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My company is instituting a $25 -weekly fine for smokers.

Customer Question
My company is instituting a...
My company is instituting a $25 bi-weekly fine for smokers. The money is NOT to offset health insurance and they say the money "will be used at the sole discretion of plan fiduciaries for plan purposes, including but not limited to supporting wellness initiatives". Is this legal?
JA: What state are you in? It matters because laws vary by location.
Customer: Texas
JA: Has anything been filed or reported?
Customer: not that I am aware of - the fines have not been put into operation yet. They are going to be require an affidavit to verify non-smoking and have not yet sent out the affidavit.
JA: Anything else you want the lawyer to know before I connect you?
Customer: that's about it (I think).
Submitted: 2 months ago.Category: Legal
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Answered in 15 minutes by:
9/11/2017
Lawyer: Dwayne B., Attorney replied 2 months ago
Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 34,056
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Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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Lawyer: Dwayne B., Attorney replied 2 months ago

Please allow me some time to read your facts and type my response.

If you receive an email regarding a phone call for an extra price that comes directly from the website and not from me and I have no control over the sending of the email. I don't take part in the telephone program and only work through this format and under your facts this format should be sufficient.

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Lawyer: Dwayne B., Attorney replied 2 months ago

Is the employer asking you to sign any type of documents which allows them to withhold the fine from your paycheck?

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Customer reply replied 2 months ago
not to allow them to withhold the fine, but they are requiring an affidavit to be filled out if you claim to be a non smoker.
Lawyer: Dwayne B., Attorney replied 2 months ago

There is nothing in the law which prevents a Texas employer from requesting an affidavit such as you described. I haven't see any case law which directly addresses the issue of fining employees for smoking but wellness programs and the smoking issues are fairly new in legal terms and the cases would likely not have time to make their way through the court system yet.

An employer in Texas is not allowed to withhold money from your paycheck other than taxes, insurance, etc. without written permission from the employee.

What I suspect your employer is going to do is claim that a portion of your pay is going toward a "reward" for your participation in a wellness program and that when you smoke they are actually just removing that reward. That can cause problems if you are salaried, if you are making minimum wage, etc. because removing those amounts can reduce your pay to being below what the law requires. If you feel that is the case then the proper step to take is to report the employer to the department of labor which, in Texas, is referred to as the Texas Workforce Commission.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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