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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27229
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I clocked out for lunch and went with a co-worker at a nearby

Customer Question

I clocked out for lunch and went with a co-worker at a nearby restaurant. During our lunch, we noticed our VP eating at a restaurant across from us. We finished lunch, got back to work, and I clocked back in. The following work day, my manager asked me to come to his office. He told me that our VP saw me eating my lunch, and he checked my time. He said I took a 45 minute lunch. My manager told me that the next time our VP checks our times, and sees that I take longer than a 30 minute lunch, my manager will be forced to use disciplinary action.

We have this memo at work that hourly people have to take a 30 minute lunch. I have asked other hourly people, from other departments, and some of them told me that they have taken an hour long lunch for years, and none of their managers approached them about taking a long lunch. I feel like I've been singled out.

I would ask my HR rep, but unfortunately my HR rep is very good friends with our VP so if I HR this question, then I'm sure that our VP will ask me to visit him in his office to "talk". So I'm not sure what to do. That is why I am seeking your advice.

My questions are:
1) Is this memo considered a policy? There is nothing in the employee handbook that states lunch is 30 minutes, no less and no more. And this memo says "you must be punched out for a MINIMUM of 30 minutes...."

2) If I do get disciplined for taking a "long" lunch, do I have a legitimate law suit for being disciplined unjustly?
Submitted: 10 months ago.
Category: California Employment Law
Expert:  LawTalk replied 10 months ago.

Good morning Dennis,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. It is unfortunate that employers do not always treat them employees fairly and equally. Those that do not exhibit poor management skills, and ultimately lose good employees based on their unfair practices.

CA law requires that employees working at least a five hour shift must be given a minimum of a 30 minute meal break. It is up to the employer whether the employee must punch out during that time.

Whether an employee is allowed to take a break of longer than 30 minutes is left up to the employer/supervisor. While there may be nothing in the employee handbook about meal breaks, that does not mean that a particular employer/supervisor may not impose rules concerning such breaks, so long as those rules incorporate the mandates of state law as regards XXXXX XXXXX minute period.

As for the memo you refer to, as it is in writing and has been disseminated to employees in the company, it has the effect of company policy---regardless of whether it is presently incorporated into the employee handbook.

I empathize with you, that you may be being singled out, and that all employees at your job are not treated the same. But the laws of the state of CA do not prohibit different rules for different employees---unless your discipline for taking a long lunch is directly related to your race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. Such discrimination is illegal.

Absent proof of this illegal discrimination, the employment laws of CA do not provide a legal remedy to you based on your being disciplined---despite the fact that it is not fair to treat employees differently. The law does not go so far as to legislate fairness---except in very specific instances, and then it is to avoid illegal discrimination. I am sorry.

I wish you the best in 2013.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

You may reply back to me using the Reply to Expert link if you have additional questions.

Kindly take a moment to rate my service to you based on the understanding of the law I provided. Please understand that I have no control over the how the law impacts your particular situation.

Thank you,

Doug

Customer: replied 10 months ago.

Hi Doug,


 


Thank you for your quick response. I do appreciate your effort in taking a look at my situation. I read what you wrote, and I understand. I'm just confused because I'm off the clock, I'm off property and I make up the time I do spend on any long lunch break, so I don't understand why I need to be disciplined. Thanks for your time again, and have a great weekend.

Expert:  LawTalk replied 10 months ago.
Good morning Dennis,

In my judgment there really is no basis to discipline you---at least not from a fair minded management perspective. I don't claim to know what is in the mind of the VP. Perhaps he was imbibing at lunch, felt you were spying and wanted to prevent rumors from getting started---but who knows.

Unfortunately, the employer doesn't have to show a need for the discipline. Again, this is just very poor management style and is indicative of a cancer in the company. It will eventually lead to more egregious actions---that may themselves result in a lawsuit.

Thank you for your kind words. They are appreciated. Please keep in mind that until you rate me highly for my service, I will not be credited with helping you.

Thanks again.

Have a great weekend ahead!

Doug
LawTalk, Attorney
Satisfied Customers: 27229
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 3 other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 10 months ago.
Thank you for your positive rating of my service, Dennis. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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