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fired for smoking off the job,man sues

Published:


Fired for Smoking Off the Job, Man Sues
By Scott Malone, Reuters

BOSTON (Nov. 30) - A Massachusetts man fired for smoking while off duty has sued his former company, saying its policy of not employing smokers serves no business purpose and that a urine test for nicotine violates privacy rights, his lawyer said Thursday.

Scott Rodrigues was fired by Scotts Miracle-Gro Co. after a mandatory urine test showed evidence of nicotine in his system, lawyer Harvey Schwartz said. The lawsuit filed in Massachusetts state court Wednesday seeks unspecified damages against the supplier of lawn and garden products.

"Whether or not he smokes has no impact on his job performance," said Schwartz.

He said he was aiming to have Massachusetts declare Scotts' policy illegal. "The company seems fairly messianic in its desire not to employ smokers," the lawyer said.

The lawsuit said Rodrigues, 30, never smoked at work and noted that Scotts' health-related policies do not restrict "skydiving ... owning dangerous pets ... or spreading toxic chemicals on lawns."

The suit claimed Scotts had no right to test Rodrigues' urine for nicotine, since smoking outside the office is legal.

Scotts in December adopted a policy of not hiring smokers, citing the high costs of providing them with health insurance.

Jim King, a vice president at Marysville, Ohio-based Scotts, said the company has not seen the lawsuit and he could not address it. But he did comment on the policy.

"While we're not interested in dictating our employees' behavior in their free time, we look at smoking differently," King said. "Smoking is completely incompatible with a culture that's trying to improve wellness."

Several U.S. states have banned smoking at work, restaurants and bars.

While employers may restrict smoking in the workplace, most U.S. states have laws preventing companies from refusing to employ people who smoke outside the office. Massachusetts is one of about 20 states that does not have such a law.

Other major U.S. companies with policies limiting the hiring of smokers include Union Pacific Corp and Alaska Air Group Inc.

One legal expert said Rodrigues would have a hard time proving his case, due to Massachusetts employment laws.

"The basic rule of employment at will is you can fire someone for a good reason, a bad reason or no reason at all as long as it's not on the list of prohibited reasons," said Katharine Silbaugh, a visiting professor at the Harvard School of Law. "You don't like the Red Sox? I can fire you for that. You smoke? I can fire you for that."

Entry #781

Comments

1.
konaneComment by konane - December 1, 2006, 10:34 am
If the employer is paying for health insurance for its employees, premiums are higher for smokers thereby making premiums higher for everyone. This one is going to be fought in the courts but believe employers will prevail over time due to higher premiums infringing on the rights of non-smokers.
2.
justxploringComment by justxploring - December 1, 2006, 12:54 pm
I live in a Right to Work State and you can be fired for any reason at all, just as written in the last paragraph of this article. Even if you've been sexually harassed or forced to work overtime without compensation, it's very hard to prove. You are just considered to be "a problem employee." I agree that it is none of anyone's business what a person does when he or she is out of work, providing it's not illegal. In a way I fully support Mr. Rodrigues and don't know why Scotts has this policy if it doesn't affect a worker's performance. If he wants to jump off cliffs on the weekend, that's his business. If someone likes getting high once in a while, it's also his business. BTW, I don't do either of these things!! However, I'm sick of people violating my right to privacy.

On the other hand, regarding premiums "infringing" on the rights of smokers, I have a problem with that term. I want to make it clear that I am not arguing or criticizing Konane's comment. We all have our opinions. I just don't agree the insurance companies are infringing at all on their rights. Before I go on, I want to admit this subject is one of the few on which I'm inflexible and find no room for compromise, so I might have difficulty staying brief. I just deleted a few paragraphs and, if I feel the need, I'll post on my own blog, but I do want to elaborate a bit.

First of all, private insurance is not a gift, a privilege or charity. People need to qualify for Life and Health insurance which pays them or their beneficiaries when they get sick, disabled or die. If you were to insure a driver who has been in 10 accidents, his rates would be much higher than a driver who has had a perfect driving record. I know little about car insurance, but I assume this is the case. So when people live a certain lifestyle, whether it involves smoking, being obese, participating in risky activities or working in dangerous professions, the actuaries who determine rates need to look at the large picture. Even if someone is "healthy" and smokes like a chimney, statistics prove that the majority of smokers develop emphysema, asthma and/or other health related problems, including lung cancer. Smoke also has a devastating effect on many other health conditions like high blood pressure, heart disease and also contributes to osteporosis and some diseases of the immune system. Therefore, the higher premiums are not infringements at all. They are not punishing the smokers, but rather rewarding the non-smokers. Does this mean a non-smoker won't get sick & die? Of course not. My grandfather never smoked in his life and died from throat cancer. However, just like everything in life, insurance companies need some way to determine how to underwrite a policy. Regarding discrimination, it's no different than accepting a student who has higher grades and SAT scores into a college or hiring a person with 10 years more experience. Believe me, I wish everyone could get health insurance and pre-existing conditions didn't matter. I am one of those who get turned down! Obviously an insurance company is in business to make money and has stockholders to whom they have an obligation. In FL, group health insurance is very hard to come by, since many employers face such high costs. A group plan has to cover everyone, regardless of age or health. The more claims that are submitted, the higher the rates when time for renewal. I don't sell group health, but this is how I understand it works. Why should people who don't smoke pay for people who do? BTW, most private health plans have a clause that will accept a smoker who has quit for 12 months and lower the rates. However, it only makes sense that the applicants who submit to an examination and a urine and blood test get a preferred rate if they're healthy. Life isn't fair, but at least smokers have a choice.

