Welcome to the company. We own you, now. Posted by: Dale Franks
on Thursday, February 17, 2005
Debra Saunders writes about the Four employees of Weyco Inc., a Michigan health-benefits administration company, who were fired for smoking at home, on their own time.
"I don't want to pay for the results of smoking," Weyco founder Howard Weyers explained to Medicine Law & Weekly.
But wait, one of the four fired women, receptionist Anita Epolito, told reporters she didn't even belong to the Weyco health plan.
That doesn't matter, a Weyco spokeswoman replied, because "she knew, starting at Day One, that the organization itself was going smoke free."
So, you know, screw her.
It's possible to make the argument that, since Weyco has to bear the costs of smoking by higher health insurance costs, they can decide not to employ smokers. But, since Ms. Epolito doesn't belong to the health plan, and therefore doesn't add to those costs, the cost argument is a smokescreen. It's about control, and Weyco's firing of employees who have personal habits that the company finds distasteful.
The paleolibertarian view is that the company should be free to hire and fire anyone it wishes, and if employees dislike the control over their behavior the company tries to impose on their personal lives, then the employees can go elsewhere, which will make it increasingly harder for the company to find good workers, eventually forcing them to repeal such intrusive policies.
Maybe, but the real world often operates much differently from elegant theoretical constructs. In the real world, people have a mortgage, a car payment and a couple of kids, and quitting their job and finding another may not be as simple as theorists presume. Theory posits the relationship between an employee and employer as a negotiation between equals. In practice, the employer holds a significant amount of power over the employee, if for no other reason than the employer is insulated from the consequences of bad decisions to a far greater degree than the employee.
This strikes me as one of those cases where collective bargaining would be useful. Say what you want about unions--and much of it will be true--but the simple fact is that collective bargaining is the practically the only method whereby employees can stand up to an employer, especially a large employer, on anything like an equal footing.
It also points out one of the problems with employer-provided health insurance. In effect, having employers provide health insurance to employees provides the employer with a club to hold over his employees' heads. "Hey, you want that operation for your kid? Then you'd better toe the company line, or else you'll get fired, and lose your health coverage. 'Cause it'd be a real shame to see the little fellow buy the farm."
As anyone who's ever been in Law Enforcement can tell you, there are some people who, if you give them a uniform and a gun, are way, way too happy with having power over others. It's true for employers, too. There are employers who act as if by accepting a job from them, you have accepted that they can interfere in any aspect of your life that they choose. Power is seductive. Naturally, that goes for unions, too. As soon as a union thinks it has the power to order management around, the agitation starts up for free medical insurance, tenure, automatic annual raises for everyone, and six weeks of vacation each year.
Moderation seems not to be a notable characteristic of those who have power over others.
Overweight employees at Weyco are lucky. The obese are a protected class in Michigan law. If they weren't, one wonders whether Weyco would start implementing weekly weigh-ins, and firing those employees who are too hefty.
Really, what's to stop a company like Weyco from forcing employees to participate in a mandatory fitness program? Or requiring employees to adhere to company approved meal plans for the food they are eating at home, so that employees can be prohibited from eating unhealthy meals?
The question is, "How much control should an employer have over your non-work time and lifestyle?"
[Michigan Democrat and state Sen. Virg] Bernero fears this trend so much that he is contemplating "a bill of rights against excessive corporate control."
Supporting that view is the Weyco argument in favor of its own policy. A spokeswoman told me the company shouldn't have to pay for "unilateral lifestyle decisions."
"Unilateral lifestyle decisions": Think about the presumption behind that statement. The alternative -- multilateral lifestyle decisions -- allows other people, the government, even big corporations, to dictate what you can eat, what you can smoke, what you can drink. To work for Weyco Inc. is to be wholly owned by Weyco Inc.
Is that what we really want? To go to work every morning, weigh in, and do our daily calisthenics while singing the company song? Where does the employer's control over our lives end?
If we agree to work for an employer, does that mean we agree to be wholly owned by them?
UPDATE:
Many commenters are interpreting this post as a call for some government action. I would be interested in having them point out the relevant portion of this post where I do so.
