Human Resources News & Insights

Fired for smoking? Court says that’s OK

Companies now have all sorts of different rules regarding smoking during the workday. Did you ever wonder what would happen if an employee broke one of those rules? Now we know how one company handled the situation and that its decision has held up in court.

Karen Kridel worked for a Rochester, NY, law firm as a paralegal and was paid hourly. Every day she took two five-minute smoke breaks — one each in the morning and afternoon. She said she made up the time she took during the breaks.

Then the law firm banned smoking breaks for hourly employees but allowed them for salaried workers such as lawyers.

Kridel continued to take her two smoke breaks each day. The law firm fired her for misconduct.

She applied for unemployment benefits are received $3,000 worth before an appeal board disqualified her on the grounds that she was fired for misconduct. Kridel had originally told the unemployment office she was let go for lack of work.

She appealed the decision to take away her unemployment benefits.

Unfair treatment?

Kridel is quoted by law.com as saying, “If you’re addicted to cigarettes, you can’t just do that,” referring to the sudden cut off of smoke breaks. “Within an eight-hour day, you are entitled to take a break in the morning and in the afternoon,” she said. “I didn’t expect to get fired for smoking.”

A partner in the law firm, Gerald Dibble, wouldn’t speak directly about Kridel’s case.  He said five-minute breaks were being drawn out to 15 minutes or even a half hour. Some nonsmokers even joined the smokers just to chat.

The New York Supreme Court Appellate Division upheld the Unemployment Insurance Appeal Board’s decision to deny Kridel benefits, noting that she was fired for misconduct and that she misstated the reason she was let go from the law firm.

Kridel has also been ordered to pay back the $3,070.50 in unemployment insurance benefits she received.

This case shows that rules for salaried and hourly employees at the same company are often different — and that those policy differences will hold up in court.

What do you think about this case? And how do you handle complaints from hourly employees that salaried workers appear to receive special privileges? You can let us know in the comments box below.

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  • Marianne

    I think is was unfair!
    I also work in a company as a salaried employee, and other dept’s are hourly.
    The hourly and salaried emloyees do not get break periods.
    There is also different supervisors for each dept. and one supervisor allows his
    men to take breaks whenever they want one in order to have a cigarette but are told to walk over to 7-11 to have the cigarette.
    Now, about 2 years ago the company issued a general notice/warning that there
    is to be no smoking on the premises, other than on their lunch breaks.
    I do not think this is fair. Wether hourly or salaried, if a general rule is posted it
    means everyone upholds the rule.
    To me, this situation is discrimination.

  • http://www.valueoptions.com Seth Rivest

    Being a smoker myself, I can sympathize with this particular situation. However, I do agree that if this employee was violating an established policy by taking breaks that exceeded the limit outlined in that policy, she should be disciplined. In this case, up to and including termination. Although, I would be interested to see how much backup documentation was produced with regard to prior disciplinary action to justify termination in this case.

  • Linda

    I believe there was more to it than “just the smoking”, as Gerald Dibble stated – her breaks were being drawn out to longer periods of time AND didn’t she lie when she applied for unemployment. – after all she was fired for misconduct – not for smoking

  • Debbie

    Salaried and hourly employees are compensated differently based on job descriptions and requirements. Whereas hourly employees are to be given two 15 minute breaks each day during an 8 hour workday with a lunch break, salaried employee breaks are not defined in most cases. Hourly employees are entitled to OT compensation, salaried in most cases are not yet expected to work whatever is needed to complete the assignments in the time frame required. This applys to travel, overnight trips, etc. Since 15 minute break times are given to hourly employees, these should be used as smoke breaks and extra breaks should be at the discretion of the employer.

  • Lauren

    I think it’s important to note that laws regarding rest and/or meal periods are state-specific. There is no law in New York regarding rest periods for employers in the private sector. New York does have several laws regarding meal periods, but regardless, Kridel is incorrect when she says that, “You are entitled to take a break in the morning and in the afternoon.” If you work for a private employer in the state of New York, that’s simply not true.

