|
|||
|
|
|
Where There's Smoke, There Could Be Firing
Scotts Miracle-Gro Co. has one of the strictest nonsmoking policies in the United States: Not only are employees forbidden to smoke on company property or in company-owned vehicles, but they're also forbidden to smoke, period. The policy is enforced for existing employees and new hires by drug screens that test for the presence of nicotine.
At least one former employee is fighting back, however. After working at Scotts Miracle-Gro's facility in Cape Cod, Mass., for only two weeks last year, Scott Rodrigues was fired for failing a drug screen that revealed the presence of nicotine. In November, he filed a lawsuit seeking compensatory and punitive damages. The suit, filed in Suffolk Superior Court, presents two claims. It alleges violation of a Massachusetts privacy statute by banning legal, non-work-related activities, and violation of the Employee Retirement Income Security Act, says Rodrigues' attorney, Harvey A. Schwartz of Rodgers, Powers & Schwartz in Boston.
Lewis Maltby, president of the National Workrights Institute in Princeton, N.J., says nonsmoking policies such as Scotts' may cross the line into regulating employee behavior off the job. "It's not exactly speculation to worry about (employers) trying to control off-duty behavior to try to control health-care costs," he says. Maltby notes that, in Massachusetts, there have been cases decided by the Massachusetts court that "arguably support this case." In most other states, however, "the law is absolutely clear that your employer can control your private life and there's nothing you can do about it," he says. "The law in Massachusetts just happens to be a little better than in most states." What's unique in this case, according to Maltby, is "bringing the case in a state where there is no statute (explicitly spelling out employers' rights to regulate this behavior)." He believes the case is possibly winnable, but time will tell. "He (Schwartz) is certainly breaking new ground," Maltby says. "It's not as if there's established law (relative to Rodrigues' rights) in this area and he's just trying to apply existing law to his situation." Scotts has filed a motion to dismiss on undisclosed legal grounds. However, it remains to be seen whether this high-visibility case goes to trial. "Cases go to trial where there are disputes about the facts," Schwartz says. "There's a good chance this case will be decided on the legal issues by a judge." March 1, 2008 Copyright 2008© LRP Publications |
|
|
|
Entire contents copyright © 2013 Risk and Insurance® All rights reserved.
May not be reproduced in any form without written permission.
|