There are a lot of smart people here--any thoughts, Freepers?
That was the first impression Icame to. I think it could. Now aint that a b---h.
I always appreciate both your well considered thoughts.
Do you think the ADA could help these smokers who will get fired for smoking? I've written up a rough legal memo arguing that it does and I'd love your input.
Yes, a few thoughts.
First, those fired need to get lawyers and sue in MICHIGAN. Not in Federal court, but in a Michigan court, before an elected judge, with a Lansing, Michigan unionized auto-worker jury.
We are all for federalism and states' rights, and this is states' rights in action. Does a cause of action exist under MICHIGAN law that would impose liability on this employer? That would be for an elected Michigan judge to decide, not for a federal appointee. Everyone involved here is a Michigan citizen. This is a Michigan company who hires in Michigan. Michigan law applies, and the trial should be in a Michigan court. And whether the employer was liable or not should be for Michigan people, in a jury of the employer's and employees' peers, should decide.
I have no real doubt that an elected judge and a Michigan jury would impose liability on this employer, and that would be the end of that. No other employer in his right mind in Michigan anyway, and probably anywhere else, would get it into his head that he has the right to extend his authority into the unpaid time of employee's private lives.
If an employer wants 24 hours of control, he has to pay for 24 hours of time. If he pays for 8 hours of an employee's time, he has no right to expect authority to control the other 16 hours of the employee's work.
The ADA claim is probably good from a legal perspective, but rather than try to make a protected class out of smokers, I would prefer a more frontal assault here. There are labor laws, and reasonable limits on what employers may do. For example, employers cannot legally make people work 100 weeks but only pay for 40 hours. They have to pay time and a half. We have not had absolutely an unregulated employment market in the United States since Lochner was overturned. There are a few principles which could apply here, but the most straightforward is the "unpaid work" idea. The employer is asserting control over an employee during his off time, in his own house, doing nothing illegal. That means that the employee is not really off the clock: the employer continues to assert supervisory authority over him. But the employer is not paying for the privilege of doing that.
Damages should be that the employer is obligated to pay the hourly salary rate to each employee for 24 hours a day, 365 days a year, from the time that the unpaid work policy was implemented.
It is really rather important that folks who believe in the free market step up to the plate here and smack down this employer. Because as with any other right, there have to be limits or that right will be abused. This is a clear a case as can be imagined of an abuse of the employment-at-will doctrine. Simply allowing the market to correct this will not work. First, it might not. Second, it is a poster case for anyone who wants to say that the unregulated labor market does not work. MOST PEOPLE find what this employer is doing outrageous, and they are right. It is. If we want to protect employment at will and NOT have a whole new raft of regulations, appellate boards, and union intrusion arising from this case - and believe me this employer will be copied by others if he gets away with it - this employer needs to be slapped down very firmly now. The free labor market and employment at will doctrine simply will not politically survive this sort of abuse by employer power. The people won't stand for it, and it won't be the free market that corrects it but government regulation: people are just not going to tolerate this sort of abuse long enough for the free market to finally come to bear.
The ADA claim is a good pretext to get the case into a Federal court, but the precedent that smoking is a disability has some ugly knock ons. I don't think we want to go there.
The simpler course is the true one: this employer wants 24 hours of work from his employees for 8 hours pay. That's illegal. Get a Michigan judge to allow the case on that theory, and a Michigan jury will do the rest. Try to defend the idiot employer here, and you're going to have laws and regulations that limit ALL employers because this idiot employer peed in the pool.
Yes, a few thoughts.
First, those fired need to get lawyers and sue in MICHIGAN. Not in Federal court, but in a Michigan court, before an elected judge, with a Lansing, Michigan unionized auto-worker jury.
We are all for federalism and states' rights, and this is states' rights in action. Does a cause of action exist under MICHIGAN law that would impose liability on this employer? That would be for an elected Michigan judge to decide, not for a federal appointee. Everyone involved here is a Michigan citizen. This is a Michigan company who hires in Michigan. Michigan law applies, and the trial should be in a Michigan court. And whether the employer was liable or not should be for Michigan people, in a jury of the employer's and employees' peers, should decide.
