Employment Law/rest breaks


QUESTION: We are not allowed to smoke on the property of the company where I work. We are allowed to go off the property which is about 20 feet from the door of the building. Now we were told that if we go off the property for our breaks that we are not going to be paid for them. The nonsmokers however will be paid for their breaks. Is it legal for them to do this? We feel that this is discrimination.

ANSWER: This is not right unless you are taking longer breaks. If the break time is the same than both smokers and non smokers should be paid. It should make no difference where the break is taken as long as the time limit of the break time is the same.


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QUESTION: Is there any thing that we can do about it within the company? It's the Human resource president that is making this rule.

You could talk to the CEO or whomever the HR Director reports to. HR generally does have the power to make the rules within the company. I apologize for your HR president not being fair to all. It makes HR look bad and all HR Directors are not like this.

At our company my policy is no smoking on company property unless you are in your private car. They can go to the parking lot and smoke in their car or they can cross the road off the property. Our reason is because we are a health food company and we cannot have our customers buying health food products seeing employees smoking outside the building. It would have an adverse effect on our business.

I do not treat my smoking employees any different from my regular employees. They all get the same 15 minutes in the morning for break and 15 minutes in the afternoon.

You could try the department of labor, usually in order to file a discrimination claim it must be based on gender, nationality, age, race or same sex related. I am not sure they would take on this type of case, and ditto for the ACLU although you could also call them.

Many employees are now using the new electronic cigarette or vapor because it is generally allowed.  It could be allowed in a break room as it has no caustic smoke to annoy the non smokers. That would also depend unfortunately on your HR Director, but if it is an option perhaps it would be a talking point with the CEO.

I feel your pain, but I don't know of any way to help you. In most companies the CEO will back HR. My CEO does back me on most all issues.


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Shirley McAllister, CPP, PHR


I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).


30 years in Payroll and Human Resources

SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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