Occam's Razor

Weyco Inc., a benefits service company based in Okemos, Michigan is a company for which you definitely do not want to work. At least that is my opinion about reading this article in today’s Washington Post Business Section. According to Washington Post Staff Writer Amy Joyce, this is a company that believes what you or your family does off the job are grounds for your dismissal.

Like most companies, Weyco prohibits smoking on the job. I have no problem with that. The dangers of second hand smoke are well known and the workplace is a captive environment. I am also a virulent nonsmoker. The last thing I want is to go back to those days when I worked in a confined space and those around me smoked with both impunity and official sanction. Since the employer pays for the workspace, they have the right to make rules for how employees will use the space.

However, if you work for Weyco, beware. There are some unusual strings attached to your continued employment:

• If you smoke on the premises, you can be fired
• If you smoke at all, you will not be hired, no matter how competent you are
• You can be tested at any time for nicotine. Hiring includes consent to urinalysis at the company’s discretion. If nicotine is detected in your urine, you are sent home for a month without pay. After a second offense, or if you refuse to be tested, you can be fired.
• The company also reserves the right to require that your spouse be tested monthly for nicotine use. If your spouse tests positive, the employee must pay an $80 a month fee until the spouse takes a smoking cessation class and tests free of nicotine.

According to Workplace Fairness, three fourths of the 80 million Americans employed in the private sector are employed “at will”. Every state except Montana is an “at will” state. This means the employer can terminate an employee for any reason whatsoever. (I assume this does not include those activities prohibited by federal law, such as sex discrimination.) Not surprising, the United States lags behind most of the first world in protecting employees from “lifestyle discrimination”. Most of Europe, Japan and Canada are among over sixty enlightened countries worldwide that prohibit this sort of blatant job discrimination.

With a few exceptions, I do not think that any employer should have the right to fire you for your lifestyle. Your conduct and performance on the job is what matters, not off the job. Clearly those in a public safety position must have constraints on their off duty behavior. We do not want airline captains sipping cocktails at the airport lounge an hour before takeoff. We do so because it could affect their judgment while on the job.

However, this is completely different from smoking on the job, or outside of company property. Perhaps nicotine should be a regulated substance. Thanks to our Congress, its use is both legal and unregulated among adults. An employee who chooses to smoke off the worksite may be endangering their own health, and the health of anyone who lives with them, but it is not germane to their ability to perform a job. It is simply not the business of the employer to regulate the habits or lifestyle an employee chooses to engage in outside the office. Not only is such regulation deeply offensive to a free people, but the employee is not even compensated for behaving in a way that may be contrary to their will.

It is one thing to offer incentives to employees to engage in healthful behavior. Most progressive employers do it routinely. I am a civil servant. My agency provides limited counseling services for all employees. It assumes that if a worker’s private life is better ordered, they will be more productive on the job. Workers can choose to use the counseling service or not, and they can even use their time on the worksite for this purpose. I can even grudgingly agree to employee disincentives, like requiring employees who smoke to pay higher health insurance premiums than those who do not smoke. After all, the employer typically helps pay for health insurance, if it is offered at all. It is another thing entirely to deliberately discriminate against or actually fire someone for a lifestyle conducted outside of work.

As a supervisor, I cannot imagine doing something like this. For example, I have an employee whose wife was very mentally ill. She manifested her illness in chronic alcoholism. Had I worked for Weyco, I might have grounds for summarily dismissing my employee. No matter whether he was still performing acceptably in his job, I could simply terminate him. Rather than use compassionate techniques like leave sharing to retain the employee, Weyco might fire the employee, thereby making his situation much worse. After all, employees are not exactly people. “At will” states seem to assume that people are like widgets, and are interchangeable. Maybe employees do have feelings, but that is no reason an employer should bother to concern himself with them. Their bottom line is all that matters.

In my naiveté, I simply assumed workers had reasonable protections against this sort of behavior. I was wrong. Not only can employers in “at will” states set any conditions of employment they want, even if they have no bearing on the ability to perform a job, some like Weyco will exercise these rights.

It is so Big Brother-ish. I am not surprised that employers routinely search the web for background on applicants before hiring them. The web is after all an inherently open medium. Those who publish blogs in their own names should not be too surprised that an employer might use it as one criterion for a hiring decision. Conduct and performance on the job should be all that determines whether employees are doing their job correctly. Anything else is none of their business.

I would like to say, “There ought to be a law”, but the laws already exist and are egregiously bad. They likely go back to the 18th and 19th centuries when people accepted being treated like chattel. It is time to rectify these laws. Governments do not exist to serve corporations first. They exist to serve citizens first. Most of us, if we knew how these laws are being applied, would be outraged.

If you are as outraged as I am, perhaps you will join me by doing something about it. Since this is primarily an issue to be solved at the state level, you should let your state representatives and senators know how you feel. Tell them that you expect them to put citizens first, not corporations. Ask them to modify “at will” employment laws so that an employer may not fire anyone (with the obvious exceptions) for their conduct or lifestyle choices outside of work.

After all, you could be the next one to be fired.