Man Fired for Smoking Can Pursue Privacy Claim

A man who was fired from a lawn service company after testing positive for nicotine in a mandatory urine test can pursue an invasion-of-privacy claim, a federal judge in Boston has ruled.

U.S. District Judge George O'Toole said plaintiff Scott Rodrigues properly stated a cause of action for invasion of privacy and rejected former employer the Scotts Co.'s motion to dismiss that claim.

The judge did dismiss the claims alleging violation of the Massachusetts Civil Rights Act and wrongful termination in violation of public policy.

According to the complaint, Rodrigues was required to provide a urine sample shortly after he was hired as a lawn service technician. The test was required under the company's anti-tobacco policy, which prohibited employees from smoking tobacco products at all, even on their own time, it says.

The policy was enacted to "save money on medical insurance costs and to promote healthy lifestyles among its employees," according to the company.

Rodrigues was fired after testing positive for nicotine use, the complaint says.

He sued Scotts in the U.S. District Court for the District of Massachusetts for wrongful termination, invasion of privacy and violation of the Massachusetts civil rights law.

The company moved to dismiss the complaint for failure to state a claim, and Judge O'Toole threw out the claims alleging wrongful termination and violation of the state civil rights law.

The judge said the civil rights claim must be dismissed for failure to allege that Scotts had interfered with Rodrigues' rights by "threats, intimidation or coercion."

Next, the judge explained that because Rodrigues was an at-will employee, his wrongful-termination claim hinged on his ability to show that his firing violated public policy.

A termination that violates public policy fits Massachusetts' narrow exception to the at-will employment doctrine, the judge noted. The right to smoke does not fall among the "weighty public policy matters" the law explicitly recognizes, he said.

"There is simply no reason to believe it likely that Massachusetts courts would find termination of an at-will employee/smoker to be against a putative public policy to protect smokers' rights," he added.

However, Judge O'Toole said Rodrigues would have the opportunity to prove that the company invaded his privacy.

Courts have held that the state civil rights law "proscribes the required disclosure of facts about an individual that are of a highly personal or intimate nature when there exists no legitimate countervailing interest," the judge said.

Here, the company's legitimate interest in determining employee effectiveness should be weighed against the seriousness of the intrusion on their privacy, he said.

Because such a balancing of interests involves a factual inquiry, the parties must conduct discovery and, if necessary, complete a trial, Judge O'Toole held.

He noted that Rodrigues had claimed a plausible right to privacy and credibly argued that this right outweighs Scotts' interest in promoting a generally healthy workforce "that will have high productivity and low health care costs."