I have no real doubt that an elected judge and a Michigan jury would impose liability on this employer, and that would be the end of that. No other employer in his right mind in Michigan anyway, and probably anywhere else, would get it into his head that he has the right to extend his authority into the unpaid time of employee's private lives.
If an employer wants 24 hours of control, he has to pay for 24 hours of time. If he pays for 8 hours of an employee's time, he has no right to expect authority to control the other 16 hours of the employee's work.
The ADA claim is probably good from a legal perspective, but rather than try to make a protected class out of smokers, I would prefer a more frontal assault here. There are labor laws, and reasonable limits on what employers may do. For example, employers cannot legally make people work 100 weeks but only pay for 40 hours. They have to pay time and a half. We have not had absolutely an unregulated employment market in the United States since Lochner was overturned. There are a few principles which could apply here, but the most straightforward is the "unpaid work" idea. The employer is asserting control over an employee during his off time, in his own house, doing nothing illegal. That means that the employee is not really off the clock: the employer continues to assert supervisory authority over him. But the employer is not paying for the privilege of doing that.
Damages should be that the employer is obligated to pay the hourly salary rate to each employee for 24 hours a day, 365 days a year, from the time that the unpaid work policy was implemented.
It is really rather important that folks who believe in the free market step up to the plate here and smack down this employer. Because as with any other right, there have to be limits or that right will be abused. This is a clear a case as can be imagined of an abuse of the employment-at-will doctrine. Simply allowing the market to correct this will not work. First, it might not. Second, it is a poster case for anyone who wants to say that the unregulated labor market does not work. MOST PEOPLE find what this employer is doing outrageous, and they are right. It is. If we want to protect employment at will and NOT have a whole new raft of regulations, appellate boards, and union intrusion arising from this case - and believe me this employer will be copied by others if he gets away with it - this employer needs to be slapped down very firmly now. The free labor market and employment at will doctrine simply will not politically survive this sort of abuse by employer power. The people won't stand for it, and it won't be the free market that corrects it but government regulation: people are just not going to tolerate this sort of abuse long enough for the free market to finally come to bear.
The ADA claim is a good pretext to get the case into a Federal court, but the precedent that smoking is a disability has some ugly knock ons. I don't think we want to go there.
The simpler course is the true one: this employer wants 24 hours of work from his employees for 8 hours pay. That's illegal. Get a Michigan judge to allow the case on that theory, and a Michigan jury will do the rest. Try to defend the idiot employer here, and you're going to have laws and regulations that limit ALL employers because this idiot employer peed in the pool.
The answer is "No."
I've been look for the 29 states that have what's called "Lifestyle Rights Laws" which protect against discriminating against smokers.
You made an excellent post!
The thing that I seem to be missing is that the "firing" excuse had to do with insurance costs. If the smoker pays their own private policy that is independent of the group plan then it would seem that the employers' reason is SOL.
There is another issue here as well.
Stop smoking aids such as nicotine gum, spray or tablets will test positive as well.
While I would not generally endorse using the Americans with Disabilities Act for a situation such as this, I do enjoy it when lefties get a good dose of their own medicine.
Nope. Being an addict may constitute a physical or mental "impairment", but that's not enough to be covered by the ADA. To get the protection of the ADA, an impairment must substantally limit a person in a major life activity. And I can't think of a decent argument for what "major life activity" is "substantially limited" by smoking. Alcoholism and drug abuse, on the other hand, often impair a person's cognitive abilities, and therefore do "substantially limit major life activities."
I could see an enterprising Plaintiff's lawyer making a "regarded as" claim, which is when a person isn't really disabled, but is "regarded as" disabled by the employer. But that's a crummy argument too. The employer's response would be "I don't regard him/her as disabled, I regard him her as a being a smoker."
The other way you could get in the ballpark but ultimately would fail is via the genetic route. Employers are not permitted to make employment decisions based on an individual's genetic info. But that doesn't apply here because its a behavior, not genetic info, to which an employer is reacting.
