Kevin McNeil has sued his former employer, Concrete Supply of Iowa. Besides claiming he was fired for pointing out the smoking violation, McNeil also says he suffered from racial discrimination, harassment and retaliation by his former employer.

The lawsuit claims that, 15 days after the state’s no-smoking law took effect, he confronted a co-worker smoking in the company break room. McNeil claims he told the co-worker smoking in the room was illegal and asked him to smoke outside. Then McNeil filed a complaint with the state health department, according to the Chicago Tribune.

The lawsuit claims the co-worker who was accused of smoking in the break room and a witness were interviewed. McNeil was fired three days later for allegedly “promoting violence in the workplace.”

McNeil also claims he was subjected to racial slurs and that the company did nothing after he complained several times. He cites one incident in which an employee — the same one accused of smoking in the break room — brought in a homemade toy monkey with a noose around its neck, and that he was told he should “get over it.”

The company denies all the charges.

McNeil’s attorney calls this an important public policy case that reminds employers that an employee who notes a co-worker’s illegal behavior shouldn’t be fired.

George McGaughie worked for Interfloor Ltd. in Dumfries, Scotland.

He was fired after a human resources assistant reported she’d seen him smoking in his office, according to the Dumfries Standard.

The HR rep had been smoking herself in a designated shelter just steps outside McGaughie’s office.

He denied smoking in his office. At his disciplinary hearing, McGaughie said he’d come in on his day off for a meeting and had been smoking in the shelter when his phone rang.

He said he went to his office to answer the phone, but his cigarette wasn’t lit while he was in his office.

An investigation turned up cigarette ash on the floor around his desk, a plastic cup inside the waste bin with two cigarettes inside and a cup burnt with a cigarette.

After his termination, McGaughie took his case to an employment tribunal and argued that dismissal after 40 years of service for a first offense was too harsh.

The tribunal upheld the firing. Testimony in favor of his firing included details about a fire in 1990 at the facility that had cost the company over one million pounds when a warehouse was destroyed.

Do you think the punishment fit the crime? Let us know in the Comments Box below.

Now it appears employers’ war on unhealthy employee habits is extending from smoking to eating. Back in May, HR Blunders ran a story, “Employees’ war on smoking goes ballistic.” In it, we recounted how Whirlpool Co. had suspended 39 workers who signed insurance documents that they didn’t use tobacco and were observed smoking on company grounds.

That story is one that drew a large number of comments, including:

• “I agree that smoking isn’t healthy. Neither is … eating too much … “
• “I believe obesity causes more health risks than smoking.”
• “Isn’t obesity just as much a health risk as smoking?”
• “How about the extremely overweight employee and their health problems?”
• “Next we will have employees weigh in and be measured to ensure that they have an ideal BMI (body mass index).”

The HR manager who made the last comment successfully predicted the future.

State workers in Alabama will have to start paying $25 a month for medical insurance that is otherwise free if they can’t get their BMI below 35.

Obese employees cost more

The screening for employees will start in January 2010.

If the screenings turn up serious problems with blood pressure, cholesterol, glucose or  obesity, employees will have a year to see a doctor at no cost, enroll in a wellness program or take steps on their own to improve their health.

If they don’t improve sufficiently by January 2011, they must pay the $25 per month for insurance.

Alabama already charges its workers who smoke. That charge is $24 per month.

The state’s plan actually lets employees considered simply overweight and even some who are obese off the hook.

A BMI of 18.5-24.9 is considered normal. Less than 18.5 is underweight. Between 25.0 and 29.9 is overweight. Over 30.0 is obese. More than 35.0 is considered morbidly obese when combined with other health problems such as high blood pressure or cholesterol.

The state will spend an extra $1.6 million next year on screenings and wellness programs, but expects to see significant long-term savings.

Someone with a BMI of 35 to 39 generates $1,748 more in annual medical expenses than someone with a BMI less than 25.

Alabama is the first state to institute a program like this. State of Ohio workers get $50 for having health assessments and another $50 for following through with any advice given.

Arkansas and Missouri offer monthly discounts on premiums for employees who take risk assessments and participate in wellness programs to reduce obesity, stress and other health conditions.

If all this information about weight has made you curious about what constitutes being overweight or obese, a BMI calculator is available online for free.

What do you think about Alabama’s program? Does your company offer wellness programs? If so, what’s included? Let us know in the Comments section below.

Companies now have all sorts of different rules regarding smoking during the workday. Did you ever wonder what would happen if an employee broke one of those rules? Now we know how one company handled the situation and that its decision has held up in court.

Karen Kridel worked for a Rochester, NY, law firm as a paralegal and was paid hourly. Every day she took two five-minute smoke breaks — one each in the morning and afternoon. She said she made up the time she took during the breaks.

Then the law firm banned smoking breaks for hourly employees but allowed them for salaried workers such as lawyers.

Kridel continued to take her two smoke breaks each day. The law firm fired her for misconduct.

She applied for unemployment benefits are received $3,000 worth before an appeal board disqualified her on the grounds that she was fired for misconduct. Kridel had originally told the unemployment office she was let go for lack of work.

She appealed the decision to take away her unemployment benefits.

Unfair treatment?

Kridel is quoted by law.com as saying, “If you’re addicted to cigarettes, you can’t just do that,” referring to the sudden cut off of smoke breaks. “Within an eight-hour day, you are entitled to take a break in the morning and in the afternoon,” she said. “I didn’t expect to get fired for smoking.”

A partner in the law firm, Gerald Dibble, wouldn’t speak directly about Kridel’s case.  He said five-minute breaks were being drawn out to 15 minutes or even a half hour. Some nonsmokers even joined the smokers just to chat.

The New York Supreme Court Appellate Division upheld the Unemployment Insurance Appeal Board’s decision to deny Kridel benefits, noting that she was fired for misconduct and that she misstated the reason she was let go from the law firm.

Kridel has also been ordered to pay back the $3,070.50 in unemployment insurance benefits she received.

This case shows that rules for salaried and hourly employees at the same company are often different — and that those policy differences will hold up in court.

What do you think about this case? And how do you handle complaints from hourly employees that salaried workers appear to receive special privileges? You can let us know in the comments box below.

In Wales, the answer might be, pretty far.

Gordon Williams, a painter from Wales, has been fined for breaching Great Britain’s smoking ban — by lighting up in his own van.

Officials told him his van was classified as a workplace. He was fined 30 pounds, about $60.

Williams says he’d understand being fined if he were a bus driver where he had contact with the public. But no one else encounters the smoke inside his van.

The County Council that issued the fine declined to comment.

Depending on how long you’ve been in the working world, you’ve seen anti-smoking policies gradually become more stringent. But just when some employees thought these rules were as tough as they could get, another wrinkle comes along.

The history of workplace anti-smoking policies in 20 words or less: designated smoking rooms; no smoking indoors; must be 20 feet from entrance; only in designated outdoor areas.

Most recently, some companies have started no-tobacco policies. Employees must sign documents that they don’t use any tobacco products. Reason: An effort to reduce ever-growing healthcare costs.

Ever wonder how these companies would enforce these policies? Well, one Whirlpool factory in Evansville, IN, has decided to suspend employees the company claims lied about smoking.

Whirlpool has suspended 39 workers who signed insurance documents that they don’t use tobacco products.

No blood tests or lab analysis was required. Whirlpool says the 39 were observed smoking or chewing tobacco on company property. A company spokeswoman says some could be fired for lying, according to wire service reports.

Whirlpool uses various financial incentives – and disincentives – to encourage its employees to give up smoking or chewing.

In Evansville, the factory charges tobacco users an extra $500 in annual health insurance premiums.

The employees will each get to present their cases to management before a final decision is made whether to fire them.

Growing trend

A 2007 national survey of employers with more than 20,000 employees shows 16% adjust healthcare premiums according to workers’ tobacco use.

The federal Employee Retirement Income Security Act (ERISA) limits the changes an employer can make to a health premium because of a worker’s unhealthy habits. However, there’s no limit on the penalty if employees lie about their status.

For employers that want to use a more definitive approach, there’s the option of testing applicants before they join the company to see if they are tobacco users. The Cleveland Clinic, for example, now tests applicants for a compound found in nicotine. If the test comes up positive, the applicants will be offered help quitting – but not the job.

As you might expect, these policies are being watched closely – and criticized. Lewis Maltby, president of the National Workrights Institute doesn’t have a problem with employers trying to discourage employees from smoking. But he sees this as a slippery slope.

Maltby worries that the health police will soon extend beyond tobacco use and into other unhealthy behaviors.

“We shouldn’t have to give employers complete control over our private life so they can save a few dollars on medical care,” he said in an interview.

Someone should tell him it may already be too late. Weyco, a medical benefits firm in Michigan, has increased the monthly health insurance premiums of employees who refuse to take mandated medical tests and physical exams.

Blue Cross/Blue Shield of North Carolina gives employees who participate in wellness programs a discount in their health insurance payments. Workers who don’t participate have to pay full price.

Companies thinking of instituting some of these policies should be careful. About 30 states have laws that forbid companies from firing employees who participate in legal activities – and smoking is legal.

But Whirlpool has found a way around that. Remember, if it fires any of the 39 suspended employees, it won’t be for smoking. It will be for lying about whether they use tobacco.

So, are you ready to tell your employees, “Drop the bacon double-cheeseburger, or else”?

Let’s hear what you think about these policies. And if your company has one, let us know about that, too.