Casino Workers Ask NJ Supreme Court to Rule on Constitutional Right to Safety in Smoking Case

A coalition of casino workers has petitioned the New Jersey Supreme Court to determine whether they have a constitutional right to safety, challenging a legal exemption that permits smoking on Atlantic City casino floors.

The United Auto Workers union filed the appeal arguing that lower courts made errors in finding the state constitution does not grant a right to safety and that the casino exemption in the 2006 Smoke-Free Air Act does not constitute unconstitutional special legislation, according to court documents.

“I’m really hoping that they take this seriously and quickly because every single day is dangerous for my clients,” said Nancy Erika Smith, an attorney representing the workers.

The UAW and Casino Employees Against Smoking Effects, known as CEASE, have spent years attempting to eliminate the carveout that allows smoking on casino floors. The groups argue workers are forced to bear the health impacts of secondhand smoke exposure.

In their Supreme Court appeal, the workers challenge a trial court judge’s ruling that found no right to safety exists in New Jersey’s constitution. The groups point to language in the state constitution that begins by stating all people “have certain natural and unalienable rights among which are those … of pursuing and obtaining safety and happiness.”

An appeals court ordered the judge to rehear the case in January but declined to address the workers’ claims about the right to safety, stating that matter should be left to the state’s highest court.

“I want the court to say, ‘Yes, the statement in the first sentence of the New Jersey constitution isn’t meaningless,’ that no words in the constitution are meaningless, that there is a right to safety,” Smith said.

If the Supreme Court establishes this constitutional right, it would counter economic arguments casinos have presented to maintain the smoking exemption. Gaming establishments and unions representing other casino workers have argued that prohibiting indoor smoking would drive gamblers to casinos in neighboring states where smoking remains permitted.

An attorney for the Casino Association of New Jersey declined to comment on the appeal.

The workers also seek to have the carveout declared unconstitutional special legislation, which would mean the law improperly favors one group over others in similar situations. The trial court judge previously rejected this classification, citing portions of the state constitution that specifically reference Atlantic City and grant it authority to host casinos and gambling operations.

The filing challenges lower courts’ acceptance of a casino-backed report claiming that banning smoking inside gaming facilities would result in revenue losses. The workers argue these findings contradict reports from other industry groups.

The UAW additionally requested that the Supreme Court find lower courts made errors in their equal protection analysis by excluding worker safety considerations.

If the Supreme Court accepts the appeal—which it must do for cases involving unsettled constitutional questions—a favorable ruling for the UAW could immediately end the smoking exemption or return the matter to state Superior Court for further proceedings.

Meanwhile, parties in the lower court case are preparing for discovery ahead of a July evidentiary hearing that will examine both sides’ economic claims. The trial court previously ruled on competing economic arguments without conducting a hearing before the appellate court sent the case back for reconsideration.

The battle over casino smoking has continued for years. During the early stages of the pandemic, workers lobbied the Legislature to eliminate the exemption, but those efforts failed despite the bill gaining sponsorship from a majority of lawmakers in both chambers. Some lawmakers later withdrew their support.

The current legal challenge represents the workers’ latest attempt to end what they view as an unfair health risk imposed on casino employees in Atlantic City’s gaming industry.