The bottom line is that while I think someone may try to make this argument one day, it ultimately will fail in the federal courts. Particularly since the Supreme Court has restricted coverage of the ADA almost every time it has been given the opportunity to do so.
Look at professional sports figures, military contractors, airline pilots.
While he should have grandfathered in employees already working there, it's not legally required.
For all you folks making the point about smokers being a net drain - bs.
It's well known that a study has been done that says smokers cost less to society, in the long run, than nonsmokers. So put that in your pipes and smoke it.
While I, personally, wouldn't work for this man unless he wants to pay me in the high 6 figures, whether I smoked or not, others may think differently.
The only way this man is going to be hurt by this is for the consumer to do it. Most companies aren't going to stop doing business with this man for this reason.
And yes, anyone wants to pay me $500,000 or more to quit smoking, I will.
The last thing on earth I would like to see is adding using tobacco products added to the ADA.
I don't lke the policies of this company, so I won't apply for employment, nor do business with it, however it is a private business decision and not a government edict, thus I defend their right to do it.
If this were a government agency or government edict, I would have an entirely different position.
What a disgustingly leftist way of thinking.
I don't think it would work, because although drugs are addictive, they can disqualify you for a job if you test positive on a drug test. So in that sense, it might be cittung off your nose to spite your face.
The problems that arrise as I see it, is while much more dangerous behvior is rewarded and even protected, liberals want to limit sactions, and inflict unfair taxes against, a small group who practice a behavior that is perfectly legal.
It really gets to me, when in this day and age, we have to fight for the right to live our lives and raise our kids, as law abiding, hard working, moral citizens. That is butt backwards!! (pun intended)
This is a "conservative" forum.
The word conservative means to "conserve" something.
I would assume that conservatives wish to conserve the covenants of the U.S. Constitution.
That being the case, why would any "conservative" and/or "Freeper" advocate an unconstitutional expansion of an unconstitutional federal law?
The ADA is unconstitutional because it clearly, unambigously, violates Amendment V:
"nor shall private property be taken for public use without just compensation."
SUPREME COURT OF THE UNITED STATES
No. 98—963 JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL OF MISSOURI, et al., PETITIONERS v. SHRINK MISSOURI GOVERNMENT PAC et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [January 24, 2000]
Justice Stevens, concurring.
"I make one simple point. Money is property;"
Enforcement and implementation of the ADA requirements takes money from private property owners.
For the ADA law to be constitutional, taxpayer's are require to compensate private property owners for the money needed to line the parking lot for disabled, alter doors and add ramps for disable, etc.
In addition, the jurisdiction of the ADA law is dubious as well.
Federal jurisdiction within the boundaries of sovereign state for regulation of business is always assumed to be the "commerce clause."
Article I, Section 8, Cl 3:
"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes:"
How did a private property owned business become either a "foreign nation(s)...state(s)...Indian tribe(s)?
As private property owner of a small business I make the rules. If you wish to work for me you abide by the rules or take a hike.
And if I think that your lifestyle outside of my business is detrimental to my business and thus require you not to participate in certain lifestyle behaviors or lose your job, that is my call and my call only.
That is what "Free(per)" do.
While this company owner has every right to fire employees under the “At Will” employment clauses, where he screwed up was firing these individuals for not taking a “tobacco” drug test.
In another thread on this topic I posted a decision handed down by the Fla State Supreme Court which overturned a ruling which allowed a company to fire an employee for refusing a drug test. The ruling stated that the company had no right to force said employee to take the test since his job classification was not considered “dangerous” and was thus a violation of his civil rights.
Such drug testing is only allowed by employers employing individuals engaged in jobs which are classified “dangerous” or where employees job performances are under scrutiny due to prior drug related instances.
Since the job classifications of these fired employees are not considered “dangerous” to warrant random drug testing, and their job performances were not at question, the ultimate firing of these individuals for refusing the test will be considered a blatant violation of their civil rights.
Their personal attorneys and the ACLU are going to have a field day.
I doubt it. The ADA doesn't even protect the disabled from being starved to death.