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Employee Discipline: Rhode Island

Employee Discipline requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Jessica Sussman

Summary

  • Rhode Island wiretapping laws require the consent of one party in order to legally record a conversation. See Recording Meetings.
  • Rhode Island law prohibits smoking within enclosed places of employment. Employees should be disciplined for violations of employer policies enforcing this law. See Smoke-Free Workplace Law.
  • Rhode Island employers may not discipline employees for certain conduct while off-duty. See Off-Duty Conduct.
  • Rhode Island employers may not, orally or in writing, request, require or subject an employee to submit a sample of his or her urine, blood or other bodily fluid or tissue for testing as a condition of continued employment. See Drug and Alcohol Testing.
  • Employees in Rhode Island are permitted to take time off from work for protected activities, and may not be disciplined for doing so. See Attendance.
  • Rhode Island employers should be cautious when disciplining employees for actions related to breastfeeding in the workplace. See Breastfeeding.
  • Rhode Island has enacted the Student and Employee Social Media Privacy Act of 2014. See Social Media Privacy.
  • Rhode Island law protects employees from discrimination based on a number of protected characteristics. See Discipline and Discrimination.
  • Rhode Island law prohibits employers from retaliating against certain employees who have engaged in protected activities. See Discipline and Retaliation.
  • Employers should be aware of potential tort, or wrongful act, claims that may be brought based on employee discipline, including defamation. See Discipline Considerations.
  • Rhode Island employers should use caution when assessing monetary penalties for misconduct. See Penalties for Misconduct.
  • Generally, employees disciplined for misconduct will not be eligible for unemployment insurance benefits. See Employment Security Eligibility.

Recording Meetings

Rhode Island law protects an employee's right to privacy. +R.I. Gen. Laws § 9-1-28.1. However, an employer may legally monitor employees under certain circumstances. See Employee Management > Employee Privacy: Rhode Island.

Rhode Island wiretapping laws require the consent of one party in order to legally record a conversation. +R.I. Gen. Laws § 11-35-21(c)(3).

Therefore, disciplinary meetings may be recorded if the employer's representative consents to the recording.

Having an accurate recording of the disciplinary meeting may be helpful should questions arise at a later date.

Smoke-Free Workplace Law

Rhode Island's Public Health and Workplace Safety Act prohibits smoking within enclosed places of employment. +R.I. Gen. Laws § 23-20.10-4. Smoking or smoke means inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette, pipe, weed, plant, other tobacco product or plant product or other combustible substance in any manner or in any form intended for inhalation in any manner or form. The definition specifically includes:

  • Electronic cigarettes;
  • Electronic cigars;
  • Electronic pipes;
  • Electronic nicotine delivery system products; or
  • Similar products that rely on vaporization or aerosolization.

+2017 Bill Text RI H.B. 8357, amending R.I. Gen. Laws § 23-20.10.2 (18).

The Act defines places of employment to include the following:

  • Common work areas;
  • Auditoriums;
  • Classrooms;
  • Conferences;
  • Private offices;
  • Elevators;
  • Hallways;
  • Medical facilities;
  • Cafeterias;
  • Employee lounges;
  • Rest rooms;
  • Stairways; and
  • Any other enclosed area within an employment facility.

+2017 Bill Text RI H.B. 8357, amending R.I. Gen. Laws § 23-20.10.2 (12).

Employees are required to communicate this law to their employees. +R.I. Gen. Laws § 23-20.10-4.

Specifically, employers are required to post "No Smoking" signs conspicuously in every place of employment where smoking is prohibited under the Act. See Employee Communications: Rhode Island.

The law permits employers to provide employees with designated outdoor smoking for their employees.

If employers elect to do so, the area provided must be physically separated from the enclosed workplace. +R.I. Gen. Laws § 23-20.10-5.

Employers should provide new employees with the organization's policies regarding smoking in the workplace.

In an effort to avoid violating state smoke-free workplace laws, employers should discipline employees who violate internal policies and work rules regarding smoking.

Off-Duty Conduct

Smoking Discrimination

Although Rhode Island law does regulate smoking in workplaces, no employers may require an employee to refrain from smoking or using tobacco products outside the course of his or her employment. +R.I. Gen. Laws § 23-20.10-14.

Nonprofit organizations that discourage the use of tobacco products as part of their primary purposes are exempted from the requirements of this law.

Employee Political Activities

Rhode Island law prohibits employers from attempting to influence their employees' political actions or opinions within 90 days of a general election by the use of coercive or threatening behavior. +R.I. Gen. Laws § 17-23-6.

See Employee Management > Employee Communications: Rhode Island.

