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Author Topic: Fired smoker who failed nicotine test sues
Rhiandmoi
Ding Dong! Merrily on High Definition TV


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quote:
Originally posted by El Camino:
I am saying that employers should not be able to base employment on personal factors that have no bearing on how well one can perform in the workplace.

But that's not how things work in at will employment. You can quit for any reason and you can be fired, or not hired, for any reason as long as that reason isn't one of the few things protected by laws. If I only want to hire people with first names that start with Q, I can do that.

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I think that hyperbole is the single greatest factor contributing to the decline of society. - My friend Pat.

What is .02 worth?

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Simply Madeline
The First USA Noel


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quote:
Originally posted by Joe Bentley:
And there is a difference in how the "pot" as it were is distributed. In insurance how much money you put into the "pot" so to speak is based on how much of a risk I am of needing medical assistance, while in most universal health care its based on how much you make.

In insurance the vegetarian health nut who exercises, doesn't drink or smoke and wears his seat belt and makes 100,000 dollars a year is going to pay less then the chain smoking, alcoholic, obese guy who makes 50,000 a year. In tax supported universal health care, it would be the reverse and that makes no sense.

How do you figure? The majority of Americans who have insurance coverage are covered under their employer's health care plan. They pay a group rate that is based on the overall demographics of the company. Everyone pays the same rate for the same level of coverage.

ETA: Some employers charge a higher premium to smokers, but IME these schemes are based on self-reporting and the companies that institute them magically have a lower percentage of smokers than the general population. [Wink]

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unklesamta
Deck the Malls


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I think most of us don't quite understand "at-will employment."

quote:
From NOLO

"The right of employers to fire employees for any reason, or for no reason at all. It also gives employees the legal right to quit their jobs at any time for any reason. Despite this legal doctine, employers may not fire employees in a way that discriminates, violates public policy or conflicts with written or implied promises they make concerning the length of employment or grounds for termination.

Notice it doesn't say "discriminates against those things that are legally covered."

And from here:

"For example, if a court determines that an employer was guilty of discharging an employee for a discriminatory reason that was in violation of the Civil Rights Act of 1964, then it was an illegal discharge and thus, an exception to the Employment at Will Doctrine. Other potential exceptions are listed below. (See also Wrongful Termination.)"

Breach of implied contract
Breach of the covenant of good faith and fair dealing
Retaliation for whistleblowing
Constructive discharge
Defamation
Fraud

The notion that employers can go around willy-nilly firing and not hiring people based on the size of their nose or favorite cricket squad is false. Employees do have rights, as do employers.

ETA Quotes.

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The less you know, the more you believe. -Bono

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Rhiandmoi
Ding Dong! Merrily on High Definition TV


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Diminishing Protection for Employees Engaged in "Lawful Conduct" Away From the Work Place

Firing Employees for Off-Work Conduct May Be Legal
quote:
California employers breathed a collective sigh of relief when the Court of Appeal recently affirmed that Labor Code Sections 96(k) and 98.6 do not support a public policy against employee discharge based on lawful off-work conduct that is "otherwise unprotected by the Labor Code." Grinzi v. San Diego Hospice Corp., 120 Cal.App.4th 72 (Cal. App. 4th Dist. 2004).


--------------------
I think that hyperbole is the single greatest factor contributing to the decline of society. - My friend Pat.

What is .02 worth?

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Lydia Oh Lydia
Happy Xmas (Warranty Is Over)


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quote:
Originally posted by unklesam's under the boardwalk:
The notion that employers can go around willy-nilly firing and not hiring people based on the size of their nose or favorite cricket squad is false. Employees do have rights, as do employers.

I'm not sure what you mean here. If I'm an employer in an at will state, and where no employment contract exists, I can hire or fire you based upon the size or your nose or your favorite sports team.

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"My name is the symbol for my identity and must not be lost." Motto of the Lucy Stone League.

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El Camino
We Three Blings


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quote:
Originally posted by Rhiandmoi:
quote:
Originally posted by El Camino:
I am saying that employers should not be able to base employment on personal factors that have no bearing on how well one can perform in the workplace.

