A friend of mine has asked my help on a few HR issues, but this one I’m not certain on so I thought I’d ask you
He works for an airline and was told to go on break 4 minutes after his shift began and he refused, now they are asking him to resign in lieu of being terminated, is this legal?
I’m still not a lawyer, but the there are two legal questions here. I’ll separate them out.
Question 1: Can a company force you to take a break 4 minutes into your shift?
Generally, companies can set whatever hours they want. Federal law is pretty quiet on breaks, but lots of states have laws surrounding this. My first instinct was to say, “I bet this would be illegal in California.” California has some pretty crazy laws, and I still bet a California judge wouldn’t go for this, but I couldn’t find anything about taking a meal break too early. California has pretty clear laws about not taking a meal break too late, but no mention of too early. California also requires a 10 minute paid break that should be as close as possible to the middle of a shift. So, in theory, if this was a 10 minute CA break, it would violate the law.
I’m not going to repeat the process of looking up all other states (Google [state] employee break law and you’ll get your info). So, we’ll go into this assuming that this is legal (even though it may not be). So can they? Yes. Should they? No.
This is what we call dumb. Obviously, they didn’t need the guy to start work at his scheduled time. Rather than calling him a few hours before the shift began, they simply waited until he showed up and then told him to take a seat. This is very bad management. In a case like this, if there really is no work to be done for a half an hour, the company should eat the cost. And frankly, I fly quite a bit and have never been in a situation where I’ve said, “My goodness! There are so many people working right now! Those check in lines are just moving too fast and I got my luggage without having to wait! I’m going to complain!” (Okay, lots of times we have no one in front of us when we check in, but that’s because when I fly, I fly out of a smaller airport, but I digress. When I fly out of big airports, they are almost always disasters.) So, there was something this guy could have done.
But, should your friend have sucked it up and taken the break? Well, that depends. I’m not a fan of turning into a doormat. but I’m also not a fan of unnecessarily antagonizing your boss. The problem here is, a rational boss wouldn’t ask you to take a break 4 minutes into a shift without profuse apologizing and explaining that blah, blah, blah, nothing he can do, but could you please do him this one favor? Pushing back against that makes no sense because it’s a one-time thing, your boss is really sorry, and it’s not a big deal. But an irrational boss, who asks you to do things like this all the time, deserves to get some push back for pulling something like this. The problem is irrational bosses are irrational and respond like your friend’s boss with threats to fire.
So, the very person you need to push back against is the very one that will punish you for doing so. Fun times, eh?
But, unless your friend is a Sr VP (which I doubt), your friend’s boss is not the president of the company so he can bump this up. I’d start with HR. Explain that he has an 8-hour shift and receives only 1 30-minute lunch break, and it makes no sense to take that at 4 minutes into a shift. Apologize for angering the boss, but ask if this is company policy and if they can do something for you. Now, a smart HR department will raise a fit over this ridiculous supervisor and your friend can go on his merry way. A not so smart HR department will label this insubordination and threaten with firing. You can then bump this up to your boss’s boss, and so on. However, I suspect that they all have specific targets that have to be met and for whatever reason this break needed to be taken then.
So, it’s really critical that your friend document the heck out of this. If he has any emails on this topic, he should forward them to his home account. He’ll need it when he fights unemployment, which brings us to the next question.
Question 2: Can your company ask you to resign instead of firing you?
They can always ask. Heck, I can ask you to resign. But, I won’t. Some companies love to do the whole “forced resignation” thing. You are rarely, rarely, rarely better off resigning rather than being fired. I know, I know, if you resign, you don’t have to to answer “yes” to the “have you ever been fired?” question. But, that’s the only benefit. When you’re job hunting, the recruiter is still going to ask you why you left your last job without a new one lined up. And you’ll have to explain it the same way you would if you were fired. No benefit. You’re not receiving severance or a stellar recommendation or anything of value for resigning. They undoubtedly will fight (and most likely win) an unemployment claim, since they’ll have a copy of your “resignation letter.”
Always ask the following questions/say the following statements before agreeing to resign under pressure:
• How much severance will you give me in exchange for my resignation?
• If I resign, will you oppose unemployment?
• Why do you want me to resign?
• What will you say when you are called for a reference?
• I will take this and have it reviewed by my attorney before signing.
• I need this in writing.
• What will be my official “reason for termination” be in your HR system as well as my paper file?
Employment attorney Donna Ballman says, “You need to weigh your options carefully before agreeing to resign. Now is the time to negotiate. If they want you gone, let them pay you to go away. Otherwise, make them fire you. You need to consider the upsides and downsides to resigning versus being fired. Here are some things to consider.” Donna is a very wise woman. Think about that.
So, my advice: Escalate the threat of termination, document the heck out of everything, and don’t resign without a big severance check.