Jun 11, 2007

Anti-smoking zealot’s employee Big Brother policy addressed by House Committee

In an irony of timing, a pair of bills addressing smoking will get a hearing Tuesday before two separate Michigan House committees as the person who prompted one of them is set to speak to the Livingston Area Human Resources Association at 7:30 a.m. June 20 at the Genoa Woods Executive Conference Center.

As you may recall, Howard Weyers, CEO of Okemos-based Weyco Inc., launched a tobacco-free mandate at the company in 2003, and when three of his employees could not kick the most addictive substance known to mankind, he fired them. Now, these three employees practiced the legal habit of smoking off the job during non-working hours, yet in an Orwellan twist straight of “Nineteen Eight-Four” they were still fired.

It makes you wonder what type of behavior Big Brother will try to control next, and how he will know if you are violating the new policy. I am one of the worst kind of anti-smoking crusaders, a former smoker who quit the habit more than 11 years ago, but the obvious question has to be when is an employee’s life his own? I think Weyers should reward those who quit smoking and keep healthy, fit and in shape by having them pay less for medical coverage, but if what Weyers is doing is not illegal it should be. What you do in your own home that does not hurt anyone else should be no one’s business but your own.

Help, however, is on the way, and the House Labor Committee-chaired by Rep. Fred Miller, D-Mount Clemens – will take testimony on House Bill 4532, introduced by Rep. Lee Gonzales, D-Flint, on March 27. The bill, known as the "Employee Privacy Protection Act,” would prohibit an employer from “taking certain adverse actions against an individual who is engaging in –or is regarded as engaging in—a lawful activity both off the employer's premises and during non-work hours,” such as smoking. This will outlaw high-handed decisions like the one Weyers made.

Sen. Ray Basham (D-Taylor) will be testifying before the House Commerce Committee Tuesday, chaired by Rep. Andy Meisner, D-Ferndale, on his smoke-free workplace legislation, which would ban smoking in all workplaces, including bars and restaurants. It seems amazing that Weyers can fire people for smoking at home during non-work hours, yet there is no law in place that bars people from smoking at their public workplace. Amazing.

Basham introduced this version of his bill, Senate Bill 109 on Jan. 30. He first introduced the exact same legislation two years ago, but it died when the 2005-2006 session ended on Dec. 31. The bill has not even been able to get a hearing in committee in the Republican-controlled Senate after some three years. The House committee is actually taking testimony on the House version of the bill, HB 4163, introduced by Rep. Brenda Clack, D-Flint, on Jan. 30. Hopefully, the House version will finally make the obstructionist Senate act, but if past history is any indicator it will meet the same fate of many other bills sent to the Senate - many passed by the Republicans when they controlled the House last year - and die without ever getting a fair hearing.

Let’s hope not.


Republican Michigander said...

I agree about Weyers, and you were doing good until you got to Basham's bill.

Basham's bill is also Big Brother in its own right, sticking government in the place of private businesses. If I owned a pub, it should be my choice through the influence of customers if I allowed smoking at my private owned establishment. We all have the choice to patronize those businesses which allow or disallow smoking. The market's a great system. Freedom. It's a grand concept.

Chet said...

CG, I agree also about Weyers' action being inappropriate, although there was nothing illegal about Weyers decision and in many ways it was among his free associational rights (since he is not government, he can't be Big Brother in the way you accuse him of being), and also agree with RM about Basham's Big Brother-ish bill.

Communications guru said...

Thanks dan, it’s nice to see we agree on something, even if it’s only halfway. I probably would have agreed with you about the anti-smoking bill 11 years ago when I was a smoker. It just seems to me that’s the job of government; to pass laws that protect us from harm we have no control over. Second-hand smoke is the 4th leading killer in the U.S. killing 50,000 people a year and contributes to non-fatal diseases in thousands more.

I disagree that customers should make the decision. The testimony today was interesting you should have watched it. The head of the AMA said only about 25 percent of the population smokes, so a quarter of the population should decide for the majority? It’s like if I want to go to Champs Pub in Brighton for some of the best burgers in the county, but I should not be able to go because I don’t want to be exposed to SH smoke? That does not seem fair to me.
Freedom does not allow you do something that hurts other people. If you want to smoke and kill yourself in the privacy of your own home, go for it, but I don’t want lung cancer, heart disease and asthma.

Communications guru said...

I could not disagree more. How can a legal activity that you engage in during non-work hours and off the job premises cause you to lose your job? I understand he’s not the government, but you can’t discriminate against a person or group of people even if you are not the government. If I want to rent my home to somebody I can’t decide not to rent it to them because of the color of their skin. I don’t see the difference between that and what Weyers did.

Chet said...

You have a First Amendment right to discriminate against anyone for any reason, unless you're engaged in commerce and Congress or the state has explicitly prohibited the type of discrimination (e.g. - the Civil Rights Act of 1964, Bullard-Plawecki). It's called free association.

You are right. It was wrong (way wrong) for Weyer to use off-job smoking against his employees. But not illegal, and nothing near the unconscionable example of racial discrimination in housing that you cite. If you are seriously equating anti-smoking discrimination with racial discrimination you're a disgrace even to your own Democratic Party. Racial discrimination is wrong, and properly illegal (that is, the government shouldn't recognize any contracts based on it, and since contracts derive their power from governmental enforcement, there is a role for governmental enforcement of anti-racial discrimination law), because race is a completely irrelevant criteria to base decisions on and it is beyond an individual's control. I'm shocked that you claim that skin color discrimination and discrimination against a smoker is the same.

Smoking is arguably relevant (Weyer's argument was it increased the cost of his insurance pools, although from a policy perspective I don't see that as a significant amount or justification to weigh) and certainly within the individual's control. In such a case, government's guarantee of liberty to smoker's by prohibiting Weyer-like actions would be decreasing Weyer's own liberty in choosing whom to associate with. And the employees can choose to comply or work for someone else, as well. This is not a case of individual liberty versus raw government - its individual liberty v. individual liberty, albeit in commerce where the government does have some Constitutional role. In the case of racial discrimination, the balancing test is so far to the one side that prohibiting commercial racial discrimination is a no-brainer. By the way, individual discrimination based on skin color is legal, so long as it is non-commercial (ergo, social self-segregation, racist speech, etc.). It's also morally repugnant, but we shouldn't be throwing Michael Richards or Imus into jail (or governmentally punishing their speech) either.

I know you understand the difference, but its a distinction between condemning something (Weyer) and saying government should intervene and prohibit something. The latter should be rare.

Michael Motta said...


Thanks for the info. I find the Employee Privacy Protection Act merits much more attention than does the issue of public smoking legislation. Hopefully the Employee Privacy Protection Act is passed and its exclusions don't apply to cases such as the recent Wal-Mart incident involving firing an employee based upon the content of his MySpace.

I recently wrote my Senator (Schauer) asking him to look into legislation pertaining to this matter. I was oblivious to the fact that the House was already taking it up. Some states already have very similar legislation, North Dakota and I think Colorado. A few other "states" have somwhat similar legislation including New York, California, and DC. Some cities do too, including Lansing.

Even if employers are allowed to continue to fire employees if they cast negativity specifically at the workplace and in a public manner, I at least want all other speech protected from retaliation. The First Amendment loses a lot of its efficacy if similar principles to it are not applied to one's economic livelihood. Look at how many people post anonymously online! And one has to wonder, given that newspapers often expect a "real name" attached to traditional letters to the editor, how many opinions are being watered down or outright suppressed based upon fear of workplace retaliation.