The Unrepentant Individual

...just hanging around until Dec 21, 2012

December 13, 2005

Smokers are Personas Non Grata

TMH’s Bacon Bits notes this story about Scotts Miracle-Gro, following in Weyco’s footsteps and declaring that workers who smoke will be fired:

Quit smoking, or you’re fired.

That’s what Scotts Miracle-Gro is telling its employees. If they don’t quit smoking by October, they’ll lose their jobs.

The lawn and garden company is trying to keep health insurance costs down by promoting healthy lifestyles for its employees.

This particular piece, by author DL, takes a mighty critical look at Scotts’ new policies. However, I can’t see, despite what DL thinks, where these peoples’ rights are being violated?

The big difference now is that you can avoid smoking in a court house or go outside, the same with your favorite restaurant or bar, but now you risk losing your job if you get caught sneaking a puff in your own bathroom.

Smoking is a privilege, and any legal buff understands the difference between a right and a privilege: rights are basically immutable and you’re born with them, but a privilege is granted by some authority and can be taken away.

Who made your boss your authority: your privilege provider/quasi-parent/health nanny?

Let’s step back for a moment. Let’s look at the natural rights view of this. Is smoking a privilege or a right? Take the desert-island approach. Do you have a right to smoke on a desert island? You might have to grow and roll your own, but I’d say you do, as a subset of that whole right to “liberty”. Of course, some would say that working is a right. And this is true. On a desert island, you’re entitled to work as much as you’d like, also a subset of liberty. But nobody is required to provide you a job. The minute you desire to have someone employ you, we’re off the desert island and back into society. So does everyone have a right to a job offer from a corporation? Of course not, when someone offers you a job, they are offering you a privilege, they are extending you an offer for a contract.

Any contract has two parties, and both parties must agree to the terms. Employers are stuck between a rock and a hard place. The nature of competition (largely due to government regulation) forces them into offering health insurance to their employees. But they have a responsibility to the company to ensure that they can make a profit, and they are struggling to meet the rising costs of that care while retaining profitability. How do they meet both demands? They determine that the pool of non-smokers is large enough in this country to support their workforce adequately, so they only contract for labor with non-smokers.

Of course, the smokers don’t like this. After all, to them this is someone intruding on their personal lives. But they aren’t paying for their own healthcare, they’ve passed that responsibility on to their employer. They are asking their company and fellow employees to pay more for health insurance to subsidize their own bad habits. And when you ask someone else to pay for your health insurance, how can you then demand that they stay out of everything associated with your healthcare costs? If you are granted an allowance to procure a company car, do you expect your employer to be happy when you demand a Ferrari?

Can I say that I like this development? No. Can I say that I’d prefer employers butt out of what their employees do off the clock? Of course. And if I had to place blame somewhere, I’d place it on government regulations that forced businesses to start offering healthcare coverage. In fact, from what I understand, companies cannot legally discriminate on how they offer healthcare coverage to specific groups of employees, so they discriminate on which employees they hire.

The true problem here is that health care costs have been borne for far too long by someone other than the consumer of that care. If individuals were forced to pay different premiums for behavior that adversely affected their health, they might understand how companies who pick up the tab have to bear those same increased costs. But they don’t. They think smoking is a privilege, but that they have a RIGHT to a job and a RIGHT to health insurance. This is a highly inverted view of rights, but unforunately far too common these days.

The Unrepentant Individual linked with Rights of the Government to Impose Air Security Measures
Searchlight Crusade linked with Carnival of Liberty
The Unrepentant Individual linked with Smokers Catch NO Breaks…
Posted By: Brad Warbiany @ 9:19 pm || Permalink || Comments (18) || Trackback URL || Categories: Uncategorized


  1. considering the staggering increase in costs due to human hugeness, why do you think the pressure hasn’t been put on the bigguns like it has the smokers?

    Comment by reverend gisher — December 14, 2005 @ 10:07 am
  2. Very good question, and a very simple answer. There’s simply too many fat people in the US to get away with it.

    Smokers are a rapidly declining segment of the population in the US. Let’s say that if you don’t let smokers work for you, you’re cutting 21% (according to the NHIS) of your available workforce. You can make the determination that you’ll find that you can get good enough workers out of the remaining 79% that you can keep your business running smoothly.

    Then, let’s figure that about 66% of American adults are overweight, and about 33% are obese. If you cut them out of your job search, you’re seriously hampering your ability to find good workers from the remaining pool.

