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Several of our employees go out side and smoke even when we have customers. This a bar in Californis. Is it legal to fire them if thet refused to stop?

Yes, employers may terminate the employment of individuals who do not follow the organization’s policies – even in employee-friendly California! However, before doing so, make sure you have done everything you can to minimize the possible legal repercussions.

First, do you have a policy in place that defines when and where employees are allowed to smoke? If so, has the employee in question been counseled about the rule infraction, following your organization’s disciplinary policy, and do you have documentation of these meetings?  Make sure you know the facts. Talk to witnesses, review records, etc. to make sure you know what has actually transpired. Talk to the employee to see if there are any extenuating circumstances. Third, review how similar situations have been handled in the past & make sure you are applying your policies as consistently as possible. Also consider the following:  Is the employee a member of a protected class? Has he/she recently filed or participated in the investigation of a workplace claim? Is there an expressed or implied employment contract? Be absolutely sure that the termination is not discriminatory and that it does not have the appearance of being discriminatory.

If you are sure (and can provide documentation to prove) that there was a policy in place, the employee was aware of the policy, and that he had been previously warned about the infraction including the consequences if he did not correct the problem, and that similar situations with other employees have been dealt with in a similar fashion, then you can consider taking the final step.

Whenever considering taking any adverse action against an employee, ask yourself the following questions: Is the proposed action fair? Is it consistent with the organization’s policies and practices? Is the termination based on legitimate business needs and not due to other factors, such as discriminatory reasons? Finally, do you have adequate documentation to support the above items?

This entry was posted on Thursday, August 21st, 2014 at 3:09 pm and is filed under
Human Resources Management, Termination.
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