Smoking and employment

Sometimes students think we make it up. Tuesday we talked about employers monitoring off-duty conduct such as smoking. After many students expressed disbelief that an employer could discharge an at-will employee for smoking–“But smoking is legal!”–I related how The Scotts Company did that very thing a few years ago. Welcome to at-will employment. The next day an alert student emailed this article from 39 Whirlpol workers suspended over smoking lies. The workers signed statements for Whirlpool’s insurers that they do not use tobacco “and then were seen smoking or chewing tobacco on company property.” Some may be fired–for lying about smoking, not for smoking. The company employs financial incentives to discourage smoking, charging tobacco users an extra $500 for annual health insurance premiums, practice common for large companies (with more than 20,000 employees), 16 percent of which charge higher insurance premiums to tobacco users.

Medical Marijuana and Employment

Non-lawyers are often troubled by how messy and inconsistent the law can be. A student asked why California law could permit medical use of marijuana when its possession is a criminal offense under federal law. I noted that such conflicts remain unresolved until lawsuit puts the conflict before a court. Coincidentally, while I was in class a friend sent me this article from Bloomberg: California Worker Fired for Marijuana Can’t Sue. Gary Ross’s doctor recommended marijuana use to relieve pain from a back injury. Ross’s employer, Ragingwire Telecommunications, Inc. fired him when a drug test required for new employees revealed he had fired up. His lawsuit claimed that his termination discriminated based on a disability and violated public policy. A California trial court dismissed his lawsuit, an intermediate appellate court affirmed the dismissal, and the California Supreme Court affirmed the lower-court rulings 5-2. According to Bloomberg the court held that “[n]othing in California’s voter-approved Compassionate Use Act of 1996, which allows the smoking of marijuana when recommended by a physician, governs the ‘respective rights and duties of employers and employees.'” The article notes in passing the observation by Ragingwire’s attorney that “he didn’t believe any state legislation would overcome a fundamental conflict between the California medical-use law and federal law banning possession and use of marijuana.”

Science 101

Following a discussion of employment law this week a student sent me this article: Biologist fired for beliefs, suit says. Woods Hole Oceanographic Institute fired postdoctoral researcher Nathaniel Abraham from his position in the biology lab because he believes “that the Bible presents a true account of human creation.” Abraham was hired to work on a project that “studies how aquatic animals respond to chemical contaminants by examining ‘. . . mechanisms from a comparative/evolutionary perspective,'” did not inform anyone that he does not believe the fundamental tenets of evolution underlying the research, and was fired when he disclosed this fact.

Is belief in evolution a bona fide occupational qualification for this position? Woods Hole fired him because of his religious beliefs, yet his beliefs are fundamentally incompatible with his job responsibilities. How could he even take such a job? It would be like an adherent to Christian Science–which treats illness through prayer rather than medicine–being trained as an oncologist. The article puts it this way: “‘A flight school hiring instructors wouldn’t ask whether they accepted that the earth was spherical; they would assume it. Similarly, Woods Hole would have assumed that someone hired to work in developmental biology would accept that evolution occurred. It’s part and parcel of the science these days.'”

Not On Company Time

The Wall Street Journal reported in a January 16 story titled Web Filters’ New Job: Protect the Network (subscription required) that corporate use of Web-filtering software has evolved from broad-brush blocking employee access to the “sinful six” — pornography, gambling, illegal activities, and hateful, violent, or tasteless content — to more fine-grained control. Companies are using filters to block work-time access to bandwidth-intensive sites (e.g. YouTube), social networking sites (e.g. Facebook, MySpace), shopping sites (the article mentions a London office that allows access to shopping sites during lunch), sporting events (World Cup games) and other sites that don’t serve a corporate purpose. One wonders how a generation that grew up on AIM, MySpace, Facebook, and YouTube will react.

