Forced to resign for refusing to take a break 4 minutes into the shift

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.

 

 

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19 thoughts on “Forced to resign for refusing to take a break 4 minutes into the shift

  1. Many states’ W&H law require an employee be given a 15 minute break for 5 hours worked, but are silent on when that break must be given. In the absence of a CBA, that’s up to the employer. In a CBA environment, there is usually an “employer’s rights clause,” which allows the employer to “schedule and direct the activities” of employees.

    While it makes no sense to go on break so early, perhaps the employer is using it to ensure the employees are at their work stations during peak requirements. At least the person is getting paid for their break, and shouldn’t whine.

    1. Not all breaks are paid. If this is a paid 10 minute break, not a big deal. If it’s an 8 hour shift and this is the only break you get, it’s a big deal.

  2. Very informative, this so far is the best advice I have read on the subject.

    Unfortunately I have a feeling it will be tremendously helpful to have this page of questions and statements one should bring up when being asked to resign, bookmarked in the near future. I like that it is clear cut, neatly bolded, and gathered in one place.

    Although I was not there, I’d like to know who shows someone the door (and doesn’t even boot them out of it) over such a minor disagreement? Asking someone to resign just because they asked not to take their break 4 minutes into their shift? What the H-E-Double Hockey Sticks?

    1. Exactly. Guaranteed, this is one awful manager. And the OP did tell me the actual company, but I didn’t mention it because I don’t like to say stuff that hasn’t been substantiated, but I googled them and let’s just say that they don’t have the best reputation among former employees.

      1. Ha! I am not suprised.

        Just for the record, the last three questions were rhetorical… I know no one would spill if they thought there was a danger they thought be identified by other readers, myself included!

        Besides the intrigue is half the fun!

  3. I wish the story had more detail. How long was the shift? Can the employee leave during a shift to use the bathroom or is the break time the only time allowed for that? I would have a problem with this too because at some point during your shift you will need to pee, poo or change a bloody tampon and won’t be able to because your break already happened. And this, ladies and gentlemen, is why you should question the stupidity of a break 4 minutes into your shift…because customers tend to feel uncomfortable around employees that have just crapped their pants.

    1. You should give training sessions for managers, based around your last sentence.

      1. Haha, that’s awesome. Finally, a practical use for my ability to use shock value to point out the obvious.

  4. Rarely is anything ever so clear cut. There are a host of questions I would like to ask. But working backwards, the person was “forced” to resign. As you said, forced to resign is a “nice” way of being fired. But why? Just because the person refused to take a break so early? Bad manager? Maybe. Bad employee? Maybe.
    There is more than meets the eye here. It’s stupid to fire someone over a break 4 minutes in to a shift and sounds like pretext to me. But is it a thing where the employee had not been compliant with other things? Was this the final incident? If so, bad on the manager because I can guan-damn-tee you that the manager was ready to fire the day before but decided to find one more thing to use as the final incident.
    The other thing I would like to know is what kind of run ins has this employee had with the manager and/or others? There are pieces to the puzzle that are missing.

    1. Sure, there’s more than meets the eye. Usually the letter writers will reveal far more about themselves than they think they are revealing. But, this was written by a friend without any extraneous info, so I just had to take it at face value.

      While there are plenty of rotten employees out there, there are also plenty of rotten managers.

    2. I try to read these letters at face value and keep it at that, because there is no way of knowing what information is missing, or what nuance was overlooked along the way.

      I think advice columnists really do have to dole out advice with the caveat: “if it happened like you say it did, then…”

      Granted many of these columns (Evil HR Lady’s and others) would be exceedingly short if they didn’t try to fill in some of the blanks. We can speculate, but there is just never a way what exactly those blanks are.

  5. Given that this is an airline, I would be willing to bet the “forced” break had more to do with a CBA than any law. When I worked in HR for a union facility, there were things of this sort that always ended up happening because employees had to be guaranteed at least one 15 min break before (and one after) their lunch break, and that coupled with state ratio requirements and various scheduling nightmares – usually a handful of people calling in or leaving early during bad weather days or during flu season – the whole schedule would have to be reworked at the last minute resulting situations where employees had to take a break way too early in their shift, but it was that or no break, which wasn’t acceptable under the CBA.

    1. NOT that this excuses the rest of the atrocious behavior on the part of the manager – just pointing out that in certain environments this type of request isn’t as crazy and uncommon as it sounds.

  6. I am in California, and while there are rules regarding the law and rest breaks should wherever practicable be in the middle of the four hour period, this may or may not violate the law. I don’t know if this is the ONLY break the person gets, whether this was a paid rest or unpaid lunch break, how long the shift is, etc. There’s nothing prohibiting an employer from making an employer take an early break if the other conditions are satisfied. Though, I agree it’s stupid to fire someone (and, frankly, not terribly smart of an employee to outright refuse). The best thing for an employee to do if he or she feels meal and rest breaks are being violated is to, in this case, follow the instructions and then ask questions or, if necessary, file a complaint afterward. Refusal is technically insubordination unless what the employee is being asked to do is actually illegal or unsafe.

  7. I am an employment lawyer and I believe a resignation doesn’t necessarily mean you will lose your unemployment claim. In my state, Nebraska, the issue of quit or termination is determined by who initiated the separation of employment. A lawyer should be able to elicit testimony from the employer about the initiation of the separation of employment in an unemployment appeal. In my experience you can usually get that testimony in a hearing. So long as you can show termination instead of quit, then in my state the burden is on the employer to show misconduct in connection with employment. Most times management and or their outsourced hearing officers can not meet this burden and the employee ends up getting unemployment.

    1. I am not a lawyer, but oversee HR and just worked with an employment lawyer to create a severance agreement with an employee who was asked to resign. I am in California, and the lawyer said essentially the same thing: The issue of the termination is determined by which party moved to end the relationship, regardless of the label applied to the termination.

      1. Yes, this is true, but unscrupulous businesses force people to sign letters of resignation and then submit that as proof of an employee initiated termination.

        I’ve seen it happen far too often to trust any business that wants you to “resign” without severance or other benefits a guarantee not to oppose severance.

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