I find that reaction extremely instructive. It indicates to me that the statist assumption is so firmly entrenched, even in putative libertarians, that they assume it to be the natural response to any percieved problem. That says something quite interesting, I think.
Most of the commenters also seem quite keen to protect Weyco's right to put any conditions on employment that Weyco wishes. So, if that is true, does that mean the employee has no rights that an employer can't ask him to give up? Can an employer require you to vote for a specific politcal party or candidate? An employer can force a conservative Christian to donate money to NAMBLA?
I was always taught that all rights exist in delicate tension with one another, that your right to swing your fist ends where my nose begins. Apparently, based on some commenters, that doesn't apply to employment. The employer has an unlimited right to make any demand he likes, and the employee must either knuckle under, or go get another job.
OK, so let's do a thought experiment. Every employer in the country requires that all employees cease drinking and smoking, and requires all employees to participate in morning calisthenics. It is now impossible to work anywhere in the country unless you obey these rules.
Still not a problem?
One commenter brought up the movie Gattica, where all employers rejected anyone from employment whose genetic profile made them a medical risk of some sort. My presumption is that you'd have no problem with that, either, then.
As long as it's not the government that's doing it. 'Cause that would be, you know, wrong.
UPDATE II:
Let's address this "contract" foolishness. Many commenters have repeated the standard cant that employment is a voluntary contract between an employer and an employee.
No. It isn't.
It is analogous to a contract in some ways, and contract theory provides a useful framework for talking about it in some senses, but employment is not a contract.
A contract is an agreement that lays specific obligations upon the parties in return for valuable consideration. Employment, in several important ways, does not do this. For instance, an employer can arbitrarily alter the terms of this "contract". "I've decided that we have to cut your pay by 10%, so I can afford to take an extra trip to Barbados this winter. Sorry." "We can't afford to provide paid health coverage for you anymore, so now you have to pay 40% of your health premiums. Sorry." What is your legal recourse to forcing your employer to pay the originally agreed-upon sums? There isn't one.
A "contract" that one party can alter at will, and that contains no terms enforceable against both parties is not a contract.
Moreover, if the contract argument were true, that brings up an interesting point. The four workers who were fired were apparently smokers when they began working at the company. The employer unilaterally and arbitrarily altered the contract. Don't them employees then have a legal argument that their firing is a violation of their employment contract, because the new policy imposed a change to the contract with which they did not agree? Why can't they force the employer to keep them employed according to the terms of their original contract? If employment is a contract, then clearly, they have a contract theory under which a lawsuit against the company can be pressed.
I think we all know, however, that under the doctrine of at will employment, they don't have grounds for such lawsuit. Because employment is not a contract. Unless, of course, you have a written employment agreement that spells out specific terms of the contract, and the specific terms for each party.
Also, I can't recall an article on QandO I objected to more strongly in a long time. As you well know, employment is a voluntary contract between two parties and either party (ethically, if not legally) has the right to request any conditions he likes, and the other party has the equal right to refuse.
I had a (non-military) job for several years that required I have short hair and no facial hair. If I had ever considered this an imposition on my freedom I would have quit.
I think Dale paints the picture accurately. If my employer played that game with me, I would certainly look for new employment. But I take home a nice check each week and might not be able to replace that.
Also, I'll use my own experience as an example. I enjoy a drink at the end ofthe day. I used to smoke a pack a day but gave that up years ago. I do enjoy a smoke ocaissionaly though. I was at a meeting in January and smoked a few cigarettes every night. Have not touched one since I returned. Does that make me a risk? How does that affect my ability to perform my job? Do we institute curfews to make sure employees are getting 8 hours of sleep?
Firing the people is the wrong solution. If the employer wishes to pass the cost on to the employee that would seem resonable. Then at least the employee has a choice.
It's possible to make the argument that, since Weyco has to bear the costs of smoking by higher health insurance costs, they can decide not to employ smokers
I support this, as long as it's applied with ruthless precision all around. That means no smokers, no drinkers (not even occasional!) no drugs, no overweights, no older/elderly, nobody with history of genetic diseases in their families, nobody with kids, and no women (pregnancy costs)
Firing the people is the wrong solution. If the employer wishes to pass the cost on to the employee that would seem resonable.
