Employees who smoke are currently unpopular with the nation’s employers. But they are not alone. The Philadelphia e-zine, Philly Burbs, writes that there are five other “conditions” that employers will avoid in a potential job candidate. You can decide for yourself whether there is any truth in this claim. Continue reading
Workplace privacy concerns aren’t limited to technology. There’s been lots of buzz about GPS tracking of employees, use of biometric data in time and attendance programs, and, of course, electronic monitoring of employees’ e-mails, and Internet usage. As the case below demonstrates, privacy concerns don’t require hi-tech equipment or software. Just a whole lot of nosey.
A Sordid Affair
The story centers around a Wal-Mart supervisor who had engaged in an improper affair with a co-worker. Not only was the affair illicit but it also violated Wal-Mart’s anti-fraternization policy. The supervisor was terminated when the company discovered the relationship. Now, the termination alone might raise a few eyebrows. But, policy is policy, and the supervisor’s relationship was in violation of policy (as well as really bad managerial skills), the company can and should take disciplinary action.
I Spy (well, Wal-Mart spied, actually)
Where the story becomes truly noteworthy, though, is exactly how Wal-Mart came to first learn about the “violation.” It hired a private investigator to track the couple. The investigator did just that; following them all the way to a rendezvous hideaway in Central America.
And Then Came the Lawsuit
The romantic and unemployed supervisor filed suit in Arkansas state court alleging violation of contract and wrongful termination based on public policy. The contract claim was swiftly rejected. The termination claim, based on the allegation that he was fired in retaliation for reporting Wal-Mart’s failure to comply with it’s own internal policies regarding factory certification, was equally unpersuasive. Summary judgment was granted in favor of Wal-Mart, which was subsequently affirmed by the Arkansas Court of Appeals.
The legal claims asserted in the lawsuit were pretty blasé when compared with the sordid facts that got him terminated in the first place. Based on the appellate court’s decision, the claims seem doomed from the start. I have to wonder whether the plaintiff wouldn’t have been better off asserting a state-law privacy claim.
The case is Lynn v. Wal-Mart Stores, Inc., No. 07-384 (Ark. App. Ct. Mar. 19, 2008), and a hat tip to the Workplace Profs Blog, who spotted this one back in April.
Office etiquette can define corporate culture. Employers should be aware of etiquette violations. Some, like office gossip, require swift and serious action. Others, like personal grooming (or lack thereof), can require a more delicate reaction by management. A recent study shows that one of the most serious violations is the use of four-letter words at work. Bad timing, it seems, for New York City anchorwoman, Sue Simmons. Continue reading
Off-duty conduct, especially smoking and tobacco use, are often regulated by employers who complain of increasing health-care costs. But not every employer believes that workplace regulations on employee’s off-duty conduct is an appropriate solution.
The Tribune Company, which owns the Chicago Tribune, came under new ownership in December. Sam Zell, the new chairman and chief executive, recently revoked the company’s $100-per-month smoker’s penalty. The penalty, says the new owner, “is inconsistent with the new culture.”
The CAO and Executive VP, Gerry Spector, told employees in an e-mail, “We’d rather you use your own judgment when it comes to tobacco use, not impose ours upon you.”
The company will continue to offer smoking-cessation programs to employees at no cost but will reimburse those employees who had been subject to the penalty.
This certainly a different approach to the way most employers are treating smokers these days. Is this an indication that employers may move towards positive reinforcement instead of penalties to reduce the cost of health insurance?
The relationship between smoking and employability is a familiar topic on this blog. To visit some of our previous posts on the issue, click here.
More on the story can be found at the Chicago Tribune’s website.
Risk-Avoidance provisions in employee contracts are more common than you might think. Think of it as insurance on an investment. Employers pay huge sums to retain these “ultimate performers.” The employment contract is one way to try to ensure that your precious and irreplaceable commodity (i.e., the all-star employee), doesn’t voluntarily put your investment in harm’s way.
