CanI be fired for taking a break if the handbook states that I am allowedto do soif another co-workercovers for me?

Get Legal Help Today

 Secured with SHA-256 Encryption

CanI be fired for taking a break if the handbook states that I am allowedto do soif another co-workercovers for me?

I work in a home of 3 mentally disabled clients. After working 7 hours Iwent to get something to eat, as we are not allowed to eat client’s food. There was myself and 1 other staff member working. It states in my clients book that if my client is seated and not planning on getting up, that if I notify other staff to watch my client, I may take a 10 minute break. I was gone less than that. The nurse came to give meds and found that the other staff member had fallen asleep (she was awake and alert when Ileft). She was taken off clock also. I’d been told by my supervisor that it was OK to go out if not gone long.

Asked on March 2, 2011 under Employment Labor Law, West Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Sometimes, an employee handbook creates what's called an "implied" or "implicit" employment contract. That is, the terms in the handbook may be read to create an agreement between employer and employed, and in those case, the employee may rely on the handbook terms as if it were a contract. If that was the case here, and if you followed those terms, you probably should not be fired.

However, most employee handbooks do *not* do this, because it's very easy for an employer to prevent the formation of a contract. All the employer needs is for the handbook to have any limitations or "weasel words" in it, such as:

* Nothing in this handbook shall alter the employee's status as an employee at will

* Nothing in this handbook to the contrary, no employment contract is formed

* The terms and policies in this handbook may be changed at will

If the handbook contains any language like that, it would not create an enforceable contract.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption