What Happens When Employers Implement Tobacco Free Hiring Policy [e151]

February 13, 2015

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.

How to Keep Your Business From Being Sued


The Podcast Where Nasir Pasha and Matt Staub cover business in the news with their legal twist and answer business legal questions that you the listener can send it to info@legallysoundsmartbusiness.com.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.
Legally Sound Smart Business cover art

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
Apple Podcast badge
Google Podcast badge
Spotify Podcast badge

Latest Episodes

November 21, 2023

In this episode, Nasir Pasha and Matt Staub explore the legal implications of Artificial Intelligence in the business world. They delve into the most talked-about issue of 2023: AI and its impact on the legal landscape. Although AI isn’t necessarily a new topic, it has many unanswered questions in the legal world. Nasir and Matt…

July 12, 2023

In this episode, Attorney Nasir Pasha and Attorney Matt Staub delve deep into the complexities of mass layoffs and offer valuable insights, real-life examples, and practical advice to employers grappling with the aftermath of such challenging situations. Nasir and Matt emphasize the critical importance of effective communication when executing mass layoffs. They stress the need…

January 9, 2023

As the COVID-19 pandemic swept across the globe, businesses scrambled to adapt to the new reality it presented. In this blog post, we dive into the case of Goldman Sachs, a financial services giant, to examine their response to the crisis and the lessons other businesses can learn from their return-to-office strategy. From prioritizing employee…

October 28, 2022

Full Podcast Transcript NASIR: Finally, my two favorite worlds have collided – both the law and the chess – right here at Memorial Park in Houston, Texas. Windy day. We have some background noise – ambient noise. What are the two worlds that collided? Well, Hans Neimann has sued Magnus Carlsen for defamation in one…

September 26, 2022

Through a five-round championship bout, Matt travels to Texas from California to determine which state is better for business. Will it be a knockout with a clear winner or will it go to the scorecards?

July 7, 2022

Whether you are buying or selling a business, the transaction goes through the same steps. However, they are viewed from different perspectives. Sellers may not want to fully disclose all the blind spots while Buyers will want otherwise. Nasir and Matt battle it out in this Buyer vs. Seller to determine who has the advantage!…

May 12, 2022

When it comes to Restrictive Covenants, employers are fighting to keep their company safe while employees may use them to their advantage. Keep listening to find out if the Employer or the Employee wins this battle. Round 1: Trade Secrets A company’s trade secrets encompass a whole range of information and are one of the…

February 14, 2022

The Supreme Court rejected the nation’s vaccine mandate. Businesses with 100 or more employees are NOT required to have their employees vaccinated or go through weekly testings. However, this policy remains in effect for health care facilities. In this episode of Legally Sound | Smart Business, the team sat down to discuss their thoughts on this ruling.

December 1, 2021

In this episode of Legally Sound | Smart Business by Pasha Law PC, Nasir and Matt cover the Business of Healthcare. There is more to the healthcare industry than just doctors and nurses. Many Americans have health insurance to cover their yearly needs, but most Americans are not aware of what really goes on behind…

October 12, 2021

In our latest episode, Nasir and Matt are covering the legal issues on Social Media. The average person spends most of their day on social media, whether they are scrolling for hours or publishing their own content. However, just because you publish your own content on Instagram does not equate to you owning that image….

September 28, 2021

What is a Non-Disclosure Agreement, and when do I need one? In this episode, Nasir and Matt shares why you need to use Non-Disclosure Agreements, basic facts about NDA’s, and discuss about the infamous Jenner-Woods story. Having the right Non-Disclosure Agreement in place not only protects you and your business, but it also makes the…

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying and pasting agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More