In this specific example, the employer went out of his way to help all of his employees who smoked to quit, including paying for several smoking cessation programs. After that, only four of couple of hundred employees were still smokers. It's not like he's just laying down an edict and chopping the heads off of everyone who doesn't comply.
Then at least the employee has a choice.
The employee had a choice in this situation, as well.
Well Lance, we agree that the employee has a choice 'would you prefer to be shot or hung?'. I still fail to see the connection between someone smoking at home and losing their job. I'm all for not allowing smokers to take breaks and treating each employee the same way at work. This is just a little too 'Big Brother' for me. Shark's note about applying it the concept with ruthless precision is probably where I'm getting to - but I'm also thinking what would stop the employer from saying 'no rollerblading on the weekends - too dangerous'. Or 'sorry, but we have a report here that you were playing softball last night. tsk, tsk.'
What was the movie that came out a few years ago - Gatica? Where everything was predicated on your DNA. Is that what we're heading to? I mean if this is OK for Wyceth, then why not the Federal Imperial Governemnt? And why not then have the Feds tell us that every company has to do that in order to keep Medicare costs in line with the budget.
Well Lance, we agree that the employee has a choice 'would you prefer to be shot or hung?'.
Let's not devolve into hysterical nonsense, please.
I still fail to see the connection between someone smoking at home and losing their job.
Whether or not you fail to see the connection - or even if a connection exists - is beside the point. Each party has the right to ask for any conditions he likes, and the other party has the right to accept those conditions or extricate himself from the agreement.
I'm all for not allowing smokers to take breaks and treating each employee the same way at work. This is just a little too 'Big Brother' for me.
Well, that's nice but hardly relevant as you aren't one of the parties involved in this circumstance. You, of course, can conduct your own agreements however you like.
"The paleolibertarian view is that the company should be free to hire and fire anyone it wishes, and if employees dislike the control over their behavior the company tries to impose on their personal lives, then the employees can go elsewhere, which will make it increasingly harder for the company to find good workers, eventually forcing them to repeal such intrusive policies."
I guess I should affirm my agreement to this with a series of low grunts.
Apparently the new libertarianism has less faith in the power of the individual and the market. Especially given that we are in the age of the blog, I'm a bit surprised.
I'm 100% convinced that employers suffer greatly from their ill-conceived policies. Maybe not all of them in all cases and immediately, but most do. Turnover at bad companies is high and consequentially costly. Usually one bad policy has many bedfellows.
Yes, some people tolerate working at places like Weyco for a number of reasons (can't afford to change jobs, don't feel affected by the policies), but that's hardly an argument for using the state to interfere in the voluntary arrangement between employee and employer. All that does is further enable dependency on someone else to bail you out of a bad situation.
Gonna disagree with you here, Dale, sorry. I think what David A. said hits it on the head.
My company is now requiring employees to pay for company equipment up front out of their own pocket with limited monthly reimbursement (cell phones). Many employees have adamently told their bosses to shove it and that they weren't going to do it. They didn't 'band together' so to speak, but their actions did. One group has been threatened with termination if they don't comply.
Luckily for me, the policy doesn't affect me (I already own my own cell and don't do on call support). But if I were in the situation, I would refuse too. And if I got fired, instead of writing my senator and having legislation drafted, I would simply try to get my story out in the public eye and hope that the free market would punish the company for their stupidity.
I know nothng of Weyco, and if I can I will avoid purchasing their products.
Ok, you guys really need to find a new label for your philosophy. Right now you're defending the right to a specific job. That's not in the Constitution.
You've confused a private company's right to discriminate in a business transaction with the government's Fourteenth Amendment limitation on discriminating in providing services. There's a huge difference. Think about the can of worms that would open up: Any law written that would effectively separate on and off duty behavior would have serious consequences. Banks might have to allow felons to work the cash window because the felons never committed an offense while at work. That's not in anyone's best interest except the felons'.
