forcing employee to take one-hour lunch against company policy & possible retaliation--Californi
AKM2008
2 Posts
My husband has worked for 10 years at one company, arriving at 7 and leaving at 4. He is an hourly employee. For these years, his boss told him that he must take a one-hour lunch for coverage (he's in IT), so he did, although he would revisit the issue with his boss about once a year only to be told the same thing. The company handbook states that lunches are 30 minutes. They now have more IT employees in the dept and all hours of the day are covered for users.
We now have a son who is going into daycare and with our new scheduling issues, my husband asked to change his hours in order to drop off our son at 8, thus arriving at work at 830, take a half hour lunch, and then leave at 5 (taking only a half hour lunch in order to spend some time with our son at night before bed). His boss okayed the "late" arrival to work, but emailed my husband that he had to stay until 5:30 (which means with traffic he'll be home at 6:15, one hour before our son's bedtime).
My husband then went to HR, who told him there was no such company policy about requiring a one-hour lunch and that his boss could not extend his workday like this.
He spoke with his boss, alone, trying to discuss things reasonably and rationally, and she told him he could leave if he didn't like working there. She also told him he took "the wrong path with me" by bringing this lunch issue up again and by his pointing out that another of her employees takes one and half hour lunches and leaves work as if he had taken only an hour lunch. He even reminded her that he had worked through lunch often with her knowing this (a no-no in CA) to complete projects and could she just please reconsider not for him but for our family. Their discussion went south after this. He went to HR to document because he feels very strongly she will retaliate by a poor performance review.
The last time my husband tried to discuss things of this nature with his boss, she put him on probation for 3 months and his review was filled with vague nitpicking--all this despite all other reviews aside from that time were glowing about him saving the company money and his stellar work performance.
He is really afraid of what she will do now, but is also afraid that if he has HR talk to her, that will further enrage her. He says that in this economy he will just keep his mouth shut (again) and collect his pay, but I feel surely there's something that can be done? What should he be doing re: documentation in case of retaliation? His review is coming up in June.
Any help or guidance would be greatly appreciated.
Comments
My husband has worked for 10 years at one company, arriving at 7 and leaving at 4. He is an hourly employee. For these years, his boss told him that he must take a one-hour lunch for coverage (he's in IT), so he did, although he would revisit the issue with his boss about once a year only to be told the same thing. The company handbook states that lunches are 30 minutes. They now have more IT employees in the dept and all hours of the day are covered for users.
We now have a son who is going into daycare and with our new scheduling issues, my husband asked to change his hours in order to drop off our son at 8, thus arriving at work at 830, take a half hour lunch, and then leave at 5 (taking only a half hour lunch in order to spend some time with our son at night before bed). His boss okayed the "late" arrival to work, but emailed my husband that he had to stay until 5:30 (which means with traffic he'll be home at 6:15, one hour before our son's bedtime).
My husband then went to HR, who told him there was no such company policy about requiring a one-hour lunch and that his boss could not extend his workday like this.
He spoke with his boss, alone, trying to discuss things reasonably and rationally, and she told him he could leave if he didn't like working there. She also told him he took "the wrong path with me" by bringing this lunch issue up again and by his pointing out that another of her employees takes one and half hour lunches and leaves work as if he had taken only an hour lunch. He even reminded her that he had worked through lunch often with her knowing this (a no-no in CA) to complete projects and could she just please reconsider not for him but for our family. Their discussion went south after this. He went to HR to document because he feels very strongly she will retaliate by a poor performance review.
The last time my husband tried to discuss things of this nature with his boss, she put him on probation for 3 months and his review was filled with vague nitpicking--all this despite all other reviews aside from that time were glowing about him saving the company money and his stellar work performance.
He is really afraid of what she will do now, but is also afraid that if he has HR talk to her, that will further enrage her. He says that in this economy he will just keep his mouth shut (again) and collect his pay, but I feel surely there's something that can be done? What should he be doing re: documentation in case of retaliation? His review is coming up in June.
Any help or guidance would be greatly appreciated.
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On the business relating to work schedules: schedule setting is entirely at the whim of the employer. If you cannot show some sort of illegal discrimination in schedule and break assignments, then you don't really have any recourse.
