It’s none of their business, or is it? 3

By Daniel Velton

About 100 years ago, Ford Motor Company had a “sociological department” of investigators who monitored Ford workers’ off-duty conduct to ensure those employees didn’t drink too much, kept their homes clean and “properly” spent their leisure time.

About two weeks ago, an employer in San Francisco announced a new policy prohibiting the use of all tobacco products on its property by employees, even while on break and even while in their personal cars. With the new rule comes the introduction of a team of “tobacco-free ambassadors” to advise workers of the prohibition. It’s not the first employer to implement a tobacco-free policy, and probably not the last.

The new policy, like the old one at the turn of the last century, is apt to reignite a debate over workers’ right to privacy and the freedom to do what they want in their free time. Unquestionably, the goal of tobacco free-policies in the workplace is noble. Thousands die of smoking-related illnesses every year, cigarette butts litter smoking areas, and most find that smoke just plain smells bad. Even more important, the workplace at issue here is effectively a hospital environment with numerous medical patients. In announcing its new policy, the hospital itself acknowledges that nicotine forms an addiction as bitterly painful as any to break. (To its substantial credit, UCSF will provide free nicotine replacement gum to help with cravings).

Employer regulation of off-duty conduct has led to numerous laws across the country. In California, for example, Labor Code section 98.6 prohibits terminating or in any way discriminating against an employee because he or she engaged in “lawful conduct occurring during nonworking hours away from the employer’s premises.” Whether smoking in one’s car during a lunch break qualifies as protected off-duty conduct remains to be seen. Either way, those taking part in the inevitable debate over this issue should be mindful of the important interests on both sides. Successfully striking a balance between employee freedoms and patient/coworker rights to a smoke-free environment is going to be as difficult as going cold turkey ever was.

Daniel Velton

About Daniel Velton

Daniel Velton began his career with the largest labor and employment law firm in the world. Using that experience, he brings valuable knowledge and perspective to his current practice, in which he exclusively represents employees in individual and class action discrimination, wrongful termination, harassment, wage and hour, and other employment cases.

3 thoughts on “It’s none of their business, or is it?

  1. Jean Hyams Reply Jean Hyams Sep 26,2013 12:38 pm

    Here’s more information about the ban, which goes even farther than Dan’s piece describes –

    “No one will be permitted to use tobacco products while on any University property or adjacent grounds, including during lunch and break times, whether on or off campus.”

    Our firm blog — The Employee Matters — also covered this issue and links to an article in the SF Weekly about the policy.

  2. Reply Robert Greeley Sep 26,2013 12:57 pm

    Interesting piece, Daniel. First of all, I agree with what Jean Hyams said in response (on the CELA list): “employers trying to exercise control over their employees’ off-duty conduct is a dangerous trend.” However, I think that the line is blurred when that off-duty conduct spills over into the health and safety of the workplace. We all know that second-hand smoke is dangerous, thanks to numerous studies. However, we are only beginning to study the hazards of “THIRD-hand smoke.” If workers are smoking only in designated smoking areas and/or their cars and thereby avoiding subjecting their coworkers to second-hand smoke, that’s great.

    But what if they are bringing dangerous toxins into the workplace in the form of third-hand smoke on their hair and clothes that are hazardous to infants and children? (Who are definitely present, and already vulnerable, in a hospital setting, by the way.) I’m not surprised that UCSF is taking the lead on this, since they are one of the few places currently studying the dangerous effects of third-hand smoke, through their Center for Tobacco Control Research and Education. Here is a brief, enlightening article on the subject:

    The bottom line for me is that, until we know the full risks of third-hand smoke to infants and children, I don’t have a problem with *workplaces wherein these young people are routinely present* from banning smoking entirely from their premises, including their parking lots, and during working hours, whether on- or off-premises (and yes, I am including during breaks and lunches). I would draw the line, though, if they were to ban their employees from smoking *off-premises outside of working hours.*

    Robert Greeley

  3. Reply Bernard Alexander Sep 30,2013 5:19 pm

    So the employer chose to invade the privacy of smokers. And our perfunctory response is “so what; it’s a dirty habit that WE as the majority don’t like anyway. Serves them right.”

    But the underlying point of the article (for me anyway) is that as plaintiff employment lawyers, we often protect people’s choices where the employer’s attempt to regulate unreasonably impedes a right of privacy–even when we disagree with the choices made in exercising that right. It’s easy to decide that the regulation is reasonable when the majority is on your side. It’s harder to see the issue for what it is when the principle (exercise of individual freedom) is masked by conduct that we personally abhor, like smoking.

    What we do during our own personal time is none of our employer’s business. Maybe if we change the vile prohibited workplace conduct from smoking to reading a bible; or the other extreme, viewing pornography. Or maybe we change the choice being regulated to the choice of a person’s sexual partner; or the race of sexual orientation of the partner. Maybe if we look at the principle (invasion of personal choices) rather than the narrow subject-matter of what this over-reaching employer is seeking to scrutinize and regulate (smoking), we can focus on the issue more clearly.

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