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"Smoke 'Em if You Got 'Em" - Unemployment Benefits Approved

“Smoke ‘Em if You Got ‘Em” – Unemployment Benefits Approved

In Pavement Restorations v. Ralls, et al., (Tenn. Ct. App., WS, February 17, 2017) the Tennessee Court of Appeals, Western Section, affirmed the grant of unemployment compensation benefits to the employee who had been discharged for violation of the employer’s no-smoking policy. In this case, one of the employer’s owners, Hargett, had observed an employee smoking in the back seat of the truck while returning from a job site, and an investigation concluded that it was Ralls. Upon questioning, Ralls admitted to smoking in the company vehicle. He stated that he had fallen asleep and when he woke up, pulled out a cigarette and lit it out of habit, took a couple of puffs, then threw it out. Based on Rall’s admission (and some prior instances of tardiness), the employer made the decision to terminate him. It was undisputed that the employer had a handbook policy prohibiting smoking, and that the handbook provided that a single violation could result in termination. Additionally, Hargett testified that the no-smoking policy had been covered in a company safety meeting a month prior to this incident.

The initial Agency decision denied unemployment compensation benefits and the Appeals Tribunal affirmed that decision. At the hearing, Ralls testified that other employees, including supervisors, smoked in company vehicles, and his violation of the policy was inadvertent. On appeal to the Commissioner of Labor’s designee, the decision was reversed. The ruling indicated that the inadvertent violation due to habit was not disqualifying misconduct. The trial court affirmed the decision of the Commissioner’s designee, and the Court of Appeals affirmed.

Essentially, the court held that while the statutory definition of disqualifying misconduct includes the violation of an employer’s rule known to the employee, there is a related statutory exemption for misconduct where the action is due to “inadvertence or ordinary negligence in isolated instances”. As there was no evidence that Ralls had previously violated this rule and the testimony otherwise reflected that his action was inadvertent, the court found the Commissioner’s ruling was based on substantial and material evidence was not arbitrary or capricious.

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