February 17, 2005


Where there's smoke, you're fired (Debra J. Saunders, February 17, 2005, SF Chronicle)

HOW DOES freedom slip away? It doesn't happen one day, all of a sudden, without warning. It erodes in stages. One day you read that an employer has fired four employees because they refused to follow the company's no smoking policy -- including not smoking in their own homes on their own time -- and that's OK, because you don't smoke. A year or two later, employers go after your pet vice -- eating, tippling, maybe snowboarding -- and then such a policy is an outrage.

So Americans should be wary of the news last month that a Michigan health- benefits administrator, Weyco Inc., sacked four employees because they wouldn't follow a company policy that required all employees to "maintain a smoke-free and tobacco-free status at all times."

That's right. They can't smoke at home. They can't smoke on their own time. To work for Weyco Inc. is to be owned by Weyco Inc. And the Weyco way may well be legal.

"I don't want to pay for the results of smoking," Weyco founder Howard Weyers explained to Medicine Law & Weekly.

The notion that your employer need not just stand by while you kill yourself but also pick up the tab bastardizes the concept of freedom beyond recognition. You're free to smoke or to work for Weyco. It's your choice.

Posted by Orrin Judd at February 17, 2005 7:57 AM

You are right, oj. Now apply that same reasoning to privately owned restaurants and bars.

Posted by: Tom C., Stamford,Ct. at February 17, 2005 11:36 AM

Fine, then let's change the tax code to stop subsidizing businesses who provide health insurance benefits. Right now, private health insurance has been priced out of most people's ability to pay; but employer-provided insurance can be deducted as an expense.

Posted by: Brandon at February 17, 2005 11:38 AM

I'm a little more worried about Weyer's statement after the first reports about the no-smoking rule surfaced that not only would he not change the smoking policy, but he was considering implementing a similar policy on the kind of foods his employees could eat.

Taken to its extreme, that would mean controlling what restaurants workers could and couldn't go to at lunchtime or after work (the latter would be especially fun for workers with young kids), and depending on what Weyco used as its measuring stick for what is and isn't healthy food, could leave the employees and their families at the mercey of the nanny-state arbiters from the Center for Science in the Public Interest. I wouldn't wish that on anybody.

Posted by: John at February 17, 2005 11:38 AM

It's a self correcting problem. If my employer wants to dictate what I can eat, drink, smoke, etc., that's cool. However, I want to be compensated lavishly for being a smoke and caffine free, vegan, marathon running book keeper.

I'm willing to bet that rising salary demands will more than offset savings on insurance. Also, there's a "third way" through HSAs. Weyco can switch over to HSAs as their health insurance program, kick in $500 to $1000 per employee per year and let their employees make their own health decisions.

Posted by: David Rothman at February 17, 2005 11:57 AM

Well said, Mayor Bloomberg. No question that the habits of plebes and other members of the lower orders should be regulated. Let's move on to alcohol, BigMacs and SUVs. Bring on the bike paths............

Posted by: ed at February 17, 2005 12:16 PM


Why not? Taken to its extreme it's an argument for paying for your own health care, which would benefit everyone.

Posted by: oj at February 17, 2005 12:46 PM


Unfortunately they aren't private anymore, thanks to "Civil Rights" laws. They're public.

Posted by: oj at February 17, 2005 12:47 PM

It is easy enough to tack on a smoking premium to a health care policy that completely covers the incremental costs due to the habit.

Why not do that?

Oh, I know why. Because there are huge fans of the nanny-state for whom the only correct decision is their decision.

Posted by: Jeff Guinn at February 17, 2005 1:34 PM

If Weyco is allowed to do this I should be allowed to have a company that requires all employees to smoke.

Posted by: carter at February 17, 2005 1:37 PM


Why? Because ketchup is an item of interstate commerce? The only rationale I've heard is the state licensing issue. They are privately owned and operated, like any other non-public company. There is a contractual arrangement between the operators and the customer which is completely free and private. Much like the overly anal employer and his soon to be fewer employees described above. He, like all, is free to make an ass of himself at any time on his own premises.

Posted by: Tom C., Stamford,Ct. at February 17, 2005 1:48 PM


If I'm taking my kid and his friends to Chuck E Cheese, even if I'm not eating, I don't want to be third-degreed by my boss the next day because he drives by and sees my car in the parking lot (I also wouldn't be happy with manditory chloresterol testing either if the boss smells ketchup on my breath after lunch).

Posted by: John at February 17, 2005 2:29 PM


Work elsewhere. You don't have a right to your job.

Posted by: oj at February 17, 2005 3:25 PM


Because they're open to the public and so are forbidden from discriminating based on race. It was all downhill from there.

