Can an employer charge a fee each pay period for using tobacco outside of work?

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Can an employer charge a fee each pay period for using tobacco outside of work?

My employer is charging 25 a
paycheck for using tobacco. I don’t
smoke before work or while at work.
How is this legal?

Asked on December 1, 2016 under Employment Labor Law, North Dakota

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Most work relationships are what is known as "at will". This means that a company can set the conditions of employment as it sees fit. This is true whether those conditions are imposed on or off of the work premises (assuming that such conditions are not illegal or violate public policy). Accordingly, absent a union agreement/employment contract to the contrary or some form of legally actionable discrimination/retaliation, this policy is perfectly permissable under the law. For your part, you can either accept these restrictions, complain but risk termination, or quit.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It is legal because an employer can put any terms or conditions on employment that it likes, so long as the term or condition is not inherently illegal--and there is nothing inherently illegal about asking someone to not use tobacco or penalizing them if they do. This conditions may even be about what you do outside of work. If you keep working there after you have notice of this condition for employment, you will be held to have (by continuing to work) contractually agreed to be charged for using tobacco products, even outside of work--so you will have to pay. If you are, understandably, not willing to work for a company which intrudes this way into your life, you can seek other employment.
This all comes from "employment at will," which is the law of this land  unless and only to the extent you have an employment contract to the contrary: the employer can set any conditions it likes on employment, and employees are free to not work there if they don't like those terms or conditions of employment.


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