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.”

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