You smoke? You're fired!

[crimresearch]

Sure you have. Let's recap:

I said: I think you are contradicting yourself in this paragraph.

You said: Uhhmmm... You've crossed the line from discourse to debate tactics...you are making up things I never said, and then arguing against them.

I said: I may have misunderstood your argument. Please don't assume that a misunderstanding means I am resorting to dishonest tactics.

you said: So, you have no links to any facts, but think that dredging up an extreme example and demanding that I provide court cites for your strawman, isn't dishonest?

You've made the extreme assertions here, you provide the evidence.

And while you are at it...Grow up.

My last post to you said: Ok, so you have now twice insulted me while not adding anything to the discussion.
Discussion (with you) is over.

And it is.

Since you have fabricated the above exchange by cutting and pasting out of context snippets from different posts and putting them together to create the false impression that I said them in that unintterupted sequence, it is obvious that you never had any intention of discussion to begin with.

Running away when asked for facts, and proclaiming abuse because I caught you comitting fraud is a tired old woo trick...
you aren't even original with your dishonesty.

 

[shanek]

If I understand your position correctly your main point is that the employment contract is freely entered into by both parties and both parties are free to make whatever demands they wish and both parties are free to accept or reject the other's demands as they wish.

Is this a correct understanding of your argument?

Yes, but we were actually discussing the arrangement sans contract.

Cuz if that is your position then my main argument is that the employment contract is rarely entered into by parties with equal power

Then you need to address my rebuttal of this argument.

 

[Beth]

This has been an interesting thread to read. I'm undecided on this particular issue, finding both sides to have reasonable arguments. I have to say, username is the most convincing and persuasive so far. Thanks for providing me with some food for thought.

Beth

 

[username]

Since you have fabricated the above exchange by cutting and pasting out of context snippets from different posts and putting them together to create the false impression that I said them in that unintterupted sequence, it is obvious that you never had any intention of discussion to begin with.

Running away when asked for facts, and proclaiming abuse because I caught you comitting fraud is a tired old woo trick...
you aren't even original with your dishonesty.

whatever

 

[username]

Yes, but we were actually discussing the arrangement sans contract.

How can there be no contract? I am not following what you mean. You don't have to explain if it isn't really relevant though, I would prefer to focus on the issue in as limitted a context as possible with the hopes of finding a resolution.

Then you need to address my rebuttal of this argument.

Would you kindly restate (or just cut and paste it), as I am not sure which of your posts you are referring to as the rebuttal. Again, I just want to keep this clear and not get sidetracked into discussions that may not be relevant to the central issue.

I don't want to risk responding to a rebuttal that isn't actually your rebuttal.

 

[Skeptical Greg]

If we believe (as I believe you and Shanek do) that the employer has the right to include not smoking on private time as a condition of employment then it seems there is no limit to what terms an employer can require.

That slope looks a little slippery from here..

 

[shanek]

How can there be no contract?

You agree to work, he agrees to hire you, no contract. It's already been established in this thread that there was no contract in this case.

Would you kindly restate (or just cut and paste it), as I am not sure which of your posts you are referring to as the rebuttal.

Here's one:

That's just not true. Short-run, it goes in cycles, with the part of the cycle where there are less jobs than people being the shorter part. Long-run, the economy goes for full employment, and so the number of jobs and the number of people who want them are equal.

As long as, of course, you don't have a government destroying jobs with regulations, the Minimum Wage, licensing laws, zoning, etc...

Here's another:

In such an arrangement, both parties want something that the other one has. With the system in equilibrium, this will most certainly be an equality of "power." The ony way the system can get out of equilibrium (at least, for very long) is government intervention.

 

[username]

Here's one:

That's just not true. Short-run, it goes in cycles, with the part of the cycle where there are less jobs than people being the shorter part. Long-run, the economy goes for full employment, and so the number of jobs and the number of people who want them are equal.

As long as, of course, you don't have a government destroying jobs with regulations, the Minimum Wage, licensing laws, zoning, etc...