I also shudder when I hear about smoker's rights, for other reasons. Mainly, what about the rights of people who want to breathe? Yesterday I was forced to walk in the road (a busy parking lot at a strip mall) with cars racing around me because employees taking a break were sitting on a bench smoking. I can't walk past people blowing smoke on me. I've never complained, but I wish the cashiers at Publix and Walmart wouldn't smoke near the store entrance. If I owned or managed a company, I would ask them to smoke out back. I am so sick of this "right" to make other people feel sick or nauseous crap.

Regarding the workplace, I've worked for companies where smokers take significantly more breaks than other employees. 10 minutes an hour x 8 hours x 7 means that each week I worked almost an entire day more for the same pay since I don't smoke. The job I'm thinking about was last summer where the manager & my coworkers were smoking outside and I was asked to cover the very busy phones. So once I got off my butt and simply went outside to take a walk. When the manager disciplined me, I said that just because I don't smoke doesn't mean I can't take the same amount of UNSCHEDULED breaks. When I worked in MA and NH, my offices were in high rises. For years everyone smoked inside the office. When that practice was banned, the smokers would take the elevator and go outside, which interrupted my job. The non-smokers had to take messages for them or take up the slack while they were outside feeding their addiction.

Okay, this might sound insulting, but it's true. I simply can't stand the stench. I'd rather someone fart next to me than smoke. I've worked next to smokers and had to smell it all day because I was surrounded by people who had that awful, stale smell in their hair and clothing. When you're in a store sharing phones, it's not possible to wipe down all the phones each time to answer a call.

I'll stop here. Regarding hiring a non-smoker, I think it's unfair if the person doesn't let it have an effect on his work and the only detection was through a urine test. However, in all honesty, I would choose to hire or work with a non-smoker over a smoker any day.

3.
Comment by jim695 - December 1, 2006, 2:33 pm
Very well put, Jx. "I am so sick of this "right" to make other people feel sick or nauseous crap."

I'm a smoker myself, but I'm conscientious about lighting up around non-smokers, even at the poker table. For some reason, it seems that any cigarette in the ashtray will always waft its noxious fumes toward the nearest non-smoker. Putting myself in his place, I don't think I'd like it, either, so I'll take a break and go outside. Sadly, most players stand on the imaginary "Smokers' Rights" principle and say, "If you don't like it, find another table!"

I've looked, and I can find nothing in the Constitution nor the Bill of Rights that says, "... the right of the people to smoke and bear tobacco shall not be infringed." Americans tend to overlook the responsibilities that go hand-in-hand with all the rights they claim. We have a right to free speech, but we have an obligation to use that right responsibly. If we fail to do so, we can be sued for libel or slander. We have a right to keep and bear arms, but we have an obligation to our fellow citizens to keep those arms out of the hands of children or others who would employ them outside the scope of those rights. As smokers, we have an obligation to indulge our habit where it won't offend or otherwise affect those whose health is more important to them than their inherent "right" to smoke.

Studies have shown that second-hand smoke causes cancer to an even greater degree than smoking does, so I choose to smoke in order to decrease my odds of developing that disease (I'm joking; I know it's in poor taste, but these so-called "studies" are nothing short of ridiculous, in my opinion).

I believe Konane was referring to common group health policies, where identical coverage is afforded to every member of the group for one collective fee, or premium. Premiums aren't calculated on an individual basis for such coverage, so one or two individuals who are constantly sick or who often make claims against the policy can indeed drive up the premiums paid by everyone in the group.
4.
Rick GComment by Rick G - December 1, 2006, 3:38 pm
Jim said it well. If you smoke you have to take into consideration the health and well-being of those around you. There are no smoker's rights...there are only personal rights.

Going back to the original question, where does an employer draw the line on off-duty behavior?

An employee speeding to work because he's running late after drinking a fifth of gin last night and having unprotected sex with a prostitute is more damaging to to the insurance liabilities of the "group" than the smoker. This behavior is not censored by an employer, nor is the weekend bungee-jumper.

