one of many, many people who have been fooled by the shell game of believing that liberty itself is the problem, rather than the abuse of state power by corporations.

    -jcr

  77. Eddy, more power to ya if you’ve managed to start a profitable business with no capital whatsoever. But I don’t think that’s realistic for most businesses.

  78. 1) Do you advocate allowing people to die due to inability to pay?

    Yes!

  79. I smoke tobacco. I know it’s stupid. I don’t expect anyone to part with their hard earned money to mitigate the consequences of my own decision. However, Dan T. is free to donate to the J sub D cancer treatment fund.

  80. Oh wait, Dan T. wants everyboby to be forced to donate to the J sub D cancer treatment fund.

  81. If you would have smokers or any other group “pay a surcharge based on the extra risk” on health benefits, you should also give them a discount on social security and pension benefits.

  82. I think a lot of the “uneven relationship” between employer and employee comes from employees not realizing that they do have some power in the realationship. Obviously this will depend on the state of the job market in a given area, but I was recently told by my employer that I could not have the time off for a vacation that I had requested. I told them that I was not willing to negotiate on this particular issue (the details of why aren’t important) and that I was willing to quit the job in order to take the vacation. They basically looked at the situation and realized that it’s better to lose me for one week than for all of them. It’s difficult to take that step sometimes, but employees (especially good ones) have more power in that relationship than they typically think they do.

  83. If you would have smokers or any other group “pay a surcharge based on the extra risk” on health benefits, you should also give them a discount on social security and pension benefits.

    Nope! Too damned consistent. We can’t have any of that.

  84. Hey, I just thought of something. Scott’s is described as a lawn care company. Do they have any of their employees applying insecticide? Nicotine is used as an insecticide. Could this test have detected, not nicotine use off the job, but sloppy work on the job?

  85. Eddy,

    “People are basically animals and for the most part talk a good game with respect to “doing the right thing” (whatever that means) but their dollars say otherwise. As Wal-mart love-hate thing so aptly describes.”

    The spending of one’s dollars isn’t the only means of expression available to a person.

    “Given perfect information, consumers have the ability to alter business practices because business is directly accountable, right now, whereas government is not.”

    A. They don’t have perfect information. B. Even with perfect information, their material needs still constrain their choices. C. Government is accountable in one way (democracy, one man one vote) while business is accountable in another way (market forces, one dollar one vote).

    Chalupa, juvenile outbursts laden with profanity and hysterical moaning about communism, in the place of reasoned discourse, is pretty much all you’re good for.

    Russ R,

    Restrictions on contracts are a vast segment of the law. Go try to enter into a contract to pay someone for a blowjob, and let us know how it turns out. Anyway, my statement was proscriptive, not descriptive.

    thoreau,

    The specific case you mention (the inability of a blood test to distinguish between smoking cigarettes and chewing Nicorette) is a subcategory of the general case (the inappropriateness of your boss dictating what you do on your own time).

    To those of you who do not consider being fired for what you do when you’re off the clock to be un-coercive, I ask: what if I told you that I was going to get my little brother, your boss, to fire you because I didn’t like the fact that you were reading a libertarian magazine. Coercive? Damn right.

  86. Joe,

    Do you have a single libertarian view? If not, then why the hell are you even here? This is not the place to get into deep debates about political philosophy, which is why most people stick with their ideological kin on internet message boards.

    And you can go fuck yourself, because I ignored you as the masochistic troll that you were until you started the cheap shots.

  87. the artificial link between employment and health insurance created by a tax policy that favors health coverage over extra cash as a way of attracting employees.

    True, but overlooks another important factor – the extremely penalty paid by purchasers of health insurance who are not part of a large group (or if you prefer, the extreme advantage to those who can purchase insurance as part of a large group – same thing). In my experience this is the factor that keeps the most people in unsatisfactory jobs or prevents them from going into business for themselves.

    I’m not sure those underwriting rules can be blamed on government interference (I think it’s just sound actuarial practice), but it’s a huge reason why the system feels broken to a lot of people.