Rhode Island law prohibits employers from attempting to exercise undue influence over an employee who serves as a part-time elected official. +R.I. Gen. Laws § 28-11.1-3. Specifically, an employer may not:

  • Fire or threaten to fire an employee based on his or her activities or decisions as an elected official;
  • Attempt to influence the employee to introduce legislation or vote in a particular manner on legislation by resorting to job discrimination, compensation or adverse employment action (e.g., discipline);
  • Discriminate against an employee because of his or her legislative activities, votes or business.

Drug and Alcohol Testing

Rhode Island employers must follow specific legal requirements when testing promotion candidates or employees for drug and alcohol use.

Rhode Island law permits employers to test an applicant's blood or urine under the following circumstances:

  • The applicant has been extended an offer of employment conditioned on the applicant receiving a negative test result;
  • The applicant provides the test sample in private, outside the presence of any person; and
  • Positive tests are confirmed.

+R.I. Gen. Laws § 28-6.5-1(b)

See Preemployment Screening and Testing: Rhode Island.

With respect to employees, Rhode Island employers may not, orally or in writing, request, require or subject an employee to submit a sample of his or her urine, blood or other bodily fluid or tissue for testing as a condition of continued employment.

Employers are permitted to require a specific employee to submit to such testing if the following requirements are met:

  • The employer has reasonable grounds to believe, based on specific objective facts, that the employee's use of controlled substances is impairing the employee's ability to perform his or her job;
  • The employee provides the test sample in private, outside the presence of any person;
  • Testing is conducted in conjunction with a bona fide rehabilitation program;
  • Positive test results are confirmed;
  • The employer informs the employee that he or she has the opportunity to have the sample tested or evaluated by an independent testing facility at the employer's expense;
  • The employer provides the employee with a reasonable opportunity to rebut or explain the results;
  • The employer has promulgated a drug abuse prevention policy that complies with requirements of Rhode Island's drug testing law; and
  • The employer keeps the results of any test confidential, except for disclosing the results of a "positive" test only to other employees with a job-related need to know, and to defend against any legal action brought by the employee against the employer.

+R.I. Gen. Laws § 28-6.5-1(a).

Violation of this law is punishable as a misdemeanor, with attendant criminal penalties.

As with any employee drug or alcohol testing program, employers should be aware of testing requirements under the ADA which offer protection to recovering alcoholics and drug addicts. See Disabilities (ADA): Rhode Island.

Employers should provide advance notice to employees of any internal testing policies and procedures.

Additionally, employers who do engage in drug testing should ensure privacy in all aspects of the testing procedures. See Employee Privacy: Rhode Island.

Marijuana

Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:

  • Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
  • May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.

Rhode Island law permits the use of marijuana for medical purposes. The law includes discrimination protections. However, an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.

An employer should continue to follow applicable drug testing and drug-free policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.

Attendance

Employees in Rhode Island are permitted to take time off from work for various protected activities.

See Employee Leaves > FMLA: Rhode Island;

See Employee Leaves > Jury Duty: Rhode Island;

See Other Leaves: Rhode Island.

Jury and Witness Leave

While an employer is not required to pay an employee for time taken to attend jury duty, an employer may not discharge or discipline an employee as a result of jury duty leave.

However, employers must comply with any requirements under a collective bargaining agreement that provides paid time off for jury duty.

Leave for Military Members

Permanent Rhode Island employees must be provided with a leave of absence for military training or active duty.

In addition, employees in Rhode Island are entitled to reinstatement to the same position or to a position with similar seniority, status and pay unless the employer's circumstances make reinstatement impossible or unreasonable.

Family Military Leave

Spouses or parents of individuals who are called to military service lasting longer than 30 days may request family military leave.

However, employers may require certification from the proper military authority to verify the employee's eligibility to take the requested family military leave.

School Involvement Leave

Under the Parental and Family Medical Leave Act, Rhode Island employers are required to provide leave to employees employed for twelve consecutive months to attend school conferences or other school-related activities for a child of whom the employee is the parent, foster parent or guardian. +R.I. Gen. Laws § 28-48-12.

The employee is entitled to a total of 10 hours of leave during a 12 month period.

However, employers are not required to pay employees for school involvement leave. Employers are permitted to substitute any accrued paid vacation leave or other appropriate paid leave for any part of the leave.

Domestic Victim Leave

Rhode Island employers must permit employees who are the victim of crimes to attend court proceedings. +R.I. Gen. Laws § 12-28-13.

