Restricting employees’ off-duty conduct can be pretty tricky business. Do employers have the right to decide what workers can — and can’t — do after hours?
Here’s a real-life example of how trying to control off-the-clock behavior can leave employers on shaky legal grounds:
The Scotts Company in Massachusetts adopted a policy that required employees to stay tobacco-free — both on and off the job. For monitoring and enforcement purposes, employees would be required to submit to nicotine testing. The company said the policy had two key benefits:
- The policy would lower medical costs significantly, and
- The ban would promote healthier lifestyles.
New hire Scott Rodrigues was a smoker, but he never smoked at work or on company property. However, Rodrigues was given a mandatory nicotine urinalysis. The test showed nicotine was in his system. He was fired immediately.
Rodrigues sued, claiming mandatory nicotine testing violated Massachusetts’ Privacy Act. He argued that he had a reasonable right to privacy outside of work. He also pointed out that smoking was legal and had no bearing on his job performance.
Scotts asked the court to dismiss Rodrigues’ claim.
The state’s Privacy Act protects citizens’ rights to “unreasonable, substantial or serious interference,” so the court had to examine whether Scotts had a legitimate business reason to enforce the policy and require the testing. The court agreed Rodrigues might have a case under the Privacy Act and denied the company’s motion to dismiss.
Now, the company faces a costly trial — or an expensive settlement.
The lesson: If your company’s considering a wellness program with rules about what employees can do on their own time, make sure you check your state’s laws. Many have rules against firing someone because of legal activities they do outside of work.
Other jurisdictions, such as Connecticut, expressly forbid firing or discipline based on tobacco use away from the workplace.
What do you think? Should employers be able to create policies like the Scotts Company’s? Give us your opinion in the comments section below.
Cite: Rodrigues v. The Scotts Company