  88. Sorry Grand Chalupa,

    This…

    This is not the place to get into deep debates about political philosophy, which is why most people stick with their ideological kin on internet message boards.”

    …is just about the dumbest thing I have ever seen posted on H&R.

  89. Well, Chalupa, I believe the proper remedy for your idiotic, destructive speech is more speech.

    And if you don’t think this is the place to get into deep philosophical discussions about politics, then what are YOU doing here?

    It must be unpleasant to have strongly-felt political opinions, and absolutely no confidence in your ability to defend and argue them. I’ve never found myself in that position, but I imagine I’d become outraged to encounter dissenters, too.

  90. The spending of one’s dollars isn’t the only means of expression available to a person.

    True, but it is the most effective.

    Government is accountable in one way (democracy, one man one vote) while business is accountable in another way (market forces, one dollar one vote)

    The sad thing about democracy is that they are allowed to vote away my market force. Mob rule anyone?

  91. “And you can go fuck yourself, because I ignored you as the masochistic troll that you were until you started the cheap shots.”

    How heroic of you chalupa. Now please go back to knobjockeyland, the adults here are having a discussion.

  92. And if you don’t think this is the place to get into deep philosophical discussions about politics, then what are YOU doing here?

    It must be unpleasant to have strongly-felt political opinions, and absolutely no confidence in your ability to defend and argue them. I’ve never found myself in that position, but I imagine I’d become outraged to encounter dissenters, too.

    Well, professor, I used to get into deep debates on the internet, but most of the time if someone isn’t at least in the same ideological ballpark its a time consuming, fruitless exercise.

    Debating freedom with a liberal is like arguing with a born again Christian creationist if the gene or the species is the unit of natural selection. First you’ll have to argue that evolution is true. Then you have to argue away the intelligent design argument. Then you get sidetracked into if evolution and a belief in God are compatible. And you still haven’t gotten to the point you were trying to argue in the first place.

    On the other hand if the other person is also an atheist with a good understanding of natural selection, then we could probably easily have a productive debate.

    In other words, we can start by talking about if government should tell employers they can’t descriminate in hiring.

    Take for example your sentence….

    “Government is accountable in one way (democracy, one man one vote) while business is accountable in another way (market forces, one dollar one vote).”

    There are so many things wrong with that sentence, I could sit here all day deconstructing it. I don’t have the time or inclination to. When business has the right to send you off to war to be killed, throw you in jail for twenty years, have you executed or to do away with government all together then maybe you’d have a good point.

    I’m personally here for the laughs and as an oasis away from anti-freedom forces on the left and right. Not to argue with you over if you have the right to send men with guns to take my money and give it to the bum standing outside.

  93. I respect the company’s rights but why can’t any employee opt out of the insurance plan and still smoke?

  94. The specific case you mention (the inability of a blood test to distinguish between smoking cigarettes and chewing Nicorette) is a subcategory of the general case (the inappropriateness of your boss dictating what you do on your own time).

    Well, joe, I’m coming at this from a more consequentialist perspective: As a matter of principle, I’ll say that if you agreed to it then, well, you agreed to it. But then you start looking at what’s entailed in regulating a person’s after-hours activities (unless they are directly related to his work, e.g. moonlighting for a competitor) and you start talking about things that are pretty damn intrusive. And I’ll say as a matter of principle that if you agreed to something intrusive then, well, you agreed to something intrusive. But, if it’s intrusive then it had damn well better be spelled out very explicitly, otherwise I’m calling BS.

  95. Of course the company does not /have/ to fire an employee who smokes in order to reduce its health care costs. Offering an insurance policy with exclusions against smoking-related illness would have a similar outcome. So this may be a case of an employer moving beyond what is economically beneficial. It fails at that point to be a valid freedom-of-contract case because the choice made here is irrelevant to the manifest purpose of the initial contract (the mutual economic benefit of employer and employee).

