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The guys end the week by talking about businessesdenying job applicants unless they are tobacco free.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist for you, the listeners, to enjoy at your home, at your work, or while you’re working out, or really any time that you want to play this podcast. My name is Nasir Pasha.

MATT: And I’m Matt Staub, and I hope no one’s listening to this while working out. You need something upbeat!

NASIR: We can add some workout music to the background. We’ll just have Matt add that on cue right here. I assume he actually has some of that. That’d be funny if he just left that in there and just be blank, but either way.

MATT: I guess the beginning and the end both have that guitar or whatever that is. I’m no musician.

NASIR: That’s okay.

MATT: And I guess I’m also not going to know a lot about what we’re talking about today because I don’t smoke either which is what the subject of this Friday’s podcast is.

NASIR: Well, you’re tobacco-free so I suppose you know about that.

MATT: That’s true. I’ll take it from that perspective. So, an interesting topic dealing with a tobacco-free hiring policy – and I guess I should say the name of the place that is doing this – University of Texas MD Anderson Cancer Center.

NASIR: Yeah, which makes sense.

MATT: Yeah.

NASIR: In fact, their logo is literally a C crossed out or on their billboard it says, “Cancer,” and it has it crossed out in red which is kind of cool, but then I think a comedian that was in Houston came to town once and he was like, “Yeah, I saw that billboard and it looked like the goal was cancer and then they completed that so they crossed it out.” Something to that effect. I thought that was clever.

MATT: Now, applicants there are going to be screened for tobacco use. It’s just part of the application and those who test positive will not be eligible for immediate employment with the cancer center. But, if they remain interested in the job, they’re going to be given tobacco suscitation materials and instructions for obtaining this which I think is really cool, actually. This is a really great policy and procedure that they have in place. I mean, I haven’t heard of something similar really before. If I have, I guess I forgot about it. But I wonder if this is going to start making waves throughout the country. I mean, for Texas – you know better than me, you live there – is there possibly people that smoke more?

NASIR: Houston’s a little bit different than the rest of Texas. But, coming from San Diego, I think there are more smokers here in general. I mean, San Diego, it’s unique.

MATT: Definitely.

NASIR: Yeah, I guess San Diego’s pretty unique in the country. What’s interesting, I think, in the medical field – and anyone who’s listening who’s in the medical field I think can attest to this – you’d be surprised how many physicians, nurses, or people in the health-related field actually smoke. I actually know a pulmonologist that actually smokes and this guy works with lung cancer and stuff like that. So, I do think it’s a problem in general, of course. But, in the health industry, I mean, can you imagine? You know, the University of Texas and MD Anderson, their purpose is trying to rid the world of cancer and yet they have employees that may be smoking which is a huge cause for not only cancer but all these other health risks as well.

MATT: There’s no health benefits of smoking.

NASIR: And I just thought of one of the reasons they may be doing this on top of the PR aspect is, if they have a self-insured plan or even a fully-insured plan or whatever and providing health benefits, their premium and their cost will be much less, especially how the new ObamaSare works and Affordable Care Act works, if your employees are more healthy, then you’re going to benefit from that. And so, if you have employees that don’t smoke, your health care costs are going to be lower, too.

MATT: Yeah, that’s a good point. Well, let’s get to the legal part here because we know there’s going to be a lawsuit.

NASIR: In Texas, their smokers don’t really have any kind of rights or protection. It’s not a protected class, but it may be in other states, for sure.

MATT: There’ll be something. In California, a place does a similar policy, there will definitely be a lawsuit of some sort. It’ll be the next day, some sort of discrimination. But, according to California law, an employer may not discharge or discriminate against an employee for engaging in lawful activity during non-work hours away from the employer’s premises. This is something I’ve always wondered. Not to branch off but I feel like the people that take smoke breaks during work actually get, you know, I guess this is the benefit of smoking is you get to work less and get paid the same amount as people that are sitting at their desk and continue to work, not taking the smoke breaks. So, that’s the benefit that people get that smoke. I’ve figured it out.

NASIR: That’s the benefit. But I think employers have become less tolerant to that that they basically allow the same breaks that anyone else can get and can’t take other breaks and they’re not as flexible as I think they used to be. You know, Matt mentioned this, the language of the statute, this unlawful activity or lawful activity outside of work hours and California’s one of, like, four other states that basically has that kind of statutory protection. Actually, there’s about twelve of them, I should say. There’s also about eighteen other states that also specifically protect tobacco use in particular – they’re obviously in the minority – but this whole lawful activity aspect I talked about a little bit towards the end of our last episode. But what exactly this means, I mean, an employer may or may not discriminate against an employee for engaging in lawful activity outside of work? I mean, what exactly does that mean? When this statute first came out, lawyers and employers alike were just kind of dumbfounded a little bit. So, what exactly does that mean? Does that mean that you can discriminate somebody for moonlighting or for doing something that may be legal? And how encompassing is that? And so, that has been restricted quite a bit – or narrowed down, I should say – so it doesn’t cover everything. It only extends to protecting what are already public policies in general. And so, now the question is does this apply to tobacco smoke or not? It seems to be the law’s hedging towards that it does protect smokers, so long as it’s not affecting work and they’re doing it outside of work, it’s fine. But I wouldn’t be surprised, especially with California and its approach with smoking, that that might start hedging the other way. But then, again, I mean, California also has a tendency to allow people to do what they want as well. So, I guess, it’s a balance on that on that end.