    So there’s simply an economic question. Cut 21% of your workforce with one regulation, or 33-66% with another regulation? The impact of the latter is much larger.

    This also leaves out the PR aspect. Smokers have been vilified in the US over the last 20 years, and thus picking on smokers is politically easy. Picking on fat people just seems mean.

    (Full disclosure, I just checked my BMI, which is about 29 (overweight, just short of obese). I personally think the BMI is a crock, as to get to the right weight for my height I’d have to be far skinnier than I think would be healthy. I’m certainly not in the shape I should be, but my BMI doesn’t correlate based upon my body type.)

    Comment by Brad Warbiany — December 14, 2005 @ 1:45 pm
  3. “… when someone offers you a job, they are offering you a privilege, they are extending you an offer for a contract.”

    It doesn’t get any better than that one line. Thank you for saying what so many have ignored or forgotten.

    Comment by TF Stern — December 14, 2005 @ 2:35 pm
  4. The company that I work for only pays a % of my health insurance and the rest is up to me. That said, the minute they made my health insurance more expensive to me, I quit smoking. Of course I had to pay the higher rate for two years – you could probably lie at some point and say you hadn’t smoked for the last two years, but with my luck, that would have backfired. I’m glad they did that… it was enough incentive to get me to give up the habit.

    Comment by Ethne — December 14, 2005 @ 2:40 pm
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  6. Carnival of Liberty

    Carnival of Liberty 25

    Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what i…

    Trackback by Searchlight Crusade — December 20, 2005 @ 6:01 am
  7. You are correct, there is a contract between employer and employee. When that contract was agreed upon, the company knew the employee smoked and hired him/her. However, unilaterally laying a NEW reqquirement, especially one involving personal choices, on the continued employment of that employee is a breach of contract and the employer is the one breaching. DL’s points regarding AIDS and obesity are valid points that cannot simply be overlooked. At what point does the authority of the empoyer stop? By ignoring DL’s points you are saying that the employer’s authority stops at neither the refrigerator door nor the bedroom door.

    Comment by John Newman — December 20, 2005 @ 5:52 pm
  8. John,

    Consider it a “renegotiation”. Employment contracts are open-ended. One party can terminate the contract at any time. If you go to your boss tomorrow and say “give me a $25K raise or I quit”, does your boss have to give you a raise? Of course not! How is that different? One party to the contract is attempting to unilaterally lay a NEW requirement, and threatening to terminate the contract if the requirement is not fulfilled?

    But by your logic, once a contract to hire is extended, that contract is in force for all time. Most states are “at-will employment” states, where the worker or the employer can unilaterally terminate the employment contract. This means that at any time, an employer can change the terms of the contract, and you have a choice to agree to the new terms or take a hike. Likewise, you can issue new terms (the $25K raise) to your employer and they can agree to the new terms, or send you packing.

    And I did not entirely ignore the AIDS and obesity argument. I discussed the obesity argument in the 2nd comment above, after being asked such by reverend gisher. The AIDS argument is the same in principle. The point of my argument is that an employer can choose not to hire someone who is obese, or has AIDS, but that in our culture, the PR of that move would be a lot worse than not hiring smokers. Are you saying that you, as a voter, have the right to decide who employers do and do not hire? If so, where does your authority end? Do you get to decide what level of compensation that employer sets? Do you get to set the hours of work? Do you get to mandate that the employer must pick up the employee at home and drive them to work if the employee doesn’t have a car? Can you declare that the employer give the employee a 3-hour lunch? Where exactly does it end? Or, what if the shoe is on the other foot? Do others have a right to, say, force you to hire an obese smoker with AIDS and give him health insurance, even though it will mean that your insurance premiums go up for all your workers by an amount that would bankrupt your business? Exactly what level of autonomy do you have if you own a business? Exactly where does the government’s ability to decree your behavior end?

    Comment by Brad Warbiany — December 20, 2005 @ 6:46 pm
  9. Sir,
    My question was, where does the authority of the employer over employee end? Can an employer fire an overweight employee? That employee is a higher health risk. Can the employer force the employee to exercise and maintain a macrobiotic diet of only brown rice? Can the company fire a woman that gets pregnant because the insurer will have to pay a benefit and it may raise the cost of that insurance and the woman will be unproductive for 6 weeks after the child is born. Again, where does the power of employer end over the employee.

    Surely you would have to agree that anyone that gambles or frequents a casino is a higher health risk and should be terminated.

    And what about employees that frequent smoky bars? That exposure to second hand smoke (according to the anti-smoking groups) increases their risk of future health problems. Where does it end when an employer can dictate that an employee may not partake in something that is legal?

