ACLU's latest advertisement

[Blackadar]

It's a doozy. And yes, it's an extreme exaggeration.

http://www.adcritic.com/interactive/view.php?id=5927

I'd probably dismiss it as fear-mongering.

Or is it when things like this happen?

http://wireservice.wired.com/wired/s...=wn_wire_story

[samifan24]

FYI, this link was posted here several months ago.

[Blackadar]

Originally Posted by samifan24

FYI, this link was posted here several months ago.

Well, I'm behind the times.

[panerd]

Please tell me that the second story is also an onion-type parody.

[Blackadar]

From everything I've seen, it appears to be true Panerd. I saw it on a few sites. I wouldn't put it past being fake though.

[SirFozzie]

it's true.. googled for it. real company. real news. everybody's howling about it.

[KWhit]

It's true. They were talking about it on the Today show this morning. I can't believe that is legal.

[CamEdwards]

we talked about it for 90 minutes on the show yesterday. Where do you stop? Can you require your employees to not eat fast food? Can you require them to work out on a regular basis? It's ridiculous.

[albionmoonlight]

It is a very small step from this to genetic screening to determine whether you should work for a company.

/sarcastic/ Gotta keep down those "health care costs" after all. It would be bad for the economy if we put sick people in a position where health insurance had to pay for their health care. /*sarcastic/

This is what happens, BTW, when we let corporate interests go "unregulated." They do whatever they can to make money. They would be foolish not to.

[Hammer755]

So Pizza Hut is going to know that I'm impotent? NOOOO!!!!

[Logan]

I'm not a smoker, and it would be great if I didn't have to smell my co-workers who smoke outside on breaks, before, or after work. And yet I would quit in protest if my employer ever tried doing this.

[mgadfly]

Originally Posted by CamEdwards

we talked about it for 90 minutes on the show yesterday. Where do you stop? Can you require your employees to not eat fast food? Can you require them to work out on a regular basis? It's ridiculous.

The law is pretty clear at the moment. Genetic testing is not allowed because it gets at information that is not permissible for employers to know (ADA protected information). Smokers or fat persons are not protected classes and in most states may be discriminated against.

Sorry smokers and fat people, you are out of luck (I'm a fat person, and I'm sure my personal appearance has cost me a job or two, but most people look at it as a condition that I can change, which makes it different from your genetics, which is something you can not change).

[CamEdwards]

Originally Posted by mgadfly

The law is pretty clear at the moment. Genetic testing is not allowed because it gets at information that is not permissible for employers to know (ADA protected information). Smokers or fat persons are not protected classes and in most states may be discriminated against.

Sorry smokers and fat people, you are out of luck (I'm a fat person, and I'm sure my personal appearance has cost me a job or two, but most people look at it as a condition that I can change, which makes it different from your genetics, which is something you can not change).

Actually, some people are genetically pre-disposed towards being fat, but if you look at this story, it's not that smokers weren't hired... it's that they were fired for being smokers.

You think it's all right for a company to say "in order to cut down on heathcare costs, we will be holding mandatory exercise periods after every work day" (remember, this was smoking done at home, not on company time.

You want to make smokers pay a higher co-pay? Fine. You want to deny them a place on your health insurance? I've got a little problem with that. But to fire someone who may not even be using your health insurance to begin with? Sorry, that crosses a moral line for me.

[mgadfly]

I'd agree that people are genetically pre-disposed towards being fat. I'd also argue that smokers might have a genetic predisposition towards being addicted to cigarettes.

Hiring and Firing is (normally, unless a K is involved-implied or express) the same. If a company is entitled to fire you for being annoying, or smelly, or because your name starts with an S or for any reason (no-cause states) I think they should be entitled to fire you because you are fat or smoke.

I don't think they can require you to workout every day (unless it is part of the job and they are paying you-I'm sure no one here would argue that the New England Patriots shouldn't be allowed to make their employees workout every day).

I'm not sure what moral line was crossed as I'm not sure I would agree that anyone is morally entitled to be employed by anyone else. I'm even more certain that no legal line was crossed.

