As employers and employee advocates eagerly await the California Supreme Court’s decision in Brinkley and Brinker regarding the lengths to which employers must ensure employees are afforded the opportunity to take meal breaks, some companies have decided to go so far as to discipline employees who voluntarily work “off the clock.” I have to admit that when a manager asks me, “what do I do if an employee insists on working through lunch,” I have offhandedly commented that the only choice may be to discipline the employee for refusing to follow the employer’s reasonable directions. Well, it turns out that may not be the best advice.
A recent Chicago Tribune article reports a victory for Sharon Smiley after she was fired for working during her lunch hour. In Illinois, like California, employees are entitled to a lunch break in the middle of the day. After 10 years of employment, Sharon Smiley decided to work through a lunch break to finish some work. Her manager became upset because Sharon was apparently in violation of company policies so he sent her to HR. HR had a short discussion with her and then fired her for misconduct (violating company policies) and insubordination (refusing to follow the employer’s instructions). Sharon was devastated.
To add insult to injury, the company opposed her unemployment insurance claim. She went to several different attorneys, all of which told her she had no chance of winning. Undaunted, and really with no other choice, Sharon represented herself. She appealed the initial unemployment insurance benefits denial, and the superior court judge overturned the decision. Last week an appellate court upheld the lower court’s decision allowing Sharon to obtain unemployment insurance benefits.
To my knowledge there are no plans to file a wrongful discharge claim.
The article is particularly interesting here in California as the Supreme Court decides whether employers must force employees to take lunch breaks or merely ensure employees have a realistic opportunity to take the required breaks. I guess I’ll have to add a few more caveats to my advice.
You can read the original Chicago Tribune article here.Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 South Bay: 408-293-6341 East Bay: 925-364-4655
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