I can imagine many Americans reading this headline and getting angry, "Chicago Woman Fired for Doing Work at Lunch Wins Unemployment Claim." But in the words of a childhood favorite of mine, it is important to know "the rest of the story."

Sharon Smiley, a ten year tenured receptionist for a Chicago real estate company, was fired for working through lunch. Yes, you read that correctly, she was fired for working through lunch.1 Company policy at her employer, Equity Lifestyle Properties, Inc., required all hourly, nonexempt employees to take a 30 minute lunch break. However, on January 28, 2010, Ms. Smiley clocked out for lunch, but returned to her desk at the front of the office and began working on a spreadsheet on her computer, answering the phone and responding to questions for those who approached her desk (the sort of things she did as part of her regular job duties). A manager saw what she was doing and told her to step away from her desk and go to lunch. Ms. Smiley refused and was terminated. You might be thinking, "What? Is the company nuts? If only I had 10 employees like Ms. Smiley the things I couldn't do!" But, there was a method to the employer's madness.

First, Illinois law requires unpaid meal breaks of at least 20 minutes be given to employees who work 7.5 hours or more in a given day. The employer's policy requiring lunch simply was compliant with Illinois state wage and hour law. Crazy as it may sound, permitting Ms. Smiley to work through lunch could be a violation of the law by Equity Lifestyles. Second, federal wage and hour law requires that an employer pay an employee for all hours the employer "suffers" or "permits" the employee to work. If the employer knows or should know that the employee is working, the time must be paid. So, putting aside the legality of working through lunch under state law, if Equity Lifestyles knew Ms. Smiley was working while she was clocked out, then they were required by law to pay her for the time she was clocked out, and have the dubious honor of having to explain, if the question was posed by the DOL or a court, exactly why their time records do not accurately reflect the hours worked by their employees -- something else that is a violation of the law. Moreover, if Ms. Smiley was scheduled to work 40 hours a week and the time spent working through lunch carried her over the 40 hour regular time limit imposed by the Fair Labor Standards Act, then her employer is required to pay her overtime at time and half for any time in excess of 40.

Unfortunately, despite the way it sounds in the national news, Equity Lifestyle's approach of having a policy that complies with state law requirements and asking its employee to comply with those requirements was appropriate. It was also appropriate for Equity Lifestyle's management to ask an employee who is not complying with policy and may subject the company to liability to stop and take the lunch break required by company policy (and state law). It is also appropriate to discipline, and even terminate, employees who refuse to comply with company policies. When Ms. Smiley refused to follow company policy, even after management's reminder of that policy, she may not have appreciated that she had stepped out of the bounds of being a real asset to the company and had become a real liability to company, but that is a fair way for the employer to view her refusal. Ms. Smiley may have had the best intentions (and we all know where that road leads), but Ms. Smiley would probably still be smiling at Equity Lifestyle's front desk if she had simply followed directions.

Footnotes

1. See article in national news: http://gma.yahoo.com/chicago-woman-fired-doing-lunch-wins-unemployment-claim-145926016--abc-news.html

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