Scott v. Scotts
Jacob Sullum | December 8, 2006, 4:32pm
A Massachusetts smoker is suing the Scotts lawn care company for firing him after he tested positive for nicotine. Scott Rodrigues claims the company violated his privacy and his civil rights when it enforced its policy against smoking on or off the job. Scotts, which is self-insured, says the policy is aimed at controlling its health care costs.
As I've said before, a private company should be able to hire whomever it wants on whatever terms are mutually acceptable. No one has a right to a job, let alone a job on terms that he alone dictates. Rodrigues is especially unsympathetic because he knew about the no-smoking policy and agreed to abide by it when he started working for Scotts.
His lawyer warns of a slippery slope: "Next they're going to say, 'You don't get enough exercise' or 'Both your parents died of a heart attack at age 45 so we don't want to hire you because you're more likely to need medical care.' " It's worth noting that the prospect of increasingly intrusive health-related demands by cost-conscious employers is plausible mainly because of the artificial link between employment and health insurance created by a tax policy that favors health coverage over extra cash as a way of attracting employees. If this distortion of the job and health care markets were rectified, employers would be less likely to care about their workers' risky off-the-job habits (unless they affected job performance). But given that companies do end up paying for their employees' health care, I don't see why they should be legally compelled to ignore employee characteristics that raise those costs.
[Thanks to Paul Strigler for the link.]
tomWright | December 8, 2006, 4:54pm | #
"the artificial link between employment and health insurance created by a tax policy "
No, it was created by war suppliers during World War two as a way to keep and attract workers, and continued after that. Tax policy just encouraged and institutionalized it after that.
That said, this is also due to the clueless idea that everyone should pay the same for health coverage. Why? We pay different rates for car, home, life and other forms of insurance based on our record of behavior, location and other risk factors. Why NOT health?
Instead of firing the smokers, have them pay a surcharge based on the extra risk.
Oh, I forgot. In this country being made to face the consequenses of ones choices or ones situation, voluntary or not, is heartless and evil.
I have always wondered why it is not heartless and evil to make innocent bystanders, (in this case non-smokers), bear those consequences instead, by paying higher insurance rates to cover the break given to smokers.
All the same can be said for those that do not exercise, have bad family health histories, engage in risky behavior like sky diving, drug use, bareback ANYTHING, etc.
BG | December 8, 2006, 8:41pm | #
I understand the abstract philosophical arguments here.
If person A is not violating person B's rights by refusing to give person B something, or by acting in a way such that person B lacks certain options;
then it follows that...
Person A would not be violating person B's rights by
threatining to refuse to give person B that thing or
threatining to act in that way in order to get something from person B.
This line of reasoning applies to alot of areas and explains many of the libertarian conclusions that a majority of people find absurd. I would however, like to consider the following hypothetical situation:
Suppose libertarian utopia is established. A person is looking for a job and is willing to do any kind of work for any wage that allows him or her to earn enough to meet his/her basic needs. However, nobody anywhere will hire this person, and the person does not own anything except the clothes on his or her back. Also, there is not enough charity to go around so this person cannot depend on private philanthropy.
According to libertarian theory, it seems that the only thing this person has a right to do (and also in practice the ability to do) to stay alive is go out into the wilderness and hunt and gather food.
So now, the job-seeker is in the store of the last employer in the world (for argument sake). It happens to be a food store. The employer says "Yea, I could hire you for this position, and it would be a good deal since you're willing to work for a low wage, but I just feel like turning you down."
My 3 questions are:
Would this person (who is out of money) be justified in taking some food and running (if it makes any difference assume its a negligable percentage of the store owner's bottom line)?
Would you blame the person for doing so?
Is there any penalty you would feel comfortable imposing for such theft that would be likely to deter a rational person in this situation?
thoreau | December 8, 2006, 10:59pm | #
A few things:
1) According to the article:
He had previously received a written warning after a supervisor saw a pack of cigarettes on the dashboard of his car. At the time of the test, Rodrigues -- who was aware of the policy when he was hired -- was trying to kick the habit and had cut back to about a half-dozen cigarettes daily. He believes the Nicorette anti smoking gum he had been chewing may have contributed to his elevated nicotine levels.
The contract says that he agrees not to smoke. It doesn't make it clear if the contract also bars nicotine gum. If somebody fails the nicotine test and claims that he was using nicotine gum to help refrain from smoking, what rights does the business have here in regard to
investigating his after-hours activities?
Now, my question is somewhat moot here, because he has admitted to smoking. Granted, he was at least moving toward full compliance with the contract, but he wasn't yet in full compliance, so, well, that's how it breaks down. But let's consider this as a hypothetical?
Now, I know what the standard answer will be: "Depends on the terms of the contract." Fair enough. But if there's any ambiguity, any matter on which the contract is silent, I would say that the presumption should go to him. If the contract says that flunking a nicotine test is cause for termination, even if the nicotine didn't get into his bloodstream from smoking, well, that's how it goes.
But suppose the contract just says something like "We will do blood tests to verify that you aren't smoking" (translated from legalese, of course), and the blood test that they use doesn't distinguish between nicotine gum and cigarettes (or other smoked products that have the health effects the company is trying to avoid), I would say that the company is in violation of the contract. The contract says they can do a test to see if he's smoking. If the test is incapable of distinguishing a smoker from a gum user, then the test isn't consistent with the terms of the contract.
