April 13, 2011

Smokin’ in the boys’ room

Posted in Minnesota Lawful Consumable Products Act, Smoking, Smoking tagged , , at 8:27 am by Tom Jacobson

If you’ve ever listened to a “classic rock” radio station, odds are that you’ve heard  Brownsville Station or Motley Crue bash the establishment with Smokin’ in the Boys’ Room.  In case it’s been awhile, check it out again on YouTube at http://bit.ly/91Lz8.  (How about the jumpsuit they must have borrowed from Elvis?)

I thought of the song after reading a recent article about employers who are adopting expansive workplace smoking policies, Smokers Need Not Apply:  Good Idea or Illegal, http://bit.ly/dYuux7.  For Minnesota employers, banning smoking in the boys’ room (and, throughout nearly all indoor workspaces) is not only a good idea – it’s the law, as required by the Minnesota Clean Indoor Air Act, http://bit.ly/dLp1Ze.

But prohibiting smokers from applying for work would run afoul of Minnesota’s Lawful Consumable Products Act, http://bit.ly/fyiKcT.  This law states that employers may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during non working hours.  The law specifically includes tobacco within the definition of “lawful consumable products.”  So smokers still have right to apply for work, even though “Everybody knows that smoking ain’t allowed in school” and must be banned in most Minnesota workplaces.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

Advertisements

September 24, 2010

HR policy development, part 2 of 3: policy violations as “misconduct” in unemployment cases

Posted in Breaks, Employee Handbooks, Misconduct, Smoking, Unemployment Benefits tagged , , , , , , at 9:24 am by Tom Jacobson

In the first of this three-part series, I highlighted the case of Cross v. Prairie Meadows (http://bit.ly/bDzdNt) where the employer’s well-written policies were a key reason why the court threw out a sexual harassment lawsuit against the company. In this installment, the issue is how well-written policies can help show that an employee committed employment misconduct which disqualifies him/her from unemployment benefits; the case is Gaustad v. Minnesota Department of Employment and Economic Devlopment (http://bit.ly/9uLFWY).

In the Gaustad case, Jon Gaustad worked for Innova Industries, Inc.  Innova had a very clear work break policy; breaks were strictly regulated in order to manage work flow.  Innova also had a strict no-smoking policy inside its plant and a clear designation of where smoking was permitted outside the plant.  Both policies were plainly stated in the company’s employee handbook.  The smoking policy, which had been adopted after a discarded cigarette butt caused a serious plant fire, was also posted in the employee break room, and it had been handed out to employees.

After two prior warnings about violating the company’s smoking and break policies, Gaustad was fired for a third violation.  Gaustad filed for unemployment.  His claim made its way to the Minnesota Court of Appeals, and the court ultimately rejected it. 

The court initially noted that when an employee refuses to abide by an employer’s reasonable policies, the employee commits employment misconduct and is disqualified from unemployment benefits.  The court also noted that an employer’s policies are reasonable when the employer can articulate or identify purposes which further a legitimate employer interest.

In this case, the court concluded that Innova’s policies were indeed reasonable because the break policy was needed to aid the manufacturing process, and the smoking policy was needed due to the prior fire.  Because Gaustad deliberately and knowingly violated those policies, the court determined that his actions were misconduct.

Just as Cross v. Prairie Meadows highlights the importance of having a well-written sexual harassment policy, Gaustad v. Minnesota Department of Employment and Economic Devlopment points out that reasonable personnel policies (that is, policies that  further a legitimate employer interest) can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.

Next in this series:  leave policies under the FMLA and USERRA.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

%d bloggers like this: