Where There's Smoke… You're Fired

August 8, 2008 (PLANSPONSOR.com) - The Appellate Division of the New York state Supreme Court in Albany upheld the firing of a paralegal who continued to take smoke breaks during the day after her employer banned such breaks.

In its decision that Karen M. Kridel illegally obtained unemployment benefits by a willful misrepresentation of her reason for firing, the appellate court agreed that her decision to continue taking smoke breaks was misconduct. “By her own admission, claimant here continued to take breaks during the work day to smoke cigarettes even though she knew of the employer’s policy to the contrary. In view of this, substantial evidence supports the [Unemployment Insurance Appeal] Board’s finding that she engaged in disqualifying misconduct,” the opinion said.

In addition, the court said Kridel admitted that she said she was fired for lack of work in order to obtain benefits, affirming the Board’s decision that she engaged in willful misrepresentations.

Kridel worked as a paralegal at a Rochester law firm from August 2005 through November 2006. According to an Associated Press news report, during this time Kridel claimed she would take a five-minute break to go outside and smoke once in the morning and once in the afternoon. She also said she often worked overtime without pay, making up for these breaks.

However, in October 2006 the firm adopted a policy prohibiting hourly employees from taking breaks during the workday, except for a midday lunch break. After she was fired in November 2006 for violating this policy, Kridel applied for and received unemployment insurance benefits in the amount of $3,070.50, according to the court opinion.

The Unemployment Insurance Appeal Board subsequently disqualified her from receiving benefits and charged her with a recoverable overpayment and imposed a forfeiture penalty. The appellate court affirmed the Board’s decision.

The court’s opinion is here .