Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

December 9, 2006

Should Your Employer Be Allowed To Fire You If You Smoke ?

by Doug Mataconis

That’s the question raised by the case of a Massachusetts man suing his former employer for firing him when he tested positive for nicotine:

A Buzzards Bay man has sued The Scotts Co. , the lawn care giant, for firing him after a drug test showed nicotine in his urine, indicating that he had violated a company policy forbidding employees to smoke on or off the job.

The suit, filed yesterday in Suffolk Superior Court, is highly unusual because it involves an employee who was terminated for engaging in legal activities away from the workplace. The lawyer who filed the complaint said he believes it is the first of its kind in the state.

Scotts announced last year that it would no longer hire tobacco users, a policy company officials said was intended to improve employee wellness and drive down the company’s healthcare costs. But civil libertarians say it violates personal privacy rights and could be used to mask age discrimination or other illegal behavior.

The gut reaction of most people, I suspect, will be to say that Scotts had no right to fire this man for something he did outside of work. But, why shouldn’t they be allowed to fire him for any reason they deem appropriate ? You don’t have a right to a job, and you don’t have a right to a job under rules you find acceptable. If Scotts, or any other employer, believes that off-the-job behavior can have an impact on the company, which it certainly can when the company is paying for health insurance, then why shouldn’t they be allowed to tell someone that if they engage in certain behavior, on or off the job, they could be subject to termination ?

As the article goes on to state, the Plaintiff in this case knew about the no-smoking policy at the time he was hired. If he didn’t like the rule, then he didn’t have to take the job. Having taken the job, though, he can’t complain when he faces the consequences of not following the rules.

H/T: Hit & Run

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  • Brad Warbiany

    Well, first of all, I’m agreeing with you. I see no reason why Scotts can’t set their own terms of employment.

    But I think there have been people looking to defeat this policy for a very long time, and they’ve been looking for the right place to make their fight. Massachusetts might just be that place.

  • VRB

    What if you had a gene for a disease? I see this the next impact on an employers health plan. Will we eventually only have perfect people able to work?
    Would this lead to genetic selection? Why have a child who would not be able to provide for themselves? Not everybody would be able to employ themselves.

  • VRB

    One other thing, it could be that the nicotine found may not have been from recent smoking. Does the person admit to smoking?

    The instruments used in those test can detect substances into parts per trillion. For instance, they can detect if you have smoked marijuana, if it has been slightly over a year.

  • Adam Selene

    So long as law, regulation and practice make health insurance such a major part of your work benefits, employers will seek to limit their costs. We created this situation ourselves. Solving it will require undoing what we did. Are you willing to do that VRB?

    Also, I suspect that refusing to hire someone because of a genetic condition would invoke the Americans with Disabilities Act.

  • VRB

    I wasn’t speaking as if you had the disease only the genetic markers that would predispose you in the future.

  • VRB

    Why would a corporation rights trump an individuals?
    Lets say if there were not any regulations requiring safety, an individual would not have any right to expect a safe work environment? Are we to expect there would naturally occur a corporation that would provide a safe environment? After all they would be saving money.

  • Adam Selene

    Why would a corporation rights trump an individuals?

    First, an artificial entity (i.e. a corporation or union) has no “rights”, only legally protected privileges. Second, in what way are corporate privileges trumping individual rights? Is this individual required to work for this company? Are all companies legally required to follow this path? I don’t understand how this is true.

    Are we to expect there would naturally occur a corporation that would provide a safe environment? After all they would be saving money.

    Would they?

  • John Newman

    If Scott’s had a policy that required employees to live their lives to the community standard of decency, should Scotts then be allowed to go into that person’s home to check the employee’s computer for pornography. It sounds to me as if you think that would be the company’s ‘privilege.’

  • Adam Selene

    Sorry John, I think there is a disconnect. I’m arguing that corporations, artificial entities, cannot have “rights”. I am also quite willing to argue that the individuals who are the managers, directors and owners of corporations have the ability to determine who they will and will not hire. I’m even, as unpopular as I’m sure this will be, willing to argue that a private corporation should be able to hire and fire in a discriminatory manner. Further, I would argue that market forces would correct this far better than laws and regulations. Finally, your question:

    should Scotts then be allowed to go into that person’s home to check the employee’s computer for pornography. It sounds to me as if you think that would be the company’s ‘privilege.’

