Lifestyle Choices By Fiat

By Norman E. Kjono, January 26, 2004

Ms. Male,

Thank you for your E-Mail inquiry of Forces.org this morning, as well as our subsequent telephone conversation regarding a prospective CBS segment on The Early Show about WEYCO, Inc.’s recent termination of several employees who lawfully consume legal tobacco products, which is to say to choose to smoke, off company premises and not on company time. We at Forces appreciate the opportunity to provide comment on that subject. I respond to you as a member of Forces International, Inc. Board of Directors, a Forces designated media contact, and as a lead columnist for Forces.org. As mentioned during our conversations, Forces International, Inc. is a consumer advocacy group that primarily addresses public policy issues that adversely affect consumers and private citizens. While the Web site was originally focused on smoking bans when it started in the mid 1990s, today we address subjects related to the War on Tobacco and the War on Obesity, both of which are and have been aggressively funded by the pharmaceutical special-interest Robert Wood Johnson Foundation.

I am not an attorney, however my professional practice for the past 25 years has been that of an expert witness in securities fraud (stock and bond) cases. I have qualified as an expert witness and/or appeared of record in about 200 cases in U.S. District Court, U.S. Bankruptcy Court, several state courts, and arbitration proceedings before the National Association of Securities Dealers (NASD) and New York Stock Exchange (NYSE). My appearances have been on behalf of defendant members firms such as Merrill Lynch, Prudential, Paine Webber, and Oppenheimer as well as plaintiffs who sue to recover losses. In a recent 2004 case I appeared on behalf of a stock broker who sued to recover damages for wrongful termination in which that Claimant was awarded $1.7 million, including $250,000 for defamation.

I am also frequently published on tobacco related subjects by media other than Forces. See, for example, an attached reprint of my July 30, 2003 article “In The Balance: Nonsmoked Nicotine Can Cost People Their Lives, Money,” published by the Los Angeles Daily Journal, which is one of several articles published by that newspaper. See also attached a reprint of an article that I co-authored, “Controlling Environmental Tobacco Smoke In Offices”, which was published in the May 1996 issue of Heating/Piping/Air Conditioning magazine. My commentary originally published by Forces.org under the title “Let’s Really Save the Kids,”   was later published under the title “A Better Way To Talk to Teens About Smoking” in the Greenhaven Press/Lucent Books 2000 Contemporary Issues Companion “Teen Smoking.” A current article of mine that addresses Indoor Air Quality and Environmental Tobacco Smoke will be published in the February 2005 issue of Chief Engineer Magazine.

The involuntary terminations of persons who smoke by WEYCO, Inc. is of deep and immediate concern to Forces International. As I mentioned, the WEYCO “Smoke Free” employee policy shares a common linkage with smoking bans. That linkage is the apparent presumptive extension of authority beyond that provided by law. In the case of the WEYCO terminations I believe that questions at issue are the degree or extent to which an employer may regulate the lawful conduct of employees off business premises, and not during working hours, and the extent to which employers may engage in such conduct on threat of immediate involuntary termination. I also believe that an additional subject at issue in the WEYCO, Inc. terminations is the extent to which employers may engage in the conduct of unfavorable stereotyping and negatively labeling targeted employees in order to “justify” a policy of involuntary terminations for employees who engage in the lawful behavior of consuming legal products off business premises and not during work hours. It appears to me as a lay person experienced in federal litigation that WEYCO, Inc. may have chosen to put itself on the radar of trial lawyers and in the forefront of employee civil rights and employee wrongful termination litigation. Good for them! I have little doubt that members of the American Trial Lawyers Association will sincerely appreciate the ongoing business.

The preceding issues and subjects are particularly important in light of the established and written public policy undertaken pursuant to the George H.W. Bush administration’s anti-tobacco Project ASSIST, to reduce public tolerance for, and to change public acceptance of tobacco use by “Target” citizens (see TFW22.PDF attached, which is page 22 from “Planning for a Tobacco Free Washington,” published April 1993 under ASSIST federal contract.) It is interesting to note that the Robert Wood Johnson Foundation provided about $200 million in grants to tobacco control activists to promote smoking bans and new taxes on cigarettes during the 1990s (see RWJGRANT.PDF) while its namesake, Johnson & Johnson, was distributing Nicotrol smoking cessation products. We therefore establish the direct linkage between anti-tobacco “Smoke Free” policies and corporate profits, as cited by WEYCO, Inc. But, to what extent are “Target Group” citizens and employees’ civil rights mere disposable encumbrances, employment and other rights to be ignored, in pursuit of corporate profits?

In the case of smoking bans the material issues are similar: the extent to which local governments may enact and enforce in violation of state law prohibitions against the lawful behavior of patrons to consume legal tobacco products. The answer of our Pierce County Superior Court and the Washington Court of Appeals to that question regarding the smoking ban promulgated by the Tacoma-Pierce County Board of Health was that the smoking ban in Pierce County violated state preemption statutes and express statutory exemptions for hospitality venues. That case is now before the Washington Supreme Court, before which oral arguments in that case were held November 16, 2004.

During our conversation we discussed a bill currently in the Washington Legislature regarding smoking bans. Please see Washington Legislature House Bill 1559,  “Modifying Designated Smoking Area Requirements.” Employees’ legitimate economic interests, protecting workers, private property rights, and reining in unlawful extensions of presumed authority in violation of state law are driving forces behind that bill. A companion bill for the Washington Senate has been through the code reviser’s office and will reportedly be introduced in the immediate future. HB 1559 represents collective input from hospitality business owners, hospitality employees, and consumer advocates. It was my privilege to be the person who wrote the bill to present those interests in light of legitimate public policy. Should HB 1556 and its companion Senate bill pass to become law Washington will become the first state in the Union to apply OSHA Indoor Air Quality standards and Environmental Tobacco Smoke (ETS) constituent measurements to workplace smoking policy. Washington State Representatives Grant, Kirby, Fromhold, Curtis, Hunt, and Hankins merit strong public support for their courageous sponsoring of a bill that can put Washington in the forefront of leadership addressing legitimate business owner, employee, and consumer interests in a constructive and scientifically sound manner.

