Can you be fired for skipping lunch?

(MoneyWatch) 

COMMENTARY: A real estate firm fired a woman for working through lunch. It sounds crazy, right? Wouldn't you want an employee so dedicated to your company that she works straight through lunch?

Heaven knows I've spent innumerable lunch hours at my desk working and eating lunch at the same time, but I would have fired her as well.

Why? Because, for people who are paid by the hour, working through lunch is a violation of federal law. The problem isn't typing with one hand while holding a sandwich in the other hand -- it's a problem of doing unpaid labor. The woman in this case clocked out for the lunch break required by her employer (which is legally allowable under Illinois law), but instead of leaving her desk, she worked, violating federal law.

The Fair Labor Standards Act (FLSA) governs pay and hour regulation for employees. If you are subject to these laws (and are therefore non-exempt) you must be paid by the hour and cannot work for free even if you want to, and even if it's your own mistake that causes you to need to stay late.

For example, let's say you spend all afternoon working on a critical document, but at 4:30 there is a brief power outage and because you forgot to save your work, 4 hours of work was gone. Now, you might think that because it was your own stupidity that caused the problem that you should not be paid for the time it takes to fix the issue. Unfortunately, while your heart is in the right place, the law says that not only must you be paid for the time it takes you to correct your own error, if it pushes you above 40 hours of work in that week, you must be paid overtime.

You can see why bosses get grouchy when you "have" to work late.

Other violations of this law can seem silly. Technically, if you've clocked out for the day and your boss runs into you in the parking lot and says, "Hey, do you think we're prepared for tomorrow's presentation?" and you say, "I hope so, but..." and then you proceed to have a 15 minute conversation about tomorrow's planned meeting, you should be paid for that.

Want to increase jobs: Eliminate these laws
Should you work for free?

If answering phones is part of your job, you should let the phone ring while you eat lunch because answering it is work and if you're not being paid, you should not work.

It's the company that can get hit with the fines and the back pay if you, of your own free will and choice, choose to work without pay, which is why we HR types can seem utterly irrational when we demand you go to the lunch room or go home right at 5:00.

The laws were designed for workers in a very different economy. If you worked a factory, it was always obvious when you were working and when you were not. Therefore, if you worked without pay it was always the employers' fault and workers needed protection. In a knowledge environment that line is not always so clear. Is it a violation of law if your boss calls you at home and asks where you put a file? It takes 30 seconds to answer that question, but technically it's work.

What if you are sitting in a cafeteria eating lunch and chatting and the conversation turns to work-related topics? If you're non-exempt should you shut your mouth and refuse to participate in the conversation because it's technically work? Seems ridiculous, doesn't it?

But until these things change, yes, you can be fired for working during lunch. If you're paid by the hour, it's not worth the legal and financial risk to your company to have you put in any time for free. So, when you clock out, tune out.

Have a workplace dilemma? Send your questions to [e-mail].

[Shadeburst]

Thanks Suzanne for a hard-hitting no-bull article. Hard cases make bad law: changing the law for this one unlucky employee would have a negative effect on the labor rights of millions of others.

[chirpie1]

She shouldn't have been fired for working through lunch. If she had a project that needed to be worked on during that time, she should have been paid overtime, or allowed to leave early or come in late at some point.

Suzanne, I agree with your first point, but not with your second. If she's exempt then no overtime is necessary. However, it's a different story if the woman was non-exempt.

I agree that people can't just turn off their brains, but if I think of something for work during my time I don't feel I the need to be compensated. I'm not required to think about things then and that is where the difference lies in my opinion. If I were at a movie to get ideas for work (be so lucky), then I could ostensibly get the movie tickets reimbursed and then my time would on the company's clock, not mine.

I would like recognition for my idea, but don't necessarily need payment for the time I was thinking about it.

[SuzanneLucas]

The woman was non-exempt. That's why it's an issue.

