Appeals Court Upholds a Firing Over Smoking Breaks

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The New York Sun

ALBANY — 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 yesterday.

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,” Ms. Kridel, 56, of Rochester, said.

“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 Ms. 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.”

Yesterday, the Appellate Division of state Supreme Court in Albany upheld the firing, and said Ms. Kridel engaged in misconduct by violating the no-break policy. The court also sided with a state Unemployment Insurance Appeal Board, which said Ms. Kridel misrepresented the reason for her firing when 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, Ms. 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.

The New York Sun

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