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.
Sorry for the duplicate post. Can someone remove it, please?
thank you for your excellent post. And that is a great argument--he's extending 24-hour control but only paying for 8 hours.
And as for this: "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."
I could not agree more. What he's doing is totally outrageous and there has got to be a legal way to stop it cold.
Vicomte-- A standing ovation for you. I don't think it could be said any better.