There was no claim that she was randomly thinking about work. She was actively working, off the clock, in violation of company policy and federal law. The company is smart to terminate someone in that situation. It saves headaches later on.

[brc53]

Someone in management ASKED her to get this done by a certain time.

She shouldn't have been the one fired.

The person who set her up by asking for a document by a certain time, knowing it couldn't be done unless she worked through lunch and then blamed her, is the one who should have been disciplined. When did they think it would get done or do they believe they have little lunch fairies who do the word processing when employees go to lunch?

And this is where I disagree with the writer. Yes, the laws are pretty straight forward - but the state or the federal government don't have cameras in every work place. The only way this would have been an issue is if someone had complained.

I'm betting it wasn't this woman - who clocked out so her employer would be in the clear. It was someone else - which means this workplace has a habit of bosses pulling this nonsense.

Now, as for the boss who told her when they needed it but didn't have her back when she did it, they're a coward.

[SuzanneLucas]

This wasn't a case of the boss telling her to clock out and then keep working. She doesn't claim that at all. She claims she worked because she wanted to.

Some employers are corrupt and terrible, but that doesn't mean all are.

[Mike_in_USA]

This does seem ridiculous, but--we are also talking about the law. (not right or wrong, and the lawyers). If they let her work, all the legal stuff about breaks and so on, if they don't, then the news. Thanks to lawyers, no common sense survives, and if it does, it is quickly stamped out.

[Ericwvb]

For every one instance of someone who can't catch up on some work at lunch time (which sounds ridiculous) there are one thousand instances of employers abusing employees by forcing them work off the clock if the laws didn't protect them.

Besides, for most jobs where this becomes a big issue are salaried anyhow, so working on or off the clock is not an issue.

[Catch22ofNJ]

And you have documentation for this stupid statement?

[Catch22ofNJ]

Btw... calling the statement stupid, not you.

[Booban1]

You people got it wrong. It is not 'technically' working, it IS working. The law is all the more important to protect modern workers because people think there is some kind of gray zone now. There isn't!

Your time is your time and you boss has no business disturbing your private family life by calling you at home. This is the time to reduce your stress, enjoy your private time and live longer. You should not have to worry that you suddenly have to think about work stress and be on call 24/7. Whether you THINK it is good for you or not, it IS good for you to stop thinking about work on your free time and give your self a break AWAY from your desk and work related stress for a brief period during the work day.

It is important that these rights cannot be waived. Companies can easily make anything a condition of employment and everybody who is desperate for a job will sign away anything.

[hypnotoad72]

Well said, thank you.

And maybe that's why the economy went south so badly. To compel people to become desperate. And such acts are usually ranged and molded for the populace... by despots.

[luadda22]

boo, Fine, "working" is "working". Then all non-exempt employees should have to check in their cell phones when they arrive at work, if they receive or make personal calls or text messages, their pay should be docked because they are not "working". They should not eat or drink while "working" because then they are not "working". They should have their pay docked for going to the restroom because they are not "working". They should only be able to talk with other employees if it involves work, no causal conversation, no "good morning", no "how's the kids", no "did you see the game last night", no "do you want to go to lunch" until you are on your own time.

The absurdity can go both ways (so much for the modern worker). With an attitude like that, I'm glad you're not one of my employees.

[texasjustice801]

This country has morphed into a major joke.

[joefox97]

Gustav,

That's true to a point. The definition of work should be modified, though, so as not to unfairly penalize either worker or employer for activities that aren't burdensome. Answering a quick question at night, responding to e-mails (provided it's not required), etc. should be allowed. Further, an employee should be allowed to waive their rights on this if they so choose. Right now, they can't.

[retiredgustav]

Waive the right sounds good on the surface. However if there is a layoff or RIF who do you think they are going to keep, the guy that takes his lunch break or the brown noser who volunteers to work there lunch. This would just escalate the race to the bottom.

[retiredgustav]

These laws are just as important today as they were when they were created. Too many employers still take advantge of their workers by working them off the clock. How many times has Walmart been cited for this.