Leave Due to Subpoena

An employer may not terminate, threaten or otherwise take any adverse action against an employee regarding his or her compensation, terms, conditions, location or privileges of employment as a result of the employee's absence from work to comply with a subpoena. The law includes protections for employees:

  • To respond to a subpoena to give evidence; or
  • To testify before a court (whether within the state or not) or before any judicial, quasi-judicial or other administrative body or entity with the authority to issue subpoenas.

An employer should treat employees taking leave due to a subpoena the same way that it treats employees taking all other types of unpaid leave and should train HR and supervisory personnel to do so.

+R.I. Gen. Laws § 9-1-54, as added by +2015 Bill Text RI S.B. 2423. For more information on this type of leave, please see Leave to Respond to Subpoena.

Healthy and Safe Families and Workplaces Act

Rhode Island has passed the Healthy and Safe Families and Workplaces Act, which generally applies to employers with 18 or more employees. See Other Leaves: Rhode Island; +2017 Bill Text RI S.B. 290. However, the Act has retaliation protections that apply to employers with fewer than 18 employees.

Specifically, the Act prohibits an employer from taking an adverse action against an employee solely based upon the employee's use of up to 24 hours of leave during calendar year 2018, 32 hours during calendar year 2019 and 40 hours per calendar year thereafter. +R.I. Gen. Laws § 28-57-1; 260-RICR-30-05-5.6.1(A).

Adverse action means the denial of any right guaranteed under the Act, its implementing regulations, and any:

  • Threat;
  • Discharge;
  • Suspension;
  • Demotion;
  • Reduction of hours;
  • Reporting or threatening to report the citizenship or immigration status of the employee or his or her family member to a federal, state or local agency; or
  • Any other action that would cause harm to the employee in any way.

260-RICR-30-05-5.3(A)(1).

A covered employer may not require, as a condition of providing earned paid sick and safe time, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick and safe leave time.

In addition, an employer may not require disclosure of details relating to domestic violence, sexual assault, sexual contact or stalking or the details of an employee's or an employee's family member's health information as a condition of providing paid sick and safe leave time.

However, if an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for paid sick and safe leave under the Act, an employer may discipline the employee, up to and including termination of employment, for misuse of sick leave. +R.I. Gen. Laws § 28-57-6 (I). In addition, employees may not use paid sick and safe leave as an excuse to be late for work without an authorized purpose.

An employer that violates the Act may be liable for a civil penalty in the amount of $100 for the first violation, and each subsequent violation would be subject to penalties under the state minimum wage provisions ($100 to $500 fine, with each day of violation constituting a separate offense). +R.I. Gen. Laws § 28-12-18.

Breastfeeding

Rhode Island employers should be cautious when disciplining employees for actions related to breastfeeding in the workplace.

Rhode Island law permits employers to provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk. +R.I. Gen. Laws § 23-13.2-1. In addition, the State Fair Employment Practices Act provides lactation protections. See State Fair Employment Practices Act.

Social Media Privacy

Rhode Island's Student and Employee Social Media Privacy Act of 2014 protects an individual from being discharged, disciplined or penalized for refusing to divulge social media information to an employer. +2013 Bill Text RI H.B. 7124. The Act prohibits an employer from requiring, suggesting or causing an individual to disclose access information (e.g., a username and/or password) to a social media site or otherwise require access to a social media site.

However, an employer may require an employee to divulge any personal social media account information if it reasonably believes the information to be relevant to a misconduct investigation or an investigation into a workplace-related violation of law (provided the information is accessed and used solely in conjunction with the disciplinary investigation or a related proceeding).

See Employee Privacy: Rhode Island.

Discipline and Discrimination

State Fair Employment Practices Act

The State Fair Employment Practices Act prohibits discrimination based on the following protected categories:

  • Race;
  • Color;
  • Religion;
  • National origin;
  • Sex, including pregnancy;
  • Sexual orientation;
  • Gender identity or expression;
  • Age, ages 40 and over; or
  • Disability.

+R.I. Gen. Laws § 28-5-5.

The law applies to both public and private employers with four or more employees.

Reasonable accommodations for pregnancy, childbirth and related conditions. The State Fair Employment Practices Act has been amended to enhance protections based on pregnancy, childbirth and related conditions (e.g., lactation or breastfeeding). +2015 Bill Text RI S.B. 276; +R.I. Gen. Laws § 28-5-7.4. Under the Act, an employer should offer reasonable accommodations to an employee who is pregnant or has a related condition unless doing so would result in an undue hardship for the employer. See EEO - Discrimination: Rhode Island.

The law prohibits an employer from requiring an employee to take leave if another reasonable accommodation may be provided. In addition, an employer may not deny any employment opportunities to an employee based on pregnancy, childbirth or a related condition.

