Fired Smoker Sues Ex-Employer

Man Says Company Violated Rights By Firing Him Because He Smokes

(AP)  A man has sued his former employer, saying it violated his privacy and civil rights when it fired him because he smokes cigarettes.

Scott Rodrigues, 30, says he was fired from a lawn-care job he had for several weeks at The Scotts Co. after a drug test came up positive for nicotine. He said he wasn't told he would be tested for the substance and was told the company would help him quit.

Rodrigues' lawsuit, filed in Suffolk Superior Court, claims the company violated his rights under a state privacy law barring unreasonable, substantial or serious interference of privacy, and under other state law. The lawsuit seeks unspecified damages and lawyer's fees.

"In more general terms, this case challenges the right of an employer to control employees' personal lives and activities by prohibiting legal private conduct the employer finds to be dangerous, distasteful or disagreeable," the lawsuit said.

The Scotts Co., a subsidiary of Scotts-Miracle Gro Co. of Marysville, Ohio, instituted a policy early this year forbidding smoking to promote healthful lifestyles and hold down insurance costs. In the 20 states that allow such policies — including Massachusetts — the company refuses to hire smokers and tests all new employees for nicotine, said Jim King, Scotts' vice president for corporate communications and investor relations.

King refused to comment specifically on Rodrigues' case because he said the company's lawyers hadn't reviewed it, but said all new employees are told they must be tobacco-free and are told they will be tested for nicotine.

"It's on our Web site. It's on our terms of employment when they are hired," King said. "We make it very clear to people what the expectation is related to tobacco use."

But Rodrigues said that he never knew he would be tested for nicotine and that he chewed Nicorette gum on his way to the drug test. His Massachusetts employers also knew he smoked because he had worked for the company previously, he said.

Rodrigues said he never smoked during work or while on break.

"I didn't think you couldn't smoke at home," he said.

Rodrigues' lawyer, Harvey Schwartz, said companies can require drug tests if they believe their employees are using the substances at work or if drug use would seriously interfere with the job. Neither is true in this case to justify a test for nicotine, he said.

[sy2502]

I absolutely love these anti-smoke comments, since you are probably writing with one hand and dipping the other in the cookie jar, or in your pack of chips, or holding some ultra-sugary soda. The cost of obesity is WAY bigger on society than the cost of smokers! Those doughnuts you stuff your face with are going to kill you much quicker than some ultra-diluted second-hand smoke, by the way, in case you felt so much better about yourself for not being a "filthy smoker".
Cigarette butts should not be thrown away, but frankly they make such a minute percentage of all the thrash I see, that I don't know why you are singling out smokers specifically.
I think there are too many people who like to tell others what they can or can't do and this has to stop.

[turleytramp-2009]

The government made the restaurant I worked at go non-smoking. We lost all our business. I went from making $120.00 a day in tips to making less than $20 a day. Alot of the employees, including me, had to quit bacause they could not afford to work there. Some had to be let go or the hours cut back to the bone.
I guess the new smoking laws gave Scott's the idea that they own the employees. They think they can dictate their behavior when they go home.
Every day there is one more right taken away from Americans and turning us all into criminals.
Enough is enough. We are not animals.
I'll boycott Scott's and I'm sure all my smoking friends will follow me.

[andrwsmom]

I am a smoker. However, I try to be a respectful smoker. I do not smoke in my car, or in my home. I smoke outside in my backyard and if I am somewhere around other people and most importantly people who do not smoke...I do not. BUTT, this has got to be the most outrageous thing I have heard. Yes, Scott has every right not to employ smokers, just as you have every right not to purchase their products and use their service. The problem I am having is that they re-hired this guy, knowing he smoked and offered him assistance in quitting....then fired him 2 weeks later. Sounds like wrongful termination to me.

[Jill Kleinowski]

part 2...

How about if I am willing to not smoke in your breathing place, then you not drive your polluting cars and buses in mine??? Where will it ever end? We smokers are told that these costs keep going up on our taxes and not yours, because they are hoping to prevent school aged children not to begin. Yet it never really shows up when the news agencies report increased children usage. Why don't you just admit it to yourself and all others like you... You will find any excuse to take away everyone else's rights except your own.

