Decision Not to Hire Applicant Because of Smoking Is Legal
Question: Can an employer refuse to hire someone because the applicant smokes?
During a lengthy interview for a mechanic’s position at a major company, I had a cigarette on a break. After the interview, I was told the company decided to hire someone else because I would be leaving the buildings too much to smoke.
If the employer acted illegally, what are my options?
--H.H., Hawthorne
Answer: Yes. There is no state or federal law protecting employees who smoke.
Indeed, California law requires employers to take significant steps to ensure their employees are not subjected to smoke.
Section 6404.5 of the California Labor Code, which was enacted into law in 1994, states that the regulation of smoking in the workplace is a matter of statewide interest and concern. This section specifically notes that an employer is not obligated to provide reasonable accommodation to smokers or to provide break rooms for smokers.
Therefore, this employer did not act illegally.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
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Jobless Benefits May Not Be Awarded for Move
Q: If I quit my part-time job in order to move to another state, can I collect unemployment benefits? If I need a reason why I moved, could I use air quality as a valid reason? Would I need a physician’s statement?
--R.M., Los Angeles
A: If you apply for unemployment benefits under these circumstances, your application is likely to be denied.
A mere desire to move to another state is not considered “good cause” to justify payment of benefits. Nor will a mere concern about one’s general health as a result of air quality in a particular geographical area suffice.
Only where the nature of the work involved causes an undue risk of injury or illness--and such risk is documented by medical evidence--would an employee be deemed by the Employment Development Department as having “good cause” to leave employment for health reasons.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
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Manager Might Be Entitled to Layoff Notice
Q: Is a 10-year employee working as a warehouse manager for a California corporation entitled to a layoff notice or severance pay, or both?
--D.C., Buena Park
A: An employer generally is under no obligation to provide an employee with severance pay. However, some companies have written policies providing such pay in the event of a layoff. You should check to see if your employer has such a severance policy.
Regarding a notice, employers with more than 100 workers are required by federal law to provide 60 days’ notice when there will be closure of a plant or a department within a plant that will result in at least 50 employees losing their jobs.
The notice period also is required when there will be a mass layoff--one that involves at least one-third of the work force and at least 50 employees.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
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Firm May Have to Pay Worker for Stolen Tools
Q: I am a carpenter with a construction company that specializes in remodeling homes.
My employer requires me to provide my own tools, which are kept in a locked storage cabinet inside a locked garage on the employer’s job site.
Recently, the job site was burglarized and my tools, worth about $4,000, were stolen. Is my employer responsible for this loss?
--B.S., Simi Valley
A: It is not unusual for certain employers, such as construction companies, to ask employees to use some of their own tools.
But the employer would be responsible for the loss of those tools when it sets conditions that you describe--requiring you to provide your tools as well as storing them in the employer’s garage. An employer is responsible for employee expenses.
The employer might have been able to circumvent its responsibility for the losses by providing a “disclaimer of its liability” in the employee handbook or posting such a notice at the storage cabinet.
In the absence of such a statement, the company would be responsible as the owner of the cabinet in which it required you to store your tools.
If the company is responsible, its obligation probably would be limited to the value of the stolen tools in their used condition, rather than the cost of replacing them with new tools.
Still, the company might be receptive to reimbursing you for the full cost of replacing your tools, particularly if the loss is covered by insurance.
If you were working as an independent contractor, however, you might be responsible for replacing the tools.
--Don D. Sessions
Employee rights attorney
Mission Viejo
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes .com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at www.latimes.com/shoptalk.