I think it is a sucky thing for a company to do, but it is legal and reasonable (and it is their company).

Is it moral for the government to require employers to employ (or maintain employment) for people they don't want to have working for them? I'd answer that no, it probably isn't except in the case of Race, Color, Religion (to some degree), National Origin, Gender. That is what Title VII protects, and I pretty much agree with the law.

From a personal standpoint I'd love to see some protections for fat people, but that doesn't mean that I think I'm entitled to such protections, morally or legally.

[CamEdwards]

i think there's a difference between feeling entitled to something and wishing someone would do the right thing. I'm not a big fan of entitlements myself, and clearly the law is on the company's side.

Still, I can't help but think about Jeff Goldblum's line in Jurassic Park (or a paraphrase): you're so caught up in what you CAN do you're not thinking of whether or not you SHOULD do it.

[Easy Mac]

Grusendorf v. City of Oklahoma City

Similar, not exactly the same, but not like its unprecedented.

[mgadfly]

Originally Posted by Easy Mac

Grusendorf v. City of Oklahoma City

Similar, not exactly the same, but not like its unprecedented.

There are a bunch of cases about this type of thing. Grusendorf is different because there is state action involved and even there the anti-smoking rule was upheld (though it related to the job).

In most cases there is no state action so no legitimate interest is required.

[mgadfly]

Originally Posted by CamEdwards

i think there's a difference between feeling entitled to something and wishing someone would do the right thing. I'm not a big fan of entitlements myself, and clearly the law is on the company's side.

Still, I can't help but think about Jeff Goldblum's line in Jurassic Park (or a paraphrase): you're so caught up in what you CAN do you're not thinking of whether or not you SHOULD do it.

I'd agree that maybe they shouldn't do it even though it is clear they can. But I could understand how someone else could come to a different conclusion (some discrimination is reasonable and healthcare costs are very high and the simplest solution would be to instruct your managers to take the non-smokers and non-fatties over the smokers and fatties. And faced with the decision of providing no one with healthcare coverage or being selective about who you hire, I'm not sure which is the more immoral route.)

[miked]

Are you allowed to force smokers and overweight people to pay more for health insurance? I get BC/BS and I didn't have to fill anything out, I just asked for a plan that my job offered and got it.

It may seem mean, but I get irritated when I read that 25% of most companies health costs are due to noncompliance (From the Economist a few months ago). I don't have a problem taking my medication, I don't smoke, I exercise regularly, so why am I punished for this. Just like if I drive carefully and avoid tickets, I get lower premiums than somebody who speeds all the time. :dunno:, maybe I'm just an ass.

[sabotai]

As one of the resident libertarians-midned people here, I have no problem with a company hiring or firing someone for any reason. If they fire you because you smoke in your free time, I have no problem with that. If they fire you because they have a dress code for off-work hours, I have no problem with that. If they fire you for being 5'4" and they passed a new rule that you have to be 5'6" or taller, no problem.

If you people are outraged enough over the hiring or firing practices of companies they can do two things. Not work there (deny them a workforce) and not buy their product/services (deny them revenue), and do whatever you want to convince others to do the same. Boycotts work, it's a shame people have forgotten that and just run to the government to fix things for them.

If you don't like that they fired a few people for not adhereing to their anti-smoking policy, the company's name is Weyco Inc. Boycott them and get others to do it as well.

As for companies making smokers pay into their health care more than nonsmokers, I dunno if that's legal, but it should be.

[sabotai]

dola,

That commercial was quite funny, BTW.

[ISiddiqui]

Actually, for those arguing this is allowed, the relevant place to look is not right-to-work statutes, but ERISA. ERISA does not allow employers to fire people based on a health factor. Smoking is a health factor (it lowers your relative health, doesn't matter if you are the cause). Under ERISA, the firing may be considered illegal.

As for companies making smokers pay into their health care more than nonsmokers, I dunno if that's legal, but it should be.

