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No tobacco/ no smoking policy violations

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Junior Member
What is the name of your state (only U.S. law)? NC

An employee is documented once for alleged chewing tobacco use while on store premises. A short time later, he is once again accused of chewing tobacco due to the fact that his supervisor "smelled it on his breath". He is terminated. The indicated policy violation specifically indicates the prohibition of cigarette smoking or "any other smoking device" while on store premises. The use of oral tobacco, nicotine gum, etc is not touched upon. The policy is titled "No Smoking" policy.

Does this termination fall under the label of wilful misconduct?


Senior Member
Everybody asks this sort of question.

The answer is:

See if the employer claims the termination was for something that makes you ineligible and the state agrees.

Only at the third stage do you need to start worrying.


Senior Member
Considering that the employee had already been warned once about chewing tobacco, and by that warning his managers had made it quite clear that yes, indeed, chewing tobacco was considered a violation of the smoking policy/tobacco use policy, (whatever they wished to call it) then if they had reason to suspect that he'd been chewing on work premises they could fire him. It would very likely be considered willful misconduct, and there'd be a denial of unemployment benefits.

As far as the legality of the termination, they don't even have to follow their own policies, could legally fire you without any warnings if they thought you'd been chewing doublemint gum. But for unemployment purposes, they have to show that the employee had been warned, that the employee knew that another violation of this policy, which they'd made clear to the employee DID include chew in their anti tobacco policy, might result in his termination, and he did it anyhow (or they had pretty good evidence that he'd been doing it, and chewing tobacco really does leave evidence!) the it would be considered willful misconduct on his part=denied unemployment.

But the terminated employee should always file the claim for unemployment anyhow, there's no downside, no penalties and you can let them give you a definitive answer with all the variables in play.

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