    Comment by John Newman — December 21, 2005 @ 9:23 am
  10. John,

    My point is that the employer holds no “authority” over the employee. The employer cannot force the employee to work, and the employee cannot force the employer to continue employment. It is a mutual agreement, and if the employer chooses terms to that agreement that the employee disagrees with, the employee has a right to leave. This isn’t slavery, the employer doesn’t own you and force you to work. Nor can you force them to continue employing you, if they choose to terminate that relationship.

    It’s stupid and I don’t like it, but it is within the employer’s right to only employ who they choose to employ. Would an employer have a legitimate right to use their private property in a way as to fire an overweight employee, or refuse to hire women who intend to take large amounts of time off to have babies? Yes, they have that right. Don’t get me wrong, I don’t think it’s the right thing to do, but it is their business, not mine.

    An employer has only as much “authority” over any employee as the employee allows. If you agree to terms of employment that state that you cannot smoke (even if those terms are added at a later date), you have given your employer that authority. If the employer makes his offer of employment contingent on those terms, it doesn’t mean he has any authority over you. The employer cannot stop you from smoking, he can only choose not to associate with you if you do.

    Comment by Brad Warbiany — December 21, 2005 @ 1:36 pm
  11. I agree that an employer should be able to hire and fire as he sees fit, but, based on the workers performance for the employer, not on the employee’s personal habits. It should be obvious that the employer is invading the property rights of the employee. Let’s turn this around. Suppose the policy was that in order to stay employed, you MUST smoke. If you refuse, my dear employee, you are outa here. Here again, this is violating the non-smokers property rights and has nothing whatsoever to do in relation to the JOB the person was hired to do. The contract between the employee and employer has to do with production and compensation for what the employee produces. This really is a matter of property rights, not production and compensation. Unless of course you believe an employer can demand that a non-smoker be forced to smoke to keep his job. And that would be nonsense.

    Comment by John Newman — December 21, 2005 @ 5:21 pm
  12. An employer can demand that an employee smoke or be fired.

    You seem to have a very strange view of property rights. Apparently an employer has very little in the way of property rights, because you believe that he can only use his property in a way that you see fit. I.e. he must hire people according to your wishes.

    How about this. Let’s take the employment thing out of it for a second. Let’s say that I don’t allow smokers into my house. It doesn’t matter if they don’t smell like smoke, I just choose to not allow smokers onto my property. Do I have that right? Do I have the right to discriminate who is allowed onto my property and who is not? I’d say so. Does this mean that I have authority over everyone in the world, because I decide who can and cannot enter my property? Not at all. I have authority over my property, and that’s it. I can choose to not allow access to that property to anyone based on whatever conditions I believe suit my needs.

    How, then, is an employer that much different? As an employer, the owner of the property, equipment, etc etc of the company, decides that smokers will not be allowed to be employed on my property. He is not exercising authority over their lives. He is simply withholding the use of his property based upon his own property rights.

    You’re right that this has entirely to do with property rights. And an employer, as a property owner, can choose whether he wants to hire employees based solely on on-the-job performance, or if he wants to include other restrictions. That is well within the bounds of his right to use his property how he sees fit.

    Comment by Brad Warbiany — December 21, 2005 @ 6:50 pm
  13. I agree with you on the property rights of the employer, and with your scenario of not allowing smokers in your house. Really, I couldn’t agree more. But, here’s my rub with this. Suppose you invite me to your house which is not smoke-free and you say you don’t mind if people smoke at the party you are having. I say great I’ll see you Saturday. Saturday comes, the party is in full swing and then , out of the blue, you announce all smokers must leave. That is still your right – but is it right?
    There is a court case going on where I live that is the same thing. A girl went on a date with a guy, agreed to have sex with him and in the middle of the act changed her mind. He is on trial for rape.
    Like I said, I agree that an employer has the right not to hire smokers and not allowing smoking on his property, but what an employee does at his own property (his house) with his own property (his cigarettes) is none of his employers business. None whatsoever. The relationship between employer and employee is based on production and compensation for that production. For the employer to make demands that an employee may not enjoy his house and his property and use it as he see fit is unreasonable, invasive, coercive, and just plain wrong, as wrong as slavery. How can the employers property rights extend to the employees property. That just does not make sense. I am surprised and shocked that you can’t, you won’t, or don’t understand this.

    Comment by John Newman — December 21, 2005 @ 9:01 pm
  14. I never said it was right. I said it was their right to do it, and explained why, given that they’re paying for the healthcare of the employee, they have chosen to do it.

