Is it legal for a company to discriminate against smokers and not pay them while for breaks while non-smokers get paid for their breaks?

At my job we have 2/15 minute breaks if time allows (and a 30 minute lunch). For the 2/15 minute breaks, smokers are told that they have to punch out with no pay while non-smokers get paid to do whatever they want.

Asked on July 28, 2015 under Employment Labor Law, Vermont


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Yes, it probably is legal. That is unless the terms of a union agreement or employment contract are being violated or specific state law. Additionally, this preferential treatment must not constitute a form of actionable discrimination. So if unless you are being treated differently based on your membership in a "protected class", you don't have claim. In other words, is your lesser treatment due to your race, religion, nationality, gender, sexual orientation, age, etc.? If not then while your treatment may be discriminatory it is not illegal discrimination; non-smokers getting preferential treatment it is not a violation of the law.
To be certain of your rights under state law, you can contact your state's department of labor or you can consult an employment law attorney.

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