BTW... You don't have to worry about taking away my husbands job because I smoke, he has been unemployed for 4 years now because he is now 50 and to old to hire.

[Jill Kleinowski]

to djconklin:
You are right... smokers have NO rights any longer. We can no longer smoke in malls, in restraurants. We can no longer smoke at sports complexes or public parks. Nor can we smoke in Psychiatric Hospitals. Now people like you want to take away our rights to smoke in the privacy of our own homes. Mecidare and Medicaid services have been cut in half and more. All due to our extra costs upon the American Public. Even worse, we have now lost our rights to smoke outside in a line waiting for a city bus, or on the grounds belonging to a hospital. Even if they use to have a smoking building just for us to all crowd inside of to protect the non-smokers from breathing our smoke outside where the winds can blow it away.

I don't throw my butts all over the world to have to clean up, but I sure see your litter from all the fast food places there. If I litter my grass with cig. butts, I clean them up or pay someone to clean them up. I don't ask that you clean them up for me. If I smoke inside my home, I don't ask that you enter inside to breathe my toxic air.

Maybe people should no longer be allowed to work for companies if they have diabetes, epilepsy, migraines or suffer from any form of depression. These aide the companies health insurance costs to go up also. How about high blood pressure? They need to definitely be fired because of the costs.

continued...

[markq019]

Everyone is turning this into a "Privacy Violation" issue. I agree with everyone else that he should be able to do whatever he wants on his own time -- BUT, if the company policy is no smoking and he was informed of that when they hired him, if he didnt like it, then he should have turned down the job. The company has just as much right to say "we dont hire people that smoke" as he does to smoke. If he doesnt like their policy, then go work for another company.

[wendyhoo-2009]

I still can't believe what I just read. This is just stupid. I for one will never buy another scott product again. I am tossing the products I currently own as well. They have no right at all to tell this men he can't smoke and fires him. Even if he smoked on his break it is HIS time. This case is going to be fun to see the outcome I hope this guy comes out with a nice chunk...

Health insurance doesn't go up due to just smokers and cleaning streets is not due to just smokers. How about all the people who just throw the trash out the windows ... come on please that comment was a joke. Insurance goes up regardless it is the biggest scam ever. People with heart failure and liver diseases and other cancers that aren't caused by smoking contribute HIGHLY to the rise in health insurance.

Again good luck and I hope you take the company for a good penny.

[exusmcsgt]

eliwatney-

Ok. Let's talk about obesity. Everyone knows that being obese adds considerably to health costs - more than smoking.

I'll say it's ok to limit legal practices for health care reasons when the obese are required to lose the flab.......

[paganwitch]

This is ridiculous and unfortunately, not very surprising. Just because you work for a company does not mean they can control what you do in your "off the clock" hours.

Is smoking bad for you? Sure it is. But so is eating at McDonalds. Both are legal and both are a choice.

I hope this guy wins the case. Not because he is a smoker, but because companies need to be reminded that they do not own their employees and cannot control their private LEGAL activities.

[gramto7]

djconklin wrote:
Smokers don't have rights.

You are correct there! All our rights have been taken from us by you holier-than-thou non-smokers. Not all smokers toss butts on the sidewalk, grass, etc. I know of no place anymore where you would encounter my secondhand smoke because smoking isn't allowed in public anymore. So unless you invade my home or my land, you aren't going to get my smoke. By the time it leaves my property, I seriously doubt it is concentrated enough to cause damage to an amoeba, much less a human. At least where I live I can see BLUE sky, not brown like some cities even here in the good ol' US of A.

If people want to smoke ANYTHING outside of work they have that right to privacy.

Urine tests/drug tests/ and nicotine tests are a huge invasion of privacy, and businesses have no right to you after you clock out for the day. Anyone who thinks differently does not believe in freedom.

Health care costs have gone up but I can guarentee the majority of the cost increases have little to do with smokers.

Those who believe everything we do should be regulated need to start demanding that every thing sold in stores is pure and healthy. No more McDonalds, Burger King. No more Buffalo Styled chicken wings, no more trans fatty acids. People should also then be regulated to one alcholic drink a day, and everyone should be forced to run 1 mile every day.

