Employers have the right to curb smoking

DEAR CARRIE: I work for a nonprofit health agency that rents office space in a public building occupied by other businesses not affiliated with our organization. Recently our parent organization announced that as part of a health initiative, we will no longer be able smoke in the parking lot or in our cars. Our agency does not own the building or the parking lot. Though I am a smoker, the change won't affect me because I don't smoke during the day. But I feel my rights are being violated. I'm tired of others telling me what I can't do in my own time and space at age 62. If the agency owned the site or was the only tenant, I would understand. But it isn't the only employer. Is this legal? -- Steamin' Smoker

DEAR STEAMIN': Your employer's smoking ban is legal, according to employment attorney Richard Kass, a partner a Bond, Schoeneck & King in Manhattan.

While the New York Recreational Activities Law protects employees who smoke outside of working hours and off the employer's premises, the law doesn't apply in your case for two reasons, he said.

"First, the parking lot would probably be considered part of the employer's premises, regardless of whether it is owned or rented," he said.

"Second, an employer is allowed to prohibit conduct that creates a conflict of interest with the employer's business interests," he said. "A health-care agency can argue that it has a legitimate interest in making sure that its clients do not see its employees damaging their health by smoking." 

DEAR CARRIE: I would love a definitive answer as to what is legal when it comes to exempt employees who work less than a full day. An example would be a manager leaving early for a doctor's appointment or coming in late for whatever reason: When and if the employee can have his or her pay docked or be required to make up the time or have time charged to paid-time off? Naturally, these employees are not eligible for overtime pay when they work more than their regular hours. -- To Dock or Not?

DEAR TO DOCK: The answer is simple. In the private sector you cannot dock the pay of exempt employees when they work a partial day. You can dock their pay when they miss a full day for personal reasons but not for partial hours. You can, however, reduce their paid time off by the hours they miss. But even when that paid time off is exhausted, you cannot dock their pay for less than a day.

Exempt employees fall into the administrative, executive, professional and outside-sales category. You rightly point that you don't have to pay them for any extra hours they work. You also don't have to pay them overtime when they work more than 40 hours a week. But in exchange for those exemptions, you can't dock their pay for partial days.

"In order to qualify for an exemption they must be paid on a salary basis, which means a fixed amount each week that can't be reduced because of variations in the amount of hours they work, unless there is an absence of at least one or more days for personal reasons," said Irv Miljoner, who heads the U.S. Department of Labor's Long Island office, which is based in Westbury.

And you cannot require exempt employees to make up those partial days because then you are treating them like nonexempt, or hourly employees, and that could trigger a loss of the exemptions.

Click here for more on employees' rights during non-working hours at http://bit.ly/qfX84l.

Click here to find more on exempt employees and docking at  http://1.usa.gov/nQXbiB.