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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 32897
Experience:  Retired (mostly)
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I worked for my employer for 8 months and just recently got

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I worked for my employer for 8 months and just recently got fired for not clocking out for my lunch break. The hour for my break was always taken out. This past weekend I got hurt and couldn't return to work until I seen my doctor I called and told my boss this and I was fired on the spot for not clocking out for lunch. It was never a written policy and I never was wrote up for it. Do they hsve the right to fire me for this without documentation I was warned for this?
Submitted: 10 months ago.
Category: California Employment Law
Expert:  socrateaser replied 10 months ago.
Hello,

So, what you mean is that your boss used the excuse of the lunch break timeclock discrepancy as a means to fire you because of your injury.

Unfortunately, unless your injury was work related, or you had previously requested Family and Medical Leave Act benefits so that you could be off work with job protection, your employer could terminate you, regardless of the timeclock issue. So, while that may have been the stated reason, it doesn't matter, at least as far as the termination goes, because once again, the employer can fire you, whether or not you were clocking in correctly.

The reason for the use of the timeclock issue is so that the employer can avoid paying unemployment insurance benefits to you. You will have to file for unemployment, and then when the employer claims that you were fired for incorrectly clocking in and out, you will have to ask the judge to order the employer to subpoena your timecard records since you were first employed, so that you can show that you were never actually required to clock out, and the employer simply deducted your lunch time from your hours.

When the judge sees the records, he/she will know that the employer is lying, and you will get the unemployment benefits.

That's the best you can do in this circumstance.

Hope this helps.

Customer: replied 10 months ago.

Ok now they have appealed and they won for willful misconduct. Now about me requesting my time clock its all done through computer they actuall printed off a copy of me clicking in at 11:50am clocking out for lunch at 12:00 pm clocking back in at 1pm problem is I start my shift at 12:00 pm there is no way I would clock in 10 minutes before my shift and take my lunch at the time I'm supposed to click in. I think it was forged to make them look better but again this is not a written policy kust something they stated they said during orentation. Question is do I have a case for it not being a rule in the employee handbook not getting warned or written up and having them takw my hour break out my check regardless of me clocking in or out?

Expert:  socrateaser replied 10 months ago.
Missouri law does not recognize employee handbook implied employee contracts. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661 (Mo. 1988).

The existence or nonexistence of a rule that would permit you to avoid proper use of the timeclock is irrelevant -- because the employer does not need any reason to terminate you.

I am obligated to give you the unvarnished truth here -- not merely the answer that you would prefer. And, the truth is that you cannot sue for the employer's misuse of the timeclock system -- unless that use directly and negatively affects your wages during employment. If you were denied pay, then that would give you a case. But, your allegations don't suggest that pay was ever at issue, so I assume this is not a claim that you could use to your advantgage.

Wish I had a better answer for you -- but, this is one of those cases where you cannot beat the system. All you can do is move on and hope that your next employer treats you better (n.b., in my experience, all employers mistreat their employees, so it's mostly wishful thinking to believe that you will ever get fair treatment, unless you start your own business and become the employer).

Best wishes.
Customer: replied 10 months ago.

Ok I wasn't talking about sueing I was stating in regaurds of unemployment do I have a chance there with the given information stated prior to your response?

Expert:  socrateaser replied 10 months ago.
Oh, okay, I didn't understand your meaning.

It seems to me that eight months of time logs could not be easily manipulated to fail to show that you were routinely clocking in the same way every day. It would be more costly to forge the records than to pay the unemployment claim.

However, the absence of a rule won't save your claim, because without a rule, employees are expected to correctly clock in and out. The only way to prove your claim is to obtain a log of your timeclock record for the entire 8 months and show how the employer clearly implied a rule that permitted you to not have to clock out for lunch. Alternatively, if you can find former coworkers to testify that they have never clocked out for lunch, then that would also prove the employer's implied agreement that you didn't have to clock out.

Each of the above would show the judge objective evidence that you were simply following the "real" rules of the employer by not clocking out for lunch.

Hope this helps.
Customer: replied 10 months ago.

Ok last thing and I'm done so in the case he only showed me clocking in and out for lunch once and that one time he showed me clocking in 10 mins before my shift and take a lunch at the time my shift started he couldn't show anymore times of me clocking in and out for lunch with that if I request for the total eight monyhs of my time clock outs and it only shows one is that enough for me to get denied for willful misconduct

Expert:  socrateaser replied 10 months ago.
In your original question, when you stated that "The hour for my break was always taken out," my (perhaps incorrect) impression was that it was routine practice for you and other employee to not clock out for lunch, and for your employer to then take out the lunch break from your pay. If this is true, then firing you for not clocking out is unreasonable, because that's not the employer's actual policy.

If on the other hand, there was no such routine practice you did oridinarily clock out for lunch, then your failure to do so could be viewed as willful misconduct -- or, it could be viewed as an accidental error.

In either case, the presence of a log would show a pattern of conduct on your part, i.e., if you routinely did not clock out for lunch, then it would not be willful misconduct for your failure to do so on this particular occasion. And, if you routinely did clock out for lunch, then one error over eight months -- even two or three errors, would not be willful misconduct, because your pattern of conduct was to correctly clock out -- making this single incident merely an accident.

To me, this makes the log critical to proving your claim, regardless of the employer's policy or actual behavior.

The only way that your conduct would be willful so as to deny you unemployment would be if the pattern shows that the employer required correct timeclock use, and you repeatedly failed to correctly clock in and out.

I hope this clarifies my thinking.
Customer: replied 10 months ago.

Found out more information yesterday the whole reason my employer appealed my unemployment was because they said they didn't take a hour out for my lunch. During the whole case they never asked if they took the hour out for my lunch also I had a check stub with the total amount of hours I worked in a week I couldn't use that evidence because I didn't fax it to my employer. They check stub shows I wrked 24 hrs I worked Mon 1-9 Tuesday 9-6 Thursday 9-6 that's a total of 27 hrs if you take away a hour each day for lunch I would be left with 23 to 24 hrs. So if I'm able to show those two check stubs is that enough to show they took out for lunch and possible win my unemployment.

Expert:  socrateaser replied 10 months ago.
Your evidence seems credible to me, because it does show a pattern of deducting an hour for lunch, regardless of the time clock log.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 32897
Experience: Retired (mostly)
socrateaser and 3 other California Employment Law Specialists are ready to help you
Customer: replied 10 months ago.

Ok thanks

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