Health-Care Employers Who Don’t Hire Smokers

cigarette_pack_broken_cigaretteNot all workplace discrimination is unlawful.  For example, employers can refuse to hire candidates who will not wear necessary safety equipment. That is discrimination.  That is not unlawful discrimination.  One type of employment discrimination that is not unlawful in some states is discrimination against smokers or, more usually, discrimination based on tobacco use.  Continue reading

Pastor Terry Jones, Free Speech, and Employee Rights

Employees’ rights to free speech seems to become a hot topic right around election time.  During a very rare interview with Larry King last night, Supreme Court Justice Breyer discussed the importance of free speech. Larry, being the inquisitive interviewer that he is, asked Justice Breyer about Reverend Terry Jones’s highly controversial decision to burn copies of the Koran on the anniversary of 9/11.

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Police Officers Online: Web 2.0 Worries for Public Employers

handcuffsEmployers everywhere are facing new challenges when it comes to employees’ use of social media. These technology-based challenges are different, though, for every employer and have different nuances between industries. Certain employees’ off-duty posts on social-networking sites, such as Facebook, can have significantly more impact than others. Police officers are one such type of employee. Continue reading

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Should employers conduct online searches of job applicants? That’s one of the questions I’m asked most often by employers when talking about social media.  One of the less commonly asked questions is whether employers should conduct the same type of online search after the hiring decision has been made.  In other words, should employers monitor their employees’ online activities during employment?  porn keyboard

There are good arguments for and against this practice. For me, the most persuasive argument is logistics–it just doesn’t seem realistic for most employers to dedicate the resources required to monitor employees’ online habits.  But here’s a recent story that shows why employers may want to run a search of current employees on Google. reported the story about a single mother in St. Louis who, during the day, worked for a non-profit.  At night, though, she wrote an anonymous “sex blog” called “The Beautiful Kind.”  She’d managed to keep her online identity a secret until Twitter came along.

When she created her Twitter profile, she used her real name, thinking that only her handle would be visible. When she realized that her name actually appeared in her profile, she immediately removed it and adjusted the name field of her handle accordingly.  Immediately, however, was not quickly enough.

Thanks to Topsy, a Twitter search engine, her original profile was cached and her real name was displayed next to her user handle. According to the blogger, senior management suggested that supervisors search the web for information about their employees.  When the blogger reported to work, she was fired by her boss, who had found out about her extracurricular “activities” on Topsy. The nonprofit claimed that it could not justify the risk to its public image caused by an employee’s racy blog.

The interesting point to this story, aside from the idea of supervisors being encouraged by senior management to spend time surfing the web, is that the employee was terminated as a result of conduct that did not involve her job.  She was blogging during nonworking time on a computer not owned by her employer or connected to her employer’s network.  In some states, where off-duty conduct is protected to varying degrees, the termination may be unlawful.  But, in Missouri, which does not have any laws offering such protection to employees, it would appear that the termination is entirely lawful.

And, if nothing else, this story is an excellent example of the principle that, if you put it on the Internet, you’d better assume that your boss is going to see it and is going to hold you accountable.

See these related posts for more about the impact of social media on employers and employees:

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

More Employers Searching Online for the Dirt on Candidates

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

State Off-Duty Conduct Laws and Facebook-Friending Policies

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

In an earlier post, I discussed the implications of “friending” by employees.  I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon.  One option is to prohibit supervisors from making friend requests to their direct reports.

Patrick Della Valle, of, made an excellent point in a comment to the post.  He noted:

I believe that some states (like New York) have “recreational activities” laws that prohibit an employer from discharging an employee for engaging in lawful activity outside of working hours. I don’t know whether “friending” qualifies, but it’s something to consider.

His point about off-duty conduct laws is such an excellent one that it merits more than just a comment in response.

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Will President-Elect Obama Be Charged a Smoker’s Premium for His Health-Care?

Employers want healthy employees. Employee wellness programs are as hot as ever.  Employees who smoke, on the other hand, aren’t very popular.  Employers point to well-known statistics to support a variety of smoke-free policies.  Many companies have implemented bans on hiring smokers.  Others have taken to charging a “smokers’ premium” on health insurance.  Smokers’ premiums are a surcharge added to the health-care premiums of smokers, typically between $15 and $30 extra per month.  image

The idea of “punishing” employees for what they do in their non-working time does not sit well for some.  Others raise questions about enforcement–how will the employer know if the employee claims not to smoke but does so “socially” or even secretly.  Should closet smokers be able to avoid the smokers’ premiums by hiding what they do outside of the office?  

Our future President may be sympathetic to this secret society of smokers.  He is, after all, a card-carrying member.  Obama has admitted to being a former smoker but, in an interview with Tom Brokaw on political talk show, Meet the Press, the President-Elect admitted that he’s “fallen off the wagon” on more than one occasion and did not deny that he’d avoided Barbara Walter’s questions about whether he’d kicked the habit for good. 

In light of his penchant for lighting up, will the country’s next President really support the current employee wellness programs sweeping the nation? 

Delaware Decision on Teacher’s “Immorality” Has Implications for Employers

Delaware employers–private and public–may benefit from a recent decision from the Delaware Supreme Court upholding the termination of a school teacher.  The elementary school cited “immorality” as the basis for the termination of a 34-year old male teacher.   Lehto v. Board of Education of the Caesar Rodney School District, No. 175, 2008 (Del. Dec. 2, 2008).

The court held that the teacher, who had a sexual affair with a 17-year old female student, was guilty of immorality.  The student did not attend school in the district where the teacher worked, although her sister did, but the teacher had taught her some years before in elementary school.

