LIANE HANSEN, host:
As we mentioned, Scott Rodrigues, who worked for a Scotts Miracle-Gro branch in Massachusetts, sued the company after he was fired for smoking. But Rodrigues acknowledges he knew when he was hired that Scotts had an anti-smoking policy. So we reached his lawyer, Harvey Schwartz, to ask about the basis for his lawsuit.
Mr. HARVEY SCHWARTZ (Attorney): There are two basic claims in the lawsuit. One is under Massachusetts's privacy statute, and the way it plays out in a case such as this one is that the court balances the individual worker's privacy interests against the company's need to invade that privacy.
So for example, since Mr. Rodrigues operates heavy equipment for the company, the court would most likely say that his employer has the right to know whether he uses illegal drugs in his private time. On the other hand, we're seeing in a case like this the employer has no interest in finding out whether or not he smokes cigarettes away from work.
The other claim is under a statute called ERISA, E-R-I-S-A.
HANSEN: ERISA is the Employee Retirement Income Security Act?
Mr. SCHWARTZ: Very good, yes. Basically it's the statute that protects employee benefit plans, and there's a prohibition in ERISA against employers discriminating among their employees as to the provision of benefits.
HANSEN: If Mr. Rodrigues had not been fired, do you think he would have a problem with the smoking policy?
Mr. SCHWARTZ: The problem with the smoking policy is that it has both sticks and carrots. The carrot is we'll provide everything on the face of the Earth to help you quit smoking and get healthy. They have counselors, they have people who will call you up and nag you. That's the carrot. That's great.
The problem is the stick that says if you smoke, you're fired. We don't want you to work for us. And what we're saying is that that's really none of the employer's business, what people do that's legal in their private time. As long as somebody can come in and do his job and do a good job, that's all that matters.
HANSEN: Why do you think Scotts then hired Mr. Rodrigues in the first place if they knew he was a smoker? I mean, would it have been legal to try to avoid this problem in the first place by refusing to hire Mr. Rodrigues?
Mr. SCHWARTZ: That's not the facts of the case, for one thing. For another thing, Scotts chose to put him to work for a few weeks, and I think as a technical point that might be where the case turns. He had a uniform, he drove a truck. He spread chemicals on people's lawns. If he would have cut his foot off with a lawn mower, there's no doubt that he would've been entitled to workers compensation.
HANSEN: Do you think an employer has the right to ask you if you smoke or you drink?
Mr. SCHWARTZ: I think an employer has the right to monitor your work performance and anything you do that affects that performance. If you drink at night and come in hung over every morning, the employer has the right to fire you or to discipline you, not for drinking the night before but for coming in hung over the next morning.
So if Mr. Rodrigues wants to smoke at home, as long as it doesn't affect his employment, I think it's none of the employer's business.
HANSEN: The employer is contributing to an employee's health benefits, and the costs of those health benefits have been going up for companies. So could one not argue that the company's interest might outweigh this privacy issue?
Mr. SCHWARTZ: That's the slippery slope. What's more expensive for the company: Scott Rodrigues smoking or Joe Blow and his wife deciding to have five children? What about the employee who drives his motorcycle in to work? He's more likely to be hurt than somebody who drives an SUV.
HANSEN: What do you think a win for your client would mean?
Mr. SCHWARTZ: Well, I think the difference is between the stick and the carrot, and Scotts is to be commended for the health-promotion programs it has. Where Scotts went too far and where other employers should learn the line is drawn is when they start firing people because they're human, because they have faults. I mean, who doesn't do something that presents a health risk? Who doesn't eat at McDonald's sometimes or ride a motorcycle or fly a private airplane?
HANSEN: What would a loss mean?
Mr. SCHWARTZ: A loss is frightening because a loss says your employer can control not only your work life but your private life. It's bad enough to worry about the government controlling our private lives. If we have to worry about our employers controlling our private lives, that's a frightening thought.
HANSEN: Harvey Schwartz is a civil rights and an employment attorney with Rodgers, Powers & Schwartz in Massachusetts. He joins us from member station WBUR in Boston. Thanks for your time.
Mr. SCHWARTZ: Thank you.
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