Monday, February 4, 2008
Thanks to Christopher Timmermans for sending me this interesting case concerning ERISA and companies who wish to rid themselves of employees who smoke.
This past Wednesday, an employee's claim for violations of ERISA for firing him after he tested positive for nicotine survived a motion to dismiss. As is fairly well known, The Scotts Company does not tolerate smoking by its employees--even off duty.
Judge O'Toole writes in the District of Massachusetts opinion:
In this action, the plaintiff claims that Scotts (as the defendant companies are collectively designated) wrongly terminated his incipient employment after a required urine test confirmed the presence of nicotine, indicating that the plaintiff is a smoker of tobacco. The defendants have a policy against employing smokers. The plaintiff claims that the enforcement of that policy against him was wrongful under Massachusetts law and also constituted unlawful discrimination under the federal Employee Retirement Income Security Act (ERISA) . . .
Rodrigues' position is that in terminating his short-lived employment because he was a smoker, Scotts “interfer[ed] with the attainment of [a] right” to which he would have become entitled-participation in the Scotts employee benefits plan-if he had remained employed . . .
“The ultimate inquiry in a section 510 case is whether the employment action was taken with the specific intent of interfering with the employee's ERISA benefits.” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir.1995). Two related points deserve notice. First, section 510 does not apply to those instances where “the loss of benefits was a mere consequence of, but not a motivating factor behind, a termination of employment.” Barbour, 63 F.3d at 37. And second, section 510 “relates to discriminatory conduct directed against individuals, not to actions involving the plan in general.” Aronson v. Servus Rubber, Div. of Chromalloy, 730 F.2d 12, 16 (1st Cir.1984). The resolution of each of these issues may depend on what facts the plaintiff may ultimately prove. Scotts' expectation that the facts ultimately proved (or not proved) will resolve the issues in its favor is not enough to warrant dismissal on a Rule 12(b)(6) motion.
The full cite for the opinion is Rodrigues v. Scotts Co.,
LLC, 07-10104 (D. Mass. Jan. 30, 2008) (Westlaw subscription required). And documents from the case are here, here, and here.
I don't know the underlying facts here, but I think it may well be difficult for the plaintiff to prove sufficient facts that his firing was motivated to interfere with his benefits. That being said, perhaps the point can be made that because Scotts believes smokers will cost the company more in health care, they fired the worker so that he would not become eligible for the health plan and start claiming benefits under the plan.
Anyway, should be an interesting case to follow.