It only works if there is a bone fide welfare program, saying the premium is X, but if you don't smoke, you get a discount of $25 (or so). You also have to allow smokers to get the discount at some point in the future (alternative means). Simply chargind smokers an extra cost is illegal, since it is discrimination based on a health factor.

[mgadfly]

Originally Posted by ISiddiqui

Actually, for those arguing this is allowed, the relevant place to look is not right-to-work statutes, but ERISA. ERISA does not allow employers to fire people based on a health factor. Smoking is a health factor (it lowers your relative health, doesn't matter if you are the cause). Under ERISA, the firing may be considered illegal.

The district judge that I work for and the overwhelming amount of authority disagrees with ERISA governing this. The question is a matter for state employment law, not ERISA. I wouldn't mind being proven wrong but we heard a matter fairly recently about a smoker being fired and neither party seriously raised an ERISA claim of any type.

What section of ERISA do you think would prohibit someone from making a hiring/firing decision based on smoking? (I wrote a law review article on ERISA preemption and a case last summer about conflict preemption section 1132, and wouldn't mind taking a look).

[mgadfly]

It has been awhile since I took employment law and we had that case. I pulled out my text book because it had a section about discriminating against smokers (which I found interesting because we had a case at work involving almost an identical issue).

Here is what the text book says:

[Smokers cost employers a lot of money. Some employers now refuse to hire smokers.] Those who support policies of refusing to hire smokers argue that it is a controllable behavioral problem, that employers have a legitimate right to limit health care expenditures, and that these policies will reduce smoking and save lives. Those who oppose these policies argue that many smokers are unable to quit, that if all employers adopted such policies there would be a large class of unemployable individuals, and that smoking should be discouraged by other means. They also assert that to verify whether employees were not smoking at home, employers would be tempted to use surveillance, polygraphs, urine screens, and other intrusive measures.

What are your views? If you believe that employers should not be able to refuse to hire smokers, what legal approaches would you recommend to protect these individuals?

About half the states haveenacted laws prohibiting employers from conditioning employment on an employee's refraining from using "lawful tobacco products" or engaging in "lawful activities" during nonworking hours.

In Grusendorf v. City of Oklahoma City ... the court upheld the dismissal of a fire fighter trainee who violated a no smoking rule ... [i]n City of North Miami v. Kurts ... the Florida Supreme Court upheld a city policy requiring all applicants to sign an affidavit stating that they have not smoked within the last year. Rejecting the argument that this violated state or federal consitutional privacy, the court held that the regulation was justified by the city's interest in reduicng the costs from smoking-related illnesses. For a further discussion, see Mark A. Rothstein, Refusing to Employ Smokers: Good Public Health or Bad Public Policy?, 62 Notre Dame L. Rev. 940 (1987).


Mark A. Rothstein & Lance Liebman, Employment Law: Cases and Materials, Foundation Press 212-213 (2003).

[MrBug708]

You cant smoke in restuarants or bars in a lot of places now because companies dont want to pay for workman's comp for works in those restuarants. I'd hafta agree and I agree with this company for things related to at the property. But firing them because they were smoking at their house? (In theory) That's rather ludicris

[SackAttack]

Seems like Grusendorf, though, is related to civic government, as opposed to a private employer. Does that make a difference?

[MrBug708]

Originally Posted by sabotai

As for companies making smokers pay into their health care more than nonsmokers, I dunno if that's legal, but it should be.

Can't say where it would fit into Title 7 (I think) of the Civil Rights Act. And I dont think they consider smoking a medical condition or a disability.

[mgadfly]

Originally Posted by SackAttack

Seems like Grusendorf, though, is related to civic government, as opposed to a private employer. Does that make a difference?

It does make a difference because it may implicate constitutional concerns in addition to state (employment) law concerns. However, those are just added protections, so in the case of a private employer, the employee has even less protection.

[mgadfly]

Originally Posted by MrBug708

Can't say where it would fit into Title 7 (I think) of the Civil Rights Act. And I dont think they consider smoking a medical condition or a disability.

