Cigarette Smoke, Early Termination, and Employees Sitting in the Parking Lot

Welcome back to another edition of HR Basecamp Roundup! This week, we tackle some interesting and common issues that come up in workplaces more often than you think. If you haven’t joined our HR Basecamp Facebook group yet, be sure to join so you can participate in these discussions in real time!

Resources in this Roundup:

• Employee Hygiene in the Workplace Course
• Termination Checklist
• The Least You Need to Know About At-Will Employment
• Why Employers Should Tell Employees the Truth When Firing

One of my employees constantly comes to work smelling like cigarette smoke. Can I say something about this even though they are smoking outside of work hours and off company property?

The legal side of things:You can’t restrict people from smoking off duty. Many states have laws specifically protecting “smoker’s rights,” and others have laws forbidding employer action against an employee’s legal off-duty conduct.

Even if there isn’t a specific law that applies to you, it’s impractical to try to regulate someone’s behavior when they aren’t at work. Beyond this, your employee may carry the smell of smoke even if they aren’t a smoker themselves – their roommate or family member may be the culprit.

This is why we recommend taking the human approach here, focusing on the desired outcome you want (a smoke-free workplace) and not how each employee accomplishes that.

Now for the human approach: First things first, watch our complimentary webinar on addressing personal hygiene in the workplace to address the smell of cigarette smoke here for more guidance.

You can’t limit what an employee does off-duty, but that doesn’t mean you have to let the smell go unaddressed. The key word here is smell – it’s not the smoking itself that is the issue. You can and should have a handbook policy that references tobacco use and foul odors. The employee should have received and signed a copy of this policy at the time of hire.

If you have an employee smelling of cigarette smoke, speak to them about it directly, and be sure to reference your written policies. Address the facts (the smell violates your policies, you’ve noticed the smell on X number of occasions) and the impact of those facts (patients/customers and other employees feel uncomfortable around the smell, it’s unprofessional in a healthcare setting, etc). Let the employee know that if the issue continues, they may be sent home off the clock to change and will receive a corrective action.

Access our complimentary HR course on employee hygiene in the workplace HERE!Our most recent hire is two months into the job and simply isn’t catching on the way they should. I want to terminate. Do I have to give a reason for terminating if they are still in their getting acquainted period?

The legal side of things: As long as an employee is at-will, you can terminate for any legal reason. You’re not legally required to give a reason, but not doing so elevates the risk of the termination exponentially. When you don’t give one, an employee can make one up. If they choose to go the scandalous route and claim it was an illegal reason, it will be much harder to prove that they’re lying if you have no record of your actual reasoning. This applies whether the employee has been at the practice for 1 day or 500 days.

Why Employers Should Tell Employees the Truth When Firing

A common misconception is that the getting acquainted period is some sort of free for all where there is no risk in taking adverse action against an employee. That’s not the case. All adverse actions, especially terminations, carry some level of risk, regardless of when or why they are done. Our advice is to always consult with an HR expert for a risk assessment before taking adverse action.

Now for the human approach: If you were to call into the Solution Center with this question, we would want to know a little more about what “not catching on” means. Is the employee making errors? Are they doing the work correctly but not quickly enough? Are they not understanding their training? They may not seem like a good fit but it’s worth discussing whether termination is the only option, especially if you haven’t provided coaching or documented any of the employee’s performance issues thus far.

If there’s a chance for improvement, you can always extend the employee’s getting acquainted period. The getting acquainted period policy in your handbook should state that this is a possibility depending on performance. This can be an especially helpful option if the employee is in a role that is hard to fill. Hiring can be tough, so if an extension can help the employee improve and keep you from having to go through the hiring process again, it’s worth a shot.

Of course, this all depends on what the performance issues are. If they are so major that you don’t feel comfortable keeping the employee on at all, you can still choose to terminate.

Meet with the employee privately and tell them in a straightforward way that their performance has not progressed to where you need it to be, so you have made the decision to terminate their employment. Give them a letter that documents their termination, and include the reason for termination in that letter. This way you’ve given them the respect of your honest reason for needing to terminate, and you have also documented that in writing which will help protect you.

Use our Termination Checklist to make sure you’re covering all your bases.

There’s been a few instances lately where our team has had to wait for 5 to 15 minutes in the parking lot before starting their workday because the team lead with the key arrived late. The employees who had to wait have submitted timecard adjustments each time, expecting to be paid for the time they were sitting in the parking lot. I don’t think I should be paying them when they’re not actually working, especially since they can stay a few minutes later at the end of the day to make up for it. Can I make this our standard policy moving forward?

The legal side of things: The federal Fair Labor Standards Act (FLSA) requires you to pay employees for time worked, so it may seem natural to not be paying employees for time they aren’t actually working, and to expect them to make up for missed time. In this scenario, however, it can actually violate the FLSA.

The FLSA states “When your employee is waiting for work to do, for repairs to be made, etc. while on duty, he or she is engaged to wait and the time is hours worked.” It doesn’t matter if the employee makes up the extra time at the end of the shift – they still need to be paid for the time they spent waiting for someone else to open so they could get to work.

When an employee arrives to work on time but is unable to enter because the office is locked, they’re not really free to leave. They’re expected to be there and have no idea when the office will be opened, so the employees are literally meeting their employment obligation in waiting to be able to work.

Now for the human approach:It is understandably incredibly frustrating to pay employees to start work at a certain time even when they aren’t performing productive time yet, and to potentially even be paying them for extra time at the end of the day for them to get all their work done. Keep in mind that these employees are not the root of the problem and are not actually doing anything wrong.

The HR issue here is actually the employee in charge of opening. It’s their lateness that is leading to the need for timecard adjustments. To fix the problem you’re asking about, you first need to fix the access issue.

Is the person opening the office right now the only one who can do it? If so, you need to address the lateness with them directly. Even if there weren’t other employees waiting on them, this employee should not consistently be arriving late. You should explain the impact their lateness has on other employees and office efficiency as a whole and set clear arrival expectations. If the issue persists, a corrective action may be in order.

Other options you can explore are installing a keypad so other employees can access the building without needing an actual key, or giving employees timekeeping access from their phones so they can clock in when they arrive even if the keyholder isn’t there yet. Obviously, these solutions come with their own set of concerns and may not work for you.

The bottom line is that not paying your employees for the time spent waiting is incredibly risky and could lead to a wage claim. Focusing on fixing the root of the issue is the best way to stay compliant and hopefully eliminate the need for adjustments moving forward.