Fired Smoker Sues Ex-Employer

(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.