    It’s also fairly typical for hourly workers to be treated differently than salaried workers (I assume you mean salaried AND exempt, since salary is just a pay method). Salaried, exempt workers aren’t paid for their time like hourly workers are, so in my opinion there’s not as much of a need to strictly regulate their rest & break periods.

    There’s probably a court somewhere that would consider addiction to nicotine to be a disability (in fact, I’m sure I’ve seen cases like this in the news lately). But the issue really isn’t that Kridel was a smoker, it’s that she was taking unauthorized breaks, and her insubordination got her fired. Unfair? Sure. Illegal? Definitely not.

  • Terri

    Sounds like she lost her benefits due to misrepresentation of reason discharged, not because of her misconduct regarding the smoke breaks.
    We have a Company policy which states that there is no smoking on company property except within employees automobile during breaks and lunch. Applies to both hourly and salaried and has been upheld with no problems.

  • Sherry Says:

    This case is totally unfair and injustice to hourly workers verses exempt priviliges. Rules for any company should apply to everyone, not one set of policies for exempt and another set for hourly (non-exempt).
    I can not believe the courts upheld the company decision and denied the employee compensation. I would move this up the ladder to an appeal court and the supreme courts if necessary.

    Smoking is banned from within 15 feet of the entrance of businesses, and laws do not justify the rights to specify a company can terminate an employee due to the habit of smoking cigarettes.
    I am employed for a large company and all employees union, non-exempt and exempt have to obey the same rules and regulations when it comes to breaks (by law – federal if I am not misunderstanding) all companies are required to give employees 10-15 minute breaks for every 4 hours worked.

    2 breaks in 8 hours and additional breaks for hours worked over 8 (12 hour day)

    If I was in the sistuation I would continue researching and move further on this suit to prove justice to myself and others.

  • bb

    “The New York Supreme Court Appellate Division upheld the Unemployment Insurance Appeal Board’s decision to deny Kridel benefits, noting that she was fired for misconduct and that she misstated the reason she was let go from the law firm.”

    I think the question here is – would the outcome have been the same if she had not misstated the reason she was let go from the law firm.

  • Todd

    I think smoking on the job is very costly to the employer. If you add up all the time employees spend smoking and not working, it’s a big cost and contributes to the lack of productivity. Also, the smokers are often out sick more often than non-smokers.

    However, I think the smoking ban should apply to both hourly as well as salary employees. Perhaps companies assume that salaried employees put in more time, so they don’t lose productivity whereas hourly are getting paid even when they stop to smoke.

  • Tony

    Unfair is an understatement. I understand that some policy’s will differ for salary and hourly but a smoking policy should be a general rule for everyone either we smoke or we don’t.

  • Tom Skinta

    Think it was absolutely correct for the Rochester, NY law firm to fire the individual for violating the company’s non smoking policy. As the article notes and I have seen, smokers use their smoking to not only satisfy their addiction but also to have a reason to take or extend break times. Have you ever seen one smoker smoking by themself……..not ususally. It turns out to be social event that impacts productivity and is unfair to to the nonsmokers who must stay at their work locations. By the way, for those who don’t understand the law………..a revelation, you can “discriminate” and make decsions that are not necessarily equal in all respects except in those specific areas protected by law………an employee accepts compensation for their services and, in turn, must comply with all company policies and procedures. Know that for some of the more liberal minded among us that is a difficult concept to accept but, it is the reality of the workplace. Need to address that addicition!

  • Victoria

    It is important to note that this case is about whether the employee was eligible for unemployment benefits; NOT whether the company violated any requirement to provide rest breaks, or whether she was taking additional time out of her day to smoke.

    I would be interested in knowing if she was allotted and used two 10-minute rest periods, in addition to taking the additional smoke breaks.

  • Lauren

    Victoria, I think we understand what the case is about. It just seems as though some people (wrongly) believe Kridel WAS entitled to rest periods, which is why I pointed that out.