But that's not how things work in at will employment. You can quit for any reason and you can be fired, or not hired, for any reason as long as that reason isn't one of the few things protected by laws. If I only want to hire people with first names that start with Q, I can do that.
I'm not saying what employers can do, I'm saying what I think employers should be able to do. Big difference.
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Class Bravo
We Wish You a Merry Giftmas


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quote:
Originally posted by Doug4.7:
quote:
Originally posted by El Camino:
This trend described in the OP disturbs me deeply. Regardless of the logic, this opens up the door for all kinds of unsavory hiring / firing practices. So now we can fire people based on their health even if it in no way impacts their actual work? A slippery slope if I ever saw one...

Where do you draw the line? How about firing people who:
- are overweight: higher risks for a myriad of health problems
- are sexually promiscuous: more likely to have STDs
- are married women: more likely to have children, at high cost
- go to the beach: higher risk of skin cancer
- don't exercise a half hour each day: studies have shown this has health benefits


Really, I see this as just another excuse to bash smokers into the ground. But it sets precedent for a 1984 where "big brother" isn't our government, but our employer.

Each of these DOES effect their work, or at least the company's bottom line (which is what their work is all about). A company does not hire someone because they feel it is good to have people employed, they hire them to DO SOMETHING for the company and they hand out money as a reward. If something the employee does on his/her own time effect their job performance (like the extreme sports nut posted earlier in the thread), then it IS the employer's business.
No, these do not inherently affect someone's work.

I agree that it is the employer's business if something the employee is doing in their offtime is affecting their on-job performance. However, in these examples these are merely things that *could* conceivably affect on-job performance but don't inherently do so (with the exception of being overweight and physically not being able to perform a job that requires strenuous exercise). But on that note, pretty much anything could affect someone's on-the-job performance. Should I quit driving to work because I might get into an accident and be out of work for a few weeks or months?

Once someone's performance starts slipping, by all means it's the employer's business to get in there and tell them to cut it out. But saying "Hey John, you're doing fine at work and we have no complaints, but you've gotta quit going to bars and hooking up with women in your offtime because there's a chance that down the line you might catch an STD and that would certainly raise our health plan's costs"....no, that's no good.

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Cathy Jones
I'm Dreaming of a White Sale


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quote:
Originally posted by Class Bravo:
[QUOTE]Originally posted by Doug4.7:
[qb] [QUOTE]Originally posted by El Camino:
[qb] Once someone's performance starts slipping, by all means it's the employer's business to get in there and tell them to cut it out. But saying "Hey John, you're doing fine at work and we have no complaints, but you've gotta quit going to bars and hooking up with women in your offtime because there's a chance that down the line you might catch an STD and that would certainly raise our health plan's costs"....no, that's no good.

Actually where I work at this is already happening. Last year one of my co-workers was telling another co-worker that he was going to an event for gay pride in a nearby city for the weekend. Well the co-worker told our boss who then went online and did some research about this "event" and found out by checking out a website of a guy who was there the previous year that one of the activities there was an orgy, a "bareback party' ( sex where comdoms aren't allowed ).

When my co-worker came back to work that Monday they asked him about it and he said that he did not attend that event nor was he even aware of this so-called "bareback party". But because he was in that city, my boss assumed he was at that orgy.

Anyway beginning January 1st all of us have to sign a morals clause contract. Management claims this will cut the cost of insurance and protect our company but with rules when this goes in effect like when we go out of town during our vacations we must give them a name of the place we are staying at plus a phone number where we can be reached ( not our cell phone number ), I believe its another example of employer trying to totally control the employee outside the workforce.

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unklesamta
Deck the Malls


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quote:
Originally posted by Lydia Oh Lydia:
quote:
Originally posted by unklesam's under the boardwalk:
The notion that employers can go around willy-nilly firing and not hiring people based on the size of their nose or favorite cricket squad is false. Employees do have rights, as do employers.

I'm not sure what you mean here. If I'm an employer in an at will state, and where no employment contract exists, I can hire or fire you based upon the size or your nose or your favorite sports team.
I mean what I said at the end of that post, I didn't realize it was hard to understand.

Nose size is discriminatory. Sports team affiliation is discriminatory. While you think you may be able to fire someone for that, it most likely wouldn't hold up in court. It also breaches an implied contract. It is dealing with an employee in bad faith and unfairly. And they would not have to work too hard to prove that if you fired them because of the size of their nose.