Posted by: oj at February 17, 2005 3:28 PM


You are. Employment is at will.

Posted by: oj at February 17, 2005 3:28 PM

No, oj. The constitutional power of regualting interstate commerce was used while it's justification was the presence of Pennsylvania ketchup on the Alabama(?) lunch counter. Discrimination based on race is a non-isssue no matter what the ravings of the civil rights industry. It was bad law then and it is bad law now. Where does it end? When Orrin Judd is satisfied or when proper constitutional jurisprudence is restored? That is the question not whether you or I agree with a particular outcome.

Posted by: Tom C., Stamford, Ct. at February 17, 2005 4:10 PM


We're not going to allow restaurants and other public accomodations to bar black patrons no matter whether the Constitution allows it or not. Some horses never go back to the barn.

Posted by: oj at February 17, 2005 4:15 PM


Who is going to bar anyone? You're about 30 years behind the curve on this one.

Posted by: Tom C., Stamford, Ct. at February 17, 2005 4:24 PM

Human nature changed in 30 years?

Posted by: oj at February 17, 2005 4:34 PM

You think it makes sense to bar a paying customer? Human nature hasn't changed but blatant and arbitrary racism and economic self-interest don't go together. The country has changed.

Posted by: Tom C., Stamford, Ct. at February 17, 2005 6:10 PM

Yes, it makes eminent sense. Establishments that barred blacks or whites or Latinos or gays or straights or Jews or Muslims or atheists or breeders or what have you would do extremely well.

Posted by: oj at February 17, 2005 6:17 PM

This is a particularly silly example of the 'average man' myth, which always gets ridiculous.

Depending on how many parameters you want to measure, it soon becomes obvious that there is no individual who fits the title 'average man.'

If the average man has brown hair, is married, is overweight, likes beer etc., pretty soon there's nobody who's all of those.

Skiing is dangerous. I know more people who have killed themselves by skiing into trees in the past year than have killed themselves by smoking.

Fire the skiiers?

Posted by: Harry Eagar at February 17, 2005 8:14 PM

I would.

Posted by: oj at February 18, 2005 12:28 AM


Would you defend the right of an employer to fire all its non-smokers?

Posted by: Peter B at February 18, 2005 9:14 AM


Of course.

Posted by: oj at February 18, 2005 9:18 AM

This is perfectly legal but is unconscionable. An employer does not own his employees, unless we are going to start descending into the world of Marxist 'wage slavery.'

The answer of course is to be self-employed and all people should view this as their goal.

Posted by: Bart at February 18, 2005 10:51 AM

They certainly rent them.

Posted by: oj at February 18, 2005 12:17 PM

oj wants a world of human relationships based on cost/benefit analysis. The cost of benefits mandated by the state shall give unlimited power to the person paying any portion of those benefits. Common decency and civility which were once the currency of social/business relationships take a back seat to the cost of those relationships. It's a safe, tidy and very grey world he wants.

Posted by: Tom C., Stamford,Ct. at February 18, 2005 3:41 PM



Posted by: oj at February 18, 2005 4:00 PM


You trying to impose it on us all?

Posted by: Tom C., Stamford, Ct. at February 18, 2005 6:10 PM

If they wish to regulate employee behavior on site, that's fine. If they provide company housing and regulate private behavior there, e.g. no pets, no smoking, that's fine.

But when they impose on an employee's time in an employee's private space, that is an overreach.

Of course they have the right to do this, but the question is whether it is proper to do this and/or whether it is wise. Many people will not subject themselves to such strictures. I know I wouldn't. In our office, my boss, myself and several others are, to put it mildly, chubby. If I go without a shave for two days, I look like Larry the Cable Guy. Some of the people at the home office in Munchen commented about this and the need for some of us to perhaps diet. My boss, who goes about 300, said to me after the meeting where this was brought up that (given the fact that our office is for the most part Aryanrein), they just want to make sure we fit in the ovens. But if they did try to impose a weight requirement on us, I think about 7 or 8 of us would quit en masse, and that a lot of mass, about a ton of math geek. There are a lot of porkers in our business and getting placed in a more comfortable environment would be no problem.

It would hurt the company in the marketplace but it wouldn't be the first time an organization based in Munchen made decisions based not on competence but on people's appearances. But in all honesty, I don't think they're stupid enough to push the issue.

Posted by: Bart at February 18, 2005 8:10 PM


Many will. That's how markets work.

Posted by: oj at February 18, 2005 8:26 PM


We take humankind as it is, not as we want it.

Posted by: oj at February 18, 2005 8:29 PM


Posted by: Tom C., Stamford, Ct. at February 18, 2005 10:30 PM