You seem to assume that there's no redress. These people have an easy choice, quit smoking or find a new job. So far as I know, there's no law against other companies hiring these people. I hope a couple of software companies try this in Florida. I'll start my own company, hire the smokers, and make out like a bandit. And yes, I am a smoker.
Here's another idea. If you don't like Weyco's behavior, don't use them. That's a libertarian idea.
If you want to be on the right side of this fight, why not start with the unjust limitations on businesses such as bars and restaurants that cannot allow smoking due to state or local law. That's a libertarian fight.
It's your blog and your philosophy, define it how you like. But to my eyes it looks like neolibertarian means the state should intervene whenever you're inconvenienced.
Maybe I'm missing something here. Please point to the passage in my post where I advocated government action.
I advocated collective bargaining, but other than that, I posed a rather long serioes of querstions. You are the ones positing government action to stop it, not me.
I'm just asking questions.
Also, I can't recall an article on QandO I objected to more strongly in a long time.
To what, precisely, are you objecting? The asking of inconvenient questions?
Apparently the new libertarianism has less faith in the power of the individual and the market.
No, the new libertarianism recognizes that economic study indicates that market failures are more common than was previously understood, and that elegant theoretical constructs about "voluntary contracts" are often far more complex in real life.
My final question was:
"If we agree to work for an employer, does that mean we agree to be wholly owned by them?"
No one is interested in answering that? Not an important question?
Or is it simply easier to condemn me for some unspecified heresy?
"If we agree to work for an employer, does that mean we agree to be wholly owned by them?"
No one is interested in answering that? Not an important question?
No, it's not an important question, because the premise is flawed. Firing someone who smokes does not consitute, or even approach, being "wholly owned".
"If we agree to work for an employer, does that mean we agree to be wholly owned by them?"
If you so voluntarily choose so, yes.
Sounds easy to me. Many people where I once worked were required to be on call 24x7x365. One guy who liked to go fishing was told he couldn't go on the weekends because he'd be out of cell range. His reply was akin to 'go pound sand'. The company, needing the gentlemen's employment decided to rescind the request.
While I am not 'on-call' so-to-speak, I am required to be available at all times as if something is so bad that they need to call me at 3 AM then there are major issues. I accept this as part of my employment. Voluntarily.
And if people voluntarily wish to unionize, more power to them (easier to know who to fire, if you ask me). But as a former Postal employee, I can attest that being union isn't 'a choice' for many people as, at least with the Postal service, it was akin to 'Nice Job you have there. Be a real shame if you were to be fired. You know the Union would protect you, don't you?"
"If we agree to work for an employer, does that mean we agree to be wholly owned by them?"
The question smells a bit strawish to me. Clearly the answer is no.
In practice, the employer holds a significant amount of power over the employee, if for no other reason than the employer is insulated from the consequences of bad decisions to a far greater degree than the employee.
I disagree, for the reason stated in my prior comment (employers invariably suffer for their bad policy). Furthermore, we should structure our lives in such a way that we do not box ourselves into a single employer. Whose fault is it other than mine if I lock myself into financial obligations that demand I work for my crappy employer?
...but the simple fact is that collective bargaining is the practically the only method whereby employees can stand up to an employer, especially a large employer, on anything like an equal footing.
Again, I disagree. Considering you just made an argument that "elegant theoretical constructs about "voluntary contracts" are often far more complex in real life", why are you stating the overly simple notion that collective bargaining is "practically the only method whereby employees can stand up to an employer, especially a large employer, on anything like an equal footing."? The market works in these cases, just not always obviously or to the degree and speed at we might derive supreme satisfaction (e.g. every Weyco employee quits immediately upon learning of the ridiculous treatment of the four smokers and the company goes belly up).
The idea that "any contract that two people enter should be binding" is obviously missing something important: only contracts entered voluntarily should be binding. And, like most things in the real world, there's a gray area between "purely voluntary" and "purely non-voluntary". Employee agreements are in this gray area.