    On the issue of a company’s right to fire, a termination for cause is not simply a decision not to employ a person; it is a negative statement about the person’s character and fitness for work and may have repercussions for the employee’s subsequent career. My suspicion is that Jacob’s answer to this is “so what?” — in which case most of his argument is superfluous.

  96. Would this person (who is out of money) be justified in taking some food and running (if it makes any difference assume its a negligable percentage of the store owner’s bottom line)?

    I would say everyone has a right to life, as long as it doesn’t violate others’ rights. Obviously the shopkeeper has a right to not have his goods stolen, but I think the right to life takes precedence. However, it’s not a carte blanche. You can’t kill someone and eat them, you can’t steal food or medicine that is in so short supply that someone else will die because you stole it, and you have the obligation to (in good faith) minimize the harm you do to others. In other words, don’t steal goods about to be sold in a store. Go pick some apples from the ground in a garden where it seems no-one really cares.

  97. To Grand Chalupa I want to say that I think you are begging the question when you automatically classify joe, or myself, as “liberals” and not libertarians. IF a libertarian means we must NEVER support restrictions on business owners right to do as they wish in hiring, then yes, I’m not a libertarian. But why distance yourself from so many people who would otherwise be allied with you on most issues? I can’t speak for joe, but while I am opposed to many libertarians on worker-employer issues and immigration, I find myself behind them on abortion, gun control, drug policy, etc. And btw I am much more favorable to laissez-faire capitalism than the majority of people I work with (I work in academe), prefering Smith to Marx anyday [I just think reasonable governmental intervention in the workplace and contracts in general to balance contracting inequities is legit]. I mean, libertarians can I think debate legitimately if having national defence or a police force is going too far (can we use force [the police] to combat fraud?). If force can be used sometimes to ‘police’ voluntary exchange in the context of, say fraud, then I think perhaps it can be used to police such exchanges to protect parties with very unequal bargaining power.

  98. “Well, professor, I used to get into deep debates on the internet, but most of the time if someone isn’t at least in the same ideological ballpark its a time consuming, fruitless exercise.”

    I find just the opposite. But then, I’m not sent into fits of profane angst when express beliefs different from mine.

    And didn’t “I could kick your ass but it would be a waste of my time” lose its punch around fouth grade?

  99. To Grand Chalupa I want to say that I think you are begging the question when you automatically classify joe, or myself, as “liberals” and not libertarians. IF a libertarian means we must NEVER support restrictions on business owners right to do as they wish in hiring, then yes, I’m not a libertarian. But why distance yourself from so many people who would otherwise be allied with you on most issues? I can’t speak for joe, but while I am opposed to many libertarians on worker-employer issues and immigration, I find myself behind them on abortion, gun control, drug policy, etc. And btw I am much more favorable to laissez-faire capitalism than the majority of people I work with (I work in academe), prefering Smith to Marx anyday [I just think reasonable governmental intervention in the workplace and contracts in general to balance contracting inequities is legit]. I mean, libertarians can I think debate legitimately if having national defence or a police force is going too far (can we use force [the police] to combat fraud?). If force can be used sometimes to ‘police’ voluntary exchange in the context of, say fraud, then I think perhaps it can be used to police such exchanges to protect parties with very unequal bargaining power.

    You may be in the same ballpark, but joe seems to be a Daily Kos liberal, and not very pleasent to talk to either. And no joe, its not because you’re so smart you cause me to have mental breakdowns.

    As for discrimination in hiring, to me its a fundamental human right to be free to assosiate with whomever one likes. If there was some redneck, lets call him Leon, who didn’t allow black people into his house or car we’d say he’s a prick but that it is his right. It would anti-freedom, anti-American, just plain totalitarian and evil to tell him otherwise no matter how much we may dislike his thinking.

    If Leon owns a movie theater or Microsoft, the same logic applies.

    To me at least, freedom to assosciate is right up there with freedom of speech and freedom of religion, a non-negotiable human right and damn whatever results from it.

    Tax policy and right to bear arms we can disagree about. All sane people agree there must be some form of taxation and that private companies or citizens shouldn’t be allowed nuclear weapons. On this issues we’re talking about a matter of where to stop.

