Friday, August 8, 2008

Court Upholds Firing of Paralegal Over Smoke Breaks

Can an employee be fired over smoke breaks? Apparently so, although it certainly does raise some interesting legal questions. Not only did the appeals court uphold the firm's decision to fire this paralegal, they also ordered her to repay the $3,000 she had received in unemployment benefits because she allegedly misrepresented her termination.

I did check the New York State Department of Labor's Web site, and no employer in New York is required to provide any sort of breaks to hourly employees, just an unpaid meal 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.

The appellate division in Albany upheld Kridel's firing and sided with a state Unemployment Insurance Appeal Board, which ruled that Kridel misrepresented her firing, the AP reports.

Kridel may now need to repay $3,000 in unemployment benefits. Though, according to the AP report, she is considering an appeal.

Is it legal? Yes. Fair? No. If the firm was truly concerned about productivity, they should also provide a discount or reimbursement of smoking cessation programs, including alternative therapies, which are often not covered by health insurance.

As an ex-smoker, I am very familiar with how a cigarette break would energize me. That quick rush of nicotine plus the forced deep breaths from inhaling would focus and center me. However, I can't recall a time when I finished a full cigarette in five minutes. It took at least seven (I timed it), not counting the time it took to find a spot to smoke, light up, and grind out the cigarette.

I also remember how hard it was to quit. I stopped smoking over the summer while I was still in college, but if I were still smoking today, I would have an even harder time quitting. One, I would have been smoking even longer (thus the nicotine dependence and habit more deeply ingrained), and two, I had fewer sources of stress in my life back then (I was on summer vacation, living with my parents rent-free, working as a temp, and really only had to pay for gas for my car, meals outside the house, and personal items).

(Source: ABA Journal)

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