Do I have to pay an employee who works through lunch?

by Evil HR Lady on October 21, 2015

I have a non-exempt employee who misses a lot of time for doctors, dentists appointments and child appointments. She said she won’t take a lunch and will just leave an hour early for her appointments. Therefore, she expects to get paid for 8 hours because she did not take a lunch. I was told by our HR person we must allow her to do this because it is for medical appointments. Is this accurate? I thought non-exempt employees only get paid for hours worked. Also, these appointments are not for a major medical issue.

She absolutely, positively, must be paid for all hours worked. So if she skips lunch and leaves an hour early she still must be paid for working through lunch. If she worked, she must be paid, and your HR manager is an idiot if she thinks an employee can work through lunch and not get paid.

Let me reiterate this. IF A NON-EXEMPT EMPLOYEE IS WORKING YOU MUST PAY FOR THAT TIME. This does not change if you said, “Under no circumstances should you work during your lunch period.” You can fire her for working during lunch, but you must pay her for the work. Clear?

Okay, so now to your specific problem. You have an employee with a lot of medical appointments that are “not a major medical issue.” I’m going to take that to mean that she doesn’t qualify for FMLA or accommodations under ADA. If she does, this is the wrong answer.

What can you do?

You can tell your employee absolutely, positively, no more doctor appointments during the work day. She is scheduled to work from 8:00 to 5:00 with a lunch from 12:00 to 1:00. If she can’t get everything done around that schedule you will fire her. No more Mr. Nice Guy! Who cares if what isn’t major to you is major to her? It’s not life and death, therefore, she must work, work, work! All doctors are willing to meet with patients between 12:00 and 1:00, right? It’s totally easy to get appointments then anyway.

You can do this. It’s a horrible way to run an office. Your employees (all of them!) will grow to hate you. But, hey, you can do this.

What should you do?

Well, this is a better question, isn’t it? First of all, does your state law require lunch breaks for non-exempt employees? If it does, you will need to comply with that law. Some states, for instance, require that breaks be taken after a certain number of hours worked. If that’s the case, she can’t come in at 8:00, work straight to 4:00 and then go home. While she’s willingly doing the work, the law doesn’t care–the business is liable. You’ll have to tell her that you’re terribly sorry, but the law requires she take a break during this time window and she’ll have to either schedule her appointments during this window, or she’ll have to use PTO to cover that time.

If breaks are mandated, you can also allow her to make up the time within the same week (or same day, if your state starts counting overtime after 8 hours in one day). So, if she needs two hours for an appointment on Tuesday, she can work late on Wednesday and Thursday to make up for those two hours.

If breaks aren’t required, you need to evaluate if her less than traditional approach to the work day is a real problem. It may be. For instance, if she’s the receptionist, someone has to cover the front desk when she’s gone. That means a weird schedule can be difficult to accommodate. Additionally, if she’s not getting her work done, or she’s saying she’s “working through lunch” but what she’s really doing is eating at her desk while watching YouTube videos, you can absolutely put an end to this. But, you’re not putting an end to it for the sake of adhering to policy. You’re putting an end to it because it’s not working for the business.

There is a distinct difference here. Policy is great, but it doesn’t exist in a vacuum. It exists to help the business comply with the law and to help the business be successful. If this n0n-exempt employee’s appointments really are excessive and are actually for pedicures rather than doctor’s appointments, then I’d have the following conversation with her:

You: Jane, you’ve been gone for a lot of appointments lately. Is everything okay?

Jane: Yeah. I’m just trying to get my toenails shaped properly for my winter vacation to Costa Rica.

You: It’s critical that you’re in the office during your regularly scheduled hours. We can’t accommodate all these changes to your schedule. I need you to be here, and I need you to take your break during the regular lunch hour. If you need an exception, I need to approve it.

But, what if Jane’s answer to your question “Is everything okay?” is different.

Jane: Yeah, it’s fine. Just a bunch of doctor’s appointments. Perils of getting old, I guess!

This is an indication that she doesn’t want to share what her problem is and she shouldn’t need to. There are tons of things that require regular appointments that don’t qualify for FMLA or ADA accommodations. For instance, she may be in physical therapy. She may be in cognitive therapy. She may have a regular chiropractor appointment. She might need  allergy shots. She might be trying to get pregnant using IVF. There are about a zillion other things that she miht truly need time off for, but that she doesn’t want to bring the boss in on. I mean, “My husband had an affair and we’re trying to get through this and I have an individual therapy appointment every week and couples counseling every other week and that’s why I’m gone so much,” isn’t the type of things many people want to share with their boss.

If her need is genuine (and absent other information you need to assume it is), and the business can reasonably accommodate it and her performance is good, I’d tell your HR person to stick it in her ear and let Jane work out her issues the way she has been. She’s still working 8 hours every day, and she must be paid for those 8 hours.

If you can’t accommodate her, it’s perfectly fine to say, “Jane, I totally understand where you’re coming from. However, your job requires you to be onsite for regular hours. I’m happy to work with you to figure out a solution, but I need to approve any change to your schedule in advance.”

{ 22 comments… read them below or add one }

Annie October 21, 2015 at 2:20 pm

I read the question to state that HR is on the employee’s side on this. Did I read it wrong?

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KG October 21, 2015 at 2:35 pm

You read it the same way I did. The HR person told them they had to let her do it because it was for medical purposes. The letter writer didn’t like that answer and was hoping for validation. My concern is her “What Can You Do?” section was meant to be witty – and if this person takes her seriously – they could head themselves into hot water.

The whole time I read this I wondered where this person’s PTO or sick leave bucket is. Has she used it all? Or are you letting her do this hour trick keeping her PTO bucket in tact. So on top of taking an hour here and an hour there – she can now take a week of vacation because she hasn’t touched her PTO or vacation. If you have these policies, these should be used first – always!

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Evil HR Lady October 22, 2015 at 10:54 pm

Wouldn’t be the first time I’ve misread a letter. And now that I re-read it, it seems like the HR person is saying she has to allow the time off, but that the employee is the one who expects to be paid for 8 hours, not the HR person.

Maybe the OP will pop in and clarify!

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Kara October 21, 2015 at 3:28 pm

I’m very confused about the answer provided. The HR person said it was allowed. Where is the disconnect here?

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grannybunny October 21, 2015 at 4:02 pm

The manager obviously doesn’t trust the advice of his/her HR person.

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fposte October 21, 2015 at 4:38 pm

And if the HR person explicitly said that working through lunch unpaid is okay, the HR person can’t trump the law on this.

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Anonymous October 21, 2015 at 8:04 pm

I read it as the HR person saying the employee was allowed to work through lunch (and be paid for that work), which the LW didn’t want to do.

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fposte October 22, 2015 at 10:37 pm

Oh, could be–“do this” isn’t specific and I read it the other way.

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Judy October 21, 2015 at 5:56 pm

What if an employee receives a PAID lunch hour as a benefit? If they “work through lunch” to leave an hour early wouldn’t that be double-dipping since you already get paid for lunch but still leave an hour early?

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Evil HR Lady October 22, 2015 at 10:56 pm

Then they wouldn’t be paid for the hour they left early. They’d work more for less money.

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Bill Copeland October 21, 2015 at 6:02 pm

Please note that in Massachusetts, this employee would be entitled to take earned sick time (paid or unpaid depending on company size) for doctor appointments. Telling her that she cannot take these appointments during the work day, or firing her for doing so, would be considered retaliation – strictly forbidden under the MA sick time law. Please see http://bit.ly/MASickLeaveUpdate for further details; California has similar earned sick time rules too

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BookCocoon October 21, 2015 at 8:14 pm

Our company’s health insurance requires us to use their facilities, which are only open during work hours. When I raised this question to HR, I was told, “That’s what sick time is for.”

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Ralph Wiggum October 22, 2015 at 8:44 pm

After reading “Your employees (all of them!) will grow to hate you. But, hey, you can do this.” I read no further, and won’t. Won’t be back on this site anymore. MUCH MUCH MUCH better sites & ways to get this info & advice vs. this sh*@.
Join your local PIHRA group, HR.com, HRWatchdog.com, and your State’s Labor Laws website, at the least. Have ADP? They have HR411 for answers, can call too. Why work trying to get through the sarcasm and b.s. for a real answer for a real issue that YOUR JOB depends on getting right the first time?
Enough of this…and we wonder why US culture is in the pits…no respect or self-respect.
C ya!

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Evil HR Lady October 22, 2015 at 10:57 pm

I write for ADP. I’m pretty sure that will make you cry in your Cheerios.