Well, could they do something else, like search his house? Again, if the contract says so then, yeah, that's how it goes. But if the contract is silent on that, it would seem like he has every right to say "Mind your own business, this isn't part of the agreement."
I'm all in favor of adhering to contracts, but on matters of personal privacy it would seem to me that the presumption should favor personal privacy, unless the contract is very, very specific. Contracts may be privately negotiated, but they are enforced by courts and cops. Unless the contract is very, very specific on a matter that infringes on personal privacy, it would seem to me that a party to the contract should be able to say "Sorry, you don't get any leeway there. This is my own private matter."
2) BG poses a very unrealistic scenario. I would like to say that his scenario is so unrealistic that it should not be taken seriously. What's fascinating, however, is that when scenarios like this are offered on Hit and Run we often get people who take the bait and adopt rather horrifying stances, rather than just calling BS on the scenario. Which says something rather disturbing...
MainstreamMan | December 8, 2006, 11:38pm | #
People are getting away from the facts of the case...not that there's anything wrong with that...
"Scotts's policy was announced last year by chief executive Jim Hagedorn, a former two-pack-a-day smoker, and went into effect Oct. 1 of this year, giving the company's roughly 7,000 employees nearly a year to prepare. All employees are now asked to certify in writing whether they use tobacco, and to update the company if their status has changed. If a non smoker later begins to smoke, that person could be fired, "but that's not the goal," said King, the Scotts spokesman.
"Our goal is not to terminate anybody; our goal is to provide tools to people to stop smoking," he added, noting that Scotts will pay for employees and their family members to take part in smoking cessation programs. "What we're trying ultimately to create is a smoke-free workforce, as well as workplace, in states where state laws allow us to do that," King said.
Rodrigues said he was treated particularly unfairly because he was fired before the policy had officially taken effect and he was never offered help to quit smoking."
To wit:
"I) The company's group insurer would determine that it could not provide the coverage at the present price & would therefore raise the premium substantially.
II) If the company could not afford the new premium, it would have to cancel the benefit.
III) ALL employees of the company would therefore lose their coverage because Rodriguez violated a contract."
The company is self insured.
The company is violating its own policy (stating that it will help people quit smoking before firing them)
The company fired Scott before the policy took place.
This doesn't change the arguments about the reach of contracts, but it does in regards to the particulars of this case.
FWIW, it is clear that a contract mutually agreed upon does not allow one party or the other to violate basic rights or commit crimes. If there is reason to believe the company is requiring things as a condition of employment that are violations of rights or laws, they have no cover by pointing to the consent of the other person in the contract.
joe | December 9, 2006, 7:22pm | #
Eddy,
"People are basically animals and for the most part talk a good game with respect to "doing the right thing" (whatever that means) but their dollars say otherwise. As Wal-mart love-hate thing so aptly describes."
The spending of one's dollars isn't the only means of expression available to a person.
"Given perfect information, consumers have the ability to alter business practices because business is directly accountable, right now, whereas government is not."
A. They don't have perfect information. B. Even with perfect information, their material needs still constrain their choices. C. Government is accountable in one way (democracy, one man one vote) while business is accountable in another way (market forces, one dollar one vote).
Chalupa, juvenile outbursts laden with profanity and hysterical moaning about communism, in the place of reasoned discourse, is pretty much all you're good for.
Russ R,
Restrictions on contracts are a vast segment of the law. Go try to enter into a contract to pay someone for a blowjob, and let us know how it turns out. Anyway, my statement was proscriptive, not descriptive.
thoreau,
The specific case you mention (the inability of a blood test to distinguish between smoking cigarettes and chewing Nicorette) is a subcategory of the general case (the inappropriateness of your boss dictating what you do on your own time).
To those of you who do not consider being fired for what you do when you're off the clock to be un-coercive, I ask: what if I told you that I was going to get my little brother, your boss, to fire you because I didn't like the fact that you were reading a libertarian magazine. Coercive? Damn right.
Grand Chalupa | December 9, 2006, 8:49pm | #
And if you don't think this is the place to get into deep philosophical discussions about politics, then what are YOU doing here?
It must be unpleasant to have strongly-felt political opinions, and absolutely no confidence in your ability to defend and argue them. I've never found myself in that position, but I imagine I'd become outraged to encounter dissenters, too.
Well, professor, I used to get into deep debates on the internet, but most of the time if someone isn't at least in the same ideological ballpark its a time consuming, fruitless exercise.
Debating freedom with a liberal is like arguing with a born again Christian creationist if the gene or the species is the unit of natural selection. First you'll have to argue that evolution is true. Then you have to argue away the intelligent design argument. Then you get sidetracked into if evolution and a belief in God are compatible. And you still haven't gotten to the point you were trying to argue in the first place.
On the other hand if the other person is also an atheist with a good understanding of natural selection, then we could probably easily have a productive debate.
In other words, we can start by talking about if government should tell employers they can't descriminate in hiring.
Take for example your sentence....
"Government is accountable in one way (democracy, one man one vote) while business is accountable in another way (market forces, one dollar one vote)."
There are so many things wrong with that sentence, I could sit here all day deconstructing it. I don't have the time or inclination to. When business has the right to send you off to war to be killed, throw you in jail for twenty years, have you executed or to do away with government all together then maybe you'd have a good point.
I'm personally here for the laughs and as an oasis away from anti-freedom forces on the left and right. Not to argue with you over if you have the right to send men with guns to take my money and give it to the bum standing outside.