    For the right to associate with who you like to be like those issues you’d have to convince me that you have less rights over a piece of property you call a business then over where you eat and sleep.

  100. Eddy,

    “The sad thing about democracy is that they are allowed to vote away my market force. Mob rule anyone?”

    The sad thing about markets is that those with economic power can veto the will of the public. Plutocratic oligarchy anyone? It’s good that we have a mixed economy and mixed political system, so that the two systems of power relations can check each other.

    Anyway, if I pay 30% less for auto parts at a local store, not realizing that the owner can offer those rates because he gets his parts from a chop shop, my actions do not signal my support for auto theft. They signal my support for lower prices, and that’s it.

  101. “The sad thing about markets is that those with economic power can veto the will of the public.”

    Actually, I take that back. It’s not markets that allow this to happen; it’s extra-market activity by those with wealth.

    The failure to recognize that there’s a difference is, to my mind, one of the great failings of both libertarian and leftist economic theory; I certainly don’t want to make that same mistake.

  102. I see your point Chalupa, but what if Leon’s company owned 98% of the market share in that state? Should, in this situation, the minority group he hates be excluded from working and shopping there?
    Here’s a real life example. In Florida during the 50’s apartment space was limited, people were on waiting lists. Virtually all the apartment owners began to require tenants sign leases that released the from liability that resulted from the negligent failure of the landlord to maintain the facilities. Some elderly lady slipped and hurt herself bad on a neglected sidewalk.
    The courts realized that this 82 year old lady had very little real “freedom to contract” in this situation. It’s a lot to ask her to drive out of the state she has lived in all her life to find another bargain, and this one was pretty bad. I’m arguing that the situation here could be similar; an employer could have much more bargaining power and therefore we have a case where the freedom to contract is questionable at best.
    Sure, there are usually a lot of employers around, but often they come up with similar ‘deals’ and sometimes they are pretty unfair. When this happens I think, in some circumstances, I would find the restrictions on the employers (note that I do see them as restrictions, and lamentable ones) to be less of a bad thing than the restrictions on the many employees (who may be, in some limited sense, ‘free’ to work otherwise). I try to guage the extent of the liberty lost to the chance of someone going somewhere else. If the latter is high and the former is not, I tend to agree with libertarianism in its ‘pure’ form, but if the situation is reversed I honestly think a pro-liberty person should go for restricting the employer…

  103. Grande Chalupa,

    “to convince me that you have less rights over a piece of property you call a business then over where you eat and sleep.”

    If the business owner is a sole proprietor, you have an argument. As soon as the business owner uses government mechanisms to provide limited personal liability for the actions of the business they are no longer acting as the same class of entity and can fairly expect restrictions on their actions in exchange for the limited personal liability.

    Anyone who puts a business’s rights on par with an individual’s does not understand the concept of freedom.

  104. “To me at least, freedom to assosciate is right up there with freedom of speech and freedom of religion, a non-negotiable human right and damn whatever results from it.”

    As easy as it would be to agree with this statement, in the context, you are arguing that these rights are unlimited. But clearly there is such a thing as liable/slander, and there are potential religious beliefs that can be considered to restrict the rights of non-believers and are therefore unworkable in a free society (Virgin Sacrifice at the altar anyone?).

    “On this issues we’re talking about a matter of where to stop. ”

    This is the case for all matters. It is just easier to see the stopping point in some cases.

  105. It’s good that we have a mixed economy and mixed political system, so that the two systems of power relations can check each other.

    joe,
    They don’t. The current system is little more than a convoluted protection racket. Pay the nice congresscritter and he won’t completely legislate you out of existence or throw you in jail. The congresscritters trade tax dollars and subsidies to get votes. It’s not government that allow this to happen; it’s extra-government activity by those in power.

  106. I see your point Chalupa, but what if Leon’s company owned 98% of the market share in that state? Should, in this situation, the minority group he hates be excluded from working and shopping there?

