Be careful with no smoking policies.......
Posted by: John Gilliland
August 24, 2007

It must be that it's Summer. Time passes so quickly and I neglect to write. Maybe with Fall, I will improve.

What motivated me to write now was an article in yesterday's USA Today about how an increasing number of companies are prohibiting workers from smoking on the company property. Among other examples, it mentioned that a number of hospitals in North Carolina were implementing a completely tobacco-free policy applicable to their entire campuses.

This does represent a change. Not too long ago, a company might prohibiting smoking in the office but would have a location outside for smokers to use. The trend is now to prohibit smoking entirely on all company property and in company vehicles.

All the examples given in the USA Today article were prohibitions on smoking on company property. That is consistent with an employer's general right to control what happens on its property or during working hours.

Where problems can arise is if an employer attempts to prohibit smoking by its employees during nonworking hours or as a condition of employment. A number of states make it unlawful to discriminate against employees because they use tobacco products during nonworking hours. It also may be unlawful to require as a condition of employment that an employee or prospective employee refrain from using tobacco products during nonworking hours.

My point is simply that, if an employer desires to restrict smoking by its employees, its important to check state law to be sure the restrictions desired are permitted.

Permalink

National Origin Discrimination
Posted by: Jennifer Milligan
May 12, 2006

Continue Reading

15-Employee Defense Must Be Raised During Trial.
Posted by: Jennifer Milligan
March 30, 2006

Title VII of the Civil Rights Act of 1964 applies only to employers with 15 or more workers.  If you don’t have that many, you may think you can never be liable for employment discrimination under Title VII because you can use the number of employees as a defense at any time, even after trial.  However, that isn’t the case.

The owner for a small restaurant in New Orleans tried to do just that after being sued for sexual harassment under Title VII.  The case ultimately reached the Supreme Court who ruled that employers can’t point out after trial that they didn’t have enough employees for Title VII to apply.  Whether or not the employer has enough employees to be covered by Title VII is just another element of the case for the employee to prove, and employers must raise any defenses during the trial at the latest.  Arbaugh v. Y & H Corp., 125 S.Ct. 2246 (U.S. 2005).  

What does this case mean to you?  Be diligent and raise any and all challenges to an employee’s claims against you as early in the game as possible.  

Permalink