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.
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 EvilHRLady@gmail.com.
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