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Off-duty not off-limits for some companies



Published: Mon, October 23, 2006 @ 12:00 a.m.



One company fires workers for smoking, even at home.

WASHINGTON POST

WASHINGTON -- Your employer probably hasn't bugged your apartment to determine if your television viewing is up to par.

But that doesn't mean that your life outside of work can't affect your hiring, firing or promotions.

In many states, it is legal to hire, fire or promote based on what a company finds out about you in your nonwork world.

That includes smoking, even during off-work hours.

Company policy

Weyco Inc., an employee benefits firm in Okemos, Mich., started nicotine testing with its employees last year. It instituted a policy that makes it a firing offense to smoke, even off the premises, outside work hours. It stopped hiring smokers in 2003, and last year it fired several employees who refused to take a nicotine test.

More recently, the company expanded the policy to spouses of its 175 employees. If the spouses test positive for nicotine in monthly tests, the employee must pay an 80 monthly fee until the spouse takes a smoking cessation class and tests nicotine-free.

Employees are subject to random tests, a policy that according to Howard Weyers, president of Weyco, has cost "a few people" their job. Employees who come up positive for nicotine in a random test are sent home for a month with no pay. If they test positive a second time, they are fired.

"It's strictly for prevention, and this is the right thing to do," Weyers said. "Everybody knows that the use of tobacco will create a medical episode."

'Lifestyle discrimination'

There is, however, some wrangling about the legality of firing people for off-the-job behavior. In fact, 30 states have statutes that limit an employer's ability to make decisions about an employee based on off-duty activities, according to Susan Lessack, a partner in employment and labor law at Pepper Hamilton LLP. Some statutes apply only to public-sector employees.

"We were surprised that there hasn't been litigation out of that as far as we know," Lessack said about people who were fired for smoking. "I think it's probably legal but subject to challenges from employees."

Lewis Maltby, of the National Workrights Institute, calls it "lifestyle discrimination."

Companies that ban off-hours smoking believe it is in their right to fire employees who smoke because they are increasing company health-care costs. But "it's a road that leads to somewhere that not all of us are going to like," Maltby said. "How about people who drink, ride motorcycles, sky-dive, have a promiscuous sex life?"

Or use the Internet?

Caught in the Net

A simple Google search has made uncovering someone's personal life that much easier. Blogs and pages on social-networking sites such as MySpace are an invitation to your innermost thoughts and private actions.

Brad Karsh, a career consultant and author of "Confessions of a Recruiting Director," was about to interview a young man for an internship. Karsh checked him out on the Web site Facebook, where he listed among his interests "smokin' blunts with the homies, shooting caps into whitie."

"I'm assuming, and 99 percent certain, he was joking. But what did that say about his judgment?" Karsh said. He did not hire the man.




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