Less is More

Apropos the subject of employers and overweight employees, a reader passed along a report that since 2002 Microsoft employees have lost more than 30 tons – 61,100 pounds actually, from 2,152 people, an average of 28.4 pounds each. The employees took advantage of Microsoft’s weight management benefit program, in which the company pays for 80% of “a comprehensive, clinical weight-loss program” up to a maximum of $6,000 per employee. Since offering the benefit in 2002 Microsoft claims it has realized a one-to-one return on the expense, from lower drug and health care costs. All employees who are obese or clinically overweight can take advantage of the benefit which includes personal training sessions, counseling, support groups, and medical supervision. The report cites Microsoft CEO Steve Ballmer’s 50-pound weight loss in 2002 as an inspiration for the benefit, but does not say whether Ballmer’s famous “monkey dance” is part of the weight-loss regimen. (Thanks, WSHustler)

Smoking Ban, Weight Tax, and Bias

Two news items bring to mind themes addressed in At-Will At Work, a recent post about Scotts Co.’s termination of an employee for smoking. First, the global smoking zone continues to shrink. Germany announced last Friday that it intends to ban smoking in restaurants, discos, schools, and public buildings. The ban would not affect smoking in pubs, bars, or beer tents unlike laws more-restrictive anti-smoking laws enacted recently by Britain, France, Ireland, and Italy. Good news for those who like breathing cleaner air, although I’m puzzled by one policy choice: why ban smoking in discos and allow it in bars?

The second is prompted by comments to the cited post that also arose in class discussion, namely that employers’ could target obesity using the same rationales that support terminations for non-smoking. In an article titled Extra Weight, Higher Costs The New York Times reported on Saturday that “being fact costs money – tens of thousands of dollars over a lifetime.” Factors imposing a “weight tax,” if you will, on obese people include higher life insurance premiums and medical expenses, lower incomes, and less accumulation of wealth. In discussing weight discrimination in employment the article states: “[S]ome employers do not want to be burdened with higher health insurance costs. Other times it is a matter of appearance or a belief that ‘people of size’ . . . are lazy, weak-willed or considered too unattractive to interact with customers.” The article notes that Michigan – ironically the home of Weyco, a company mentioned in At-Will At Work for its refusal to employ employees who smoke – is the only state that outlaws weight discrimination. (The connection between smoking cessation and weight gain means there is a wise-ass remark to be mined from these facts. I’ll leave the spade work to others.)

The sidebar to the online version of second article contains a link to Implicit Association Test, a Harvard-based demonstration site for “a method the demonstrates the conscious-unconscious divergences” in our beliefs. Before taking one of the tests the user must click on on the following warning: “I am aware of the possibility of encountering interpretations of my IAT test performance with which I may not agree. Knowing this, I wish to proceed.” Thinking “I can get my carefully-constructed self image dismantled and thrown back in my face. How fun!” I clicked through to the test menu. It offers tests for unconscious reactions on race, religion, disability, gender and science, sexuality, weapons, and other matters. I took the Weight (‘Fat – Thin’) Implicit Association Test. The test itself is somewhat maddening. After responding to a brief questionnaire one sits at the keyboard and makes binary choices by pressing the e or i keys in response to words and images flashed on the screen. First come a series of faces which one classifies as “fat” or “thin.” Next come a series of words which one classifies as “good” (joy, laughter) or “bad” (evil, agony). The words and images are then mixed in various ways that require one to consider which key to press, e.g. for some sequences one must press i for “bad” words and “thin” faces, for another one must press i for “”good” words and “thin” faces. Through the miracle of psychological testing the results are calibrated and the verdict rendered: you are biased, or not, based on weight. The entire test takes about ten minutes, if you care to run the risk of self-knowledge.

By the way, the test told me I do not make negative associations based on weight. Whether that is true or a consequence of my keen self-awareness while taking the test will require further testing to determine.

Mark Landler, Germany to Restrict Smoking, Joining Other Nations in Europe, The New York Times, 3-Dec-06; Damon Darlin, Extra Weight, Higher Costs, New York Times, 2-Dec-06

At-Will At Work

The Scotts Company, manufacturer of fertilizer and other lawn care products, forbids employees from smoking tobacco products–on or off the job. In September Scotts’ subjected its employee Scott (love these coincidences) Rodrigues of Buzzards Bay, MA to a urine test, which disclosed nicotine in his system. Scotts fired Rodrigues for violating its no-smoking policy. The Boston Globe reported today that Rodrigues filed a wrongful discharge suit against the company in Boston’s Suffolk Superior Court, claiming it violates public policy to terminate him for engaging in a legal activity. Harvey A. Schwartz, Rodrigues’ lawyer, believes this is the first case of its kind in Massachusetts.