The teacher had renewed his acquaintance with the student when she began coming to his school to pick up her younger sister, and they began an intimate relationship. Eventually, the affair became known in the community, and the teacher was charged with fourth degree rape, but the charge was nolle prossed because the teacher was not in a position of trust or supervision over the student. After a hearing, the school board terminated the teacher, who had positive teaching evaluations, concluding that his “engaging in a sexual relationship with a minor . . . violated the common mores of society” and “interferes with [the teacher’s] important function of serving as a role model to the students.”

The termination was upheld by the Delaware Superior Court and affirmed by the Delaware Supreme Court. Even though the conduct took place outside of the school and with a non-student of the district, “there was a proper nexus between his alleged off-duty conduct and his fitness to teach.” Especially interesting and broadly significant is the court’s conclusion that the public disclosure of the relationship permitted the inference that allowing the teacher to remain could “reasonably undermine parents’ confidence in both [the teacher] and the District.”

Private employers are often faced with decisions concerning off-duty conduct of their employees. One rationale that has been applied is whether the conduct, if it became public, could damage the employer’s reputation. Most frequently, the issue arises when employees who enter people’s homes as part of their job are charged with, but not yet convicted, of crimes. This case supports the conclusion that if public confidence in the employer would be undermined by the knowledge that the employer retained an employee who was charged with a notorious crime, that is a sufficient reason for termination.

This isn’t the first time off-duty conduct has played a role in the termination of a teacher:

People, don’t you understand: More Teacher Social Networking Woes 

Terminating Employees for Off-Duty Conduct 

MySpace and Employment: Another Tale of Woe

Off-Duty Conduct of College Pres Leads to Firing

Terminating Employees for Off-Duty Conduct

Employers can terminate employees for what the employees do in their personal, non-working time.  This is true for non-contractual (i.e., at-will) employees in most states. 

Some states have laws that prohibition employers from considering off-duty conduct when making an adverse employment decision.  For example, New York State has one such statute, known as a “lifestyle-discrimination” law.   West Virginia has a law that prohibits employers from taking an adverse employment action based on the fact that an employee uses tobacco.  There aDiscrimination Hurtsre several such laws scattered across the country, known as “Smokers Rights” statutes.  But these laws are the exception–not the rule.  

Contrary to what many employees believe, the general rule is that employers have the right to terminate employees for any reason, so long as it is not an unlawful reason, such as race, religion, gender, age, disability, etc.   This means that you can be fired because you have hot-pink hair.  Or for dating your boss’s daughter.  Or for being a loyal drinker of the brand of beer made by your employer’s #1 competitor.  And, outside of the states where lifestyle discrimination is prohibited, all of this is perfectly legal. 

Unlawful discrimination requires, in short, some unlawful conduct. Discrimination alone is not against the law.  We all discriminate countless times every day.  The word “discriminate,” is defined by Webster’s as “to mark or perceive the distinguishing features of.”  We do this all day long.  We discriminate between ham and turkey for lunch.  We discriminate based on our color biases when we choose between the black and navy suits.  We discriminate when we attend one child’s soccer game over another’s baseball practice. None of these choices are unlawful–they’re just choices. 

Similarly, employers make choices and decisions for a variety of reasons that are not limited exclusively to work-related factors.  So long as these factors do not include any of the statutorily prohibited bases, such as disability, genetic information, or national origin, for example, there is nothing unlawful about doing so.   Off-duty conduct, such as what kind of car you drive, where you buy your groceries, and whether you like your eggs fried or over easy, are all legal bases for making an adverse employment decision.  [And, for the record, you’ll note that I said legal but I did not say legitimate–what’s lawful does not necessarily equate with wise decisionmaking.]

For more on the topic of the role of off-duty conduct in employment decisionmaking, see Dan Schwartz’s recent post at the Connecticut Employment Law Blog discussing a claim brought by a teacher who was fired for his MySpace page, which Michael Stafford covered from the education-law perspective in his post, MySpace and Employment: Another Tale of Woe or any of the other posts we’ve written on Off-Duty Conduct here at the Delaware Employment Law Blog.

Off-Duty Conduct of College Pres Leads to Firing

Employers have an interest in the activities of employees–even if those activities occur during non-working time.  Much to the chagrin of employees, employers do care, strongly, about the off-duty conduct of the workforce.  The “who” and the “what” of employers’ focus is broad and varied.  From local newscasters to international sports superstars, all employees will be held accountable for their actions taken while “off the clock.”  And whether those actions include smoking, overeating, or cheating on one’s spouse, you can bet that some employer, somewhere in the country, puts a scarlet letter on any employee who may participate in them.  Although some examples of off-duty conduct seem a bit overboard, this story seems to reside fairly close to the line of relevancy. beer

Iowa Central Community College’s Board of Trustees voted unanimously to accept the resignation of the school’s President.  Robert Paxton, 52, had served as president for 13 years at the time.  One day before the incident that led to his separation, Paxton signed a three-year renewal agreement.  

And, according to ABC News, less than a week later, the firestorm began. 

A picture was published in the Des Moines Register that appeared to show Dr. Paxton pouring beer into a young woman’s mouth.  The picture appears to have been taken on a boat, where Paxton is seen with a group of young people.  He is holding a small keg over the young woman’s head.

The Board says that, although the incident happened while Paxton was off-duty, his choices, “it reflected poorly on the college.”

Thanks to the renewal agreement that he signed just before the July 4th weekend when the off-duty conduct is said to have occurred, Paxton will receive a severance package valued at approximately $400,000, which includes his salary for two years and continued health-care coverage. 

So what’s the verdict?  Does the college president’s off-duty conduct (i.e., beer kegging it with a bunch of college-aged individuals), reflect poorly on the school?  So much so that termination would have been appropriate had he not stepped down?