At-Will At Work

Posted on November 30, 2006 by David Randall

The Scotts Company, manufacturer of fertilizer and other lawn care products, forbids employees from smoking tobacco products–on or off the job. In September Scotts’ subjected its employee Scott (love these coincidences) Rodrigues of Buzzards Bay, MA to a urine test, which disclosed nicotine in his system. Scotts fired Rodrigues for violating its no-smoking policy. The Boston Globe reported today that Rodrigues filed a suit against the company in Boston’s Suffolk Superior Court, claiming it violates public policy to terminate him for engaging in a legal activity. Harvey A. Schwartz, Rodrigues’ lawyer, believes this is the first case of its kind in Massachusetts.

This may be the first case in Massachusetts, but it is not the first time a company has terminated an employee for smoking . For example, in 2003 Weyco, Inc., a Michigan health-care company, received national attention after adopting its “healthy lifestyle” policy and announcing that it would no longer hire or, after January 1, 2005, continue to employ smokers. Weyco offered smoking-cessation services at its expense to employees who wanted to quit, and it stuck to its policy. When it went into effect in 2005 Weyco fired four employees for refusing to submit to tests to determine the presence of nicotine, and another employee quit before the policy went into effect.

Scotts, like Weyco, adopted its no-smokers policy to attempt to reduce the costs of employee medical coverage. The Globe article quotes a Scotts’ spokesman: “We’re not interested in dictating our employees’ behavior in their free time because it doesn’t affect us . . . but the issue of smoking we deem different because there is no dispute whatsoever that there’s a direct correlation between increased health risk and healthcare costs. So what we’re really saying is we’re not willing to underwrite the risks associated with smoking.”

According to The Globe, Rodrigues knew of Scotts’ no-smokers policy when he took a job early in 2006. Scotts does not administer random drug tests to employees but Rodrigues had received a written warning that his smoking was an issue after a supervisor saw a pack of cigarettes in his car, thereby giving Scotts reason to single him out for testing.Rodrigues does not have a claim for employment discrimination — his status as a smoker does not make him a member of a protected class in Massachusetts, which has no law protecting smokers.

Today, smokers; tomorrow, those who eat too much Ben & Jerry’s? Beyond such obvious tongue-in-cheek scenarios, the practice of terminating employees for engaging in legal activities that can affect a company’s bottom line has insidious implications. I downhill ski (increasing my risk of ACL and MCL injuries), ride a road bike (increasing my risk of head injuries), swim alone in a lake (increasing my risk of drowning), often use a gasoline-powered chain saw (increasing my risk of death or injury from saw kickback), and yes, in fact, I eat way too much ice cream (increasing my risk of cardiovascular disease and obesity, which in turn increases my risk of divers ailments). I can distinguish the risk of smoking from the risks associated with all of these activities, but the problem is opening that door in the first instance.

Sacha Pfeiffer, Off-the-job smoker sues over firing, The Boston Globe 30-Nov-06, p. 1; Marisa Schultz, Amy Lee, & Eric Lacy, Workers fume as firms ban smoking at home, The Detroit News, 27-Jan-05; Company Fires All Employees Who Smoke, WRAL.com, 25-Jan-05

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  • anne86

    The problem with this ban on smoking is that eventually it will lead to the need to address other health related issues. What will be too much and where does one draw the line? Can an employee who smokes a pack a day be fired, but those who smoke the occasional cigar keep their job? Or those who are overweight, but only by a certain lb amount, be considered healthy.

    Also where does a ban on cigarettes or a ban on obesity cross the line and suddenly not just become a ban but a lifestyle change. It seems that by starting to ban cigarettes and dangerous activity, it is almost imposing a certain type of lifestyle on employees which seems wrong.

  • mfrey12

    Personally, I do not feel it is right for this company to discriminate for smoking. It has to do with his lifestyle and does not really have a direct effect on his job. Yes, it can diminish his health, which would eventually hurt his career I suppose, but so can many things that people do on a regular basis. It if it ok for a company to discriminate in such a way, it’s hard to see where to draw the line. If someone does not exercise 3 times a week as suggested by the company, can they be allowed to fire that employee? I think that there is a boundary between home and work and exactly what the employee does in his free/own time is not really the business of the employer, unless it directly affects the employer. In this case, the employee’s smoking did not have a direct/immediate affect on his work, so I feel it was unjust for him to be fired.

  • etipps

    I think that while it is okay for a company to discriminate for reasons pertaining to their business – such as only hiring smokers to work for a cigarret company – it is not okay to discriminate for reasons that do not hinder the businesses sale of products or services. In this scenario, whether or not an employee smokes in no way affects the companies sale of their product. While it does increase medical costs, as the article pointed out, so do many other activities. Discriminating on the basis of reducing medical costs is not a valid reason to fire existing employees and to discriminate against future employees.

  • arplante

    Just to continue playing devil’s advocate here, I’d like to say that if a company chooses to maintain a workforce that follows certain reasonable health guidelines to reduce their costs, more power to them! The purpose of a business (excluding nonprofits) is to make profits on one’s investment. Part of making money is reducing one’s costs. While I am no expert on healthcare, I know the cost of healthcare has risen dramatically (double digit percentage increases actually) across the board in the past several years. Since companies can not raise their prices to pass off this increased cost, companies have had to absorb these costs in the form of greatly reduced profits. While many people may say “That’s tough, but with all the money those companies have they can afford it,” I look at the situation with a slightly more critical, and microscopic view.