  • Roy

    This is not discrimination because you are not discriminating against a protected class. As long as you treat everyone equally and say “all hourly employees” cannot smoke on their breaks then it’s ok. It might be unfair but since when do companies have to be fair. The interesting thing here is that exempt employees were allowed to smoke on their breaks. Typical law firm mentality believing the attorneys are above the policy. If you’re going to implement a no smoking policy then it should be for all employees.
    We have an interesting situation with my company in that our employees are aloud to go outside for their smoke breaks but employees cannot leave the building to go outside and walk during their breaks. Go figure!

  • Lauren

    I agree with you, Tom. If we’re going to have a discussion about what’s “fair” rather than what’s legal, I think it’s certainly unfair that someone should be entitled to additional breaks simply because they’re addicted to a cancerous substance. Not my problem.

  • Dave

    Some companies have refused to hire smokers, and have also fired smokers, even if they don’t smoke at all during the work day. They claim it’s a cost issue. Raises an interesting question: when is it ok to discriminate in hiring when the characteristic being screened is completely legal and takes place completely outside the work environment? ln addition to smoking, another example could be motorcycle riding. Any kind of extreme sports. Weight. Sexual orientation. Political party. Vegetarian (or non-) status.

  • Lauren

    bb, I’m not sure how liberal the UI judges are in NY, but in our state, falsifying a claim would definitely be enough to disqualify a person for benefits, even if he or she would have otherwise been qualified.

  • Mary

    Salaried employees have always been given special privlages. It is unfair and should be considered discriminatory. If a closer look is taken, there are probably more males that are salaried than women. All employees should be treated the same regardless of whether they are salaried or hourly when policy’s such as no smoking are enacted. The distinction of salaried or hourly is due to wage and hour laws regarding overtime. It should not be used as a means for salaried employees to receive special treatment simply because they are salaried. This creates animosity amongst employees and eats away at company morale. Why should salaried employees be permitted to take smoke breaks which can add up to hours per day and hourly employees be limited to break time or in this case not at all.

  • Lauren

    This isn’t the issue in this particular case, but it’s worth pointing out that in some states, smokers ARE considered a protected class. There are also states that bar employers from regulating an employee’s off-duty conduct, meaning you could prevent an employee from smoking on your property but you could not discipline, fire, or fair to hire him because he smoked at home.

  • Roy

    Mary, your right, salaried employees are given special privileges like having to stay late, come in early, work on the weekends, or even work at home without any extra pay. Wow what a privilege!

  • Lauren

    Roy, you’re so right. You can’t have it both ways!

  • Sara

    If an employee wishes to take their 15 minute break smoking then it should be fine as long as the employee is not on property. Their car should be a good place to go. Believe me when I say smokers are not the problem at all. There are employees who stand around for hours out of each day being less productive then a smoker and their 5 minute smoke break.

    It seems to me that corporations are now pushing their values of smoking or non-smoking toward their employees which is discrimination. If they hit on smokers (because of insurance) then they should also include the overweight, people that eat fast food all the time, people that dont have a exercise plan or program, and all the other things that will make you use your insurance. Of course they can also discriminate against people with small children (shots and wellcare visits) people who have baby after baby (maternity benefits) and people with eye problems (constant eye care visits). The list can go on and on. Oh yes and lets not forget about the heavy drinker. To hit on smokers, thats just a personal vendeta against smokers.

  • Roy

    Lauren, great point that she says she was off duty and made up the time. If she was truly on her on time and her supervisor was allowing her to make up that time then she was within her rights to smoke. If she was considered on the clock while smoking and they allowed her to make up the time she might have an FLSA violation.

  • Al

    here’s where it is leading:
    All hourly workers must take DNA tests to insure they have no genetic deficiencies that would mess up our insurance plan, however…….
    All Lawyers and salaried employees are EXEMPT from this rule.

    Your right to work is being taken from you.