Fact is we live in a fee country that allows people to make personal choices. If a business doesn't like it they can reulate what happens on their time, but what happens outside of that time, one's personal time NEEDS TO REMAIN PERSONAL !!!!

I'm sick of people/government/businesses that believe they have any rights to invade my private non-violent existence

[djconklin]

"The country has gone crazy with abuse of all smoker's rights."

Smokers don't have rights. The rest of us have the "right" to breathe fresh air without having it contaminated with your second-hand smoke. We also have the right to not have to pay someone to clean up your butts off the sidewalk, streets and lawns. Why should we have to pay higher health insurance costs simply to cover the extra demand your habit places on the health care system?

[Jill Kleinowski]

I am getting so fed up with all of this. The country has gone crazy with abuse of all smoker's rights.

What's next: take the same rights away from drinkers, or those with other health issues, or worse yet, anyone over the age of 40 who have more chances of dying suddenly from a various amount of reasons? Or anyone who may be taking prescriptions for any disorder's in their life?

Smoker's don't blindly think any longer that they are not harming their bodies, much less those of their loved ones. It is printed on each pack telling them it is harmful. But how dare they tell us what we can do in the privacy of our own homes as legal voters in this country.

Good luck Scott Rodriquez, I hope you are able to hit them deep down in their overglorified pockets!!!

[agnim]

DDKem at 03:10 PM : Nov 30, 2006

You'd make a dam fine slave.
And you'd probably come quite cheap too for doing menial task and occasionally browning your nose.

[gossimer]

Bottom line, what people do in their private lives is NONE of their employer's d*mn business! Personally, I wouldn't work for ANYONE that tried to control what I do in my private life! I hope Rodrigues wins big and sets a precedence against ALL meddling employers!!!

[susanhelit]

Cigarette companies are selling a deadly product that shortens lives, harms people who use it, as well as those who have the misfortune to be near a user - I can't think of anything positive to say about cigarettes. Smokers are suckers who buy into this idea that they look cool, and looking cool is worth shortening your life. And they stink - that stuff clings to your clothes like you wouldn't believe! Only when you stop smoking does your sense of smell recover enough to tell you what you've smelled like that entire time.

But, all in all, I can't say the company has any right to regulate whether or not you smoke on your own time. Yeah, it alters insurance rates, but that's no precedent I want to see set - otherwise you'll see overweight targeted next, then drinking, then doing risky sports, etc. The job requirement will be found to be illegal and unnecessary, IMHO.

[madumpty]

Its really a outrage that they allowed (and I bet they win) to pry into his private life. What about BOOZE? That does WAY more damage to a MUCH wider circle of people and yet this crappy company with all those (cancer causing chemicals) is forbidding him to smoke?? oh gimmie a break.

[eliwatney]

I have listened to people talk about how motorcyclists who don't wear helmets should have to pay any injuries they incur becasue of it. The tone is that its not fair for others have to pay for those injuries in higher insurance costs. Well guess what, last year less then 1000 people died in motorcycle accidents but over 50,000 died from smoking. Why should I have to pay that cost, I don't smoke and its not my problem if you do. I will defend your rights just don't make me pay for the privilege.

[ecuadoriana]

What a joke!!! A company that makes money by spreading toxic chemicals on grass fires a worker for smoking cigarettes?!? Frankly, I think they did the guy a favour. Tobacco would be the least of his worries. If he ever got around to actually reading & comprehending the warning labels on the "miracle-gro" he may be glad they did fire him. Is it any wonder the workers have to wear protective clothing while working with these chemicals?

When people want to spread their lawns with deadly chemicals to make the grass greener, something has seriously gone wrong in this world. And before the workers leave, they put up miniture flags to warn animals & children to keep off the lawn, because what will kill the insects & weeds will kill them, too. Too bad animals can't read warning flags.

[redveg]

The cost savings is easily provable; but that isn't the point here. Smoking shouldn't be any more legal than other harmful drugs, but that isn't the point either. They shouldn't be able to restrict employment according to what legal activities you do at home. They and all companies should pass the cost savings on to non-smokers willing to prove it and charge the smoker rate to people not willing to prove non smoking status.