Sunday, Feb. 14, 2010 | 2 a.m.
In Today's Sun
- CityCenter’s Aria to protect blackjack dealers from smoke (8-21-2009)
- Smoking study capped Caesars dealer’s long, lonely fight (5-12-2009)
- Study arms smoking foes (5-7-2009)
- Closer look at smoking ban (5-1-2009)
- Casino restaurant patrons can't elude secondhand smoke (1-16-2009)
- Study finds high pollution levels in casino restaurants (1-15-2009)
- Smoking ban not doing all the banning sponsors hoped (7-21-2009)
The danger of secondhand smoke is no longer an issue in most workplaces thanks to state and local smoking bans.
But Nevada has protected its casinos from smoking bans — the reason why chronic obstructive pulmonary disease kills at a higher rate in this state than others, according to the American Lung Association.
Don’t look for that to change anytime soon.
Because many gamblers smoke, the gaming industry says smoking is good for Nevada’s economy.
The courts have shrugged, saying lawmakers haven’t banned it.
The state Legislature doesn’t want to clear casino floors of smokers because it doesn’t want to incur the industry’s wrath or risk the loss of gaming revenue.
And even casino workers who are ill from smoke aren’t complaining; they say their livelihoods depend on the revenue of gamblers who smoke.
This isn’t to say that nothing is being done to minimize the effects of smoking in casinos.
Some of Las Vegas’ newest megaresorts have spent millions of dollars on high-tech air-filtration systems that suck up smoke and pump in fresh, scented air. These casinos are noticeably less smoky than some older ones with cheaper systems.
Still, job applicants at Las Vegas casinos are notified that if they work on the gaming floor, they would be working in smoke-filled environments, regardless of whether they are at a luxury resort or a low-end joint.
And when they find the smoke is making them sick, the top concern of a majority of workers is keeping their job, so they don’t rock the boat. They figure it wouldn’t do them any good anyway.
The Legislature, state courts and employers are lined up against casino floor workers, despite secondhand smoke being classified by the Environmental Protection Agency as a cancer-causing substance responsible for thousands of lung cancer deaths among nonsmoking Americans each year.
That classification — reiterated in a federal study last year that found toxins linked to secondhand smoke in Las Vegas casino dealers — is one of the many reasons Wynn Las Vegas dealer Kanie Kastroll is pushing forward with the first class-action lawsuit aimed at secondhand smoke to hold its ground against Nevada casinos in nearly a decade.
The odds are stacked against her in Nevada, but not as much as they would have been in the past, experts say.
Howard Cole, an employment attorney in Las Vegas who has been a consultant to casinos on secondhand smoke liability, says “it’s a changing ballgame right now” because of more smoking bans across the nation — including a partial one pushed through by Nevada voters in 2006 — and a few settlements in favor of casino employees in other states.
“Secondhand smoke is a legitimate concern. And this is still a developing area of law,” he says.
Kastroll’s Chicago lawyer Jay Edelson says the long-standing code of silence among casino employees is starting to break.
“I’ve been getting calls from people across Las Vegas and Atlantic City. These suits are not going to go away ... There will be others after them willing to go the distance against these powerful forces.”
Stephanie Steinberg, who operates a nationwide support network for casino workers called Smoke-Free Gaming, isn’t so sure.
Steinberg says she has been contacted by nonsmoking Las Vegas casino workers diagnosed with lung cancer after decades of breathing smoke at work.
“I ask them, ‘Why do you continue to work there if you have lung cancer?’ And the answer is always the same. They say they need their jobs — and the health insurance — more than ever.
“People who complain about smoke are written up and could lose their jobs,” Steinberg says.
Kastroll, 42, is thought to be the first casino worker in Nevada to sue over secondhand smoke while still employed.
“I have everything to lose by doing this, but I’m the kind of person who will speak up if something is wrong,” says Kastroll, a dealer for more than 20 years. “Why is secondhand smoke in a casino restaurant, theater or shop viewed as toxic, but in a gaming area it is acceptable — even encouraged?”
She says her suit was spurred, in part, by another dealer who developed cancer. A study last year by the National Institute for Occupational Safety and Health on health risks of secondhand smoke in casinos also contributed to her decision.
The study “validated what we already knew” and served as a “wake-up call” for casino workers, she said.
