An employer adopted a policy to hire only nonsmokers. After a new hire tested positive for nicotine, he was fired. He then sued the employer, claiming wrongful discharge and invasion of privacy.

What happened. In an effort to curb medical costs and promote a healthy lifestyle, the Scotts Company in Massachusetts adopted a policy prohibiting its employees from smoking, both on and off work. To monitor compliance with the policy, employees were required to submit to nicotine testing. New hire, “David,” was a smoker, but he never smoked at work or while on company property. David’s mandatory urine test was positive for nicotine, and Scotts immediately fired him. David sued Scotts on several grounds, including that his firing violated public policy and that the mandatory nicotine testing violated the state’s Privacy Act. Scotts moved to dismiss the claims.

What the court said. David’s public policy claim was based on his contention that he had a “right” to smoke cigarettes outside of work. The court noted that under Massachusetts law, an “at-will” employee, such as David, can be fired at any time, for any reason, unless the firing violates public policy. The public policy exception is limited to firing an employee for asserting a legal right, performing a legal duty, refusing to commit a criminal act, reporting criminal activity, or assisting a criminal investigation.

The court held that smoking was not within the narrow parameters of the public policy exception to the at-will doctrine. It agreed with Scotts that public policy in Massachusetts was less likely to be found in a right to smoke and more likely to be found in efforts to discourage smoking. Thus, the court dismissed this claim.

Next, the court examined David’s claim under the Privacy Act. David asserted that he had a reasonable expectation of privacy in information about his legal activities outside of work. The court noted that the Act protects citizens from “unreasonable, substantial, or serious interference” with their privacy. Deciding whether Scotts’ antismoking policy violated David’s privacy required balancing Scotts’ legitimate business interest in “determining employees’ effectiveness on the job” against the seriousness of the intrusion on David’s privacy. Because this inquiry necessitated further factual development, the court denied Scotts’ motion to dismiss. Rodrigues v. The Scotts Company, LLC, U.S. District Court for the District of Massachusetts, No. 07-10104-GAO (2009).

Point to remember: Adopting a policy restricting employees’ off-duty conduct may not violate Massachusetts’ public policy, but it could lead to liability under a state law, such as the Privacy Act. Any such policy should be reviewed by an attorney before implementation.