So Much for 'Personal' Habits

By Amy Joyce
Washington Post Staff Writer
Sunday, October 15, 2006

Your employer probably hasn't bugged your apartment to determine if your television viewing is up to par.

But that doesn't mean that your life outside of work can't affect your hiring, firing or promotions.

In many states, it is legal to hire, fire or promote based on what a company finds out about you in your nonwork world.

That includes smoking, even during off-work hours.

Weyco Inc., an employee benefits firm in Okemos, Mich., started nicotine testing with its employees last year. It instituted a policy that makes it a firing offense to smoke, even off the premises, outside work hours. It stopped hiring smokers in 2003, and last year it fired several employees who refused to take a nicotine test.

More recently, the company expanded the policy to spouses of its 175 employees. If the spouses test positive for nicotine in monthly tests, the employee must pay an $80 monthly fee until the spouse takes a smoking cessation class and tests nicotine-free. Employees are subject to random tests, a policy that according to Howard Weyers, president of Weyco, has cost "a few people" their job. Employees who come up positive for nicotine in a random test are sent home for a month with no pay. If they test positive a second time, they are fired.

"It's strictly for prevention, and this is the right thing to do," Weyers said. "Everybody knows that the use of tobacco will create a medical episode."

Anita Epolito worked for Weyco for 15 years when she was fired for refusing the test in 2005. "This is about privacy," she said. "If you failed the blow test, you had to take a urine test. It was so demeaning."

She thought what the company did was illegal but soon found out that because Michigan is an at-will state, she could be fired for any reason, even for something she did in her off-hours.

However, there is some wrangling about the legality of firing people for off-the-job behavior. In fact, 30 states and the District have statutes that limit an employer's ability to make decisions about an employee based on off-duty activities, according to Susan K. Lessack, a partner in employment and labor law at Pepper Hamilton LLP. Some statutes apply only to public-sector employees.

"We were surprised that there hasn't been litigation out of that as far as we know," Lessack said about people who were fired for smoking. "I think it's probably legal but subject to challenges from employees."

Lewis Maltby of the National Workrights Institute calls it "lifestyle discrimination."

Companies that ban off-hours smoking believe it is in their right to fire employees who smoke because they are increasing company health-care costs. But "it's a road that leads to somewhere that not all of us are going to like," Maltby said. "It sounds good when you talk about it in the context of smoking. But how about people who drink, ride motorcycles, sky-dive, have a promiscuous sex life?"

Or use the Internet?

A simple Google search has made uncovering someone's personal life that much easier. Blogs and pages on social-networking sites such as MySpace are an invitation to your innermost thoughts and private actions.

Brad Karsh, a career consultant and author of "Confessions of a Recruiting Director," was recently about to interview a young man for an internship. Karsh checked him out on the Web site Facebook, where the potential employee listed among his interests "smokin' blunts with the homies, shooting caps into whitie."

"I'm assuming, and 99 percent certain, that he was joking. But what did that say about his judgment?" Karsh said. "And what did that say about someone applying for a job at a company that advises college students about the workplace?"

Karsh did not hire the man.

In a recent survey, 19 percent of workers said they would post their résumés on social networking sites, while a third would remove content from their MySpace, Facebook or Friendster pages if they knew their employers could see it, according to Spherion, a recruitment and staffing agency.

Checking online profiles has become a regular part of the hiring process. Rex Houlihan, founder of NorthStar Express Freight Inc. in Falls Church, didn't even think of checking potential employees online until a young woman at his firm introduced him to it. She "was just trying to get a good feel for who they were and if they would be a good fit," he said. It worked: "We saw somebody who had content on a Web site that were frightening. I looked at it and said, 'There's no way we're moving forward with this individual.' " He said the site included "racist, derogatory material."

His employees, mostly recent college grads, often check sites for him. "I think if you're making all that information public, if an employer sees it, that's sort of your own problem," said Christine Glynn, 25, a customer care specialist at NorthStar, a convention and trade show shipping company.

But not all young ones are full of bad judgment. Her colleague Laura Silverman, 23, said she is on Facebook but limits who can see her profile -- and the information in it. "There is no personal information on there at all because I know people who are looking can find it," she said.

"I believe our personal lives are no longer personal," said Steven Jungman, a recruiter with ChaseCom LP, based in Houston. "It's more and more difficult to leave work at the office and more and more difficult to separate personal from business."

Jungman said he recently had to fire someone he placed in a call center job because the company said her haircut was "distracting."

"My clients dictate who I hire and what caliber. I'm doing more and more behavioral-based evaluating. They are being evaluated less on what they can do as opposed to who they are," he said.

Sometimes that outside information can help a career, however.

Erin Rockwell's husband is in his last year of seminary to become an Episcopal priest, and she works for a Planned Parenthood affiliate doing public policy work.

The Episcopal church has publicly declared that every woman has a right to a medically safe abortion. But often people assume that any sort of Christian religion will be antiabortion, Rockwell said.

That can work in her favor.

When she saw the posting for her position a few months ago, she noted that it called for someone who could connect with the religious community. Her husband's occupation came up in the interview process and she thought his career track, along with her background as a lifelong Episcopalian, would only help her get the job.

"I have a lot of contacts," she said. She has been in the job for almost four months now. And she knows that her own background helps her connect with religious leaders and volunteers and could help with her local lobbying efforts.

This was not the first time the career path of Rockwell's husband has helped her own career. Her first job out of college several years ago was as an insurance claims adjuster. Once, while she was talking to a man who had been in a car accident, he and his wife noticed Rockwell's engagement ring and asked what her then-fiance did for a living.

She told him he was in seminary. "From then on, it was like, 'We can trust you. You're marrying a man of God,' " she said.

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