  • Leslie

    This is not a case of discrimination. Kridel lied to UI in order to get UI – that’s the issue. The fact that she was fired because she did not feel she needed to follow the rule is the reason. Companies have the right to set rules that everyone must follow as long as they are legal. I am a non-smoker and at my company we have a rule that smokers have to smoke in one area – we also have rules for Salary people (which I am one) and hourly people, which are different. I work 50-60 hours a week, no overtime – hourly gets paid overtime. I do not feel I am treated “special” because rules for me are a little different then for hourly. If an employee does not feel a rule is fair then they should discuss it with their supervisor and try to change it. The bottom line is the employer sets the rules – the employee has to follow them. When did it become OK for an employee to tell the employer what rules they want to follow?? Don’t like the rule find another employer.

  • Mary

    Ron, Companies I have worked for don’t even bother to track the actual hours their salaried employees are putting in. I work for a company now with a time clock that requires all employees, yes, even salaried to clock in and out. Based on the data from the clock, it shows salaried employees come in much later and leave earlier than hourly employees. At best they put in the minimum 40 and when asked to stay later to finish projects they whine. There are however very conscientous salaried employees that do put in the extra, but they are few and far between.

  • Brenda

    I have to say, for some of you, in some states, including NY, any breaks less than 20 minutes can not be deducted from time/pay.
    Exempt vs. salary should be used, because salary employees are eligible for OT.
    I’m a smoker. I don’t take a lunch break, I’m at the office working usually 45-55 hours per week, obviously no OT for me. I don’t cry when hourly employees stand around talking, about nothing to do with work, make breakfast on company time, take their lunch break and take breaks for smoking or whatever? What about people who use the restrooms for more than 5 minutes @ a time. Maybe we need to write them up. Perhaps people should be more concern about being honest and trustworthy (being able to look yourself in the mirror and be happy with what you accomplish daily/weekly). Do unto others as you have done to you.
    It would be nice if employee’s would act more mature and have more of an ownership mentality.

  • Sandra

    As far as the issue addressed with regard to hourly, non-exempt employees wasting time that they are “on the clock” by taking smoke breaks, there are many other ways that employees can and do waste even more time. How about the office chatty-Kathy who talks non-stop to everyone about everything not related to work? Or the perpetual internet “surfer dude”? Or the person who regularly receives 8 to 12 phone calls from their spouse on a daily basis, not to mention numerous and lengthy other personal calls. Would these folks be fired for wasting time under the category of misconduct? I doubt it! They are still here at my place of employment and they are probably still there at your place of employment, too.

  • mike

    I find this article and the following posts fascinating. It touches on so many areas of conflict and confusion; what to expect of non-exempt workers, smokers vs. non-smokers, state law vs. federal law, disability protection vs. no protection, discrimination vs. employer rights.

    Personnally, I think the issue of smoking will eventually be resolved when employers once again have to entice workers to work for them (low unemployment). When that happens, then we will have to look at the fact that no employee is perfect and that we will have to make accommodations.

    Smoking has been said to be more addictive that heroin. There is solid research to back this up, yet as an addiction it is not covered under mental health or ADA protections. There is much prejudice about smokers brought about by a thirty year advertising campaign that portrays smokers as dumb, unproductive, filthy and deserving of ridicule. It was endorsed by education making our children agents of the government to tell their parents how “bad” they were to “shame” them into quitting. As I can recall this technique has been used successfully before in history. This campaign was sanctioned by the state and federal government and now much of the “tobacco settlement” money is used to continue this campaign. The purpose is clear to me, there is money to be made. While people are beating up smokers, no one is really paying attention to the lack of real progress the cancer society makes with all its donations. There is no further study on how the anti smoking campaing has saved any real money in lifetime healthcare costs. (If smokers do in fact live less and therefore don’t collect SS or medicare, I would like to see the real numbers as the boomers who are nonsmokers, live longer cash in on these benefits over a longer period of time).

    What really gets me, is that NEVER does anyone ever talk about whether the employee did a good job and added value to the organization. Its always about smoking, breaks, child care, race, religion, special treatment, discrimination, etc.