The activities subject to risk-avoidance provisions vary greatly. From driving motorcycles to skydiving, the sky’s the limit on what types of “dangerous” engagements can be prohibited.
The Human Capitalist has a short post on Why Professional Athletes Have Provisions in their Employee Contracts. We’ve posted about this topic before in the context of Philly’s own ex-newsreporter, Alycia Lane, and the morals clause in her employment agreement that permitted CBS to fire her after being making headlines herself one too many times.
Human Capitalist also posts a great YouTube video demonstrating just why sports figures should have “risk avoidance” provisions in their contracts.
For more on this topic, see our earlier post, Bad Boys, Bad Boys, Whatcha’ Gonna Do When They Work for You?, which discusses morals clauses in employment contracts.
Employers face another obesity obstacle.
As everyone knows, Americans have been gaining more and more weight over the past forty years or so, as confirmed by the National Institute of Health’s website. Reading the recent post in this blog about obesity policies made me wonder whether the Americans with Disabilities Act is the only law that such a policy might conflict with. What about Title VII of the Civil Rights Act of 1964? Continue reading
Delaware businesses, if you worry about obesity and its effects on your workforce, you are not alone. Across the country, there has been a sharp turn in focus by major businesses and commercial organizations. The focus shift has been towards obesity as a costly characteristic of our modern workforce.
As discussed in earlier posts, many observers worry that the current trend in refusing to hire smokers will spill over to other areas of employees’ health. Obesity is commonly cited as the next likely target.
There is, certainly, some logic behind the argument. One place to find support for the idea of regulating employee’s waistlines can be found in the report by The Conference Board, Weights and Measures: What Employers Should Know about Obesity. In its report, the Conference Board examines the financial and ethical questions surrounding whether, and how, U.S. companies should address the obesity epidemic. The report was featured on April 9th’s episode of Marketplace, public radio’s popular business program.
Some of the findings from the study include:
~Obesity is associated with a 36-percent increase in spending on healthcare services, more than smoking or problem drinking.
~More than 40 percent of U.S. companies have implemented obesity-reduction programs, and 24 percent more said they plan to do so in 2008.
~Estimates of ROI for wellness programs range from zero to $5 per $1 invested.
~ROI aside, these programs may give companies an edge in recruiting and retaining desirable employees.
~Meanwhile, some say it may be more effective just to award employees cash and prizes for weight loss rather than devote resources to long-term wellness programs.
~Employers need to weigh the risks of being too intrusive in managing obese employees against the risks of not managing them
But NPR isn’t the only organization tuned in to the obesity debate. Bloomberg.com also featured the Conference Board’s findings this month, as did Forbes.com. Human Resources professionals are also turning towards the issue, as demonstrated by the articles at Society for Human Resource Management (“SHRM”), The Salary Reporter, and this article by Larry J. Rector from the West Virginia Employment Law Letter, which can be found through the H.R. Hero website.
If these big-name players have turned their focus to the “obesity crisis,” should Delaware employers do the same?
For previous posts about the increasingly close involvement employers have in the private health matters of their employees:
Employers and smokers have been making headlines. Just last week, Whirlpool made the news when it terminated 39 employees after they were caught smoking, despite having signed statements when they were hired swearing that they were non-smokers.
Over the past several years, it has become more and more common for employers to have stopped hiring smokers or to require smokers to pay higher premiums for health insurance. But not everyone agrees with the idea of punishing employees based on health-related factors. Some cite privacy concerns and paternalism as reasons why employers should not become involved in what employees do off the job. And others worry about what will come next. Currently, it is socially acceptable to ostracize smokers. And, in most states, including Delaware, there’s nothing unlawful about it.
But what about other health factors, like obesity? Will employers next target overweight and obese employees with higher health care premiums? Will businesses refuse to hire applicants who are over a certain body mass index (BMI)?