    I don’t like it. I don’t think it’s the “right” thing to do, and frankly if I had an employer that decided to start doing something like this, I might start looking for a new job (even though I’m an ex-smoker).

    What I don’t agree with is your contention that this is “as wrong as slavery”. The employer cannot stop the employee from smoking. All the employer can do is withhold a job. The employer is not “making demands”. The employer is saying that you have a choice: you can be a smoker, or you can work for me. It’s the employee’s job to make a decision. Do they value smoking higher than working for Scott’s Miracle-Gro? There are more employers out there, and if they believe smoking is that important to them, other employers will take them in.

    Comment by Brad Warbiany — December 21, 2005 @ 9:55 pm
  15. You keep avoiding the question, does an employer have the right to tell an employee what they can do on their own time, on their own property, with their own property. I say they cannot. The reason I said slavery is that if the employer was furnishing room and board, yes, then the employer would have that right since the employer would be in control of that property the employee was using. Again, once the production requirements of the employer have been met by the employee’s labor and employee is on his own time on his own property the employer has no right to expect anything from the employee until the next work day. The employee is not abusing the employer’s property rights in any way. An employer has no right to infringe on the employee’s rights on his own property. By saying an employer can fire an employee for what he does on his own property is anti-libertarian and as bad as government wanting to control our every move. It is nonsensical to say you subscribe to a libertarian philosophy and then turn around and make an argument that the employee has no property rights – on his own property.

    Comment by John Newman — December 21, 2005 @ 10:44 pm
  16. This all comes back to the Golden Rule: He who has the gold makes the rules. On the one hand, you have the argument that since the employer is buying the group health insurance, it has the right to dictate anything remotely connected to the costs of the employees’ health care – and can shift the rules anytime those costs go up. On the other, you have the argument that this amounts to slavery and/or breach of contract. I lean toward slavery, because the employee has no choice if he wants to maintain the lifestyle to which he’s accustomed. It’s not that easy finding another job, especially if you like doing what you’re doing now.

    My own employer has just instituted a $50 a month smokers’ surcharge – you can keep smoking, but if you do you have to pay $600 a year more for health insurance premiums. I think all of these ideas are based on a phony assumption (if smokers are going to die earlier than the rest of us, their health care costs are going to be less than ours, not more – we’ll all accumulate higher costs toward the end of our lives), but I think my employer has a better solution than Scott and Weyco. It doesn’t say I can’t smoke (I never have, by the way), it just passes along an economic cost that it incurs by having me on the payroll.

    In the response to “firing the obese” we get to the crux: We all seem to agree it’s wrong to fire smokers and sets a dangerous precedent for the freedom to live our lives in peace. For now, firing the obese is impractical – but just as smokers used to be most of us and now are some of us, someday fat people may be a small minority. Will it be OK to fire them then, when it’s more practical?

    Once again, it all comes down to “First they came for the smokers, and I didn’t speak up because I don’t smoke … Finally they came for me, and there was no one left to speak up.” Scott and Weyco are just plain wrong; there are better ways to discourage smoking and they chose the path to fascism.

    Comment by B.W. Richardson — December 22, 2005 @ 9:52 am
  17. [...] Last, John had suggested that perhaps if the airlines wanted to enact security procedures, that might be enough for him (although I don’t understand how he does not similarly support private hiring and firing practices). And if the airlines had secure cockpits and could not be hijacked, I might agree. But once the airplane becomes a guided missile filled with fuel aimed at a building, the equation changes. Just as states and municipalities have laws regarding drunk driving or speeding, which can turn an automobile into a 3,000 lb missile, the feds have airline security regulations to keep an airplane from doing the same thing. The only thing that gives the feds jurisdiction, though, is that the particular exigencies of airline travel require it. [...]

  18. Uh, look guys. If lots of employers quit employing smokers, fat people and people who engaged in risky sex (i.e., the non-fat attractive people and people who buy prostitutes), there likely would have no one left to hire, and they would change the rules. Or, at least, the healthy, skinny non-smokers would demand huge salaries because the pool of eligible employees would be so small, and people would lose weight and quit smoking and screwing in droves to get those jobs.

    Which would of course force labor costs down as the pool of employees grew, thus making everyone earn the same as they did before, but they would be skinny and not smoking, and they would be married and not cheating so they could get some without losing their job.

    What was the problem with all this again?

    Comment by KJ — January 19, 2006 @ 8:48 am

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