Cigarette break goes up in smoke

DEAR CARRIE: My company moved to a new facility three years ago and implemented a new smoking policy that prohibits the staff from taking smoking breaks during business hours, except during our lunch hour. In the old building we could all go out to smoke as we pleased.

Some of the staff disregards the new policy and sneaks out to smoke. It's a known fact that this happens; even the office manager knows it. I've personally seen her watch some of these employees go outside and smoke, and it wasn't during their lunch hour. She has done nothing to those people. But she saw me and decided to blab to upper management. To my knowledge, I am the only person who ever been written up for taking an unauthorized smoking break. Isn't this discrimination? Can she legally enforce the policy so unevenly? -- Smoking Stun

DEAR SMOKING STUN: The manager's action may indeed be discriminatory but not necessarily illegal.

"The only kinds of discrimination that are illegal are the kinds specified in a statute -- e.g., discrimination on the basis of race, sex, age, disability, religion, national origin, sexual orientation, etc.," said employment lawyer Richard Kass, a partner at Bond, Schoeneck & King in Manhattan. "Other kinds of favoritism may be poor management, but they're not against the law. There is no law that says that bosses have to be fair."

In fact, you may have unwittingly prompted the manager's unwanted attention.

"A manager is permitted to discriminate against employees who spend their working time watching the manager to see if the manager knows that other employees are taking smoking breaks," he said.

It's important to note that aside from meal breaks, employers don't have to grant any other breaks. And even considering smoking a disability because it is an addiction may not be enough to force an employer to accommodate the employee with smoking breaks.

"A nicotine addict may be able to claim that she has a disability that the employer must accommodate, but a nicotine patch or nicotine chewing gum should be able to satisfy her cravings," Kass said. "So it is not necessary to provide a break from work in order to accommodate her disability." 

DEAR CARRIE: I would like to sit down and speak with someone about unemployment, but I cannot locate an unemployment office. Can you list the offices in Nassau County and tell me how to find them? -- Jobless and Clueless

DEAR JOBLESS: For a face-to-face meeting your best bet is to visit one of the state's One-Stop employment centers, according to the New York State Labor Department.

You can apply for benefits by calling the department's Telephone Claims Center at 888-209-8124 or apply online at https://ui.labor.state.ny.us/UBC/ home.do.

Your question raises an interesting issue. By law, employers don't have to tell laid-off employees how to apply for benefits, hence your question to me.

But employers must tell those employees that they might be eligible for unemployment benefits or job retraining, among other things. And the companies have to provide those departing employees a written notice with information needed to file for those benefits, such as the employer's state registration number.  

NOW ONLINE

Click here for an online list of One-Stop employment centers at www.labor.ny.gov/workforcenypartners/osview.asp

Click here to apply online for benefits at https://ui.labor.state.ny.us/UBC/home.do