    If Leon was a good enough business man to end up with 98% of the market share in a state, then I would propose making him an absolute dictator. If he did all while arbitrarily exluding minority groups then thats even more impressive. Has anyone ever even owned 10% of a market share in a state?

    Here’s a real life example. In Florida during the 50’s apartment space was limited, people were on waiting lists. Virtually all the apartment owners began to require tenants sign leases that released the from liability that resulted from the negligent failure of the landlord to maintain the facilities. Some elderly lady slipped and hurt herself bad on a neglected sidewalk.
    The courts realized that this 82 year old lady had very little real “freedom to contract” in this situation. It’s a lot to ask her to drive out of the state she has lived in all her life to find another bargain, and this one was pretty bad. I’m arguing that the situation here could be similar; an employer could have much more bargaining power and therefore we have a case where the freedom to contract is questionable at best.

    So if this lady was more educated and well traveled, or say if she had family across the country then she would’ve had to play by the same rules as everybody else?

    A contract is a contract is a contract. Next time it’ll be a person is too young and shouldn’t have been expected to be thinking about health insurance yet. Its not the job of a court or a third party to come in and decide when people have to abide by their word and when they don’t. Except for extreme cases when somebody is mad or senile, and in that case they need to be institutionalized.

    Sure, there are usually a lot of employers around, but often they come up with similar ‘deals’ and sometimes they are pretty unfair. When this happens I think, in some circumstances, I would find the restrictions on the employers (note that I do see them as restrictions, and lamentable ones) to be less of a bad thing than the restrictions on the many employees (who may be, in some limited sense, ‘free’ to work otherwise). I try to guage the extent of the liberty lost to the chance of someone going somewhere else. If the latter is high and the former is not, I tend to agree with libertarianism in its ‘pure’ form, but if the situation is reversed I honestly think a pro-liberty person should go for restricting the employer…

    You ever talk to a guy and a girl who had different views on how a relationship unfolded and ended. Ever tried sorting it out? Its impossible and I’m always skeptical of third parties coming in and deciding after the fact what happened, especially in complex situations like figuring out why someone does or doesn’t get a job. I’m constantly amazed at what far fetched excuses people are able to make for themselves and how full of shit they can be.

    I’m not saying my pure libertarianism will make for a perfect, unjust world. Just that injustice due to circumstance is a neccessary evil of life while injustice done by beauracrats is not and is an infringement on rights regardless.

  107. If the business owner is a sole proprietor, you have an argument. As soon as the business owner uses government mechanisms to provide limited personal liability for the actions of the business they are no longer acting as the same class of entity and can fairly expect restrictions on their actions in exchange for the limited personal liability.

    No argument there.

  108. Grand Chalupa’s arguements show why libertarians are never going to be taken seriously.

    Libertarians continually refuse to place any value on the effort and time needed to research alternatives, the amount of time and money required to physically move to a different location, the value of NOT uprooting one’s family from a known location where the kids have a lot of friends and relatives, and the like. Somehow individuals are supposed to just meekly pay all of this up in surrender to the Great God of Choice and Capitalism, no matter how much it costs. So what if it means forcing a 74-year old woman into a Hobbsian choice between giving up where she’s lived for the past twenty years and giving up any rights she has against abuse and incompetence on the part of the landlord? That’s just the breaks, right?

    I hope each and every one of you gets dumped out of your apartment on one week’s notice right in the middle of a bad illness and the worst snowstorm in 50 years.

  109. I hope each and every one of you gets dumped out of your apartment on one week’s notice right in the middle of a bad illness and the worst snowstorm in 50 years.

    Merry Christmas to you, too!
    I hope your income taxes go down in the new year.

  110. One thing that occured to me is that professional athletes are subjected to things like this all of the time.

    Depending on the individual athlete and the team involved, an athlete who wanted to cross over into another sport during his off-season might be barred from doing so for reasons of extra risk of injuries.

    Motorcycle racing actually comes to mind for some particulars. Travis Pastrana was wanting to do the Xtreme games and race Supercross, and it was a constant battle with Suzuki, his sponsor. (And he did end up breaking his back in the Xtreme games, and hurt his and his team’s racing efforts.)

