Can a manager fire you for smoking a cigarette on your own time?

[Eder]

What is the name of your state (only U.S. law)? California

So I was smoking a cigarette on my own time but it was in their parking lot which is their property. A work meeting was about to start. The CEO caught me smoking and said this is a nonsmoking company and told me to put it out and go home. I got suspended the day after for "refusing to put out the cigarette". When I said I wasn't refusing anything they said that's just the way they have to write it. No call in a week so I go in to check up and they just fire me. Seems really unfair. I could use some advice to see if there's anything I can do from here.

 

[PaulMass]

Apply for unemployment. It sounds like they are already setting you up for insubordination.

If you believe they used the cigarette as an excuse to fire you when the real reason was prohibited, contact an attorney.

 

[Eder]

Apply for unemployment. It sounds like they are already setting you up for insubordination.

If you believe they used the cigarette as an excuse to fire you when the real reason was prohibited, contact an attorney.

I don't think there is another reason, I did my job fairly well. Just that the ceo felt offended and wanted me gone.

 

[cbg]

In your state, and in most others (not quite all), yes, this is legal.

 

[justalayman]

Obviously not California but in Michigan the MI Superior court ruled that not only can an employer not allow smoking on company property, they can prohibit an employee from smoking ANYWHERE, ANYTIME.


An employer has a lot more power over your personal life than you realize.


but in this situation, especially since the company had a no smoking policy and you were on their property, the termination is justified. I would not be surprised to see unemployment denied due to your obvious disregard for company policy. If there is anything speaking to not smoking on company grounds (emplpoyee handbook, employee indoctrination) , it is clearly a case of insubordination.

 

[commentator]

Okay if smoking is prohibited on company property per the handbook, that is violation of a company policy not insubordination. And insubordination isn't necessarily more of a good cause to terminate than anything else they might use as a reason. It will all come down to what the claimant says happened versus what the employer says happened, and which version of the story is found to be more believable by the unemployment office.

We don't know what the handbook says, or what rules may have been in place. Often in this sort of case, employees are forbidden to smoke anywhere on company property except in their own cars. Some companies carry the no tobacco policies to the extent that their handbook will say that if they have any evidence that the employee is a smoker, on or off the job, they will terminate. It is legal for them to do this. But without some very clear cut policies, the claimant might have a chance of being approved for unemployment. They obviously did not think this would lead to their termination. The CEO sort of threw the person off the grounds without giving them a warning or any chance to change their behavior and keep their job. If they say he cursed out the CEO, refused to put the cigarette out, blew smoke in his face and threw the butt out the window while burning rubber leaving the parking lot, of course this will change the nature and tone of the termination and may well result in a denial of benefits.

This OP should definitely file for unemployment insurance right away, and detail exactly what happened, and discuss that what the employer says on their separation notice is not correct, that you never refused to put out the cigarette (if this is true.) What they're going to be interested in is "What was the company policy on this?" and "Did you know that if you did this (smoked in your car in the parking lot) you might be terminated?" and "Had you had any prior warnings about this?" All the usual things. We cannot say, not having access to the policies and specific details of this situation, that the person will be denied unemployment. A lot depends on those company policies. In any case, there is no legal recourse for this firing, but there is a chance unemployment insurance might be approved while you look for another job.

 

[justalayman]

commentator;3315020]Okay if smoking is prohibited on company property per the handbook, that is violation of a company policy not insubordination. And insubordination isn't necessarily more of a good cause to terminate than anything else they might use as a reason. It will all come down to what the claimant says happened versus what the employer says happened.

so refusing to comply with a company policy, that was issued by a superior, is not insubordination? Is not insubordination a refusal to comply with the orders or directives of a superior?

.

The CEO sort of threw the person off the grounds without giving them a warning or any chance to change their behavior and keep their job

if it was known by the OP (and the OP admits that they were aware of the policy), they received the only warning required by whatever notice that caused them to be aware of the rule. If they were granted permission to smoke in their cars, I can see the OP being wronged here. Unless that exception was allowed, I don't see the OP having any claim since they were aware smoking on company grounds is forbidden. Being in your car on company grounds is still being on company grounds. Using such an argument would lend to arguments like:

I jumped into the air every time I took a drag off my cigarette so I wasn't smoking "on" company grounds.

You do not have to state there is no exception allowing smoking in your car for there to be no smoking in your car. You are on company grounds as soon as you pass the property line.

This OP should definitely file for unemployment insurance right away,

well, sure. Always file.

 

[PaulMass]

I got suspended the day after for "refusing to put out the cigarette".

This would appear to be insubordination.

 

[commentator]

What I am saying is that "insubordination" isn't a particularly better reason to terminate or a better justification for firing in the eyes of the unemployment system than violation of a company policy. So whether this is or is not insubordination will not make it a slam dunk denial any more than violation of a company policy if you are not on company property only because you are jumping in the air. Generally insubordination is the refusal of the claimant to obey a direct order or directive issued by a supervisor. The claimant here says he didn't do this, but they say he did. It will be up to the unemployment tribunal to make a decision on which party is more believable.

Once the company has decided to terminate for insubordination, the whole claim will be about insubordination, and whether what the claimant did was or was not considered insubordinate. It will not be about whether or not the person violated a smoking policy. So they might not be well served by saying the person was insubordinate, as it will be a "he said/she said" situation here. Even the HR person, or whomever the OP talked to admitted that while he might not have refused to put out the cigarette, "this is just the way they have to write it." That in itself raises questions about whether it actually happened or not.

If the company did have a clear cut policy of where it is okay to smoke and where it is not okay to smoke, and the OP violated it, they'd have a better chance to keep him from drawing unemployment after his firing if they called it "violation of a company policy." What will be telling in this situation is whether or not the employee knew they were in danger of being fired if they did this (smoke in their car.) Had it been a practice of other employees, had this employee done this before with the knowledge of the company officials? Was there a reasonable expectation that this incident would lead to termination? I just don't see that we have all the information to say.

When you begin taking claims for unemployment, you quickly figure out that no matter how good the story is from the person filing the claim, or how efficiently the employer has documented the reason for termination, you are only hearing one side of the story at a time, and that each party will have a different take on what happened and how it went down. Sometimes employers think they know exactly what they should say on the termination to keep the employee from being able to receive unemployment, and they're wrong.

Yes, by all means, this person needs to file a claim while looking for another job and doing smoking cessation activities and let it play through. OP this could be your sign, don't smoke anymore and this won't be a problem again ever. Good luck to you.