This may be the first case in Massachusetts, but it is not the first time a company has terminated an employee for smoking cigarettes. For example, in 2003 Weyco, Inc., a Michigan health-care company, received national attention after adopting its “healthy lifestyle” policy and announcing that it would no longer hire or, after January 1, 2005, continue to employ smokers. Weyco offered smoking-cessation services at its expense to employees who wanted to quit, and it stuck to its policy. When it went into effect in 2005 Weyco fired four employees for refusing to submit to tests to determine the presence of nicotine, and another employee quit before the policy went into effect.

Scotts, like Weyco, adopted its no-smokers policy to attempt to reduce the costs of employee medical coverage. The Globe article quotes a Scotts’ spokesman: “We’re not interested in dictating our employees’ behavior in their free time because it doesn’t affect us . . . but the issue of smoking we deem different because there is no dispute whatsoever that there’s a direct correlation between increased health risk and healthcare costs. So what we’re really saying is we’re not willing to underwrite the risks associated with smoking.”

According to The Globe, Rodrigues knew of Scotts’ no-smokers policy when he took a job early in 2006. Scotts does not administer random drug tests to employees but Rodrigues had received a written warning that his smoking was an issue after a supervisor saw a pack of cigarettes in his car, thereby giving Scotts reason to single him out for testing.Rodrigues does not have a claim for employment discrimination — his status as a smoker does not make him a member of a protected class in Massachusetts, which has no law protecting smokers.

Today, smokers; tomorrow, those who eat too much Ben & Jerry’s? Beyond such obvious tongue-in-cheek scenarios, the practice of terminating employees for engaging in legal activities that can affect a company’s bottom line has insidious implications. I downhill ski (increasing my risk of ACL and MCL injuries), ride a road bike (increasing my risk of head injuries), swim alone in a lake (increasing my risk of drowning), often use a gasoline-powered chain saw (increasing my risk of death or injury from saw kickback), and yes, in fact, I eat way too much ice cream (increasing my risk of cardiovascular disease and obesity, which in turn increases my risk of divers ailments). I can distinguish the risk of smoking from the risks associated with all of these activities, but the problem is opening that door in the first instance.

Sacha Pfeiffer, Off-the-job smoker sues over firing, The Boston Globe 30-Nov-06, p. 1; Marisa Schultz, Amy Lee, & Eric Lacy, Workers fume as firms ban smoking at home, The Detroit News, 27-Jan-05; Company Fires All Employees Who Smoke,, 25-Jan-05

The Cup Runneth Over

The problem in teaching Internet law is choosing what to cover. There is no such thing as “Internet Law,” not in the sense of an integrated body of legal principles such as contract law, tort law, or constitutional law. “Internet Law” might better be described as “The Legal System’s Response to Problems Arising from Use of the Internet and Digital Technology for Commercial and Other Transactions.” That’s a title certain to scare away prospective students, and still probably incomplete.

When Internet Law, or Cyber Law, entered the legal consciousness about eight years ago textbook publishers rushed a number of Internet law texts to market. I looked at all of them, tried out a few, and now don’t use any. One problem they shared was the lack of clear vision as to what they should cover. They spent time on topics like non-disclosure agreements for employees of tech companies or forms of business organization for Internet start-ups. These are interesting topics in an employment law or entrepreneurship course, but pose no issues unique to the Internet. Teaching this course requires guidelines to determine what topics are in and what are out. Two Internet law professors might use different guidelines and disagree about whether to include a particular topic. For instance, I don’t discuss patent law in my Internet law course. Patent law raises vitally important issues these days, such as the patentability of methods of doing business and the Patent Office’s need to vet prior art thoroughly, but in my view these cutting-edge issues do not turn on unique Internet characteristics.