MATT: Yeah, we even got to the whole issue with e-cigarettes which no one can figure out what to do. Well, I guess they’ve been banned to some extent in certain instances.

NASIR: Yeah, exactly. But, if you’re an employer, I can understand, like you said, especially in a health-related field, you would want your employees and personnel not to be smoking and they’re representing your brand and so forth. But, if you’re in one of these states, it’s a little risky. But it goes to other things too and it kind of relates to real dollars in the sense for the employer, relating to insurance costs, right? What if you specified that any employees can’t eat too much or can’t east fast food or they have to exercise, you know? These are all things that start to get murky, especially as it applies to laws in California which has its general statute that may protect any discrimination outside of the workplace.

MATT: Yeah. You know, 99 percent plus of people aren’t in perfect health outside of work and everyone does something that’s not healthy.

NASIR: Yeah, and the difference there is there’s discrimination for conduct, but we’ve already talked about it. I think we’ve talked about it in the past. Like, discrimination based on someone’s weight, for example, if they’re overweight, may or may not be lawful because basically there are some cases that say, well, if they’re obese, then that’s considered a handicap and considered a disability I should say. Therefore, you’d be discriminating upon a disability. But, what if they’re just a little overweight or what if they’re ugly, you know? Can you fire for those reasons? Like we always joke around, you can pretty much fire for anything that’s not unlawful and, even though it may sound like discrimination, unless it’s a protected class, then usually you’re able to discriminate upon those reasons.

MATT: Yeah, you shouldn’t tell someone you’re not going to hire them because they’re…

NASIR: They’re ugly?

MATT: Yeah.

NASIR: Well, maybe, I mean, you can do the opposite. You can only hire ugly people, too. “I’m not hiring you because you’re too attractive.”

MATT: Well, if you’re looking to hire, like, an actor or actress or something like that, then maybe it’s a little different.

NASIR: Yeah. But then, that falls under the bona fide occupational qualification, that’s what it is.

MATT: Yeah, and just to touch one more thing on this is what’s the screening process for this? Do you know?

NASIR: They do some kind of screening for tobacco which, I guess, if they’re smoking, they’d be able to detect it somehow. I mean, they are in the health field so I suppose they have those capabilities.

MATT: What about Big League Chew? You know what that is? It’s bubblegum but it’s made to look like chewable tobacco for kids.

NASIR: That should be outlawed, too. I mean, I think MD Anderson should check for that as well.

MATT: “Sorry. We can’t hire you because you’ve chewed Big League Chew which still exists. I saw it recently.”

NASIR: It would seem harmless as a kid at the time, but now I can kind of see, like, that’s kind of weird. You know, it’s like when you see those Joe Camel toys that are given to kids and things like that, that’s always an odd thing to see.

MATT: I remember I had candy cigarettes.

NASIR: You had candy cigarettes? Yeah, and those were awesome because you got to pretend to smoke while, again, chewing on bubblegum.

MATT: I don’t buy candy now, especially kids’ candy, but I will assume those probably aren’t out there anymore.

NASIR: They had a point where you can actually blow and smoke would come out, remember?


NASIR: No, no, no, seriously. It wasn’t smoke. It was because basically how they did it is the outer shell was kind of…

MATT: Chalk or something?

NASIR: Like those Smarties. It was candy but it was powder in there and it was in-between the gum and the outside shell. And so, when you first get it, you could blow and it kind of just powders out like a smoke, yeah.

MATT: So ridiculous.

NASIR: I think that was something new that they came out a little bit later which I utilized for impressing people – and it worked. All right, guys. Well, thank you for joining us. This is Friday and, every Friday, as you know, what do we do?

MATT: Well, I keep it sound and keep it smart, but I was going to say, if you had to pick one Jim Carrey quote to describe this episode, how would you describe it?

NASIR: Oh, I got you. I was going to say, “All righty then!” but I think you’re thinking of, “I’m smoking,” right?

MATT: Just “smoking,” yeah.

NASIR: Smoking. What I was going to say until you got on the Jim Carrey rant was go to iTunes and rate us five stars and that really helps us out, mostly for our egos than anything else. So, we just need that little push.

MATT: Yeah, but I still, as always, keep it sound and keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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