Here's another:

quote: In such an arrangement, both parties want something that the other one has. With the system in equilibrium, this will most certainly be an equality of "power." The ony way the system can get out of equilibrium (at least, for very long) is government intervention.

Bolding is mine.


I am not even going to argue against your faith in the market here. I think you defeat your own point when you say government screws things up.

Fact is government is here. They do regulate. We do have a minimum wage, we have licensing and zoning laws.

So, if we look to how things really are as opposed to how things ought to be in an idealized world, the power between employer and employee is usually stacked in favor of the employer, agree?

I mean most employers aren't going to go bankrupt after losing a single employee, but many employees will go bankrupt after losing a single employer. I would say that puts the employer in a greater position of power when negotiating terms.

And when you say that in an idealized world the power imbalance wouldn't last very long, you still seem to acknowledge it would exist. Why should employers ever be allowed to use this power imbalance to extract unreasonable demands from their serfs, I mean employees?

Do you agree that employees who wish to smoke do not freely quit when they are given an ultimatum to do so or lose their job? They choose what they deem the lesser of two evils.

I will go so far as to say that when companies start doing things like firing people who smoke (and other factors that have no bearing on the the bottom line) it is a sure sign an imbalance of power does exist.

This would mean coercion is being used. That would be the initiation of the use of force, wouldn't it?

 

[username]

That slope looks a little slippery from here..

Please explain where my statement is wrong.

If an employer can fire someone for smoking on their own time then why not anything else? What is it about smoking that is unique? Why can the employer fire for smoking, but not eating dorritos, driving a sports car, living at an address that has the number 1 in it? None of these have anything to do with how well the individual will perform their job, none of these things has any concrete correlation to the company's bottom line. If one, why not any and all?

Why not insist that employees not own fish aquariums? That they part their hair only to the left?

The tighter the employment market, the more unreasonable employers can get. Where do we draw the line regarding employer demands when the imbalance of power exists?

 

[username]

This has been an interesting thread to read. I'm undecided on this particular issue, finding both sides to have reasonable arguments.

Thanks for saying that. A lot of the time it is the regular posters who have these discussions and over time the regulars get to know how the other regulars are going to respond. It is good to know that there are others reading the thread and weighing the arguments.

 

[CapelDodger]

Fact is government is here.

Strangely, it's more there in the US than just about anywhere else. The US, through its history, has been the most govermented place the world has ever seen. Wagon-trains used to form their own governments for the duration, even passels of emigrants on steamboats would form themselves a government for the duration. The first thing ordinary folk did when they lit on a place was to set up a government. The US was created as a governmental model. With an effectively uninhabited, pristine landscape with no traditions of ownership and authority it's not at all surprising. The US is obsessed with government, even if only about its limits.

Libertarians (in my experience) represent government as something imposed when in fact it's what comes from the ordinary populace if they're given the chance to have one. We've all experienced the alternative in the school-yard and it's good to know we can expect something better in our adult life.

 

[CapelDodger]

from shanek:

That's just not true. Short-run, it goes in cycles, with the part of the cycle where there are less jobs than people being the shorter part.

Lemming populations go in cycles. Is that the sort of cycle that drives the worker-job cycle? Excess workers die off? It's an arguable position; the Black Death in England certainly increased the economic leverage of the surviving labour-force. Serfdom pretty much died at that point (except in East Anglia, of course).

 

[crimresearch]

So, on the topic of how things are in the real world, instead of how we wish they were, even the ACLU recognizes that the law is stacked in the employer's favor:

CURRENT LEGAL STATUS
"Numerous attempts have been made to challenge the doctrine of employment at will in the courts. Although the doctrine is common law which was created by judges, and which judges have the authority to change, these challenges have had limited success.

Only in 3 narrow categories have some courts been willing to limit an employer's right to fire arbitrarily .

1.Where an employer has agreed to other employment terms.

If an employer has signed a written employment contract guaranteeing employment for a fixed term of years, or guaranteeing not to fire without just cause, this contract may be enforceable by the employee. The reasoning is that the parties have the right to a legally enforceable agreement which reflects their mutual desires.