    If it was a condition of employment, and you agreed to it, what would be wrong with it? As far as I can tell, Mr. Scott knew the conditions of employment, including the fact that he would be subjected to testing for nicotine, and agreed to those conditions. Now he wants to use a court to overturn a contract he willingly entered into, without, as far as I know, any duress.

    On the other hand, if such a condition were not part of the agreed upon conditions of employment, and Scott’s entered my home, they would be violating my individual rights to liberty and property, right?

  • John Newman

    Adam, I don’t see where I used the word ‘rights.’ Does the employer have the privilege to make sure the employee follows the company’s employment policies? Since the employee doesn’t have a ‘right’ to that job, shouldn’t it be the company’s privilege to place spy cameras in the employee’s home to make sure the employee conforms to his employment requirements?

  • Adam Selene

    Did the employee agree to it? If not, then why would it be legal?

    You tackled my comment about legal privileges, which stems from me tackling VRB’s comments about “corporate rights”. That is what led me to think we are disconnecting.

    Other than that, I’m confused. I’m talking about freedom of association and you seem to be implying that I’m arguing that corporations should have the ability to violate individual rights. Why not debate what I’m saying rather than what you imply I’m saying?

  • Doug Mataconis

    In all this talk about rights and privileges, let’s not forget a few things.

    Nobody has a right to any job, least of all a job on their own terms.

    The employee in this case was, according to the article, well aware of Scotts’ policy before he started working there, signed on to it, and violated it any way. There is no small degree of culpability on his part.

    Employers have the choice of setting whatever conditions for employment they like. You don’t have to accept them.

  • John Newman

    Adam, I thought this was the issue of contracts between employer and employee, but….
    I’m curious, if the company policy required all employees to smoke three packs of cigarettes a day, should non-smoking applicants have any recourse against hiring practices?

  • VRB

    My question is; does a person have a right to work?
    From what I gather from what you are saying that a corporation can have any standards they want and for a person to work they would never have any choice, but not to work. That seems to me to be slightly above slavery. From seeing how corporations work, it is alway follow the leader to the lowest common denominator of its maintainability.

  • Adam Selene

    John: What recourse do you suggest they have?

    VRB: Do you really think that is what would happen?

  • John Newman

    Adam, it was you who was defending anti-freedom policies of companies.

  • Adam Selene

    If you happen to think that a company should be forced to associate with individuals as you see fit, sure thing John.

    Aside from that, I would say that the massive government intervention and regulation of the health insurance market is what has actually created this situation.

  • John Newman

    I certainly wouldn’t want a property rights hating ‘artificial entity’ forced to associate with an actual person.

    If you believe government intervention and regulation in the health industry is the problem, quit trying to make the employee look like the problem.

  • Adam Selene

    I’m not trying to make them look like anything John. Except for one thing. THIS employee is trying to renege on a contract freely entered into.

  • VRB


    Did he sign anything when he became employed, is being employed an implied contract? I don’t know the legal aspects of what you are saying. I am just asking in trying to understand.

  • Adam Selene

    Employment is a contract, regardless of whether you sign something. That’s part of common law, which is why you can sue an employer for wrongful termination, for example. Aside from that, if you and I reach agreement on the price of a car that you own and I wish to buy, we do so verbally and we shake hands, have we created a contract between us?

  • VRB

    Another thing that worries me, is that employment is more and more determined by your credit score, background checks from companies you have no idea whether the info is right, every comment that you make on blogs, personality, drug and lie detector tests. Also, your skills are approved by software. With all this information about you, you could be fired without anticipating an offense. To be employed now, one has no private life.

  • John Newman

    Adam, we don’t know what the status is of smoking employees hired before Scott decided not to hire smokers. However, if they are required to stop smoking, Scott reneged on their contract, and if they are not required to stop smoking, Scott’s contract contains discriminatory policy against new hires. Either way….

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