Fortunately the news abounds with issues of Internet law. These are some of the stories that came across my desktop yesterday:

Darren Waters, Warnings over ‘broken up” Internet, BBC News, Oct-11-06 (reporting on concerns that countries such as China will tailor Internet architecture to their specific needs, resulting in “island of connectivity that have no inter-connectivity between them”)

Jonathan Bick, E-Communications Policy: Getting It Right, E-Commerce Law & Strategy (, Oct-12-06 (recommendations about employer policies governing employee use of “Internet, computer, and electronic assets” that recognize the ubiquity inherent insecurity of current methods of electronic communication)

Jack M. Germain, The False Promise of Browser Security, E-Commerce Times, Oct-11-06 (“Vulnerabilities are so embedded in any browser that surfing the Web is no safer than driving a tank through a mine field while blindfolded.”)

Does YouTube Make Google a Big Target for Copyright Suits?, The Wall Street Journal, Oct-11-06 (Discussion between John Palfrey, Harvard law professor and Director of the Berkman Center for Internet and Society and Stan Liebovitz, University of Texas economics professor and Director of the Center for Analysis of Property Rights and Innovation)

Susanna Hamer, Google’s big bet,, Oct-12-06 (Advertisers will use databases of personally-identifable information, tracking cookies, geo-location software, and other devices to deliver personally-customized video ads to Internet users)

Like I said, the problem in teaching Internet law is choosing what to cover. There is too much.

Employees & abortion beliefs recently reported on two employment cases involving terminations relating to the respective employee’s positions on abortion. They provide an interesting starting point for a discussion of employers’ right to terminate employees for personal beliefs.

In Curay-Cramer v. The Ursuline Academy of Wilmington, 2006 U.S. App. LEXIS 13956, (3rd. Cir. 2006) English teacher Michele Curay-Cramer sued Ursuline Academy, a private Wilmington, Delaware Catholic school, for employment discrimination under Title VII. The school fired Curay-Cramer after she signed her name to a newspaper advertisement supporting the legal right to an abortion on the 30th anniversary of the Supreme Court’s decision in Roe v. Wade. The school’s principal told Curay-Cramer that she was “deeply troubled by her public support of a position inimical to accepted Catholic doctrine.”

Curay-Cramer relied in part on Title VII’s opposition clause: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees. . . because he has opposed any practice made an unlawful employment practice by this subchapter . . ..” 42 U.S.C. ยง 2000e-3(a). She argued that the opposition clause “protects any employee who has had an abortion, who contemplates having an abortion, or who supports the rights of women who do so,” but the Third Circuit didn’t reach this argument in ruling for the employer. It held that Curay-Cramer failed to state a claim because her endorsement of the pro-choice advertisement was not a protected activity. “[P]ublic protests or expressions of belief” are not protected in themselves without connection to an employer’s alleged illegal employment practice.

This is what the advertisement said:

Thirty years ago today, the U.S. Supreme Court in Roe v. Wade guaranteed a woman’s right to make her own reproductive choices. That right is under attack. We, the undersigned individuals and organizations, reaffirm our commitment to protecting that right. We believe that each woman should be able to continue to make her own reproductive choices, guided by her conscience, ethical beliefs, medical advice and personal circumstances. We urge all Delawareans and elected officials at every level to be vigilant in the fight to ensure that women now and in the future have the right to choose.

The court stated that the advertisement can’t be construed to comment on the school’s alleged policy of termination the employment of women who have had, contemplated having, or support the right to have an abortion.

In the other (the article provides no citation) a Wisconsin federal district court upheld Wal-Mart’s termination of a Roman Catholic pharmacist who refused to fill birth control prescriptions. The pharmacist, Neil Noesen, argued that the termination violated his First Amendment right to free exercise of his religious beliefs. The court disagreed, holding that Wal-Mart reasonably accommodated Noesen’s belief by assigning other pharmacists to fill birth-control prescriptions and stating, according to the article, that saying Noesen “went too far by putting customers who called about birth control on hold indefinitely and by refusing to get service for those who showed up in person.”

(Shannon P. Duffy, 3rd Circuit Denies Fired Teacher’s Suit Over Support for Abortion Rights, The Legal Intelligencer, 06-08-2006; Ryan J. Foley, Federal Judge Dismisses Suit by Pharmacist Who Refused to Dispense Birth Control, The Associated Press, 06-05-2006)