National Public Radio (NPR)

SHOW: All Things Considered (8:00 PM ET) - NPR

July 1, 2003 Tuesday

LENGTH: 739 words

HEADLINE: Lewis Maltby discusses the legality of employers having the right to

tell employees what behaviors they cannot do outside of the workplace

ANCHORS: ROBERT SIEGEL

   ROBERT SIEGEL, host:

For more on the legal ramifications of this story, we've called upon Lewis Maltby in Princeton, New Jersey, who is president of the National Work Rights Institute.

Mr. Maltby, first, how widespread is this practice of employers requiring employees to pledge that they won't smoke?

Mr. LEWIS MALTBY (President, National Work Rights Institute): The best

information that we have indicates that about 6 percent of all employers, or about 6,000 companies, have a policy like this in effect.

SIEGEL: And such pledges can be upheld in court? If you signed the pledge and said 'I won't smoke,' then you can be fired if you violate it?

Mr. MALTBY: Absolutely. You don't even have to sign a pledge. In 21 states, your employer can fire you for literally anything you do in your private life of which the employer disapproves.

SIEGEL: But in this specific area, where the employer seems to be setting conditions for employment in order to safeguard the claims that'll be made later on them for disability, can they actually say, 'You can't smoke. You can't drink. You have to eat well. You have to stay in shape and work out,' say?

Mr. MALTBY: Absolutely. And some of those rules aren't so bad. Cops are supposed to be able to run down fleeing felons. If the cop can't run the 100-yard dash in some reasonable length of time, they probably ought to shape up or lose their job.

SIEGEL: But in this case, it goes still further. I understand that if

somebody is going to be required to rush into burning buildings and carry people out, they should be fit. But if the principle is what claims might likely made on, say, a public authority, it would equally apply to sedentary bookkeepers who aren't going to have to take people out of burning buildings.

Mr. MALTBY: That's true. And that's what's really behind most of these

policies, particularly in the private sector. Employers are in a difficult

situation to be sure. The cost of medical care keeps rising and rising and profits keep getting squeezed in a tough economy. And employers are basically trying to save a few dollars on their company health care by telling people not to smoke or drink or perhaps have any dangerous hobbies on the private side.

SIEGEL: If I am an employee who is fired because--well, as we heard in Chris Arnold's story--I was found out to be smoking, do I have a leg to stand on legally if I point out that there must be hundreds of other people who are violating the same provision, but they haven't been caught?

Mr. MALTBY: If you're in a union shop, that's true. Union contracts require the employer to treat everyone reasonably consistently. But if you're not in a unionized company, there's nothing to stop the boss from being as arbitrary as he or she want to be. If they want to fire you for smoking and not fire somebody else who smokes, there's no law that says they have to be fair or consistent.

SIEGEL: Just, say, 40, 50 years ago, it would have been preposterous to think that people were being fired for smoking. It just didn't strike people as being something that was such a negative activity, either to one of the people around oneself or one's own health. What else is coming up over the horizon? That is, are we seeing, for example, concern about personal diet and physical fitness as conditions of employment?

Mr. MALTBY: Absolutely. There is serious discussion in academic circles now about having rules about junk food, that we should tax it to make sure people don't eat too many Big Macs. And somewhere I'm sure the employers that are now prohibiting smoking and drinking are drawing up plans to keep us from eating too much junk food so you won't get a heart attack from cholesterol and run up the corporate health-care bill.

And that's the problem. If it were just smoking, the problem wouldn't be, perhaps, so concerning. But there are infinite number of things we all do in our private lives that affect our health, for better or worse. If we say that it's all right for employers to control aspects of our private lives because they have an impact on the company health-care costs, we're going to have no private lives left.

SIEGEL: Mr. Maltby, thank you very much for talking with us today.

Mr. MALTBY: My pleasure.

SIEGEL: Lewis Maltby, who is president of the National Work Rights Institute, spoke to us from his office in Princeton, New Jersey.