From my understanding smoking wouldn't fit into any of Title VII's protections. Unless someone tried a disparate Impact claim where they had statistical analysis that this created some sort of discriminatory treatment to a protected class (like say this is a neutral rule but 70% of women smoke and 10% of men, then you might be able to claim that the effect of the rule was discriminatory--but I can't imagine that working).

So far I haven't found where smoking has been considered a medical condition or a disability (for ADA purposes). If there is a case out there like that I'd like to take a look though.

[Buccaneer]

Originally Posted by sabotai

As one of the resident libertarians-midned people here, I have no problem with a company hiring or firing someone for any reason. If they fire you because you smoke in your free time, I have no problem with that. If they fire you because they have a dress code for off-work hours, I have no problem with that. If they fire you for being 5'4" and they passed a new rule that you have to be 5'6" or taller, no problem.

If you people are outraged enough over the hiring or firing practices of companies they can do two things. Not work there (deny them a workforce) and not buy their product/services (deny them revenue), and do whatever you want to convince others to do the same. Boycotts work, it's a shame people have forgotten that and just run to the government to fix things for them.

If you don't like that they fired a few people for not adhereing to their anti-smoking policy, the company's name is Weyco Inc. Boycott them and get others to do it as well.

As for companies making smokers pay into their health care more than nonsmokers, I dunno if that's legal, but it should be.

Well said.

[ISiddiqui]

Originally Posted by mgadfly

The district judge that I work for and the overwhelming amount of authority disagrees with ERISA governing this. The question is a matter for state employment law, not ERISA. I wouldn't mind being proven wrong but we heard a matter fairly recently about a smoker being fired and neither party seriously raised an ERISA claim of any type.

What section of ERISA do you think would prohibit someone from making a hiring/firing decision based on smoking? (I wrote a law review article on ERISA preemption and a case last summer about conflict preemption section 1132, and wouldn't mind taking a look).

I would argue that ERISA 510, the anti-discrimination part, would prohibit firing individuals because they may raise health costs because of a health factor.

Here is a pdf file to a law firm's discussion of discrimination under ERISA:

http://www.nixonpeabody.com/linked_m.../BB_092004.pdf

Look on page 2, the paragraph that starts "That leaves ERISA Section 510". It even talks about that an employer cannot terminate someone to avoid paying high medical expenses after he is informed about some medical risk from the employee.

The reason that the lawyer probably didn't bring up ERISA in your case is because many lawyers don't really understand the law that well (from my experience anyway).

Oh, and furthermore that is the position of the US Department of Labor, Employee Benefits Security Administration, at least that is what the Investigators I work with have informed me.

[ISiddiqui]

Originally Posted by SackAttack

Seems like Grusendorf, though, is related to civic government, as opposed to a private employer. Does that make a difference?

Well in an ERISA action (which is what I'm arguing), the government is shielded. They are exempt from the law. Private companies are not.

[mgadfly]

Originally Posted by ISiddiqui

I would argue that ERISA 510, the anti-discrimination part, would prohibit firing individuals because they may raise health costs because of a health factor.

Here is a pdf file to a law firm's discussion of discrimination under ERISA:

http://www.nixonpeabody.com/linked_m.../BB_092004.pdf

Look on page 2, the paragraph that starts "That leaves ERISA Section 510". It even talks about that an employer cannot terminate someone to avoid paying high medical expenses after he is informed about some medical risk from the employee.

The reason that the lawyer probably didn't bring up ERISA in your case is because many lawyers don't really understand the law that well (from my experience anyway).

Oh, and furthermore that is the position of the US Department of Labor, Employee Benefits Security Administration, at least that is what the Investigators I work with have informed me.

This ERISA protection only arises after an employee begins drawing benefits from an ERISA plan (or notifies the employer of the medical condition).

For example, if I have an ERISA plan with an employer and I get lung cancer they can't fire me to avoid payment (interestingly they CAN, and often do, reduce benefits for lung cancer treatment and may do so as long as the reduction in benefits is general and to all employees and not specific to a single employee).

Smoking is not lung cancer. No benefits are due and thus there is no ERISA protection. (Plus this wouldn't apply at all where an employer didn't offer an ERISA plan, or where the employee wasn't eligible for an ERISA plan--like at or before the point of hire.)

