"As I read Vicomte's post, it had nothing to do with state law. It had to do with activist judges creating new causes of action against employers out of thin air, regardless of whether or not there is a law on the books."
What I said does have to do with state law.
29 states have passed laws that specifically prohibit employers from doing this sort of thing.
Michigan is not among them, but there may be existing precepts of Michigan law, existing court cases and interpretations of employment contracts up there that make what the employer has done here suspect.
Remember, the Common Law, which we so often praise, has never been primarily made by legislatures but by judges applying general principles of law to a specific case. The whole law of contracts started out as judge-made law. It still hasn't been codified in many respects.
I am not looking to create new causes of action out of thin air. What I am doing is trying to figure out a reasonable conservative response to something outrageous that an employer has done that has Michigan all abuzz, and has now hit the national airwaves as well.
Among those 21 states that don't have specific laws protecting private life from employer intrusion, there probably will be some that pass such laws based on this particular incident, if it continues to get press coverage and other employers follow suit.
I don't think that states deciding democratically to pass laws or not is a conservative or liberal issue - the content of the law determines that. Whether it's the state that passes the law, or the feds is, I think, a federalist/conservative issue. And I would expect conservatives and federalists to think that this ought to be left to the states to decide, and not think it outrageous that 29 states have decided that this sort of employer over-reach is for the birds.
Perhaps the best solution would be for the people of Michigan to get agitated enough about this to pass a law shielding private life from employer retaliation before any sort of legal action against the employer gets underway. In this way the legislature can make the law and not leave it up to the courts.
Actually, you are.
Remember, the Common Law, which we so often praise, has never been primarily made by legislatures but by judges applying general principles of law to a specific case.
Applying general principles meant to fill in gaps should not extend to creating entirely new causes of action that didn't previously exist.
Among those 21 states that don't have specific laws protecting private life from employer intrusion, there probably will be some that pass such laws based on this particular incident, if it continues to get press coverage and other employers follow suit.
Fine -- then pass a law. But encouraging judges to invent new causes of action -- effectively usurping the role of legislatures that you acknowledge are perfectly capable of passing such laws themselves -- is hardly "conservative". It's the exact type of judicial activism conservatives usually condemn.
What I am doing is trying to figure out a reasonable conservative response to something outrageous that an employer has done that has Michigan all abuzz, and has now hit the national airwaves as well.
How is it a conservative response to have the government intervene in employment decisions made by private employers with their own employees? Because what you're basically saying is that private employers should not be permitted to consider smoking when making employment decisions, and that the government can blast them if they do.
As for general laws that don't permit employers to interfere in "private lives", you might want to think carefully about that. Do you think an employer should have the right to terminate a receptionist who is a cross-dressing, transsexual stripper in his/her "off hours", particularly when that fact becomes known to customers, vendors, and clients?
How about someone who publicly advocates the goals of NAMBLA? Do you think an employer should be able to terminate an employee for those actions, even if they only occur "off the clock"?
Or how 'bout an employee who is the local Grand Wizard of the KKK -- again, only in his "off hours"? Do you think an employer should have the right to decide he doesn't want to employ such an individual?
The best check on employer excesses is the market, not overly broad new legislation that always has negative and unanticipated consequences.