Missouri, Kansas Casino Employees File Lawsuit Claiming Penalized As Smokers | KCUR 89.3
At least 1,500 casino workers in Missouri, Kansas and other states will be part of a class action lawsuit alleging their wages were illegally reduced because they smoke.
In a ruling on Tuesday, U.S. District Judge Stephen Bough in Kansas City granted workers class certification for their lawsuit against Penn National Gaming Inc., bringing them closer to getting their money back.
PNG operates 41 casinos in 19 states and employs 18,000 workers. The company’s subsidiaries include Argosy Casino in Riverside, Missouri; Hollywood Casino Saint-Louis; and Hollywood Casino at Kansas Speedway in Kansas City, Kansas.
The lawsuit was originally filed in Platte County Circuit Court in March 2020 by three casino workers, on behalf of workers in a similar situation. But PNG sent him to Federal Court, as it was entitled to do, a month later.
The lawsuit also alleged that PNG operated an illegal tip pool and illegally deducted from workers ‘wages what it cost casinos to obtain and renew workers’ gambling licenses. These applicants were also certified as a group by mutual agreement between the parties.
The issue in Tuesday’s ruling is whether casino health plans, which included a monthly $ 50 tobacco surcharge for smokers, violated ERISA, the federal law governing employee health plans. This is because the plaintiffs claim that PNG failed to inform plan members of another way to avoid the surcharge.
And while workers could avoid the surcharge if they followed a smoking cessation program, they were not reimbursed for the surcharges imposed on them before completing the program. Workers say this violated ERISA’s requirement that outcome-based wellness programs must inform participants of a “reasonable alternative standard” to qualify for a discount or discount.
The Bough certified class consists of all workers who participated in PNG’s collective health plan from 2016 to 2020 and had a tobacco surcharge deducted from their pay. The class is believed to have at least 1,500 members.
Alex Ricke, an attorney for Stueve Siegel Hanson in Kansas City, who represents the workers, said no PNG employee who has gone through a smoking cessation program in the past five years has been able to avoid the surcharge.
“Part of the reason something like an advisory is so important here, especially if you are legitimately concerned about the health of your employees, is that you want them to complete the smoking cessation program,” said Ricke.
George Hanson, another attorney for Stueve Siegel Hanson, said he believed Bough’s decision was the first of its kind involving a tobacco surcharge that allegedly violates ERISA.
Hanson said PNG penalized smokers who work in places where smoking is often ubiquitous.
“In some of these casinos it is still allowed to smoke,” said Hanson. “So think about the irony of penalizing a worker for smoking while they all smoke somehow in at least the facilities that allow customers to light up.”
A PNG lawyer declined to comment. PNG officials could not be reached for comment.
PNG two weeks ago reported revenue of $ 1.5 billion and net profit of $ 86 million in the third quarter, up from $ 141 million a year earlier.