Some employers, like Westgate Resorts, a vacation-properties company based in Orlando, Florida, are trying to push employees into healthy lifestyles, which includes reducing obestity. At Westgate, employees aren’t penalized to lose weight but those who do are rewarded with a variety of incentives. Michigan is the only state, in addition to the District of Columbia, to prohibit discrimination based on weight. But, in other states like Delaware, where obesity is not a protected class, there would be little legal risk to implementing a weight-reduction policy. Of course, as my mother would say, “Just because you can, doesn’t mean you should.”
Employers should consider non-legal implications of such a policy. For example, how to define “obese.” If BMI is the only determining factor, you might not have many employees–more than two-thirds of Americans qualify under this definition. Or what about the woman who gained 60 lbs during pregnancy and isn’t in a real rush to get lose it right away? And how do you handle an employee who states that his obesity is related to another medical condition. This would sound the alarms of both HIPPA and the Americans With Disabilities Act (ADA). And would gastric bypass or other bariatric surgeries be pushed on employees as a “solution” to weight struggles? How will they regulate weight on a more organic level?
For example, will there be a ban on the sale of Girl Scout cookies?
That announcement would make headlines, for sure.
[Not] Hiring & Firing Smokers
Of the four posts in this series on Smokers & the Workplace, the common action we have seen Delaware employers take is simply not hiring applicants who smoke. Many who implement this type of policy permit current employees to be grandfathered into the new program and do not require them to quit smoking as a condition of continued employment. But that, also, is a viable alternative.
Weyco Inc. stopped hiring smokers in 2003 and prohibited smoking anywhere on company property in 2004. Then, citing evidence on how smokers drive up its health-care insurance costs, Weyco informed its 200 employees that smokers would have fifteen months, until January 1, 2005, to quit smoking. If they didn’t (or couldn’t), they would lose their jobs. Four employees left rather than be tested for the presence of nicotine in their system.
Since Delaware, like Michigan, is one of the states without a “smokers’ rights” law, an applicant who is not hired or an employee who is terminated for smoking would have to look to other statutes for protection. The most likely law would be the Americans with Disabilities Act (“ADA”).
While no Delaware court has addressed the issue, smokers have had little success in other jurisdictions using the ADA to attack their termination. Under the ADA, an employee must show that they have an impairment that substantially limits a “major life activity” like walking, talking, speaking, breathing, etc. While a smoker who develops cancer or mphysema or heart disease from smoking might be protected under the ADA because of the symptoms of those diseases, it is unlikely that smoking alone will be sufficient to invoke ADA protection. As a result, a Michigan state court ruled that an employee’s “addiction to nicotine” was not a disability because it did not substantially limit any major life activity.
Indeed, the U.S. Supreme Court refused to hear a case involving smokers who were rejected from jobs because they had used tobacco within the last year. That refusal let stand a Florida state court ruling that the rejections were lawful because they were based on evidence concerning worker productivity, absenteeism, and public health objectives.
It is unlikely that this hot issue will be tamped out. It pits the right of individuals to engage in a lawful activity off the job against an employer’s right to hire who it wants. In the absence of a smokers’ rights bill in Delaware, it seems that the employer’s rights will prevail in most instances.
Other Posts on Smoking in the Workplace:
DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.
Employee Incentive Programs Targeted to Smokers
In Part 2 of this series of posts, we talked about employers who charge higher health care premiums to employees who smoke. These types of programs are commonly lumped together under the broader term of “Wellness Programs.”
But, in fairness, a true Wellness Program involves more than a financial penalty. The modern workforce expects more rewards than punishments from a wellness program. And most employers have answered that call to action by using positive reinforcement strategies–either alone or in conjunction with higher premiums.
Employers may offer special discounts, rebates, and incentives in return for employees’ adherence to certain wellness initiatives, such as smoking cessation. In order to offer these benefits to non-smokers, employers must comply with additional HIPAA regulations. The incentive program must be reasonably structured to promote health; the rewards must be proportionate to the employer’s gain; and the incentives must be strictly based on the employees’ compliance with the program.
Other Posts on Smoking in the Workplace:
DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.