No wonder our work is being outsourced by employers...Political Correctness seems to have fuzzy prejudices and as time goes on those prejudices will include all of us.
5.
JAP69Comment by JAP69 - December 1, 2006, 4:06 pm
I hope that smoker wins millions. Will set a precedence for lawsuits by smokers.
Insurance companies should have clauses where they only will insure people who have passed a physical 100% .
When the federal gov't makes it a crime to smoke tobacco is when all hell breaks loose.
If I were the cigarette companies I would pull all tobacco products of the market for 30 days. See what happens then.
6.
konaneComment by konane - December 1, 2006, 4:09 pm
Rick, I think you nailed it...... "No wonder our work is being outsourced by employers...Political Correctness seems to have fuzzy prejudices and as time goes on those prejudices will include all of us."

Jim, you're correct that's what I had reference to that actuarial figures show smokers have higher long term claims than non-smokers so drive everyone's premiums up. As a non-smoker I don't want my potential premium assessed higher for smokers in my group.

BTW, I'm a reformed smoker as of 22 years so know both sides of the argument.
7.
justxploringComment by justxploring - December 1, 2006, 7:25 pm
Jim, thanks for your comment. I wish all smokers were as considerate. Like Konane, I used to smoke, although I gave it up in 1974. A handsome man I met skiing didn't like the taste. (blush) So I gave it up. So if anyone knows a man named Charlie from Bethesda MD who graduated M.I.T. in 74 or 75, tell him thanks! We went out for a few months and then I met my ex-husband who smoked a pack a day (and a lot of other stuff) LOL Go figure. I guess the reason I am now bothered so much by it is because I'm rarely around people who smoke so I have no tolerance for it. My sister has asthma and such bad allergies that she is allergic to life, so imagine how she feels when someone smokes near her. As I already wrote, testing a person's urine who shows no signs of poor work performance is definitely in violation of his rights IMHO.

I just got home and I need to leave at 5AM to get to a meeting in Tampa Saturday. Otherwise I was going to write about the new mandatory drug testing in the Naples schools. I am really against it and think it violates the rights of students. What do you think? It's a Federally financed program that is supposed to make students think twice before taking illegal drugs. This is from the Naples Daily News on Nov 28.

**The Collier County School District will receive $209,662 for a drug testing grant, making it the second-highest grant recipient in the United States.

U.S. drug czar John Waters announced $8.6 million in grants nationwide for random student drug testing programs during a visit this afternoon to Barron Collier High School in North Naples. Florida received three of the grants, the most for any state in the nation.

Joe Kemper, Barron Collier High School's athletic director, said the drug testing could begin as early as this spring for student-athletes but likely wouldn't start until 2007-08 school year.

Collier will conduct random student drug testing in seven high schools with more than 3,000 student-athletes and cheerleaders as the target population.

Grants were awarded based on strength of proposal and all schools that applied had to demonstrate a need for such a grant.

Waters, whose full title is White House director of National Drug Control Policy, said so many times communities apply for the grants after it's too late, meaning, after a drug-related death of a young person. Deputy Secretary of Education Ray Simon joined Waters at today's news conference.

Waters said he sees Collier County as taking a positive step toward drug prevention in the schools by applying for and receiving the grant.**

8.
Comment by LOTTOMIKE - December 1, 2006, 8:52 pm
i quit in christmas of 2000 so its been almost six years since i stopped.cold turkey.i smoked three packs of marlboro red a day then went to lights right before i quit.
9.
konaneComment by konane - December 1, 2006, 9:34 pm
Congrats Mike!!! WTG, may you never start again because they believe there's a correlation between parents smoking and asthma/allergy development in children. Neal Boortz says he's a pretty severe asthmatic and attributes it to his parents' heavy smoking when he was growing up.
10.
Rick GComment by Rick G - December 1, 2006, 11:27 pm
Why is this government and our society so insistent on shoving their muzzle up our bee-hinds? Is this politically correct society what we really want for us and our children?

This is a major reason why our children are P.O.'ed at us. We were supposed to be the example. They'll take a choking, dying smoker any day over a lying government employee or holier-than-thou hypocrite. The smoker is willing to admit he was stupid. The others aren't.
11.
guesserComment by guesser - December 7, 2006, 1:19 am
I don't smoke, but I respect the rights of smokers - to an extent.

If I sat in an office, do I want the person next to me to be smoking ?   NO.
But by the same token, if I want to go out to dinner or to a bar, or a KENO PARLOR, I know there are places people smoke, and if I don't like it, guess what ?   I don't go there.
Far be it for me to tell a business owner how to pick his customers, if he wants my business, he won't allow smoking, if he wants the business of smokers, more power to him, he has a choice, and so do I, and I have NO problem with it.

If I interview for a job and they have an allowed smoking policy, then I can choose if I want to work there or not.

As far as health care is concerned, yes, they can anti-select all they want, but I know far far too many people in perfect health and are also 10 years younger than me dropping dead, usually from something that 'runs in the family'.

It's unbelievable how much tax dollars are wasted on witch hunts.

You don't want drugs in schools ?
Take away kids' rights.
When I was in school, teachers all had paddles - and used them (and don't even start with the 'but that is promoting violence' crap - don't even try to 'go there').
They also had detentions - and they handed them out.

ACLU took care of all of that, and look where we are today...

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