    Likewise, Nicky Hayden had to do a bit of wrangling with Honda in order to race flat track between his regular road races.

    If these commodities were injured outside of their regular duties for the team, it was a breach of contract.

    It seems to be the same area of contract law to me.

  111. If these commodities were injured outside of their regular duties for the team, it was a breach of contract. It seems to be the same area of contract law to me.

    Except that you’re talking about cases where athletes are forbidden to risk injuring themselves to the point that they can’t play, which is to say they can’t perform the job they were hired to do. Smoking a cigarette isn’t like Xtreme motocross wherein there’s a good chance of getting an immediate debilitating injury like a broken back. Consider also that their teams have invested millions and millions of dollars in hiring said athletes, which is not the case when an insecticide-spraying company hires a sprayer.

    Worker’s rights is one of the areas where I part ways with hardcore libertarians. Government is not the only organization, and heads of state not the only individuals, whose power over those beneath them needs to be kept in check in order to have a free society.

  112. Good luck Scott. There is a lot of information at http://www.forces.org and nyclash.com about the health risks of smoking and disputing the anti-smoking organizations’ so-called test results. I do agree companies should be able to set some hiring rules but if they are saying you can’t smoke because of health insurance costs, then they should fire all the obese people also. Think this should be a very interesting case.

  113. As ukase has replaced actuarials in determining medical costs, the argument that it’s acceptable to control employee behavior off the job to hold down such costs is bogus. The true purpose appears to be the indulgence of a perenniel American failing: bullying the unpopular.

  114. I think my posts are getting deleted. Why?

  115. Finally, just when you thought that out-of-control, “Big Brother” employers like Michigan health-benefits-consulting firm Weyco and its ilk had finally gone too far when Weyco CEO Howard Weyers issued his headline-making edict declaring that Weyco employees were no longer allowed to smoke–even on their own time and in their own homes–and later declared that employees’ spouses would be subject to his dangerously coercive policies against smoking if his employees wanted to keep their health-insurance premiums within rational reach, we finally have word that one brave worker, Scott Rodrigues of Massachusetts, has stood up to his own former employer, lawn-care giant The Scotts Company, after it recently fired him when nicotine was found in his system.

    As the article in _The Boston Globe_ (http://www.boston.com/business/ticker/2006/11/mass_smoker_sue.html) on this outrage states:

    “Rodrigues said he decided to file suit because, ‘What’s to make them stop at just cigarettes? If they’re a Republican company, can they try and figure out who you vote for and if you vote for the Democrats they’ll fire you? What if you don’t want to hire women, so if you have Y chromosome in your drug test you fail?'”

    Exactly! As I’ve myself long said online and elsewhere, once any boss or employer starts telling employees or applicants how to live any one aspect of their lives away from work, where does it stop?

    I say it stops right here. Got that, Scotts, Weyco, and your ilk?

    For the record, some states, mine included, have laws generally banning employment discrimination on account of employees’ or applicants’ use or nonuse of lawful products outside the workplace and on nonworking time.

    This is good, but we need such laws nationwide. We also need nationwide bans on employment discrimination on account of any political or other lawful activities undertaken under such conditions. Only a few states now have such laws. Unless there is a conflict of interest or other significant and actual adverse impact on one’s ability to do one’s job, what you and I do outside the workplace and on our own time is none of any employer’s business!

    Indeed, the way in which some employers in our “free” United States are now trying to coerce or control what employees and applicants do on their own time and off employer premises is an outrage that demands concerted action by every concerned worker–and by our society.

    In the absence of laws banning such practices in most states, it seems that some out-of-control employers now would, if they could, bring back the long-dead practice of requiring workers, as a condition of employment, to shop only at the company store and live in the company town. This sort of thing is a major threat to your freedom–and mine.

    Once one allows any employer to dictate one aspect of one’s private life, where does it stop?

