Friday, August 8, 2008

Fired for Smoking

Back in April, I brought everyone the story of a German company that fired an employee for not smoking. This morning, the ABA Journal reports on the converse, an upstate New York law firm that fired a paralegal for taking a smoke break: 

A New York appeals court has upheld a Rochester law firm's decision to fire a paralegal who defied a policy that banned smoke breaks for hourly employees.

Karen Kridel had reportedly worked at the firm for more than a year and took a five-minute break in the morning and afternoon to smoke, the Associated Press reports. Kridel, who said the breaks re-energized her, claimed she often made up the time taking calls during her lunch break.

But the firm had banned smoke breaks for hourly workers, outside of the lunch hour, and in 2006 began enforcing it when five-minute breaks turned into 15 minutes, a half hour and then one employee was found sleeping in a car.

There is nothing inherently illegal about having a policy that bans smoke breaks, or terminating an employee for violating that policy. Smoke breaks cripple productivity. Those who abuse them annoy their co-workers and managers, who feel like they are left to do the smokers' work. I once had an assistant who I could never find because she was always outside smoking.

At the same time, however, companies need to be flexible in how they handle employees and their personal needs. Draconian policies (such as no smoke breaks under any circumstances) cripple morale. Moreover, such policies, if not followed to the letter, can lead to discrimination claims. For example, if the company is more permissive with a male paralegal who takes 5 minutes out of his day to run an errand, it could be subjecting itself to sex discrimination liability for treating the female smoker more harshly.

Instead of having a blanket "no smoke break" policy, consider counseling employees who are seen as taking advantage of smoke breaks by taking them excessively or without permission. Building such policies into employees' normal performance evaluations is a much better practice than an outright prohibition on an entire type of conduct.

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