Penn National Casino Workers Who Smoke File Class Action Lawsuit Against Company

Posted on: November 18, 2021, 08:44h. 

Last updated on: November 18, 2021, 10:35h.

Devin O'Connor @CasinoorgDevinO Read More
Expertise: Asia Pacific Gaming, Commercial Gaming, Legislation, Politics.

Penn National Gaming (PNG) is the defendant in a class action lawsuit brought by some 1,500 employees who work inside the company’s casinos and who regularly smoke tobacco.

Penn National casino smoking
Penn National Gaming casino workers who have conceded to their employer that they smoke say they shouldn’t be subjected to a $50 monthly surcharge to cover their increased health care costs. A federal class action lawsuit on the matter is moving forward in Missouri. (Image: Shutterstock)

In a lawsuit first filed in Missouri last year, PNG workers in at least two states say their employer has been wrongly deducting a $50 monthly charge from their paychecks because they are smokers. Penn contends that the money is used to help offset some of the higher insurance premiums it pays to cover the self-admitted tobacco users.

The case has since moved from Platte County Circuit Court to the federal Western District of Missouri. Attorneys representing the more than 1,500 plaintiffs allege that PNG did little to encourage the workers to complete a smoking cessation program in order to avoid the surcharge.

Part of the reason something like a notice is so important here, especially if you’re legitimately concerned about your employees’ health, is you want them to complete the tobacco cessation program,” representing attorney Alex Ricke told NPR in Kansas City.

PNG told Casino.org that the company does not comment on pending litigation.

Lawsuit Seeks Lost Wages

Penn National operates 41 casinos in 19 states and has some 18,000 workers. The lawsuit predominantly involves PNG employees at the company’s Argosy Casino Riverside and Hollywood Casino St. Louis — both in Missouri — and Hollywood Casino at Kansas Speedway in Kansas.

The plaintiffs argue that even those who did complete a smoking cessation program often continued to be hit with the $50 monthly fee.

This week, US District Judge Stephen Bough allowed the class action lawsuit against PNG to proceed to a formal hearing.

Bough ruled that allowing the class action suit to continue is in the best interest of all, as “The monetary amounts of the tobacco surcharge would not likely be worth the filing of separate lawsuits.”

The legal challenge is expected to boil down to determining whether the tobacco surcharges violate amendments of the Employee Retirement Income Security Act (ERISA) and Penn’s fiduciary duty to the plan’s participants.

Health insurance costs for known smokers are substantially higher than they are for nonsmokers. The New England Journal of Medicine reports that health care premiums are as much as 40 percent higher.

The Irony

The class action attorneys say it’s more than a bit ironic that Penn National is penalizing its workers who smoke when at least part of their workplaces permit indoor tobacco use. Casino smoking is allowed inside Penn’s properties in both Kansas and Missouri, where the plaintiffs work.

“Part of the enjoyment of going to the casino has been being able to smoke,” opined Missouri Gaming Commission Chairman Mike Leara earlier this year.

Missouri requires casinos to designate smoking and smoke-free gaming sections. But in Kansas, casinos are free to allow indoor tobacco use throughout their casino space.

The CDC says people who do not smoke but are exposed to secondhand smoke at work experience a 25-30 percent increased risk of developing heart disease.