--------------------
The less you know, the more you believe. -Bono

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Towknie
We Three Blings


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quote:
Originally posted by Cathy Jones:
when we go out of town during our vacations we must give them a name of the place we are staying at plus a phone number where we can be reached ( not our cell phone number ), I believe its another example of employer trying to totally control the employee outside the workforce.

I wouldn't sign something like that, and I would let them fire me over it. I'd love to go to court over something like that. Especially if it wasn't something that existed when I was hired.

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Towknie: Ryda-certified as wonderful, enlighted, and rational.

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Class Bravo
We Wish You a Merry Giftmas


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quote:
Originally posted by unklesam's under the boardwalk:
Nose size is discriminatory. Sports team affiliation is discriminatory. While you think you may be able to fire someone for that, it most likely wouldn't hold up in court. It also breaches an implied contract. It is dealing with an employee in bad faith and unfairly. And they would not have to work too hard to prove that if you fired them because of the size of their nose.

The thing about at-will employment, though, is that they don't have to tell you why they're firing you. They just have to tell you that your services are no longer needed. I have worked at-will before and that was the way I was let go when they didn't need me anymore; they simply said "Thanks for your help, but your services are no longer needed so we're terminating your employment."

Was it because I have hazel eyes? Was it because I'm a Bruins fan instead of a Trojans fan? I have no idea, and I don't think I (or anyone else) in that position would be able to prove anything to a court. When they just say, "Thanks, see-ya" I don't think you can prove that they fired you for something specific, especially when you sign a contract when you start working for them saying that you understand and agree that they can fire you at any time for any reason.

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Christie
The Bills of St. Mary's


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quote:
Originally posted by Class Bravo:
Was it because I have hazel eyes? Was it because I'm a Bruins fan instead of a Trojans fan? I have no idea, and I don't think I (or anyone else) in that position would be able to prove anything to a court. When they just say, "Thanks, see-ya" I don't think you can prove that they fired you for something specific, especially when you sign a contract when you start working for them saying that you understand and agree that they can fire you at any time for any reason.

What happens if you get let go with no explanation and they immediately fill your position? Do you have any recourse then if they did not indicate you were being let go due to poor job performance?

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If you can keep your head when all about you are losing theirs, it's just possible you haven't grasped the situation. - Jean Kerr

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unklesamta
Deck the Malls


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But that is my point. I am unclear if a reason has to stated, I quite think it does.

But if a reason is given, and that reason is discriminatory, then they are in the wrong. What people are saying here, it that at-will employment allows them to dismiss you for a tiny nose. It doesn't.

And also, though I can't be positive, if the employee requests a reason one needs to be supplied.

I am sure that if they asked for unemployment, a reason for termination (at least in PA) has to be supplied. it is what allows the commonwealth to determine eligibilty for benefits.

--------------------
The less you know, the more you believe. -Bono

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Class Bravo
We Wish You a Merry Giftmas


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quote:
Originally posted by Christie:
What happens if you get let go with no explanation and they immediately fill your position? Do you have any recourse then if they did not indicate you were being let go due to poor job performance?

No. When you are working in at-will employment, at the beginning of your employment you have to sign a contract that says something to the effect of "We can fire you at any time for any reason, we don't have to tell you why we're firing you and you must accept this in order to work for us." Of course it's all in legal-ese, but that's the gist of it.

Armed with a contract like that, I don't think you would be able to fight against them if they did indeed let you go for any reason.

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Class Bravo
We Wish You a Merry Giftmas


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quote:
Originally posted by unklesam's under the boardwalk:
But that is my point. I am unclear if a reason has to stated, I quite think it does.

But if a reason is given, and that reason is discriminatory, then they are in the wrong. What people are saying here, it that at-will employment allows them to dismiss you for a tiny nose. It doesn't.

And also, though I can't be positive, if the employee requests a reason one needs to be supplied.

I am sure that if they asked for unemployment, a reason for termination (at least in PA) has to be supplied. it is what allows the commonwealth to determine eligibilty for benefits.

I know that at-will varies from state to state so I don't know about the differences statewide, but I specifically remember working at-will as a teenager in California and one of the stipulations of working at-will was that they did not have to give you a reason why they terminated you. That was covered on the at-will contract you had to sign prior to beginning your employment.