Before responding as above I accessed and reviewed documents on the WEYCO, Inc. Web site. The following were of interest to me:

1. WEYCO, Inc. Website Home Page:   

WEYCO, Inc. is a health benefits administrator service business. Those I that line of business are necessarily accommodating to public health initiatives undertaken by multi-billion-dollar pharmaceutical and private foundation special-interest foundations. Such initiative explicitly include coercive behavior change models, of which the company’s “Smoke Free” employee policy is merely an extreme extension.

2. WEYCO, Inc. “Background on WEYCO, Inc.’s Tobacco Free Policy:” 

WEYCO, Inc. says a goal of their Life Style Challenges program is to ”increase [employees’] ability to accomplish more both personally and professionally. Does WEYCO, Inc. thereby promote an unfavorable stereotype that persons who smoke accomplish less both personally and professionally? Please note that the “statistics” regarding tobacco use touted in this document are those provided by tobacco control advocates and are subject to severe criticism.

3. WEYCO statement “Why Weyco Is Serious About Smoking:” 

WEYCO says “. . . federal law protects people with conditions like obesity, alcoholism, and AIDS. But there’s no right to indulge in tobacco use.”  The obvious response to that statement is that it willfully evades the material point: citizens right to engage in any lawful behavior need not be specified in the Constitution or codified in statures. We need not have a law allowing persons to wear green pants for them to do so, nor do we require a statute that gives citizens permission to purchase or consume a cheeseburger (despite the authoritarian objection of the Robert Wood Johnson Foundation in its self-declared War on Obesity.) At present about 29 states have statutes prohibiting discrimination against persons who smoke. Michigan is not such a state.  In the “Leadership” example of WEYCO, Inc. that employees can be coerced to do anything not expressly set forth in state law, just o puff the company’s bottom line? And for state that do not expressly prohibit discrimination against morbidly obese persons it takes no stretch of the imagination whatsoever to see a “me too” company following WEYCO, Inc.’s overt employment discrimination example by firing all employees whose Body Mass Index does not meet federal standards. What is hyper-technically “legal” and what is just are apparewntly two different things at WEYCO, Inc.

4. WEYCO Workplace Policy:   WEYCO, Inc. says in its written policy:

“Policy:           WEYCO, INC. is committed to providing a safe working environment and to promoting the well being and health of our employees.  The Company prohibits:

·        the use of illegal drugs or the improper use of prescription medications;

·        reporting to work while impaired by drugs and/or alcohol; 

·        consuming drugs and/or alcohol while on Company time, property or during paid or unpaid breaks during the workday, with the exception of limited alcohol at events specifically approved by the Company as exceptions (i.e. annual holiday party) and business related social events;

·        possessing, distributing or selling such prohibited substances in the workplace;

·        smoking or otherwise using tobacco products on Company time or property. 

Further, effective January 1, 2005, WEYCO, INC. will be a smoke free company and all employees must maintain a smoke free and tobacco free status at all times.  

Purpose:         This policy defines the Company's intent to maintain a drug, alcohol and tobacco free workplace in order to promote the health and safety of all employees, customers, and the general public.” (Underline, italic added.)

Well that’s interesting. Read that policy carefully. An employee can go home – off the clock and company property -- for a weekend, get snot-flyin’, belly-draggin’, knee-wobblin’ soused, go cross-eyed tokin’grass or sucking on a water pipe till their brains fall out, and satisfy their cravings for munchies with high-fat-content and high-sugar-content junk food, but don’t you dare light a cigarette while doing it because you’re fired if you do! Those coming to work Monday morning hung over and strung out are welcome to keep their job, but anyone who has smoked a cigarette over the weekend is fired. I believe that the preceding amply demonstrates WEYCO, Inc. has unreasonably made employees who smoke an express and unwarranted  “Target Group” for conflicting and overtly discriminatory employment policy.

May the best lawyer win! Employees and consumers will enjoy watching the fray. Perhaps we will see a new television network reality show out of this, “Sticking Employees For Fun And Bucks.”

Respectfully,

Norman E. Kjono
(415) 497-8187

Ms. Male,

I would be the appropriate media contact for Forces.org.

Would be pleased to speak with you.

Norm Kjono
(425) 497-8187

From: Male, Karen 
Sent: Wednesday, January 26, 2005 10:48 AM
To: Norman Kjono
Subject: Media Inquiry - CBS News The Early Show

To Whom It May Concern:

My name is Karen Male and I am an associate producer for The Early Show with CBS News. We are looking to put together a segment in which we have an animated discussion about the rights that employees have and if what they do socially outside of work should have an affect on their employment. 

The jumping point of the segment is that Weyco, a MI based company fired it's employees who smoke.  The CEO says it's part of a new health initiative. If employees want to keep their jobs they must give up smoking, even at home. We would also discuss particularly the pros/cons of businesses saying that their employees are not allowed to smoke inside or outside of work.

I was interested in finding out what FORCES standpoint is on this issue. I noticed that an article related to this story was posted on your website.

Could you please let me know who the appropriate contact person is to discuss this request.

Thank you in advance.

Karen Male
The Early Show - CBS News