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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