[CamEdwards]

Originally Posted by ISiddiqui

Well in an ERISA action (which is what I'm arguing), the government is shielded. They are exempt from the law. Private companies are not.

Lemme get this straight, because I'd like to say on my show tomorrow "one of my lawyer friends from the football message board says..."

You believe that these employees who were fired could take action because this violates ERISA (or whatever the correct terminology might be)? If it was a government agency then they wouldn't have a case, but private companies have to follow this rule?

[ISiddiqui]

No, I disagree. As said in the article, Section 510 prevents the employer from interfering with an employee's ability to attain any right to which he may be entitled to under the plan. Smoking is a health factor and firing an individual for it interferes with his ability to attain a right due to smoking. It doesn't require actually drawing benefits or notification to the employer. Furthermore, knowledge of smoking is notification of the medical factor.

Also HIPAA may apply:

http://www.dol.gov/ebsa/publications...iancetool.html

Overview. HIPAA prohibits group health plans and health insurance issuers from discriminating against individuals in eligibility and continued eligibility for benefits and in individual premium or contribution rates based on health factors. These health factors include: health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence and participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing, and other similar activities), and disability. See ERISA section 702; 29 CFR 2590.702.

Firing a smoker interferes with continued eligibility for benefits due to health status. Under the "Diagnostic and Statistical Manual of Mental Disorders", nicotine addiction is a medical condition,

Plus this wouldn't apply at all where an employer didn't offer an ERISA plan, or where the employee wasn't eligible for an ERISA plan--like at or before the point of hire.

It seems though that that is the case here. There was a health plan, and it seems (from the number of smokers) that they had more than 20 employees.

[clintl]

Originally Posted by sabotai

As one of the resident libertarians-midned people here, I have no problem with a company hiring or firing someone for any reason. If they fire you because you smoke in your free time, I have no problem with that. If they fire you because they have a dress code for off-work hours, I have no problem with that. If they fire you for being 5'4" and they passed a new rule that you have to be 5'6" or taller, no problem.

If you people are outraged enough over the hiring or firing practices of companies they can do two things. Not work there (deny them a workforce) and not buy their product/services (deny them revenue), and do whatever you want to convince others to do the same. Boycotts work, it's a shame people have forgotten that and just run to the government to fix things for them.

If you don't like that they fired a few people for not adhereing to their anti-smoking policy, the company's name is Weyco Inc. Boycott them and get others to do it as well.

As for companies making smokers pay into their health care more than nonsmokers, I dunno if that's legal, but it should be.

In other words, dictatorships are fine in a libertarian society as long as the dictators are private sector organizations.

[ISiddiqui]

Originally Posted by CamEdwards

Lemme get this straight, because I'd like to say on my show tomorrow "one of my lawyer friends from the football message board says..."

You believe that these employees who were fired could take action because this violates ERISA (or whatever the correct terminology might be)? If it was a government agency then they wouldn't have a case, but private companies have to follow this rule?

Btw, you can also say that I'm a Benefits Advisor at the US Department of Labor if that sounds better .

ERISA only applies to group health plans provided by private companies who have over 20 employees, which are NOT church plans. Churchs and government agencies are exempt, but there are plenty of government agencies who do follow provisions of it because they think it is fair too (however, there are a lot of states which would rather screw over their employees).

And yes, it is my belief that this firing would violate ERISA, or at the very least they have a decent argument that it does.

[mgadfly]

Originally Posted by ISiddiqui

Btw, you can also say that I'm a Benefits Advisor at the US Department of Labor if that sounds better .

ERISA only applies to group health plans provided by private companies who have over 20 employees, which are NOT church plans. Churchs and government agencies are exempt, but there are plenty of government agencies who do follow provisions of it because they think it is fair too (however, there are a lot of states which would rather screw over their employees).

And yes, it is my belief that this firing would violate ERISA, or at the very least they have a decent argument that it does.

