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Smoking off duty can mean "lights out" for your career
12/7/2006
 
ROBIN'S PERSPECTIVE: What are your chances of getting fired for after-hours behavior that's 100% legal? Shocking though it may seem, some companies are intruding over the line between work and personal lives, and firing employees whose after-work conduct or political views do not mesh with the sensibilities of their employers and supervisors. Joining the list of those who have learned this lesson the hard way is Scott Rodrigues, a former employee of The Scotts Company, a manufacturer of pesticides and other lawn care products, who was recently fired for smoking while off the job. Other members of the list include Lynne Gobbell, who used to pack insulation at Enviromate in Moulton, Alabama, before she was fired for displaying a John Kerry bumper sticker in 2004 and four Okemos, Michigan-based workers at the employee benefits firm Wyeco, Inc. who, like Mr. Rodrigues, were fired for off-duty use of tobacco products.

And how about Atlantic City employer Borgata Hotel Casino & Spa's weight policy? The hotel requires its 200+ bartenders and waitresses the latter of whom are otherwise known as "Borgata Babes" to submit to periodic weigh-ins. Employees who gain more than 7% of their body weight are suspended without pay for 90 days and then fired if they fail to lose the weight during their suspension. (Expectant and new mothers are exempt from the requirement provided they lose their pregnancy pounds within 3 months of resuming work.)

All of these cases raise an obvious question: what rights do employees have? Since "at-will" employment is the rule in most states, which means that employers can fire workers with or without reason, could it possibly be that employees have no recourse as employers keep pushing over the line into their personal lives? The answer lies in what protections each state law has enacted to cover various types of off-duty conduct. And, of course, federal, and even some local laws, can provide some protections. For example, Title VII of the Civil Rights Act prohibits employers from discriminating against employees (or potential hires) based on characteristics such as race, religion, gender and national origin, and various state laws afford employees additional protections.

Ironically, two of the most progressive states in promulgating anti-smoking legislation -- New York and New Jersey (both of which have banned smoking in restaurants, bars, and at work) -- have laws which prohibit employers from firing employees for smoking outside of work. Unfortunately for Massachusetts resident Scott Rodrigues, his state has not enacted such protections although its capital city has.



 
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Robin Bond
 
Robin Bond, Esq.
 
 
Workplace Legal Analyst


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