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Opening Arguments

Butt out

Phil Marx points us to this bill introduced in the Indiana Senate, which would permit "an employer to consider tobacco use by job applicants in the hiring process." Indiana is one of about 30 states that have so-called "smokers' rights" laws (here is a roundup and critique), and this would amend and weaken our statute, by taking out all references to "prospective" employees. Here, for example:

Sec. 1. (a) Except as provided in subsection (b), an employer may not:
        (1) require, as a condition of employment, an employee or prospective employee to refrain from using; or
        (2) discriminate against an employee with respect to:
            (A) the employee's compensation and benefits; or
            (B) terms and conditions of employment;
        based on the employee's use of;
tobacco products outside the course of the employee's or prospective employee's employment.
    (b) An employer may implement financial incentives:
        (1) intended to reduce tobacco use; and
        (2) related to employee health benefits provided by the employer.

It appears that the intent is to continue preventing companies from requiring employees not to smoke (when they're away from company property) but allow them to make "not smoking" a condition of employment. I can't say I care for this intrusion into individual behavior, but companies have always had the right to decide whom they want to hire under what conditions. And this isn't exactly new. When my brother got a job in Texas years ago, it was with a company that wouldn't hire smokers.

The proposed smoking bans -- both the new statewide one and the toughening-up one in Indianapolis -- are getting all the attention these days, but this seems to me a much bigger deal. It's one thing to regulate behavior in public spaces. Punishing people for what they do in private is on a whole different level. regulating behavior in public.

Comments

littlejohn
Thu, 01/12/2012 - 3:45pm

I agree it's an intrusion. It's also difficult to imagine how it would be enforced. Are they going to follow the employee home to see if he lights up in private? Test his blood for nicotine? If your spouse smokes in the house, it's going to show up in your blood. But as long as most of us get our health insurance from employers, I can understand the desire not to hire people who are unquestionably harming their own health. As a liberal, I think the best solution is the sort of universal health care available in every other industrialized nation, so employers wouldn't have to worry about it.

Harl Delos
Fri, 01/13/2012 - 9:25am

If someone lies on his job application, that's grounds to fire him that will stand up to a wrongful discharge suit in court. Given two potential employees that seem equally desirable otherwise, it would be better to hire the one that you can more easily fire, in case he turns out to be a mistake.

Even if there was no group health program, smokers often have breath that stinks and frequently their hair and clothes stink. Littlejohn must be a smoker to not have observed that.

Drunk drivers cause accidents and smokers give use second-hand smoke. Ron Paul may be right about legalizing heroin. If we would encourage smokers and drinkers to switch to heroin, those folks just lie in their dens, not bothering anyone else....

Phil Marx
Sat, 01/14/2012 - 3:36am

The way the law is currently written, it allows employers to induce others to modify their behavior but does not allow them to force modification. If the correlation to health care costs is the issue, then why couldn't they simply charge higher premiums for smokers.

But that's not the issue here. The issue is control, which equals loss of freedom, which is something we are losing too much of. I just don't like the idea of somebody telling somebody what to do when it has no effect upon them.

I wonder if they could tell a prospective employee not to swim, because he might drown. Or not to visit his grandmother in a high-crime area of town, because he might get shot. Or not to drink alcohol, eat fast food, sky-dive, go hunting...

It's the same principle.

Bob G.
Mon, 01/16/2012 - 2:50pm

Phil:
...Or NOT to work on that machinery on the production line...because they might get HURT.
Yeah, it can become quite ludicrous in the process.

Where does common sense prevail?

Phil Marx
Mon, 01/16/2012 - 11:19pm

Telling them not to work? - well now you've gone and changed the topic of the conversation to unions.

I've thought this issue over a bit, and this is how I see it now. If a citizen is being questioned by an agent of the state, the citizen has a constitutional right to remain silent. And that silence can't be used as an excuse to punish them - otherwise the right really wouldn't exist.

Similarly, if an employer asks a question that has no practical relevance to the job, the (prospective) employee should be able to simply say "That is none of your business," without their wish to have their privacy respected used to punish them.

But I suppose it's just wishful thinking to imagine that the government which claims the right to spy on it's citizens would protect them from the "people" who paid for their elections.

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