I’m not a smoker and I’m not in favor of people who smoke around me. My lungs don’t need it, what with living in L.A. and all. However, this story from law.com raises a couple of legal questions.
A paralegal who defied a new policy at work that banned smoking breaks for hourly employees was fired legally, a New York appeals court ruled Thursday. Karen Kridel had worked for a Rochester law firm for about 14 months. Every day, she took a five-minute smoke break in the morning and another in the afternoon. She said she often worked an extra few minutes anyway, unpaid, and took any calls during her lunch break in the cafeteria. But breaks outside of lunch were then prohibited in an October 2006 e-mail.
"If you are addicted to cigarettes, you can’t just do that," said Kridel, 56, of Rochester. "You should treat your employees fairly," she said from her new job. "Within an eight-hour day you are entitled to take a break in the morning and in the afternoon. It’s a benefit to everyone, especially co-workers. You can get pretty crabby She said a smoke break re-energized her.
"I didn’t expect to get fired for smoking," she said.
A partner in the law firm, nonsmoker Gerald Dibble, wouldn’t talk about Kridel. But he said there was always a policy against smoke breaks for hourly workers, which exempted lawyers and other salaried employees who could leave the office at any time. The policy just wasn’t enforced until October 2006.
That came after he said smoke breaks were drawn out to 15 minutes or more, even half an hour, and some nonsmokers left with smokers to chat. One employee was found sleeping in a car.
"You try to lay back and be nice to employees," he said, denying that anyone worked even a few minutes without pay. "We just followed the law. I don’t know how an employer could allow a person who smokes to take breaks and not give that same benefit to another employee. Even if the law allowed that, you know there would be hard feelings."
On Thursday, the Appellate Division of the state Supreme Court in Albany upheld the firing, saying Kridel engaged in misconduct by violating the no-break policy. The court also sided with a state Unemployment Insurance Appeal Board, which said Kridel misrepresented the reason for her firing which she said was because of too little work to do. She acknowledged that she didn’t cite the official reason for her dismissal, but said she felt her smoking was a contributing factor.
Now, Kridel faces repaying the $3,000 in unemployment benefits she received. She said she’s considering an appeal to the state’s top court.
Audrey Silk of New York City Citizens Lobbying Against Smoker Harassment said New York’s strict laws banning indoor smoking are partly to blame for such confrontations in the work place.
"It’s a manufactured friction because these laws are empowering those who would not otherwise complain," she said. "What most employers do is judge their employees’ work performance before they judge their conduct … if there was a smoking room inside, you wouldn’t have these problems to begin with."
So, are they saying that this paralegal did not honor a non-smoking policy and smoked inside the office which is against policy OR, did she go outside for her a 5 minute break and smoke, once in the morning and once in the afternoon. As an hourly employee, she is entitled to one 10 minute break every 4 hours, at least in California, anyway. Hey, Karen! Were you smoking inside the office or were you smoking outside the office. Because if you were smoking outside the office, why weren’t you entitled to your breaks? And furthermore, if you have an addiction, why aren’t you covered under the ADA? Meaning, the law firm has to make accommodations for you. Smoking paralegals (cough cough) wanna know.