    It is time to give “Big Brother”–today’s King George III–the political and economic equivalent of a stiff public slap in the face and to restrain him with laws and other actions that will put him in his place. To let him continue as he may choose is truly scary.

    At the center, to take another notorious example of how some out-of-control employers now meddle with our lives, some now snoop into “digital dirt” on employees’ and applicants’ off-the-job lives. At the root of this seems to be a pathological, overreaching “need” to make sure that only the “right” types of people are hired, perhaps in the name of making sure employees have the “right” attitudes and, to use that now-favorite corporate buzz word, are a good “fit” (read: are sufficiently cowed and properly docile to accept existing abuses and any possible future ones the employer might decide to inflict).

    So why not require employees and job applicants to submit to employer monitoring–again, the technology for this is already widely available!–of whatever they, even (indeed, especially) on their own time and off employer premises, read, watch, or listen to; who they associate with and what kinds of organizations they participate in; what Web sites they visit and what they send or receive online; and the like?

    We can’t have employees who dare to write or read e-mails or postings like this one or otherwise explore, much less spread, ideas about “controversial matters” that some pecksniffian employer might not like, such as notions about fairer tax policies and a stronger “social safety net,” or–horror of horrors–about (gasp!) employees and job applicants actually having rights and about even daring to regulate business to stop privacy abuses, pay inequities, the destruction of health-care, pension, and other benefits, or the like, now, can we? Gotta protect that almighty bottom line and the freedom to select our employees and run our business as we see fit!

    Indeed, at least as scary as employer attempts to regulate off-hours, off-premises smoking and the like are cases where employers fire, demote, otherwise discipline, or refuse to hire people based on such irrelevant things as their off-hours choices of products or political activities.

    Employment discrimination based on one’s off-the-job political activities, indeed, seem to be rising to a level not known since the era of McCarthyism, with its blacklisting and “political clearances.” As has been widely reported, including in a story on CBS’s _60 Minutes_, an Alabama woman, Lynne Gobbell, was in 2004 fired from her job at a manufacturing plant for having a John Kerry bumper sticker on her personal car. (After the case made world headlines, she was offered a job–indeed, one with health insurance–by the Kerry campaign, but few employees thus treated are that fortunate.)

    As a longtime progressive political activist, I myself have found that many people, especially in today’s job-scarce economy, are now hesitant to take part in any form of political activism–writing a letter to a newspaper, calling a radio talk show, posting something on the Internet, taking part in a march or a rally–for fear that their employer might somehow frown on such actions. Today, the Internet and like means make it frighteningly easy for employers to snoop into job applicants’ or employees’ personal beliefs and activities.

    Indeed, in 2002, during a long job hunt after a 2001 layoff, I was once denied a plum job as an editor with a nonprofit educational association in part because of what the employer, when I challenged its vague (and contradiction-ridden) claim of things being simply a matter of “subtle factors” involving “fit”–meanwhile, I suspected and alleged sex discrimination (the editorial department involved was all-female and stayed so)–called, in McCarthyesque terms, my “record” of involvement in “controversial issues,” namely, feminism and children’s rights–certainly never brought up in any interview or correspondence, but found after the “responsible” employer decided to do an Internet search.

    I’d like to ask this employer–and many others–this question: Who do you think you are, you nosy little twit?

    This sleazy practice, too, while disturbing and reprehensible, is in many states, mine included, still apparently legal. This, too, must be stopped through legislation like California’s, which specifically forbids employers from dictating or attempting to dictate employees’ political activity.

    Better yet, every state and Congress should adopt legislation, as a few states have, protecting the right of employees and job applicants to engage in any lawful off-hours, off-premises activities they choose without fear of employment discrimination.

    *As with such things as off-hours smoking, generally, such activities are none of an employer’s business* unless they pose an actual and substantial conflict of interest or otherwise materially and substantially impair one’s ability to do one’s job. Mere dislike of or disagreement with a worker’s political views or skittishness about “company image” or possible “controversy” is not enough.