If the employees of Weyco were all independently wealthly, the argument that all voluntary contracts should be enforced would have some relevence. However, most of those employees need to work for a living far more than the company needs any given employee. The company has undue leverage, which means some restrictions on what can be in the contract are acceptable.
You cannot make a binding contract in America to sell yourself into slavery, even purely voluntarily. We have strong agreement here that some rights are inalienable. Somewhere in that gray area is a company asking you to do things unrelated to your job in order to retain employment. How is this morally different from demanding sexual favors from underlings?
"If the employees of Weyco were all independently wealthly, the argument that all voluntary contracts should be enforced would be relevent. However, most of those employees need to work for a living far more than the company needs any given employee. The company has undue leverage, which means some restrictions on what can be in the contract are acceptable."
Employers need good employees and prefer long-term employees in most cases. Turnover is very costly. Whether employers realize it or not, treating people poorly costs them substantially.
Wealth is nearly irrelevant. Dont put yourself in a position to depend on a single employer. Even the lowest wage earners have quite a bit of flexibility moving from job to job.
That last statement is right out of the statists playbook:
People are not capable of advocating for themselves, so we - in our infinite wisdom - must use do it for them.
When you spare capable individuals from responsibility they will tend to learn being irresponsible. This is true for all but a tiny minority of people who literally cannot take care of themselves.
Dale: Other than government action, how do you propose to stop Weyco and any who choose to follow from creating arbitrary manditory barriers to employment? I guess I don't see where Weyco violated any rights. Employment at Weyco or anywhere else is volunatry. If these smokers couldn't find another job, and paying bills is important to 'em, they should quit smoking! Smoking is (or once was for these people) non-compulsary.
You probably already know that first requirements for being eligable(sp?) for workman's comp in most American companies is taking a drug and alcohol screening. Immediately. Like as soon as you receive treatment. If you fail, no workman's comp, and you'll probably be fired. Many companies also have drug and alcohol free workplace policies that are rarely enforced except in OTJ injury claims because testing is a prohibitive expense. If Weyco wants to spend the money, let 'em. At some point the cost savings becomes moot, but it ain't illegal for a fool to part with his money. This guy's tilting at windmills, and god bless him.
If you aren't advocating government action (and your post does seem to be of the "there oughtta be a law" variety) then what mechanism do you propose to redress these harms? You seem to think that all, most, or many companies are in danger of following suit. More than one CFO or business owner I know said, "how did that save them money?"
As to your thought exercise, if the government doesn't prevent me from starting a business without the drinking, smoking, and calisthenics, then what's the problem? I'll start my own business. I'll hire the best lazy-ass smokers around, not ask questions about their drinking behavior as long as they're sober at work, and probably do land-office business.
If a non-smoking policy would make you feel "wholly owned" by an employer than don't work for him! I agree that the owner of Weyco is a fool. I'm not quite mean-spirited enough to wish lung cancer on him, but close. What does his foolishness have to do with rights?
Let's address this "contract" foolishness. Many commenters have repeated the standard cant that employment is a voluntary contract between an employer and an employee.
No. It isn't.
Yes, Dale, it is. If it isn't, what is it? That most employment is not a written, legal contract is an issue that should be resolved, and would make the discussion we are presently having effectively moot. However, employment is a voluntary agreement between two parties - that by definition is a contract.
Employment is most certainly a contract, and your employer can (unless the terms of your contract say differently) arbitrarily say "take a 20% cut in pay." It happens all the time. If you show up for work,the employer must pay you the rate agreed upon. If you are irreplacable you can walk into your employer's office and say "I need a 100% raise or I'm walking." I did it about a year ago. My employer didn't come up with 100% (although to be fair to them they did make a 25% counter offer) and I walked. I found another job a week later making twice what I made before. I was only worth 125% of my previous salary to one employer, but 200% to someone else. That's life. I didn't complain, didn't explain, and didn't argue. I "voted with my feet".
If you've ever been employed without a written contract, then you're a fool and so is your employer. Every job I've had, be it waiter, delivery driver, phone support, or programmer has come with a contract of employment. Every single one. Go fill out an application at McDonalds and if they hire you, you'll get a contract of employment. It has sections like "Sexual Discrimination Policy", "Paid Time Off", "Compensation", etc. You probably signed a form that said, in extended legaleze, "I have read and agreed to the terms of employment laid out in the above form or packet."
