Delaware Employment Law Blog

The topic of off-duty conduct has been unavoidable recently.

First there was the wave of large companies who stopped hiring smokers or charged higher health care premiums to employees. Sure enough, this trend resulted in a lawsuit challenging the legality of making employment decisions based on what candidates and employees do outside of work. The conditional-employee sued Scotts when his conditional job offer was revoked when he tested positive for nicotine. (Scotts doesn't hire smokers).

Next came a wave of talk about GINA, the Genetic Information Nondiscrimination Act, proposed to prohibit employers from basing employment decisions based on genetic information. It would also put limits on the amount of detail employer about an employee's family medical history and other private data.

And don't forget the internet! Employees who post on blogs, in chat rooms, or on social network sites like MySpace and FaceBook have a lot to stay. What are employers to do when their employees (current or former) are giving away trade secrets or other confidential information? And what about the bitter employee with lots of complaining to do and an unlimited audience ready to listen.

What's next? Well, if you ask Governor Spitzer, he might have his own opinionson this topic. His "off-duty conduct" has resulted in his resignation and a great deal of commentary for morning news shows and late night comics alike. Some may argue that the difference between smoking and engaging prostitutes is legality. Smoking, at least for now, is a legal activity. You can pick up a pack of cigarettes at any corner convenience store. Not so with prostitutes. They can be picked up, true, but it is unlawful to do so. Yet, both activities will land you in a similar position--unemployed.

So where should employers draw the line? That's a question for another day. Some critics claim that weight will be the "new tobacco." Will employers, who face rapidly increasing health care costs, next turn to overweight employees and make them an offer they cannot refuse--lose weight or lose your job. Or will the same objective be attempted through higher health care premiums?

And will they charge by the pound?

Barry M. Willoughby, our Section Chair, commented on this issue last week in the Wilmington News Journal.

On Monday, the Wilmington News Journal published an article about the effect an employee's off-duty conduct can have on his or her employment. Our Section Chair, Barry M. Willoughby, was quoted in the article.

"Lifestyle discrimination" is a rapidly expanding area of the law with staunch advocates on both sides of the fence. "Off-duty conduct," is anything an employee does during his non-working time that is not illegal but not usually "good" for you.

This topic first hit the news when employers began firing and/or refusing to hire smokers. This trend has continued to pick up supporters and is more common than ever. Another ideation of the same idea is to charge smokers a premium for health care. The "carrots and sticks" can vary a great deal and some of the better programs supplement these types of rules with "wellness benefits" where employees are eligible for all sorts of rewards for working towards a healthier lifestyle.

Some opponents of this trend claim that the consideration of non-workplace activity is a violation of employee's privacy rights. Others express concern that the it won't be long before "wellness initiatives" expand to other areas of employees' private lives. For example, many critics worry that weight will be the next area of employer-legislation.

The idea is certainly not unimaginable. If employers want to "encourage" employees to get healthier by quitting smoking, it seems reasonable that they would also want their workers to eliminate the many health risks associated with obesity. On the issue of weight-based regulations in the workplace, Barry had the following to say:

"Weight becomes another issue," said Barry Willoughby, chair of employment section at Young Conaway Stargatt & Taylor in Wilmington. If a person's weight is due to a provable medical condition, the Americans With Disabilities Act may offer protections, but failing that, workers are at the mercy of the company.

"I don't know any employer would actually do that," he said, though complete worker protection for lifestyle choices would be possible only by an act of the General Assembly.

And it is very unlikely that the Delaware General Assembly will pass any broad-sweeping lifestyle anti-discrimination ban any time soon. This is especially unlikely given the State's disposition for pro-business legislation. Unlike California, where employees have a vast variety of rights, Delaware tends to take a more conservative approach to its regulation of the workplace.

Until such laws were passed, though, businesses can continue to consider tobacco use, weight, or even alcohol use, in making employment decisions.