On the business about retaliation: your employer almost certainly has an open door policy with either a clause against retaliation or something in the code of conduct that protects employees against acts against the company's best interest (by retaliating against a good employee after complains about being wronged in his performance appraisal, especially if he was right). You face some challenges here. First, it's often difficult for HR professionals to assess who is a good IT employee versus who is a good machinist because of the different types of work output they create and because most HR people are not IT subject matter experts. Second, you have to overcome the fact that nobody comes to HR and says "I'm average so I'm upset about my bad performance appraisal." Personally, I have never had an employee come to me and say they were a terrible employee or inadequate at their job in any way. I'm not saying your husband doesn't know his job. I'm saying that HR never hears from anybody who doesn't say they do a great job. I'm also saying that it may be difficult for someone in HR to argue about an IT performance appraisal, although he or she can certainly investigate it if he or she is so inclined.
A sudden change in performance appraisals is something to keep an eye on.
An appraisal full of vague statements is something to point out to HR. If there's no concrete steps to take, then one may argue that there's been no corrective action and that is a problem with the supervisor, if the employee is adequately competent to perform the job.
Good luck.
By "employer" though, doesn't that mean the company, not the boss? The company does have a stated lunch break in its handbook of 30 minutes. And as stated in my post, the HR rep said the boss could NOT require a one-hour lunch. Is HR wrong??
I understand where you're coming from about the performance appraisals; however, my husband is the kind of employee that wins awards regularly for work in projects in his dept and cross-departmentally, and gets calls from senior execs at home because they trust his work and want to ask him to help their home PCs. I just can't believe that there's no other recourse for this boss, who is a bit over the top.
Anything about documentation we should know about?
By "employer" though, doesn't that mean the company, not the boss? The company does have a stated lunch break in its handbook of 30 minutes. And as stated in my post, the HR rep said the boss could NOT require a one-hour lunch. Is HR wrong??
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The law generally considers the "boss" to be the representative of the cmpany. Whatever the boss says is considered the will of the cmpany. That's why companies sometimes get in trouble when their supervisors do stupid things. The supervisor may get fired but, except in a few specific cases (e.g., FMLA), has no personal liability: liability rests on the shoulders of the company. HR is wrong as far as the law is concerned but can interpret/enforce company policy as they will.
So, in other words, if you go to the Department of Labor or the California state version of the DOL and report that your husband's boss is making him take 60 minute breaks when the handbook only says that he has to take 30 minute breaks, they are unlikely to care because that, in and of itself, does not violate any federal law. Based on the discussion on these boards on a similar matter, when we looked into CA code, and some CA specific practitioners chimed in, that doesn't seem to violate any CA laws either. Thus, any "wrongness" with this is within the confines of your husband's employer's policies and practices. Going back to my earlier reply, if you can't show that the supervisor is singling out your husband due to race, age, creed, etc., then you don't really have anything to talk to anybody about outside of the company.
If HR says what the boss is doing is naughty, then I would use HR to drop the hammer on the boss. Check your open door policy and make sure that it ensures protection from retaliation. If it doesn't, look for a general statement against retaliation and look at the code of conduct for ways to strike back at the boss if the boss retaliates for your husbands' use of HR. Have your husband talk to some of his friends first and find out if HR has any real teeth in the company. If they don't, then none of those policies mean much except to say that he will probably qualify for unemployment after he's fired.
[quote user="AKM2008"]
I understand where you're coming from about the performance appraisals; however, my husband is the kind of employee that wins awards regularly for work in projects in his dept and cross-departmentally, and gets calls from senior execs at home because they trust his work and want to ask him to help their home PCs. I just can't believe that there's no other recourse for this boss, who is a bit over the top.
Anything about documentation we should know about?[/quote]
It's not that there's no recourse, it's that there's no recourse OUTSIDE of the company's processes unless you can show that the supervisor is violating some law, which would almost certainly have to be some variation of showing that the supervisor is singling out your husband due to one of the protected characteristics such as age (over 40), race, color, national origin, etc. The fact that your husband wins awards can be meaningful but only if the awards are meaningful. I've run into this one before. In some environments, the awards are thrown around all the time to every body and they don't mean much when they're put under a microscope. Additionally, if senior execs are calling your husband, then why doesn't your husband use HR and leverage his relationship with senior execs to resolve the situation? Work life is political and being a jerk is not illegal and often doesn't really violate policy enough to get any traction for change within the organization, particularly if the jerk is good at what he or she does.
On the documentation side, it never hurts to save a copy of everything given to him. Request copies of everything he has signed. He can start a journal in a spiral binder of noteworthy events. In the end, this is more likely to make you both bitter and not really change anything unless there is a significant collection of data that your husband is being singled out for poor treatment for illegal reasons. Absent that, all of this focusing on a cause of unhappiness will not resolve the situation, not help you cope with the situation, and really distracts you from the most likely avenue for relief: HR and/or political connections.