I think we all know, however, that under the doctrine of at will employment, they don't have grounds for such lawsuit. Because employment is not a contract. Unless, of course, you have a written employment agreement that spells out specific terms of the contract, and the specific terms for each party.
Then you have a contract.
Actually, if the company enacts this policy in writing, which the employees are required to affirm/acknowledge, there may in fact be an employment contract (much to the furture dismay of the Company).
At-will employment is a contract, contrary to your assertions, it's just a contract for a limited amount of things -- i.e. either party can cancel the contract, for any reason, with or without cause, at any time, without causing a breach. "Unilateral changes" to the contract don't have to be accepted by the non-changing party -- e.g. the changing party cannot insist that the non-changing party fulfill any obligations or pay damages.
Dale, I call your strawman of "every employer" and kick it over with ease.
Don't like every employer's position? Then become you OWN employer and change it. THAT my friend is liberty. Unless the Govt makes it a law that employers must do that, it's never going to happen.
I'm surprised to see you use such a fallacy.
And, while the GATTACA argument is a little stretched, it's not impossible. But, if we all of a sudden get the ability to manage DNA at that level, then I can't see why someone would be forced to employ someone who had less ability to perform the job than someone else. As a human race, we have to accept that as the new way of life if we're to tamper with our genetics.
If not, would you require that the NBA be forced to hire midgets? Should the blind be given jobs as school bus drivers (they already have all the good refereeing jobs).
I'm not requiring anything. I'm just asking questions. I'm curious whether there's anything an employer canot require in order for you to keep your job.
Apparently there isn't. If that's so, then if every employer can require that you have a particular lifestyle or genetic profile, are you comfortable with them having so much power?
Your response is, well, I can elways start my own business. OK, but let's go back to the Gattica example. Now, who will you hire, when no insurer will cover you or your work force because they do not meet the approved genetic profile. Or let's say your insurance costs too much for you to offer competitive pricing and still make a profit? Doesn't seem to me like your business is going to be very successful.
If not, would you require that the NBA be forced to hire midgets? Should the blind be given jobs as school bus drivers.
Wow. Where did that come from? That's not even germane to the subject. How are you making the jump from firing qualified people for their personal, legal lifestyles, to forcing employers to hiring unqualified job seekers? How is that even loosely analagous?
I'm just asking questions. I'm curious whether there's anything an employer canot require in order for you to keep your job.
Are you also curious whether there's anything an employee can not require in order for him to continue to work for his employer? The question is equally valid.
Yes, I have no problem with a company requiring anything because I have faith in the free market that companies that did so would find their work force numbers reduced to a level where they would not be able to stay in businesses.
What if a company required employees to shave their heads and tattoo "I Eat Boogers" on their foreheads? How many people do you think would quit? How long after they quit do you think the company would stay in business / change their policy.
It all depends on whether you're willing to give them a year to quit being gay in programs paid for by company money, Crusader.
Oh, does that spoil the analogy?
Not really, since my point was the public reaction, which would be up in arms if it were 'gays' who were being singled out, while most folks are OK with smokers. In fact the outcry would be worse in your expansion of my question, as it would dare to say that these lifestyles are choices, which seems to be a taboo these days. Personally, I feel the companies have the right to do these things (free association, etc), but just wonder if they were not just singling out easy targets, since smokers are the 'bad guys' of the day. And being a type 1 diabetic, statistically I am a larger drag on the expenses for the co I work for, yet I have had less sick time off of work than most 'healthy' people I work with. So there needs to be some common sense mixed in with these sweeping decrees, that I don't as of yet see, considering an employee of Weyco Inc. who was not even in the med insurance that they offered, so I find their basis for firing in that case to be questionable. But if these 4 knowingly took their jobs with the knowledge that they would have to stop smoking, and didn't, then they have no one to blame but themselves, as they did not abide by their part of the agreement.