  • Kevin

    Hourly employees who take breaks in the morning and afternoon are generally on the clock. During lunch they are not! Therefore this individual was technically smoking on the company’s time not hers. The law states that an employee is entitled to a lunch break after 4 hours of work time and a second lunch break if they work over 12 hours. 5, 10 or 15 minute breaks mid-morning and mid-afternoon are not a right or entitlement or guaranteed by law, they are a benefit that most companies allow employees to take. That is why employees generally speaking do not have to clock out during their break but only during their lunch periods. However, I do not think it is a good business practice to allow salaried employees to have a break (smoke or otherwise) and not allow hourly employees. Employees at companies that allow breaks for all employees but do not smoke sometimes feel cheated because they may not take breaks to smoke and some smokers take more than one break to do so. It is the company’s shoice whether or not to allow breaks as well as smoking on company premises.

  • kevin

    In the whole salary vs hourly debate, you all have good points. At the end of the day, the decision for a company to have employees on “salary” is theirs to make. But to those who feel like Mary does, I would then challenge her to further challenge the organization to then pay all employee on the same basis. The law gives an OT exemption, not a requirement not to pay OT. It goes back to core values and philosophies. If the Company is going to treat the two classes of employees differently, the result is that they are then different and different policies are fair game for consideration.

  • Lewis

    If smoking is an addiction, is a smoker a protected class? If it is, then the employer should provide assistance in the same way as they would for an employee who is a drug/alcohol addict. There are many companies that offer employees courses (smoke ender) as a concerned employer.

    If the employer was in their right to stop smoking breaks for hourly employees, clearly the employee was insubordinate. Was there a warning? Making up the time was not a decision the employee could make on her own. I suspect there was something else going on…other performance issues perhaps.

    As for the unemployment benefits, the employee lied to the the benefits office and I believe that should have been the disqualification not the actual reason for termination…misconduct.

  • Darren

    I would say what happened is not fair to the person fired, but the law firm she worked for set down some rules and they were broken. I’m not saying it is right, but she did lie about how she got fired and collect unempolyment benefits. If this law firm in question is going to set rules for smoking it should be across the board and not just aimed at hourly employees.

  • Cal

    Come on folks. This isn’t about what is nice or fair, this is about what is leagl. Employers are no more required to be nice than some of you are required to know what you are talking about. Furthermore, I can’t believe a law firm was so hair brained to specifically ban smoking breaks when break time itself seemed to be stated as the issue. What if the ee had taken a yogurt break? Would that be misconduct? The rule was written improperly improperly and didn’t address the issue the law firm “seemed” to have. But I’m not even sure we are reading the facts. I have reservations about that when the title of the article is even a misstatement. “Fired for Smoking”? How about “Fired for Misconduct” as a title.

  • Shayla

    I think that to an extent people do feel like there is some discrimination as it relates to salaried and hourly employees. In all the years that I have been working I have always been an hourly employee entitled to two 15 minute breaks and either an hour or half hour for lunch. It has always been a practice of what you do on your breaks is your business. If you want to smoke, go ahead as long as you did not violate any policies such as smoking in front of the building or taking longer breaks than allotted. I do not understand how a company can make a policy saying that only salaried employees can take smoke breaks and hourly employees can not. For example at my current job, we have rest breaks that are allotted for 10-15 minutes depending on the need of the business. We do not allow specifically smoke breaks. I think that is what the problem was in this case, Kridel made the decision to take a morning smoke break and an afternoon smoke break. Not to say that she was the only smoker, but these are being called smoke breaks. If you allow your employees to have 2 breaks a day, that should be when they are smoking.

    What troubles me is that they are saying that salaried employee can take smoke breaks. It is not indicated how many, or what could be considered excessive. What if a person is a chain smoker? Is it ok for them to smoke every hour? Based on the information, Kridel only did smoke breaks twice a day. The expectation of a salaried employee is that they work until the job gets done, so in a sense who care if they take 10 smoke breaks in a day because most likely they are expected to work longer hours than an hourly employee? Well, that’s what would make it discriminator because hourly employees smoke too, and it is not far to say some employees can and some can not. My advise would be to allow for employees to do what they want during the couple of breaks that they get. If they do not have the urge to smoke then, oh well, maybe lunch time or after work.

