Employee Vaping, Background Checks & Cutting Hours: What’s Legal?

What do I do if I think an employee is taking long bathroom breaks to vape?

Question: My employee is taking several very long bathroom breaks throughout the day. I saw a vape in their bag once so I suspect they’re using the excuse of needing to use the bathroom to take “smoking breaks.” How do I get them to stop doing this, since they’re away from their desk way too often?

The Legal Side: It sounds like the fundamental concern here isn’t actually vaping, it’s an employee taking excessive and extended breaks and not getting their work done. So we will focus on this question primarily in that regard.

Before moving to a write-up, consider having a conversation with the employee about the literal issue – you can’t find them when you need them, and tasks are taking too long to get done. You have observed long, frequent breaks being taken. Being called out on what they’re doing may be enough to stop them from doing it, and you can move on from this being an issue at all.

In addition, broaching the subject in this more informal way gives them an opportunity to let you know if there is something going on with them that is necessitating longer breaks. There could be a medical reason for the frequency or length of the breaks. If the employee discloses a health-related reason, you may need to engage in the interactive process and evaluate a reasonable accommodation, depending on your state and size.

This does not mean you must allow unlimited or disruptive breaks. It does mean you need to have the conversation first. Acting on suspicion without giving the employee an opportunity to explain can create unnecessary legal risk.

Also, review your state’s wage-and-hour rules on rest periods. Some states are very specific about what is allowed/required and what flexibility you have. Any coaching or corrective action must align with both your policies and state law.

All of the above remaining true, you are of course permitted to prohibit vaping in the office. If you observe it happening, or observe indicators of it such as a smell, this is certainly something to be addressed.

The Human Side: There is a strong temptation to solve the mystery in your head before you ever talk to the employee, which could lead you down a non-productive path. We see this issue come up quite a bit, and typically if there is smoking or vaping occurring on there is also some other accompanying indicator such as a smell being reported.

Start with what you actually know. The number and length of breaks are creating a coverage and workflow issue. That is the problem. Explain the impact on the team and the practice, and ask the employee to help you understand what is going on.

If there is no protected medical reason, rely on your handbook. Most policies address smoke-free workplaces, including vaping, and set expectations around reasonable break frequency and duration. Excessive breaks are a performance issue and can be addressed through coaching.

In many cases, simply addressing it directly solves it. If it does not, move through your normal corrective process. Document what you observed, what was discussed, and what expectations were set. Clear notes today prevent bigger problems later and make it pretty easy to issue a written corrective action if the employee decides not to resolve the issue on their own.

Good documentation protects you no matter how the situation unfolds. This is easy to do with CEDR’s software. All backstageHR users need to do is go into the employee’s Vault, add a note that details the conversation you had with them, and that note will be automatically saved to the employee’s file with a time and date. If the issue continues, you won’t need to spend time tracking anything down.

What information can I use from background checks?

Question: A colleague of mine recently discovered that an employee was embezzling thousands from the business. I want to start running background checks on all employees to help avoid fraud and embezzlement in the future. Can I make hiring decisions based on what I find? 

The Legal Side: Yes, you can use background check information to make hiring decisions, but only if you do so correctly. Federal law requires written authorization and a specific adverse action process if you rely on the results to deny employment. You also cannot automatically disqualify someone because of a criminal record. The information must be job-related and consistent with business necessity, and many states regulate when checks can be run and what can be considered a business necessity.

We highly recommend that background checks be conducted as a condition of employment through a trusted third-party provider. If you are a CEDR member, our partner National Crime Search is integrated into backstageHR, making the process compliant and straightforward.

Running checks on current employees is more complicated (not sure if that was your question). You must obtain written consent before conducting a new check, apply the process consistently, and comply with any state or local restrictions. If you uncover something from years ago that has never impacted performance, you may not legally be able to act on it. And once you know something, you cannot unknow it.

The Human Side: We are cautious about retroactive background checks. When you suddenly run checks on long-trusted employees, the message can feel like you are questioning their integrity, and that can damage morale quickly.

We highly recommend pre-employment checks.

Also, background checks rarely prevent embezzlement. Internal controls do. Separation of duties, limited access to funds, and regular oversight are far more effective than trying to screen your way out of current risk.

Before you move forward, make sure you are solving the right problem.

Extra Credit Listening: Episode 108: Why, When, and How to Perform Background Checks 

Extra Credit Reading: When Should I Do a Background Check (and Where Should I Go to Do It)?

Is it okay to cut hours as a disciplinary tool?

Question: I’m considering cutting hours when employees receive their first corrective action as an added tool to help boost improvement. I think this will make them take the coaching more seriously. Is this legal?

The Legal Side: Yes, cutting hours can be legal. But it is rarely effective and puts you in a bad place.

Reducing hours is considered an adverse employment action. That matters. If the employee is in a protected class or has recently engaged in protected activity, such as requesting an accommodation, using protected sick leave, taking protected leave, experiencing domestic violence, or raising a workplace concern, the timing of your decision can create real risk. Even if your intent is discipline, it may be interpreted as unlawful retaliation.

You also need to separate what is truly misconduct from what may be legally protected behavior. Attendance issues often overlap with state-mandated sick leave laws, protected medical leave, disability accommodation rights, or even predictive scheduling laws in some jurisdictions. If the hours reduction is connected in any way to protected time off, you could create exposure quickly.

There are also wage and hour considerations. Reduced hours affect pay, overtime calculations, and, in some cases, benefits eligibility. For exempt employees, reductions can result in loss of exempt status qualification. For nonexempt employees, it may impact benefit qualifications.

In short, punitive measures are not just a coaching tool. It is a legal decision that could blow back on you, and that is why we almost never recommend it as a disciplinary tool.

The Human Side: Let’s make this personal for a moment.

If the employee is already struggling, maybe a bit over their head because life hit all at once – their car not running well, four kids sick at the same time, and the normal pressures of work – would losing a day of wages make things better or worse?

For most people, it makes things worse.

It increases stress.
It reduces stability.
It creates distraction.
And distraction rarely improves performance.

If your goal is improvement, ask whether cutting someone’s pay actually drives that outcome or simply creates financial pressure and resentment.

Corrective coaching works best when it is specific and intentional. If performance is the issue, address the performance. If attendance is the issue, address attendance. If there is a root cause behind the behavior, uncover it and decide whether it is a capability issue, an effort issue, or a temporary life overload. Adding a pay cut is entirely unnecessary.

Reducing hours can sometimes be appropriate in limited circumstances. But as a standard disciplinary tool, it often destabilizes the very person you are trying to help improve.

Strong leadership is about solving the right problem in the right way.