It may seem draconian that your employer can control what you do when you're not on the clock, and it's even scarier to consider that the point may be moot anyway. Unless you work in Montana, all other states are at-will employment jurisdictions. This means that your employer doesn't need a reason to fire you. However, some states have separate laws that prevent a company from letting you go because you smoke.
The concept of at-will employment is that you can leave your position any time you like. If your boss is an ogre, if you get a better job offer, or if you want to change careers, you're free to do so – your employer can't stop you. He has the same freedom, however. He can let you go because he doesn't like brunettes and you recently colored your hair. He can terminate your employment because he sees a picture of you on a social media website with a cigarette in your hand and he detests smokers. He doesn't even have to tell you that this is why he's decided he no longer needs your services. He can just let you go.
Almost every rule has its exceptions, and several exist with at-will employment laws. Even if you're an at-will worker, your employer can't fire you for a reason that violates public policy, such as if he's discriminating against you. For example, he can't terminate your job because you're a woman. This is gender discrimination. Government employees typically aren't at-will workers, and this includes public school teachers. Union workers aren't subject to at-will employment laws either. If you have a contract with your employer stating that he can only fire you for cause, you're not an at-will employee. Your boss must give you a viable, legal reason for letting you go. Using tobacco on your own time would only qualify as cause if your contract states that you can't smoke, either at work or on your own time. This is against the law in many states, but not all.
The District of Columbia and 29 states have laws prohibiting your employer from firing you because you smoke or use tobacco. If you live elsewhere, however, you have no protection unless another law applies to the situation. For example, some states have laws against an employer snooping into his workers' private lives, and in most cases – unless you're on call – your off-duty hours would qualify. If you post a photo of yourself on the Internet, however, you've exempted your employer from this rule. When you make something public, you usually give up your right to privacy. The same would apply to lighting up in a bar if your boss happens to be visiting the same establishment at the same time, assuming your state allows him to fire you for smoking. You're smoking in public, so you've given up your right to privacy regarding your habit.
Even if your state prohibits your boss from terminating your employment because you use tobacco, it might not matter if you’re working in a state other than Montana. Because of at-will employment laws, he can simply fire you without stating that your tobacco habit is the reason. You'd then have the burden of proof to establish otherwise if you wanted to file an employment lawsuit against him in one of the states that protect employees who smoke. You'd have to establish that your termination was actually the result of your choice to use tobacco. A little common sense can go a long way toward nipping the problem in the bud, however. Unless your employer regularly subjects employees to drug screening to test for nicotine, he has no way of knowing if you light up in the privacy of your own home. He can't force his way into your house to find out. Just avoid posting a picture of yourself on the Internet or lighting up in public.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.