by Quenda Behler
Recently, my little town hit the big time. It has been
talked about on television and radio, and written about in
newspapers and thousands of blogs. Why? Because a local
employer fired four employees who would not quit smoking in the
privacy of their own homes. How did he know they were smoking
when they weren't at work? Random blood tests. This is a pretty
extreme case, but it does point to an issue that contractors
should know about — specifically, what you can and can't
fire people for.
The basic starting place for employment law in this country is
that employees have no property interest in their jobs. This
means that when an employer wants to fire an employee, he can.
The law does not say that the employer has to have a good
reason, but the law does say he can't do it for an unlawful
reason. Got that?
So you can fire anybody for any reason (including smoking in
their homes) unless there is a law on the books that
specifically says you can't fire people for that
The first and most important reason an employer might not be
able to fire an employee whenever he feels like it is that the
employee has an employment contract. An employee with an
employment contract can't be fired unless he breaks the
How does an employee get a contract? An employee can sign a
personal employment contract, work under a union-negotiated
contract, or work for a company that has a handbook written in
such a way that it creates an implied contract (see "Writing an
Employee Manual," 1/04).
To fire an employee with a contract, the employer has to show
that the employee doesn't meet the requirements of the contract
or the company handbook — for example, that the employee
didn't follow the rules in the handbook. This is one of the
reasons I'm always preaching that you should put exactly what
you expect from your employees in your handbook: Stay sober on
the job site. Be ready to work. Handle tools safely. Treat the
homeowners with courtesy and respect. That kind of thing.
Could you put a no-smoking clause in the company handbook? In
most states, you could if you wanted to.
Watch Out for Protected
Most construction workers do not have an employment contract of
any kind, so that makes them "at-will" employees —
meaning they can be fired at the will of the employer, anytime
But is that always true? Can all at-will employees be fired
anytime? No, not all of them. (Don't you hate it when I give
you a general rule and then immediately start pointing to
exceptions?) The exception has to do with protected categories,
which exist by federal or state law to protect classes of
employees such as handicapped persons, older workers, certain
minorities, veterans, women, or some other group. Protected
groups and the rules that apply vary by state.
None of those federal or state laws about protected categories
says that people with these legal protections can never be
fired. What those laws say is that employees in these
categories can't be fired for having a handicap, or for being a
veteran or part of another protected group. There has to be
Difficult burden of proof. Here's how it works:
If someone who is not in a protected category is fired and then
sues for wrongful discharge, that former employee has to prove
he was fired for the wrong reason, which can be
But it's the other way around for people in a protected
category. Here's an example: Suppose I sue my former employer,
claiming that he fired me because I'm more than 50 years old,
when the truth is that he fired me because I didn't show up for
work. I'm in a protected category, so when we go to court I
don't necessarily have to prove he fired me because of my age.
If I can point to some kind of evidence that suggests it was
age discrimination (no one over 50 works there or people are
always fired after they turn 50), then it's up to the employer
to prove that my age wasn't the reason.
How does he prove that? He does it by showing that he did have
good reason to fire me and he has proof of it. The best and
easiest way would be if his reason for firing me was described
in the company handbook as a reason for termination, and there
was documentation in the company records (such as in my
personnel record) of the times and places I violated that
The law doesn't say that an
employer has to have a good reason to fire an employee,
but it does say he or she can't do it for an unlawful
So, if you're an employer, what should you take away from this
First, how important it is to document in your employee
handbook exactly what you expect from employees. Second, how
important it is to document exactly how and when an
unsatisfactory employee is unsatisfactory.
Also, if you want no smoking on your job sites, you can
implement that policy in most states, but you should have an
employee handbook that explicitly says "no smoking" before you
fire someone for smoking on the job.
How about firing an employee for smoking in the privacy of his
home? That may be legal in your state — but if you do
fire someone for that reason, you'll still have to pay
unemployment benefits. That's because, legally, unemployment
benefits are "just cause" benefits, meaning they can't be
denied unless someone is fired for cause — which does not
include smoking at home.
Quenda Behler Story has practiced and
taught law for more than 25 years. She's the author of The
Contractor's Plain-English Legal Guide.