However, the law does not require an employer to terminate any employee, transfer any employee with more seniority or promote an underqualified employee in order to accommodate a pregnant employee, unless the employer would otherwise do so.

Other Protected Classes

Rhode Island law protects employees from discrimination based on a number of protected characteristics, including the following:

See EEO - Discrimination: Rhode Island;

See USERRA: Rhode Island;

See Unfair Labor Practices: Rhode Island.

Rhode Island law prohibits employers from discriminating against an individual who has an actual or perceived positive test result for HIV. +R.I. Gen. Laws § 23-6.3-11. The law further prohibits employers from requiring an HIV test as a condition of employment, unless there is either a clear and present danger of HIV transmission to others, according to competent medical authorities or the test is otherwise authorized by state law.

Employers should ensure that any employee testing complies with federal requirements. See Employee Management > Disabilities (ADA): Rhode Island.

Equal Pay

Rhode Island's Equal Pay Law prohibits discrimination in wages on the basis of sex for equal work or work on the same operations. +R.I. Gen. Laws § 28-6-17.

As a result, any contract that creates an unlawful discrepancy in pay based on gender is unenforceable in Rhode Island.

The law applies to all Rhode Island employers regardless of size. Employees who complain of such a pay disparity based on gender are protected from retaliation. +R.I. Gen. Laws § 28-6-21.

See EEO - Retaliation: Rhode Island.

Employers may rely on the following factors to determine an employee's pay:

  • Seniority;
  • Experience;
  • Training;
  • Skill;
  • Ability;
  • Duties;
  • Services performed; and
  • Shifts worked.

Employers are prohibited from taking retaliatory action against an employee who has made a complaint, started a proceeding, testified or is about to testify, or otherwise exercised his or her rights under the law. +R.I. Gen. Laws § 28-6-21.

Discipline and Retaliation

Retaliation Protections

Rhode Island law prohibits employers from retaliating against certain employees who have engaged in protected activities, including the following:

The Rhode Island Whistleblowers' Protection Act

Employers in Rhode Island must be aware of the Whistleblowers' Protection Act. R.I. Gen. Laws § 28-50-1 to § 28-50-9.

The Act prohibits an employer from taking any adverse employment action because an employee has reported a violation, unless the employer has reason to know the reported violation is false.

The Act protects employees who:

  • Report, or plan to report, to a public body a violation of a law, rule or regulation;
  • Participate in a whistleblowing investigation, hearing or inquiry, or a court claim; or
  • Refuse to violate or assist in violating any law, rule or regulation.

+R.I. Gen. Laws § 28-50-3.

An employer may take an adverse action against a whistleblowing employee if the employee knows or reasonably should know that the report is false.

Employees should follow internal procedures as well as legal requirements when reporting legal violations. Complaints or reports may be verbal or written.

Whistleblower protection is available only to those who report violations according to the provisions of the Act, and not, for example, directly to the media. See Picard v. State, +694 A.2d 754 (R.I. 1997).

Employers should take any complaints of violations made to supervisors or management seriously.

As with any complaint, an investigation should be conducted. Employers should ensure that no changes to the complaining employee's terms and conditions of employment are administered during this time without good cause.

Discipline Considerations

Employers should be aware of potential tort, or wrongful act, claims that may be brought based on employee discipline.

Employers must administer discipline in a nondiscriminatory manner in order to minimize liability regarding such claims.

Defamation

Defamation occurs when an individual's reputation is harmed as a result of false and malicious statements.

Employees who are the subject of disciplinary proceedings may claim their reputation has been damaged.

An employer's defenses to defamation include truth and personal opinion. In addition, certain employment communications may be privileged.

Nevertheless, employers should restrict the flow of negative information about employees to only those with a need to know for business related reasons.

See Employee Communications: Rhode Island;

See Performance Appraisals: Rhode Island.

Penalties for Misconduct

An employer is prohibited from making pay deductions for:

  • Spoilage or breakage;
  • Shortages or losses; and
  • Fines or penalties for an employee's tardiness, misconduct or quitting without notice.

+R.I. Gen. Laws § 28-14-3.2; +2017 Bill Text RI S.B. 350; see Payment of Wages: Rhode Island.

Employment Security Eligibility

As a general rule, an employee that has been terminated for misconduct is not eligible for unemployment insurance benefits. See Unemployment Insurance: Rhode Island. Under Rhode Island law, a suspension without pay from work for proved misconduct is treated as a termination for purposes of employment security eligibility determinations. See +2015 Bill Text RI H.B. 5957.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

EEO - Discrimination: Rhode Island

Employee Communications: Rhode Island

Employee Privacy: Rhode Island