Smoking isn't a health condition and the last time I checked no court had ruled that way. Nicotine addiction is trickier but had been a pretty consistent loser (as of a year ago).

Lung cancer is a health condition. Smoking isn't. Costs associated with getting in a car wreck is a health condition that entitles someone to benefits. Driving dangerously isn't a health condition.

Not hiring someone clearly can't violate Erisa. Firing someone for smoking is only going to be a violation IF there is a medical condition already associated with the employee due to the smoking.

I just disagree with your very broad (and unprecedented) interpretation of ERISA rights here. But you seem pretty convinced so we should probably leave it where it is (I'd never take this case though, even if I did believe that ERISA applied because the remedy would be the payment of benefits--not their jobs back. If ERISA is clear on anything it is that the only right it gives the employee is for performance/payment of their benefits. But ERISA doesn't apply...)

[sabotai]

Originally Posted by clintl

In other words, dictatorships are fine in a libertarian society as long as the dictators are private sector organizations.

*sigh*

I have no interest in getting into a childish argument filled with false analogies and just simple stupidity. If that's what you are interested in, I'd appriciate it if you would just not respond to my posts and go and try to bait someone else into your immature games.

[ISiddiqui]

Originally Posted by mgadfly

Smoking isn't a health condition and the last time I checked no court had ruled that way. Nicotine addiction is trickier but had been a pretty consistent loser (as of a year ago).

According to the "Diagnostic and Statistical Manual of Mental Disorders", nicotine addiction is listed as a medical condition.

I'd never take this case though, even if I did believe that ERISA applied because the remedy would be the payment of benefits--not their jobs back.

Well, yes, that's the rub. No lawyer would take it. There isn't any money in ERISA.

so we should probably leave it where it is

Fine by me .

[ISiddiqui]

Originally Posted by sabotai

*sigh*

I have no interest in getting into a childish argument filled with false analogies and just simple stupidity. If that's what you are interested in, I'd appriciate it if you would just not respond to my posts and go and try to bait someone else into your immature games.

Actually, I'd counter that it isn't that childish. I have actually had some libertarians take that position on another site.

[clintl]

I'm not baiting you. That's the way I see it. You are basically saying that it's OK for private sector organizations control the private lives of the people who work for them, with nothing but "market forces" to protect the employees. And the problem with that (and with economic libertarianism in general) is that by the time market forces catch up with the problem, a whole bunch of people have been hurt with no recourse to be compensated for the damage they have suffered. No thank you. I'm a believer in strong labor laws and stiff penalties for companies that violate them.

[ISiddiqui]

Originally Posted by clintl

I'm not baiting you. That's the way I see it. You are basically saying that it's OK for private sector organizations control the private lives of the people who work for them, with nothing but "market forces" to protect the employees. And the problem with that (and with economic libertarianism in general) is that by the time market forces catch up with the problem, a whole bunch of people have been hurt with no recourse to be compensated for the damage they have suffered. No thank you. I'm a believer in strong labor laws and stiff penalties for companies that violate them.

You forgot to mention the BIGGEST problem. Stuff like that leads to a left wing revolution easily. The reason for a lot of our labor laws were to prevent any kind of revolt from the rabble rousers on the left.

[sabotai]

Originally Posted by ISiddiqui

Actually, I'd counter that it isn't that childish. I have actually had some libertarians take that position on another site.

Take the position that libertarianism is just a dictatorship in a different form?

[ISiddiqui]

Originally Posted by sabotai

Take the position that libertarianism is just a dictatorship in a different form?

No, take the position that they would not mind a dictatorship if the dictator guarenteed all of their rights. In fact, some have argued that the only way to keep a libertarian society is to have a benign dictator because the masses will just vote themselves more and more government spending and taxation.

[sabotai]

Originally Posted by ISiddiqui

No, take the position that they would not mind a dictatorship if the dictator guarenteed all of their rights. In fact, some have argued that the only way to keep a libertarian society is to have a benign dictator because the masses will just vote themselves more and more government spending and taxation.

Well, I'm mostly an anarcho-capitalist, so no "benign dictator" for me.