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HR Manager October 23, 2015 at 2:31 pm

I like the sense of humor you used in this post. It takes some intelligence to “get” sarcasm, too bad the above commenter failed to read further and get your point.

I visit another blog where you and your site are occasionally trashed as being too conservative by the mostly young, very left-wing commenters. I’m glad you don’t have to stoop to their level and trash them (you probably know which site it is; it is in your blogroll). Keep on doing what you’re doing!

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Evil HR Lady October 23, 2015 at 2:33 pm

I actually don’t know which one you’re talking about. I suppose I should look at my blogroll from time to time! Most of those have been on there since I started this blog about a zillion years ago.

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The She Suite Blog October 23, 2015 at 3:13 pm

This is an interesting inquiry. Thanks for advising!

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MS October 23, 2015 at 5:08 pm

Employment lawyer here. This post is a legally inaccurate assessment of the Americans with Disabilities Act (ADA) and how it applied to employers, and an employer who follows this advice will likely open themselves up to serious liability.
In particular, EHRL thinks “For instance, she may be in physical therapy. She may be in cognitive therapy. She may have a regular chiropractor appointment. She might need allergy shots. She might be trying to get pregnant using IVF.”
All of these could or do qualify as disabilities under the ADA! Furthermore, HR is in the best position to get confidential and sensitive medical information from employees, so they might know things you do not know re whether these qualify as disabilities.
– PT is often for a disability, same re any kind of cognitive therapy (even if its for marital trouble- the diagnosis is probably depression, anxiety, etc), and reasons to see a chiropractor (you dont know at this point, but it likely is).
– Infertility is absolutely a disability under the ADA, and an employer would have to provide a reasonable accommodation for IVF (no, it doesnt matter that the employee is choosing to try and have kids, employers dont get to not accommodate disabilities just because the employee can go on with life w/o treatment).

If this employee is a qualified individual with a disability, the burden is then on the employer to show that such an accommodation would be an undue hardship (not just inconvenient). This will depend on the essential functions of the employee’s position.

If this is solely to take her kids to medical appointments, the law is slightly less favorable for employees (since the law only requires accommodations for employees, not employees’ dependents) and the analysis is different.

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Evil HR Lady October 23, 2015 at 5:53 pm

They could qualify under ADA, but they don’t necessarily. As you know, it depends on if it affects a major life activity. Additionally, the employee needs to ask for ADA accommodations, which this person is not.

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MS October 23, 2015 at 7:43 pm

exactly- you don’t know yet. But you advised the writer that they could determine that it was not a disability based on just hearing that it was PT, counselling, etc. This is incorrect.

Also- asking for an early departure for medical appointments does count as asking for a reasonable accommodation under the ADA. Employees do not need to be more specific than that to put the employer on notice that they have to engage in the interactive process to determine whether there is a disability and whether it could be reasonably accommodated. Courts are very clear on this point.

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Evil HR Lady October 23, 2015 at 10:59 pm

No. I said, that if the person qualified for FMLA or ADA this was the wrong answer, but I was assuming the person did not.

If I went through every possibility, the article would be way too long. 🙂

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Maria Rose June 2, 2017 at 8:49 pm

I read this article after reading the one posted about taking a lunch break and I believe I can sympathize with whomever wrote that letter to you about how to deal with this situation.
Despite laws that protect workers and their rights, there needs to be line drawn for those whom I call the abusers. They know exactly how to get certain “privileges” by citing the correct wording of reasons they can’t work within a required schedule for specific job.I worked with such an individual for many years and they found many excuses to not work weekends, holidays, or busy critical periods. Even came in late for an entire month using PLA excuse. If what he said was true, you would be sorry for the person but several times, phone calls would come in by the significant other looking for him. At least 3-4 times a year, he would have a doctor’s note, excusing him from work for exactly 30 days and suddenly he would be well again. So between his vacation time, personal time and leaves of absence, he got about 4 months off every year. I finally figured out he was taking off to work a side job and also avoiding problems at home. This is the type of person, that the writer was referring to when questioning HR. Nobody prior to me, noticed this tendency or didn’t care enough to create a written documentation.
If my company didn’t go into bankruptcy and close, I would have presented enough evidence to HR by following the history to achieve termination for this person who abused the work system to their benefit.

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