May 19, 2013
Who’s Your Nanny?
Posted on Feb 19, 2011
This week a front page story in The New York Times reported about the trend of employers rejecting job applicants who smoke.
Corporations are pursuing more intrusive engagement with the personal lives of employees. The first employer decision—to hire or not—may depend on the personal habits and lifestyle of an applicant that have no demonstrated relationship to job performance. The Times article reports:
At the same time, over the past few months tea party leaders such as Michele Bachmann and Sarah Palin have criticized Michelle Obama, her husband and his alleged nanny-state administration for telling parents what their kids should eat, how much they should exercise and whether they should sit for hours each day watching TV.
To avoid complete philosophical incoherence in tea party libertarian orthodoxy, something has to give: either the reverence accorded individual freedom for American citizens or the freedom for corporations to insist upon employment rules designed solely to pad the bottom line of corporate balance sheets.
On the one hand, the tea party position is that the Founding Fathers intended to establish a country where people are free to engage in any harmful, self-destructive behavior they damn well please. Such freedom is quintessentially libertarian: Jane Q. Citizen has her liberty and freedom from being told by the nanny state what to do, even if doing or not doing it makes one ill, disabled or likelier to die at an earlier age. Economic freedom to contract with any employer and the employer’s economic freedom to dictate the terms of the contract it is willing to enter into with the employee are bedrock principles endorsed by the libertarian-leaning tea party members.
Their narrative is that big government has enacted too many laws and business regulations over the past 70 years that strangle free enterprise. Corporate innovation and small business competitiveness are stymied, they argue, by workplace regulations that mandate paying a minimum wage, prescribe the length of the workday and require safety regulations to prevent employee injuries. That kind of government intervention in the economy hurts the free market drive for profits that, they say, will improve the lives of consumers and workers alike.
Then it must logically follow that libertarian/tea party members and their fellow travelers within the Republican Party should see nothing wrong with a corporation’s economic decision to not hire smokers, obese persons (as subjectively defined by the hiring employer) or applicants with “pre-existing” genetic proclivities (easily determined through medical history and DNA testing) that make them likely targets for cancers, diabetes or heart disease.
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After the hiring decision is made, those who endorse the importance of a free hand for employers see nothing wrong with continued oversight of the work force. That can be done through urine tests and subjective behavioral observation of employees by managers.
A recent California appellate decision, Holmes v. Petrovich, held that there is nothing wrong with an employer monitoring an employee’s personal communications with doctors, attorneys or religious counselors that occur using phones and computers provided to workers in the workplace as long as the employee is given “notice” that personal communications using employer-provided phones and computers are subject to monitoring and recording.
The defendant employer, plaintiff Holmes’ boss, insisted on knowing in advance of any plans she was making for a maternity leave of absence. Because she sent an e-mail to her attorney using her office computer, the Court of Appeal held, she waived any privacy right in that consultation with the attorney and her communications with the attorney about maternity leave were fair game for monitoring by her boss.
Surely every employee recalls the first day of work and receiving the employee handbook that gave notice of a policy in the paragraph at the bottom of Page 9. Sadly, Holmes had the Court of Appeal remind her a little too late of that provision in the handbook. For everyone else, find that handbook in the drawer and be forewarned: Employees in California workplaces should take care to bring a personal phone to the work site and speak in hushed tones that cannot be overheard, or use a personal (not company-issued) smart phone or computer to send e-mail. Unless, of course, you don’t mind sharing the contents of your personal communications with the boss.
Is there a business purpose for such an intrusion on employees’ lives? Employers will quickly respond: The ability to monitor employee communications from the workplace can help control health care costs and assure that the business’ personnel assets are continuously available without inconvenient, unplanned absences from illness, pregnancies and the concomitant treatment regimens that an employee—such as Holmes in the case bearing her name—may have to undergo.
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Courts have addressed the conflict between employer freedom and employee freedom in the public sector, for jobs that involve carrying firearms, driving or piloting large vehicles on highways or in the air, and for responding to fires and public emergencies. The power of public-sector employers to test for drugs and enforce physical fitness conditions for discrete segments of the public employee work force has been recognized as more important than the public sector employees’ personal freedom to ingest drugs or alcohol outside the workplace. Perhaps this is a defensible approach to the tension between employer rights and the rights of certain public employees whose relationship to public safety is crucial.
But no public employer (as private employers are poised to do) has asserted the power to use employment sanctions to punish employees for engaging in personally harmful behavior, such as smoking or overeating—at least not beyond a point where the employee’s condition becomes incompatible with the physical fitness needs of the job of a firefighter or police officer.
Unlike public employers, private employers when hiring need not develop (and be capable of defending in a lawsuit) evidence of a nexus between physical characteristics and job performance, the way public employers must. Moreover, private employers may be more speculative and futuristic when asserting a nexus between current physical characteristics of an employee and future negative impacts on the business’ bottom line.
Current good health and personal conduct outside the workplace (e.g., smoking or drinking at home hours before beginning work) are unrelated to current work performance. But the mere possibility of some deleterious effects in the future (statistically measured across the class of all who smoke, eat or drink) that might raise the cost to the employer for a specific worker (who may or may not experience the class identified disease) is deemed sufficient reason to deny employment now, and to justify close, intrusive scrutiny of workplace and private behavior while employed.
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