    Kridel did however violate the policy by continuing to take her smoke breaks and she did lie about why she was let go. I do think that there were probably more things going on than just that.

  • nancy

    Wow…. alot of fuss… I am a smoker… I am allowed to take two fifteen minute breaks per day… I don’t enjoy gossip so I sit in my car. I am very productive, much more than some of my co-workers who stand in the hall and talk for 20 – 30 minutes at a time about kids, home etc….etc…. etc…

    I think the point is that she lied on her unemployment claim about why she was terminated… end of story.. she lost because she lied.

    I do feel that smokers are discriminated against (restaurants, malls, etc… but that is a whole other ball game.)

  • Yo

    The court didn’t rule on smoking, but that she lied to the unemployment people.

  • Linda

    Boy, this really got more responses that I have ever seen! I am a smoker and a salaried employee. Smokers have been made to feel like 2nd class citizens in our society today which is very sad. I have tried many times to quit, but sadly have failed. However I feel I am a great worker and have always worked 45-60 hours per week for my employer. However when I take my allowed smoke breaks I go off property and don’t abuse them. They are now discussing coming up with a policy of eliminating breaks for smokers because some people abuse them. I say make their (the abusers) Supervisors/Managers do what they get paid for! Why make a policy for the masses when you could solve the issue by going to the problem. What next? Are they going to make a policy stating you can’t go to McDonald’s on your lunch break because it is unhealthy???

  • D.

    Quite an entertaining thread. Easy to tell who is hourly and who is salaried. As it was a law firm I am willing to guess they had plenty of documentation. Then as a handful have pointed out, this individual lied on her unemployment application, she committed fraud. The penalty is just having to pay back the money and having her claim denied and she should be grateful that is all there is to it.

    Fraud is a criminal act but rarely do they prosecute, even when someone lies so blatantly. Ironically I am dealing with a similar UI issue in which the person lied to obtain benefits. Once it was pointed out by me the benefits ceased and they have indicated the want some of the monies paid back. Had the appeal hearing last week, hoping to have the ruling in the next two weeks.

  • Mel

    All employees throughout a company should be held to the same standards.

    This morning I am dismissing an employee who was smoking in a restricted area (fire hazard). In addition, he violated the company policy that allows tobacco use only in the person’s personal vehicle during scheduled lunch and break times. The kicker is… his manager saw him smoking yet the employee denied it. In our company, integrity is critical. Lying to the manager was the final straw.

    I’ve just learned that a supervisor allows her smokers to combine their 30 minutes of breaks and 30 minute lunch and then take 6 ten minute breaks to smoke. Completely against policy. This has stirred up the can of worms with others saying, “If the smokers can do that, why can’t I just do that and go home early, or go outside to watch the sun?” Of course those ten minute (group) breaks really last longer and people still take time away for bathroom, lunch vendor and snack machine visits. This has so divided the team (waring factions would be more accurate) that I am recommending the leaders who allowed this be relieved of their positions. I believe in flexibility but “leaders” really need to think through violating company policy to allow anyone “special privileges.” Now I get to be the bad lady to tell them that has to stop…

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  • Gloria

    Ok what about this issue: There are 2 employees both are smokers: employee one is a non-exempt salaried employee and employee two is a non-exempt hourly employee. Employee one works 8am to 5pm and is not required to take brakes. Employee two works 8am to 5pm but is required to take two 15 minute brakes during the day.

    Employee two takes an additional 5 minute brake to smoke
    Employee one takes as many brakes as he/she wishes to smoke

    A supervisor from another department gives a verbal warning to employee two for taking the extra 5 minute brake. Claiming he has non-exempt hourly employees that are smokers and he does not wish to give them extra brakes.

    You are the HR Manager: WHat would you do?

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