Those of you who were interested in Ross v. Ragingwire Telecommunications — the case that said you can be fired for using legal-in-California medical marijuana — may also be interested in a couple of other cases I ran across this morning. Both are about whether an employer can fire you for legal behaviors you engage in outside of work that aren’t directly related to work.
The one with the more obvious analogy to Ross is Rodrigues v. Scotts Co., out of Massachusetts federal court. The plaintiff got a job with a company that forbids smoking, and when a pre-employment pee test turned up nicotine, he was fired. Interestingly, he based his suit on ERISA (that’s the Employee Retirement Income Security Act, which regulates worker benefit packages) as well as some Mass state laws. Prof. Secunda from Workplace Prof Blog isn’t sure how robust the ERISA claim is; I wonder if Rodrigues thought he’d have more luck in federal court. So far, he’s right insofar as the district court denied summary judgment. A lot will probably turn on what argument the guy’s lawyers make and whether the jury thinks saving money on health insurance is a compelling reason to discriminate on the basis of smoking.
The other case I ran across is a Ninth Circuit opinion on whether a police officer can legally be fired because he and his wife run an amateur pornography site during their off hours. Dible v. City of Chandler. The officer got fired, got annoyed, and filed a lawsuit alleging First Amendment violations. The district court in Arizona granted summary judgment to dismiss the case, and the Ninth Circuit upheld it. The majority seems to be saying Dible’s behavior may or may not have been work-related, but wasn’t protected by the First Amendment because it wasn’t speech on a matter of public concern, cast the police department in a bad light, and anyway he broke police department rules. There’s a dissent that seems to say that Dible’s First Amendment claim is legit because his behavior wasn’t explicitly work-related, and that’s all that matters.
Considering both opinions and Ross all together, it’s not at all clear to me that the courts will protect employees from firing based on behaviors they engage in on their own time. I’ll leave the slippery slope argument for others to make, but I’d be interested to see whether any employer has made a rule against junk food or other health-related behaviors.
Get out your dictionary, BTW, for this line from Dible:
Whatever a periplus of the outer limits of public concern might show, it was pellucid that Roe’s vulgar behavior would be discovered to be outside of those borders.
Written for the majority by Judge Ferdinand F. Fernandez (really!). OK, Judge Fernandez, we promise we’re paying attention.
2 Comments
February 4, 2008 at 2:19 pm
Those words feel on the cusp of having been made up.
February 4, 2008 at 3:47 pm
Yes, particularly “periplus,” for which I couldn’t find a more pointed definition. While I have mad respect for Ninth Circuit judges, I do feel strongly as a writer that good communication is simple. Which means only using fifty-cent words if you truly need to.