This would logically create a broad exception to the general rule whenever the employee could show that his employer had agreed that his employment was not at will. One common example would be where the employee handbook states that employees will be fired only for just cause, or gives specific grounds or procedures for termination. Another would be where the employer makes oral assurances of job security.

Employers, however, can easily avoid liability under this theory merely by making it clear in their employee handbooks and other written materials that employment is terminable at will.

2.Where the employer's reason for firing violates public policy.

This once appeared to be a promising legal trend. Initial decisions provided redress to employees who were fired for filing a workers' compensation claim, for refusing to give perjured testimony, and for serving on a jury.

Again, however, the promise went unfulfilled, as many courts defined the public policy exception so narrowly as to render it nearly useless. Among the many situations where courts refused to find that a firing violated public policy are filing a complaint with state regulatory authorities regarding illegal stock manipulations, refusing to vote as the employer wished , and refusing to give false information to federal inspectors.

3.Where the employee is a member of a protected group.

Federal legislation now prohibits employment discrimination against a number of groups including racial minorities, women, the elderly, and the handicapped.

Millions of employees, however, do not belong to any of these protected groups.

Moreover, even employees who do belong to a protected group are protected only from being fired because of their race, sex, etc. If they are fired unjustly for any other reason, they have no protection.

Overall, thirty years of legal challenges have failed to solve the problem of unjust dismissals. Legal experts do not believe this will change in the future. ..."
http://www.aclu.org/WorkplaceRights/WorkplaceRights.cfm?ID=9077&c=34#current
-----------------------------------------------------------------------------------

Funny how these ACLU lawyers, and the judges they cite aren't as knowledgeable on employee's rights to sue as some keyboard commandos here.

 

[kerfer]

Re: Re: Re: You smoke? You're fired!

You might argue that it's the employers right and I couldn't argue against you, but wouldn't you agree that such an employer is at the very least worthy of derision?

I agree with both of these points.

The employers are making, what are in my opinion, bad choices. But I agree that it's their right to do so.

I'm not sure where I would draw the line as to where the employer has the right to fire/fail to hire. It seems a little close to the slippery slope. Seemingly, behavior things are okay, but that seems to open the can of worms WRT issues like religion, and sexual preference (both of which are protected entities in the USA) as to whether these items are choices or not (the issue of homosexuality being behavior versus genetic--which is not a discussion I am trying to start here in an attempt to derail/hijack this thread).

It doesn't seem to be a well defined, clear line to me, as to what is okay to discriminate against and what is not.

But I agree that the employers are making a stupid decision. So did the Boy Scouts, and they are paying for it.

 

[username]

So, on the topic of how things are in the real world, instead of how we wish they were, even the ACLU recognizes that the law is stacked in the employer's favor:

Among the many situations where courts refused to find that a firing violated public policy are filing a complaint with state regulatory authorities regarding illegal stock manipulations, refusing to vote as the employer wished , and refusing to give false information to federal inspectors.

What a wonderful way to live.

 

[crimresearch]

What a wonderful way to live.

Pointing out that it is legal is not the same as an endorsement.

Of course I'm sure that you have put *lots* of effort into changing the reality, instead of just sniping at it.

 

[kerfer]

Re: Re: Re: Re: Re: You smoke? You're fired!

On the contrary, it appears to me that the company is violating privacy rights and acting illegally. What right do they have to regulate free (vs. enslaved) people's behavior when they are not currently involved in a business transaction with this company (whether it be driving a company truck or calculating some accounting transactions for the company for pay during agreed upon business hours) or to search private property?

Hmm...I'm no attorney, but as I understand it, a private company has the right to fire a person for any reason. As an example, the employees of a company can rightfully be seen as agents of that company, and they can be fired for behavior or speech that reflects poorly on the company. Let's say a person is wearing a 'Microsoft 2005 Employee picnic' T-shirt, and is filmed at a rally carrying a placard that says 'Death to the Jews!'

It is likely that this person would be fired.

When driving a company truck? Surely you jest.

