Workplace Discrimination Against Smokers

My question involves labor and employment law for the state of: California

Hello,

The following message is in the prospective employee packet given to my mother who is attempting to find a new job after being laid off:

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"Applicant's Certification of Tobacco-Free Status

[Company Name] has established a NO-SMOKING Policy.
The Company maintains a policy of hiring non-smokers(Effective 3/1/90).
In addition, applicants must certify not to use any form of tobacco including but not limited to smoking tobacco, chewing tobacco, smokeless tobacco, pipe, cigars, and cigarettes at time of application for employment, upon being hire, and an annual certification.

If your affirmation on this form - that you are not presently a tobacco use- later is shown to be false; or if you later smoke, chew, or in any way use tobacco on Company premises or business, your employment at [Company Name] will immediately be terminated

[Sign and date lines here]"

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The above message has not been edited for grammar and has only been changed to remove the companies name.

First, should it be interpreted, as I have, that this form is meant to preclude employment to anyone who uses tobacco and not just that it forbids use on company grounds?

Second, upon reading this form, my mother did not complete the interview as she thought she'd be unable to be hired. Is there any action that can be taken on the company?

The law concerning the discrimination against the hiring of smokers for the state of California appears to be outlined in CA LABOR CODE 98.6 with reference to 96(k). It appears to outlaw the discrimination for engagement in any lawful activity outside of the workplace.

Your help is appreciated,

LSOreli

Completely legal. It means she cannot smoke or use tobacco products, period. She can be tested randomly. Just like a marijuana user or cocaine user.

There is nothing discriminatory about it.

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Quoting PandorasBox

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Completely legal. It means she cannot smoke or use tobacco products, period. She can be tested randomly. Just like a marijuana user or cocaine user.

There is nothing discriminatory about it.

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Well...its absolutely discriminatory. Its just not illegal discrimination for labor law purposes.

And it keeps the company's medical insurance premiums down (which is why they do it)

Your mother can consider speaking with the Labor Commissioner's Office.

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Quoting California Labor Code, Sec. 96.

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The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of:...

(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises.

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Quote:

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Quoting California Labor Code, Sec. 98.6.

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(a) A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her....

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If your mother chose not to proceed with the interview, she would be declined employment on the basis that she chose not to appear for an interview. She can consider reapplying. There is case law holding that neither Sec. 96(k) nor Sec. 98 of the Labor Code create a private cause of action. Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72.

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Quoting llworking

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Well...its absolutely discriminatory. Its just not illegal discrimination for labor law purposes.

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Why not? It appears that California labor law precludes them being able to discriminate against workers for being smokers. There are smoker protection laws in quite a few states.

"In the United States Smoker Protection Laws are state statutes that prevent employers from discriminating against employees for using tobacco products. Currently twenty-nine states and the District of Columbia have such laws. Although laws vary from state to state, employers are generally prohibited from either refusing to hire or firing an employee for using any type of tobacco product during non-working hours and off of the employer's property."

From the wikipedia page.

I see a lot of no's but if the above is untrue, I'd like an explanation as to why.

- - - Updated - - -

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Quoting Mr. Knowitall

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Your mother can consider speaking with the Labor Commissioner's Office.


If your mother chose not to proceed with the interview, she would be declined employment on the basis that she chose not to appear for an interview. She can consider reapplying. There is case law holding that neither Sec. 96(k) nor Sec. 98 of the Labor Code create a private cause of action. Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72.

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Exactly what I was looking for, thanks very much.

You want to talk about discrimination about smokers.

OK.

1: You go to a restaurant or fast food place, where people have to wash hands constantly, change gloves, change aprons...do you want your server to smell like a walking tobacco factory? Hospitals, doctors offices....

2. You wanna talk "discrimination"? How about smoke breaks? Smokers tend to take breaks often...while their non-smoking counter parts do not get that equal break time. I am happy to see employers nowadays who are saying "everyone gets 1 break per shift. If you smoke, that is the only chance you're getting...." Me and a friend working at one place....1 30 minute lunch. No breaks. Smokers, 30 minute lunch, and a ton of breaks. I mean, punching in at 8:30 and outside smoking at 8:40?

The question is not about whether an employer can ban smoking while an employee is on the job or on its premises.

It's important to remember that state laws vary. Pandy's state can point to a well-known, landbreaking case that, in effect, expressly gave employers permission to discriminate against smokers. But that is a state law which applies only in Michigan.

CA is an odd duck in many ways. It should also be noted that California EMPLOYMENT DISCRIMINATION laws do not prohibit discrimination against smokers. The law that's been quoted above is under labor laws, not discrimination laws. That's not unprecedented, but it's definitely in the minority.

Not all employers allow smokers to take frequent breaks.

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Quoting PandorasBox

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You want to talk about discrimination about smokers.

OK.

1: You go to a restaurant or fast food place, where people have to wash hands constantly, change gloves, change aprons...do you want your server to smell like a walking tobacco factory? Hospitals, doctors offices....

2. You wanna talk "discrimination"? How about smoke breaks? Smokers tend to take breaks often...while their non-smoking counter parts do not get that equal break time. I am happy to see employers nowadays who are saying "everyone gets 1 break per shift. If you smoke, that is the only chance you're getting...." Me and a friend working at one place....1 30 minute lunch. No breaks. Smokers, 30 minute lunch, and a ton of breaks. I mean, punching in at 8:30 and outside smoking at 8:40?

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We're talking about whether or an employer can refuse to hire smokers, not whether or not an employer can ban their employees from smoking on grounds or taking breaks to smoke. This employer appears to not hire people who smoke on their free time off of company grounds.