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

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 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.

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