Judge sides with lawn care firm Workers cannot smoke on or off job
Jump to full article: Boston (MA) Globe, 2009-08-08
Author: Jonathan Saltzman Globe Staff
Intro: Rodrigues's smoking was not a protected privacy interest because he never kept his puffing a secret.
In granting Scotts's motion for summary judgment, US District Court Judge George A. O'Toole Jr. said that Rodrigues admitted in a deposition that he smoked while walking down the street and in a restaurant parking lot and was caught by a Scotts supervisor with a pack of cigarettes on his dashboard.
"It is clear from those admissions that Rodrigues has not attempted to keep the fact of his smoking private,'' O'Toole wrote.
The judge also rejected Rodrigues's contention that his firing violated the 1974 federal law that protects employees' rights to their benefits. O'Toole said that law did not protect Rodrigues because he was not yet a bona fide employee and was only working on the condition that he passed the urinalysis.
Rodrigues, 32, said the ruling was stunning and accused O'Toole of bias in favor of corporations. . . .
Rodrigues's appeal, Schwartz said, will address "an important fundamental legal question, which is whether an employer can fire an employee who smokes on his own time away from work because the employer wants to save on medical insurance costs.''
Edward L. Sweda Jr., a senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law, said he was not surprised by O'Toole's ruling because "there is no inherent right to both smoke and have a particular job.''
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