Who’s Your Nanny?

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:

More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. … The new rules essentially treat cigarettes like an illegal narcotic. Applications now explicitly warn of “tobacco-free hiring,” job seekers must submit to urine tests for nicotine and new employees caught smoking face termination.

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.

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.

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.

In considering how the national political dialogue about the so-called nanny state melds with emerging paternalism in the corporate workplace, two questions come to mind.

First, how will libertarian/tea party support for freedom for private businesses be reconciled with a world where employers deploy digital camera surveillance in the workplace, track keystrokes on employee computers, make greater use of advances in genetic medical predictions and, of course, wield the power to choose one job applicant and reject another? How can that world of corporate hiring and firing freedom be reconciled with the supremacy of a citizen’s right to do with her person as she pleases?

The second conceptual conundrum is: If tea-partying libertarians defend the rights of private businesses to engage in “nanny corporate” supervision, why is it wrong for the government to engage in “nanny state” hectoring?

Of course, the government has engaged in giving citizens paternalistic advice for a long time. Who has not risked disobeying the commands of America’s surgeon generals? Would former Surgeons General C. Everett Koop or Joycelyn Elders (to name a couple of the more publicized officeholders) have been supplied with a government uniform and the title of “general” if they did not intend to project a commanding personification of the government “warning” (as it says on the cigarette pack) to not smoke, or advising citizens to eat broccoli? Why such advice coming from the wife of the commander in chief is so obnoxious to tea partyers says a lot about their real complaint: the messenger and not the message.

Few behavioral changes are expected from what most governmental officials advocate, and certainly not because anyone believes that the advice from a man channeling Abe Lincoln in a faux military uniform must be obeyed or punishment will be inflicted. No one has done a day in the brig or paid a fine for not following Dr. Koop’s orders.

Yet Palin and the tea party have focused their sarcasm on Michelle Obama’s efforts to promote healthy nutrition and exercise for children. Apparently they are unable to comprehend that advocacy and enforcement through legalized sanctions are very different things.

White House advocacy is depicted as if it is based on a law already passed and enforceable. Nothing could be further from the truth, of course. No person has been (or ever will be) forced to eat vegetables or to engage in a healthy lifestyle to deter obesity as a product of anything Michelle Obama has advised.

The same cannot be said of private employers that are engaging in something more than “nanny” advocacy. A real sanction of continued unemployment or imminent termination hangs Damoclean-like over the heads of workers in American corporations.

Employers, unlike Michelle Obama, rely on a type of law: the swift and severe law of supply and demand for workers. That law is being wielded by employers as they ratchet up their interest in the health characteristics and personal behavior of potential and current employees. Michelle Obama’s “nanny state” has only the bully pulpit to exhort. The bosses at the plant have more than a megaphone. They have the power to hire and fire people who must tow a line of personal behavior that is most advantageous for the corporation’s bottom line.

A flight attendant who smokes on the ground is perfectly capable of flying without smoking, as passengers must do. But airlines, it appears, may legally decide to refuse employment to a flight attendant who smokes because he or she may draw down more future health benefits as a result of the collateral impacts of smoking on his or her health.

Are Ron and Rand Paul, Bachmann and Palin on the side of the airline employer? Or are they on the side of Americans who, the tea partyers argue, have a birthright to engage in any personal behavior they wish to do as long as it doesn’t hurt anyone else? Shouldn’t a libertarian say: “As long as the flight attendant doesn’t light up in the restroom of the plane, it doesn’t hurt me, and the attendant’s personal freedom to smoke in the airport lounge or at home should not be curtailed by the government. And the same logic applies to a private employer.”

Two future possibilities bear watching.

First, some states have enacted a few weak controls over private employers with regard to inquiries into areas of personal privacy during the hiring process. It will be interesting to see what position tea party supporters take at the state and local level when legislation is proposed that private businesses be prohibited from intruding into the personal lives of employees regarding conduct that occurs at home, or at least not in a close nexus with the workplace.

Second, what if all kinds of employers, even ones in the public sector, were encouraged to reject applicants for engaging in personally harmful behavior like smoking? Two current employees of the federal government who might see this as an unwarranted employer incursion on personal freedom come quickly to mind.

They are John Boehner and Barack Obama. The former is intransigently committed to his freedom to smoke cigarettes, saying in a televised interview:

“Tobacco is a legal product in America,” the new House speaker said. “The American people have a right to decide for themselves whether they want to partake or not. There are lots of things that we deal with and come in contact with every day, from alcohol to food to cigarettes, a lot of the things that aren’t good for our health. But the American people ought to have the right to make those decisions on their own.” (From Politics Daily, “John Boehner and Tobacco: He’s Not Ready to Give Up Smoking”.)

The latter might support a restriction on smokers in public employment, as long as the law does not take effect until February 2017.