Dealers who asked to be moved to nonsmoking tables were told no by Wynn Las Vegas, Kastroll alleges in her lawsuit.
Steinberg has been unsuccessful in her attempts to help Las Vegas dealers work at tables where gamblers can’t smoke — even a dealer who was seven months pregnant.
“The pit boss told me he doesn’t give people ‘special treatment,’ ” Steinberg says.
Kastroll has the clout of holding the presidency of Transport Workers Union Local 721, which represents dealers and is negotiating a contract with Wynn Las Vegas. But Joe Carbon, the union’s national gaming director, has publicly distanced himself from her lawsuit, saying the Wynn’s air-filtration system is “as good or better than any other property on the Strip.” He has also said that lawsuits like this don’t help contract negotiations.
Moreover, some dealers want smoking allowed because they think a ban would reduce the number of gamblers and therefore reduce tips, Carbon says.
Kastroll says health and a longer life are more important than money, and her lawsuit says federal and state laws that obligate all employers to provide a safe workplace back that up.
Kastroll is not after money. Instead she is asking the federal court to order improvements in air quality for Wynn’s casino workers. If she succeeds, her case would set a precedent and have implications for all casinos.
In its court filings, Wynn notes that Nevada “specifically endorses Wynn’s alleged policies and practices toward secondhand smoke” and that smoking is permitted in casinos under the partial smoking ban.
The American Heart Association has pointed out that Nevada’s failure to include gambling areas, where smoke is most concentrated, in its smoking ban is the reason the state has not seen a significant decrease in heart attacks. Other states saw such a drop after passing comprehensive smoking bans.
Proponents of Nevada’s ban didn’t even try to include casinos because they feared the gaming industry would then crush the initiative. A partial victory was considered better than the complete defeats of the past, including efforts to seek workers’ compensation for illnesses they claim they suffered as a result of inhaling smoke at work.
Health problems stemming from secondhand smoke — unlike those caused by asbestos, anthrax or other harmful substances — are not covered by Nevada’s workers’ compensation, the only outlet for workers injured on the job.
Nevada’s District and Supreme courts have ruled that workplace smoke claims “must fail” until the Legislature changes state law to specifically cover them. The power to protect casino employees harmed by smoke rests with the Legislature, they said, and not the courts.
Assemblyman Richard Segerblom, an employment attorney, says a smoking ban in casinos is “inevitable” but won’t come from state officials or lawmakers. “The Legislature is not going to tackle this because (casinos) are too big a revenue source for the state,” he says.
He predicts the ban will come from a ballot initiative driven by the majority of Nevadans who don’t smoke or from the U.S. Occupational Safety and Health Administration, which regulates workplace safety and indoor air quality.
That agency tried to pass a bill in 1994 banning workplace smoke. Government workers blamed its failure on President Bill Clinton’s need to curry favor with tobacco-growing states in advance of his re-election campaign.
“Under federal law, even workers who want to work around smoke don’t have the right to work in a dangerous environment,” Segerblom says. “But the administrative process takes time.”
While successfully beating back liability claims in Nevada, casinos in other states face an increasingly uncertain legal battlefield over secondhand smoke.
A significant victory for casino employees was a workers’ compensation case in 2008 when an Atlantic City resort was found liable for secondhand smoke in connection with a dealer’s lung cancer.
Employees also have had some success suing riverboat casinos, but that is in part because federal law enables workers on seafaring vessels to sue employers for damages stemming from workplace injuries.
Casinos aren’t entirely off the hook for secondhand smoke: Employers who fail to offer good ventilation systems or rely on pre-ban policies risk higher health care costs and potential legal expenses, according to Cole, the Las Vegas employment attorney. However, because the largest casinos have self-funded insurance programs, they could pass on those higher health care costs to employees in the form of higher health insurance premiums.
MGM Mirage spokesman Alan Feldman says his company — and the industry as a whole — are doing their best to juggle the needs of two vocal interest groups: smokers and nonsmokers.
“I think the industry is trying to do what’s right amid conflicting policy directives,” he says. “We’re in a customer service business, and this is an activity that many customers enjoy very much. We all strive to be good and responsible employers ... but this is also an economic issue.”
Kastroll sees it differently.
“We all need our jobs,” she says. “But what price can you put on someone’s health? On someone’s life?”