Employees' Right to Smoke - At Home
Yesterday, 60 Minutes re-aired a piece on employers' right to terminate employees for conduct that occurs on the employee's private time away from work. One of the employers featured in the story informed its employees that they have 15 months to quit smoking, or else they are fired. The company's president, Howard Weyers said the rationale for this policy was to lower the company's rising health care costs. "I pay the bills around here. So, I'm going to set the expectations," says Weyers. "What's important? This job? And this is a very nice place to work. Or the use of tobacco? Make a decision."
The text of the story can be found here.
In light of the publicity generated by this broadcast, which originally aired in October 2005, any California employer with a similar policy may be at special risk of a lawsuit.
Employment in California is generally at-will, and smoking is not a protected activity. However, it is unclear when an employer's reliance on legal outside activities as a grounds for termination may be challenged as a violation of privacy. The Labor Code also specifies certain limitations of employers' influence and control over employees' private activities. For example, Labor code sections 1101 through 1105 prohibit employers from coercing or influencing employees' political activities. Employers may not "through or by means of threat of discharge or loss of employment" require employees "to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." Labor Code 1102.