    My dream is to be able to run my own small development construction company in a few years. While I know part of retaining good employees is offering good benefits, such as a healthcare plan, the reality is that I can not afford to offer plans that can cost an employer $7,000 to 10,000 dollars or more per year per employee to provide. Heck, even if I got my own contracts after college to start my own business, I would have a hard time paying for my own healthcare plan, let alone any of my workers! After thinking about the costs on a small scale for a company such as mine with 5-10 employees, think about what the costs are to an employer with 1000 employees ($10,000 x 1000 = way too much money!). While larger corporations may be able to get slight discounts on healthcare plans, the discounts are not enough to offset the huge cost.
    While healthcare is certainly a desirable thing to offer one’s employees, paid for healthcare is not a God given right. Just like working for a company is a choice, it is a choice by a company to provide healthcare. Perhaps those employees who are complaining about not being able to smoke might think differently if they have to pay that $10,000 or more (most likely more because they will have higher costs due to their smoking) a year themselves for healthcare, rather than having it supplied to them as a perk for employment with their company. Remember, employment is a choice by two parties: a company and a worker. Paid for healthcare is a benefit of the choice for working for someone, not a right.

    Before I get off my soapbox, I should comment that smoking is extremely common in the construction industry, especially among the more experienced workers. Part of running my future company will be dealing with the tradeoff of increased healthcare premiums (Due not only due to the hazardous nature of my work, but also potentially due to the hazardous habit of smoking by many of my employees), or decreased premiums and a less experienced work force. While I believe in providing the best benefits for my employees that I can afford, I still have to run a profitable business to keep my workers employed. If staying profitable means I have to either reduce benefits or not provide them at all, then so be it. But if my workers want to help me out by quitting their deadly (and expensive) habit to reduce the premiums I pay out of my pocket, I will be more than happy to pony up the cash to the HMOs to provide my workers and their families with decent, affordable healthcare.

    A survey on health care costs for 2007: http://www.towersperrin.com/tp/jsp/hrservices_webcache_html.jsp?webc=HR_Services/United_States/News/Spotlights/2007/03192007_Spotlight_hccs.htm

  • Haraoui

    It’s so interesting that this article happened t come out so soon after we discussed it in class. It actually brings up the same point I made, that the next step would be to start firing overweight employees. I do not agree with this polcy, but I think the consequences of it in the future could be very interesting. If more and more companies start adopting this no-smoking policy I think the country on a whole would see a significant drop in the number of smokers and overall have a more healthy population.

  • judy

    There is a strong public policy in favor of discouraging smoking. And, there is strong public policy in favor of exercise and healthy forms of recreation (and, eating ice cream in moderation is such an example). I don’t see why an employer should be probited from supporing important public policies such as abolition of smoking.

  • m.alsunaid

    Although companies may be able to get away with a rule like this . I feel like the more a company tries to control its employees personal behavior , the employees may be ineffect be “less happy” in the work place and therefore it may deminish their productvity in the work place. Afterall , Happy employees are more productive and efficient than unhappy employees.

  • bcho308

    I actually saw this on the front page of the Globe this morning during breakfast too!

    Anyway, let’s play a little devil’s advocate…

    In terms of employment law, technically, there is employment at will. Either the employer or the employee can end the relationship at any time, for any reason or for no reason.

    I understand that what you do on your own time is none of your employer’s business. However, there are lots of things that, done on your own time, damage the company. For example, take the case of supermodel Kate Moss. She had millions worth of endorsements with Burberry, Rimmel, and other campaigns. But when pictures of her using illegal substance emerged, she got axed immediately.

    That of course, is illegal drugs but the point is still there. What if you run a day care center, and one of your teachers gets drunk every weekend and starts fights at a local bar? It’s a small town so everyone knows about it. It is not done on company time, but still makes parents hesistant about entrusting their kids to your care. Could they fire her?

    AGAIN, this is not my personal opinion, but just wanted to throw some thoughts out there.

  • chrislee

    After reading this post I must say that I am somewhat shocked. I didn’t know that a company could use smoker or non smoker as criteria for hiring an employee.
    I personally don’t agree with the companies desicion to terminate an employee simply because he is a smoker. Smoking is legal if you are 18+ and is a right that we hold. Although I believe the company may keep employees from smoking on the job, but when they go home a company no longer has the right to prevent someone from engaging in any legal activity.

    I understand that the employees were aware that they are not allowed to smoke on or off the job, but what is going to stop all companies from adopting this rule just to save money on insurance. Essentially these companies are taking away are given right to smoke a cig.

  • ppham

    Though I strongly disagree with the Scotts Company’s policy forbidding smoking tabacco products, I see two parties with a choice that is their right to make. Scotts Company has a right to choose their own employees as long as they do not discriminate against protected classes. Rodriguez knew of the company’s policy against smoking tabacoo products before he took the job, and we can conclude that he also knew he would be fired if they administered a drug test and found nicotine in his system. Thus, by taking on the job, he agreed to comply with the company’s policy, and had he disagreed, he should not have taken the job in the first place. It cannot be “wrongful discharge” if the employee knew of the consequences of his smoking habit and continued to smoke. Also, Massachusetts has yet to limit a company’s right to enforce anti-smoking rules and protect smokers from such rules, so companies are still left to run their own businesses in the manner they are legally entitled to do.

    Hopefully this case will prompt Massachusetts legislators to limit the corporate world’s infringement on the legal rights of Americans. Otherwise, will companies soon be administering health tests concerning dieting and cancer too? Like the article states, there exists many foreseeable cases that would endanger someone’s health, but corporate America may soon take its risk-management programs a little too far. Hopefully they will stop before one’s late night addiction to Chinese food or someone’s recreational fun is limited.