 

[peptoabysmal]

The courts will uphold this type of discrimination because it is a lifestyle choice and not an immutable condition. Discrimination based on race or gender and a few other cases is/are not legal. Discrimination itself is not illegal.

Hold the phone, discrimination based on political ideology or religious afiliation are also illegal. Are these not lifestyle choices? Well, I guess they don't affect anyone's health, but what if an employer decides not to hire a muslem because his religion is causing death world wide? Bad choice of words here, but I couldn't think of another example which would have the same emotional impact.

How about being gay? It that a lifestyle choice or an immutable condition? I vote for immutable condition. If the gay male's lifestyle is proven to be more dangerous than a lesbian lifestyle, what then?

How about being overweight? In most cases, it is a lifestyle choice which has dangerous health consequences. Next time you go to a doctor's office or emergency room, look around and count the number of overweight people vs. smokers.

Guess what? If you look at emergency room statistics, you will conclude that being black is dangerous to your health.

The one immutable fact about our constitution and our laws is that they must be applied equally and fairly to everyone. Does this exemption to discrimination (against smokers) do that?

 

[username]

Re: Re: Re: Re: Re: Re: You smoke? You're fired!

Hmm...I'm no attorney, but as I understand it, a private company has the right to fire a person for any reason.

No, not for any reason, but I get what you are saying and agree that companies can fire people for all sorts of reasons or just on a whim.

My issue isn't whether it is legal or not, my issue is whether it ought to be legal or not.

As an example, the employees of a company can rightfully be seen as agents of that company, and they can be fired for behavior or speech that reflects poorly on the company. Let's say a person is wearing a 'Microsoft 2005 Employee picnic' T-shirt, and is filmed at a rally carrying a placard that says 'Death to the Jews!'

It is likely that this person would be fired.

I agree it is likely and I would feel no sympathy for that employee.

That employee, by wearing the company t-shirt, involved the employer in their personal affairs in a way that could adversely affect the company.

I completely support the right of an employer to fire a smoker if they smoke on company time or property (although I think it is bad policy). If the smoker does anything to adversely impact the company, fire him.

This is different than having a blanket policy that all smokers will be fired and nobody who smokes will be hired in the future.

In my view people have rights/liberties. The only right that should be allowed to be negotiated in the employment contract is how the employee is going to use his time while being paid by the company. If an employee does something on his own time that affects the company adversely (like in your example) then fire him. How one votes, whether they smoke... these things are not legitimate components to the employment contract as they have no bearing on the employees ability to do the job or the company's bottom line. They ought not be allowed in that contract.

That they are ever included is an indication that the negotiations are not being conducted by parties with equal power. Generally private contracts are not upheld when coercion was used to get the terms 'agreed' to. I don't see any reason the employment contract should be different.

 

[shanek]

I am not even going to argue against your faith in the market here.

It isn't "faith in the free market;" it's basic economics.

I think you defeat your own point when you say government screws things up.

It does. It has been demonstrated it does, time and time again.

Fact is government is here. They do regulate. We do have a minimum wage, we have licensing and zoning laws.

So, the mere fact that they exist doesn't mean we shouldn't get rid of them?

So, if we look to how things really are as opposed to how things ought to be in an idealized world, the power between employer and employee is usually stacked in favor of the employer, agree?

No, I don't, because the government hurts those employers as much as it does the employees. Businesses in this country pay more money every year complying with government regulations than they make in profits.

I mean most employers aren't going to go bankrupt after losing a single employee, but many employees will go bankrupt after losing a single employer.

That just isn't true. Most people aren't dependent on a single company to employ them. Individuals rarely stay unemployed for longer than a few months. The exceptions are government unemployment and welfare programs, where people stay on the dole for months or even years at a time. All of these programs contribute to unemployment.

Do you agree that employees who wish to smoke do not freely quit when they are given an ultimatum to do so or lose their job? They choose what they deem the lesser of two evils.

Exactly: THEY CHOOSE. They have the choice, and they make the choice. It's called "freedom."

This would mean coercion is being used.

How?

Do you deny that employment is a voluntary agreement between two parties?