ETA: On that note, do you think that an employer would tell their employee the real reason they decided to fire them if they indeed decide to fire someone beause of their shoe size or sports team affiliation? If the employee wanted a reason and the employer decided to give it to them, they could just say something like, "Oh, we don't like the quality of your work."

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Lydia Oh Lydia
Happy Xmas (Warranty Is Over)


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quote:
Originally posted by unklesam's under the boardwalk:
Nose size is discriminatory. Sports team affiliation is discriminatory. While you think you may be able to fire someone for that, it most likely wouldn't hold up in court. It also breaches an implied contract. It is dealing with an employee in bad faith and unfairly. And they would not have to work too hard to prove that if you fired them because of the size of their nose.

If you're in a true at will state and no contract exists, an employer can fire based on discrimination, so long as it's not impermissible discrimination. Impermissible discrimination is that which is protected by the Constitution or statute (e.g., race, religion, ethnicity). These are types of protected classes. There's nothing about one's favorite sports team that protects that person from being fired on that basis.

If you're in a real at will state, there is nothing implied in your employee/employer agreement other than that each party will adhere to applicable laws.

Once you insert an employment contract, things may be different.

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"My name is the symbol for my identity and must not be lost." Motto of the Lucy Stone League.

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Towknie
We Three Blings


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If all this at will stuff is true, then why is it so gosh darned hard to terminate employees who truly underperform at their jobs? I've witnessed numerous occasions of employees that overtly refused to come to work on time, if at all. Employees who were physically unable to perform their jobs, and would take several months off every year from "illness", yet these people could never be terminated for fear of wrongful termination lawsuit (this is all CA, an at-will state).

After I left one company, I found myself named in a wrongful termination suit from a person who had been fired after my departure. I was named because I made her sign a document stating that if she had an 8 o'clock class, she needed to be in the classroom at 8 o'clock. She found this unreasonable enough to drag my departed keister into court.

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Towknie: Ryda-certified as wonderful, enlighted, and rational.

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Class Bravo
We Wish You a Merry Giftmas


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Because not every employer runs their business at the bare-bones minimum the law allows. A state's at-will laws just mean that an employer may run their business that way, but they're not required to. If a worker is protected by a union or a work contract (such as Lydia oh Lydia mentions in the post above) things can change.
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Towknie
We Three Blings


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No contracts or unions in the above mentioned examples.

--------------------
Towknie: Ryda-certified as wonderful, enlighted, and rational.

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Class Bravo
We Wish You a Merry Giftmas


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Exactly.

When I was in high school (living in CA) I had an after-school/weekend job that was obviously non-union and the only laws I was protected by were California's labor laws. Since CA was (and I assume still is) an at-will state, I was subject to at-will employment meaning that meant I could be fired at any time and no reason had to be given.

Flash forward to a few years later after I'd been in the USAF and college and came back to CA. Now I was working in my career field and I was part of a union. Part of the union's contract was that the employer could not fire its workers without just cause.

That's not to say that every non-union employer exploits at-will employment. Just because they can fire someone doesn't mean they have to or they will. If the economy is good and they are having a hard time finding people to fill jobs, then having a not-so-good worker might be better than having no worker at all.

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Viliphied
I'll Be Home for After Christmas Sales


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Towknie, are you sure there's nothing in the employment contracts of those companies? No matter where you get hired, you have to sign some paperwork that explains that company's hiring/firing policies. A "work contract" is something everyone has, just some in at will states say that you can be fired whenever for whatever reason.

Also, perhaps there simply aren't many people out there applying to take that poor worker's place. A bad worker is often better than no worker, especially when a company is already understaffed.

--------------------
"I used to think I was a little unstable, then I met every girl I've ever dated." -- Mike Birbiglia

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Viliphied
I'll Be Home for After Christmas Sales


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At-will waffles

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"I used to think I was a little unstable, then I met every girl I've ever dated." -- Mike Birbiglia

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MaxKaladin
The First USA Noel


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quote:
Originally posted by Towknie:
If all this at will stuff is true, then why is it so gosh darned hard to terminate employees who truly underperform at their jobs?

I'd imagine one reason is that such employees could cost the company a lot of time and money defending against a complaint even if it's eventually decided in the company's favor. It becomes easier to just keep the slacker on than to get rid of them.
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