U.S. District Judge Stephen Bough in Kansas City recently granted certification for a class action lawsuit against Penn National Gaming brought casino workers in Missouri, Kansas and other states.
The workers, who are smokers, claim a $50 monthly tobacco surcharge withheld from their paychecks violated federal law regarding employee health plans. The certified class includes about 1,500 workers who participated in Penn National’s group health plan from 2016 to 2020 and had the tobacco surcharge deducted from their wages.
The lawsuit originally was filed in Platte County Circuit Court in March 2020 by three casino workers, on behalf of other workers in a similar situation. Penn National moved the case to federal court, as it was entitled to do, in April 2020.
The lawsuit also alleged Penn National operated an illegal tip pool and also unlawfully deducted from workers’ wages the cost of obtaining and renewing the workers’ gaming licenses. Both parties have agreed those claimants can be certified as a class.
Workers were informed they could avoid the surcharge if they completed a smoking cessation program. But they weren’t reimbursed for the surcharges that accumulated prior to completing the program.
Attorney Alex Ricke, representing the workers, said no Penn National employee who completed a tobacco cessation program over the last 5-plus years has avoided paying the surcharge. Attorney George Hanson, also representing the workers, said Bough’s ruling was the first of its kind involving a tobacco surcharge that allegedly violates federal laws. He said Penn National was penalizing smokers who work in environments where smoking is common. He said, “In some of these casinos, smoking continues to be permitted. So just think of the irony of penalizing a worker for smoking when they are all smoking in some way in at least those facilities which permit patrons to light up.”
Penn National operates 41 casinos in 19 states and employs 18,000 workers. Venues include Argosy Casino in Riverside, Missouri; Hollywood Casino St. Louis; and Hollywood Casino at Kansas Speedway in Kansas City, Kansas.
