My long-time friend and recruitment advertising guru, Chris Bacon, sent me an interesting article she ran across and asked my legal opinion, “Would you fire someone for working through lunch?” The online article she forwarded to me outlined an absurd set of facts.
Sharon Smiley, a receptionist/office assistant with a Chicago real estate company opted to not eat lunch, and instead she worked at her desk, answering phones and working on a spread sheet for her employer. When her manager observed her working during her lunch break, she was told to go and speak with the HR manager, who promptly terminated her employment for violation of the lunch policy and insubordination. A two-year court battle over unemployment benefits followed. Last month, a Cook County judge ruled Smiley’s conduct did not rise to the level of misconduct, and awarded her unemployment benefits.
I understand the concept of workplace policies and the concern employers have about employees working “off the clock,” creating overtime problems under the FLSA. But really…… terminating an employee for working through lunch! What about common sense, communication, and simply correcting an employee’s misstep?
While Sharon Smiley represented herself throughout the two year legal battle over unemployment benefits, you can bet her employer did not. They no doubt spent a handsome price on legal fees arguing that a ten year employee who opted to work through lunch had committed gross misconduct, warranting the denial of unemployment benefits.
The short answer to my friend Chris is “NO!” I would not advise any client of mine to terminate an employee who works through their half- hour lunch break. I would advise the employer to speak to Ms. Smiley and explain why working through lunch is not acceptable. Since the “work” had already been performed, the employer should also check to see if Smiley was entitled to overtime for the one instance. The matter should be documented and Ms. Smiley provided a copy of the written documentation. The documentation should include a warning to Ms. Smiley that she could be disciplined if she works through lunch again in the future. In all reality though, Ms. Smiley seems bright enough that simply advising her she can’t work through lunch and why might have been enough to deter the behavior from happening again. Oh, and let’s not forget, a shake-up in HR might be warranted too.