Employee Fired for Refusing to Take a Meal Break Is Entitled to Unemployment Benefits! Of Course She Is.

Sharon Smiley worked at a Chicago real estate company for 10 years as a receptionist and administrative assistant.  One day, after she punched out for lunch, she continued to do work at her desk – she wanted to finish a project.  Smiley’s manager told her it was time for her to go to lunch and step away from her desk, but she declined.  That manager then observed Smiley working on her computer, answering the phone and responding to questions by people who approached her desk, according to a filing from the appellate court of Illinois.

The company's human resources director then got involved and explained that non-exempt employees were required to take a 30-minute lunch break and that this policy was in the company handbook. The HR director further stated that not following the policy would be a violation of Illinois' labor laws.  In addition, because Smiley's desk was located directly at the front door of the office, the HR director had "many discussions” over Smiley eating at her desk. Smiley was subsequently fired because she continued to work through her lunch break after being told directly not to do so. 

As employers are aware, many states have laws that require employers to provide employees with a rest and/or meal break.  In an effort to comply with the law and manage overtime expenses, many employers monitor employees to insure that the employees are taking the required breaks.  The law doesn’t require that an employer fire a worker who refuses to take a break in order to finish continue work.  However, it is not uncommon for employers to discipline an employee for insubordination if the employee fails to follow a management directive or refuses to comply with a company policy. 

Another important fact is that Illinois, like the majority of states, is an employment at-will state which means that Smiley or any employee can be fired to no reason or any reason as long as the reason for termination is not discriminatory/illegal. 

Here’s where this case gets interesting.  Smiley did not challenge her termination.  It’s the employer’s post-termination conduct that got the employer in trouble.  After being fired, Smiley learned she was ineligible for unemployment benefits because she had been discharged for misconduct connected with her work!  This was probably an overstatement.

Smiley appealed to the Illinois Department of Employment Security's board of review three times, was denied, then took her case to a circuit court. That court ruled Smiley, who did not challenge the firing, was eligible for benefits.

The appellate court of Illinois affirmed the circuit court ruling saying the "insubordination arose from [Smiley's] efforts to perform additional work for [her employer], beyond what was required of her."  "The insubordination occurred in a meeting with her superiors which lasted only four minutes," the court ruling stated.  The court ruling also said there was evidence that managers had been able to work with her in the past to perform new tasks with which she was uncomfortable.

In Illinois, an unemployed person is qualified for unemployment unless there is misconduct, which has been defined as “conduct evincing such willful or wanton disregard of an employer's interests."  In this case, the employer's position that Smiley's actions amounted to the level of misconduct that disqualify her from eligibility for unemployment benefits.   

BOTTOM LINE:  Can you fire an employee for failing to take required meal breaks? Probably.  Can you deny unemployment benefits due to insubordination? That depends. The employer's definition might not be the same as the state's or governing agency's definition.  If the employer's definition is more stringent than the state's definition, there could be problems for the employer. 

If you’re facing this situation or have any questions, contact me.  

For more information, visit my website.

Federal Government Contractor Alert: Proposed OFCCP Revisions Will Increase Obligations Regarding Individuals with Disabilities

The U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), recently issued a proposal to revise the regulations that require Federal contractors to take affirmative action to hire, retain, and promote qualified individuals with disabilities.  The proposed changes, if implemented, will significantly increase the Federal contractors' administrative, outreach, and recording obligations with respect to individuals with disabilities. Read the proposed revisions here.

The proposed regulations would strengthen the affirmative action provisions, increase the contractor’s data collection obligations, and establish a utilization goal for individuals with disabilities to presumably assist in measuring the effectiveness of the contractor’s affirmative action efforts. 

Specific proposed requirements include:

• Contractors will need to annually survey their employees, providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify in an anonymous manner.  In addition, contractors will be required to invite applicants to self-identify as individuals with disabilities at both the pre- and post-offer stages, using OFCCP mandated language.
• Contractors will be required to document and maintain data on ratio of jobs filled to openings, ratio of applicants with disabilities to all applicants, total number of applicants hired, and ratio of individuals with disabilities hired to all hires.
• Contractors will be required to engage in mandatory outreach/recruitment efforts that involve listing all employment opportunities (with limited exceptions) with the local employment delivery service, similar to the current obligations under the Vietnam Era Veterans' Readjustment Assistance Act.  Additional required outreach efforts will also be required, including entering into a minimum of three linkage agreements with specific types of outreach sources.  In addition, an annual review and documentation of these recruitment efforts will be required to determine effectiveness in identifying and recruiting qualified individuals with disabilities.
• Contractors will be required to establish a utilization goal for individuals with disabilities and set hiring goals for each Job Group in the workforce. 
• Contractors will be required to implement written reasonable accommodation procedures and include the written procedures in their Affirmative Action Plans.
• Contractors will be required to annually review and document their personnel processes, as well as physical and mental job qualifications, instead of doing so periodically.

Comments on the proposed rule from interested parties may be submitted to the OFCCP on or before February 7, 2012.  OFCCP anticipates a final rule will be published around Fall of 2012.  We'll keep you posted.  In the meantime, contact me if you need assistance with you OFCCP obligations. For more information, please visit my my website.  

 

Reminder to New York Employers: Wage Theft Prevention Act Takes Effect January 1, 2012

Under the Wage Theft Prevention Act (WTPA), all New York employers, other than governmental agencies, must give annual written notice regarding wages to, and obtain a written acknowledgement from, employees at the time of hiring (before any work is performed) and between January 1 and February 1 of each year.   The notice must contain the following information: 

• the employee's rate or rates of pay (including hourly rate and overtime rate of pay for employees who are not exempt from overtime);
• whether paid by the hour, shift, day, week, salary, piece, commission or other;
• whether the employer intends to claim any allowances as part of the minimum wage, including tip, meal or lodging allowances; 
• the regular pay day;
• the name of the employer and any "doing business as" names;
• the physical address of the employer's main office or principal place of business, and a mailing address if different; and
• the telephone number of the employer.

The notices must be provided to employees in English and in the employee's primary language as identified by each employee, and the acknowledgement must contain an affirmation by the employee that he or she accurately identified his or her primary language to the employer and that the notice was provided in the language so identified or otherwise complied with Section 195 of the Labor Law. The employer must keep the signed acknowledgement for six years.

In addition, the wage statement (pay stub) must also now include the following information pertaining to employee’s regular and overtime hours and other information.  All records must be maintained for six years.

Bottom Line:  Begin preparing notices now for distribution on January 1;

Review your workforce to determine the languages other than English that you will need to have on hand for your employees.  Dual-language templates are currently available in Spanish, Chinese, Korean, Haitian Creole, Polish, and Russian on the New York State DOL website.  If the employee identifies a primary language other than one of these six, the employer may provide the Notice in English only.    

Templates of all WTPA are available on the NewYork State DOL website. 

Please contact me if you'd like additional information about these requirements.