    Ironically, the fear that many workers now have of employment discrimination based on their political activities is the very thing that keeps them from taking the steps, both as individuals and with others, to bring about an end to this and related abuses. It is also a significant brake on long-needed, long-overdue social and economic progress in America–indeed, to efforts to stop this country’s headlong rush, especially under George W. Bush and his ilk, back to the days of Herbert Hoover–indeed, of William McKinley.

    Let’s take back our (and your) rights–before they are lost forever, before we are all forced to live at the mercy of abusive employers in a nationwide, high-tech version of the company town that controls not only our work tasks but our other actions, our minds, and our souls “24/7.” It is not about the bottom line; it’s about power and control. We, the people, must reclaim our rights.

    In the famous words of Wisconsin Supreme Court chief justice Edward G. Ryan, words that indelibly impressed University of Wisconsin student Robert M. La Follette–later to be widely considered Wisconsin’s greatest governor: “The question will arise, and arise in your day, though perhaps not fully in mine: ‘Which shall rule–wealth or man? Which shall lead–money or intellect? Who shall fill public stations–educated and patriotic free men, or the feudal serfs of corporate wealth?'” (Of course, I’d prefer Ryan have used nonsexist language!)

    So write your state and national lawmakers, your governor, and, yes, even President Bush, and urge them all to support legislation protecting the rights of employees and job applicants to engage in lawful off-hours, off-employer-premises activities without fear of employment discrimination.

    Urge them also to replace the dangerous prevailing concept of “employment at will”–under which an employer, absent law or contract provision to the contrary, may fire any employee for any reason, no reason, or even a bad or morally wrong reason–with a “just cause” standard, similar to the law now in Montana. Every worker deserves and has the right to this most basic of protections. “Employment at will” (read: employment at whim) literally does mean that “they can fire you if they don’t like the way you part your hair.” This, too, is outrageous. This must end.

    As Alexander Hamilton said over 200 years ago, the power over a person’s subsistence is a power over that person’s will. The history of liberty and justice in America has often involved–indeed, required–regulating and limiting not only the power of our public governments but the power of such “private governments” as corporations and other employers over individuals, their choices, and their rights. So take action today!

    Let’s say to employers: Our skills, attention, and loyalty are yours eight hours a day, 40 hours a week; the rest of our lives belong to us, and to us alone. For not only ourselves but our fellow citizens and future generations, we are taking back our lives, our privacy, and our rights.

    For more information about these and related issues, check out these links:

    http://www.workplacefairness.org/

    http://www.workrights.org/issue_lifestyle/ld_legislative_brief.html

    http://www.aclu.org/Privacy/Privacy.cfm?ID=14172&c=132

    http://www.aclu.org/WorkplaceRights/WorkplaceRights.cfm?ID=8359&c=178

    http://www.yuricareport.com/Religion/MoyersAddressLetsGetJesusBack.html

    In Weyco’s case, one of the workers fired for not complying with the policy was in fact not covered under the company’s health-insurance benefits. So, contrary to any claim that such policies are meant to help companies hold down health-care or other costs, let’s remember what they’re really about–power and control.

    It is long past time that we workers stand up for ourselves, our right to live our lives away from work as we choose, our privacy, and our other most basic rights–including when that means standing up to employers that ignore our rights. If Rodrigues’s claims against Scotts are legally proven, I don’t hope he gets his job back and is awarded millions; I hope he gets his job back and is awarded billions.

    In the meantime, I, like millions of other thoughtful individuals, will at best think long and hard before ever buying a Scotts product. I do take into account how employers treat employees, job applicants, and others when deciding whose products and services I will or will not buy or use.

    Employers that respect our rights and privacy deserve our commendation, but those that don’t show why we need strong laws, strong unions, and strong efforts to safeguard and further our rights. Who do such employers think they are? Where do they get off issuing such edicts?

    It’s time we (and our lawmakers and courts) start telling them where to get off. Good for Rodrigues. Let actions like his spread like prairie fire across America–and teach abusive employers a stern lesson they will never forget.

    Scott Enk

    senk8105@sbcglobal.net

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