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.
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.
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.”
Anita Epolito worked for Weyco for 15 years when she was fired for refusing the test in 2005. “This is about privacy,” she said. “If you failed the blow test, you had to take a urine test. It was so demeaning.”
She thought what the company did was illegal but soon found out that because Michigan is an at-will state, she could be fired for any reason, even for something she did in her off-hours.
However, there is 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. “It sounds good when you talk about it in the context of smoking.
But how about people who drink, ride motorcycles, sky-dive, have a promiscuous sex life?”
Or use the Internet?
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 recently about to interview a young man for an internship. Karsh checked him out on the Web site Facebook, where the potential employee listed among his interests “smokin’ blunts with the homies, shooting caps into whitie.”
“I’m assuming, and 99 percent certain, that he was joking. But what did that say about his judgment?” Karsh said. “And what did that say about someone applying for a job at a company that advises college students about the workplace?”
Karsh did not hire the man.
In a recent survey, 19 percent of workers said they would post their resumes on social networking sites, while a third would remove content from their MySpace, Facebook or Friendster pages if they knew their employers could see it, according to Spherion, a recruitment and staffing agency.