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  1. #1
    forever_broke is offline Junior Member
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    fired for sleeping on lunch break...

    What is the name of your state (only U.S. law)? AL

    On the morning of Sunday October 24, 2010 I arrived at work tired, and sick to my stomach. I had been up all night with a 16 month old with a stomach virus and myself and my husband, too had this stomach virus. Even though I was tired, sick and 5 months pregnant,; I knew I could not call in, however, because I am the only nurse on duty in the OR on Sunday’s. I got to work, performed all my daily tasks and at approximately 10:45 a.m. we were finished with our scheduled cases for the day. After taking my patient to recovery and giving the nurse on call report, I headed to the break room to eat lunch. On Sundays (and some Saturdays) we don’t always get to eat a normal “sit-down” lunch, so I quickly ate my lunch. I may have taken 10-15 minutes to do so. After which I went back to the OR and performed some busy work to pass the time. At approximately 1:30 p.m. I returned to the break room to sit down and finish my 30 minute lunch break. I had a warm blanket wrapped around my shoulders, as it was very cold in the break room and it usually is on the weekends. I was mildly paying attention to the TV in the break room, participating in a conversation with co-workers, and playing around on my phone; all activities that are acceptable. I must have dozed off for 5-10 minutes. It couldn’t have been any longer than that. At approximately 1:45 p.m., a co-worker, walked in saying my name which caused me to stir. I opened my eyes and following behind her was the team leader. He said, in what seemed to be a joking manner, “You’ve been caught and COWORKER tried to warn you” and he was smiling. I immediately got up, as I hadn’t intended to fall asleep, and went to see what else I could do in the OR to make time go by.

    My next scheduled work day, I was terminated for sleeping on the job. I didn’t know what to say, or how to react. I just sat there listening. During the duration of the meeting, I wasn’t given an opportunity to explain my side, I was simply told that there wasn’t really anything that could be said or done at this point. I also didn’t have a real opportunity to write anything under “employee remarks” on my warning record. It was simply put in front of me, and I was told to sign and date the form.

    I followed up with unemployment and was denied benefits for approximately 6 weeks. I followed through with my employer’s grievance process which involved a hearing with the COO, my department supervisor, and a few HR team members. In the hearing, the COO asked HR if there was a policy in place that prevented employees from sleeping during breaks, she replied that employees are prevented from sleeping on hospital time wasn’t sure if the policy cleared defined break time as hospital time; it doesn’t. We do not clock out for breaks, but time is docked from our workday for 30 minute lunch breaks.

    This particular team leader was responsible for firing approximately 3 other nurses around the same time as me….for a total of 4 heads on his pike…3 of which were pregnant, including myself.

    My question, do I have a case here? I feel I was wrongfully terminated and my ability to seek employment has been damaged as I am not eligible for rehire at my previous employer now. My state is hire at will, but I feel I was treated differently due to my pregnancy. It is common knowledge that staff working the late shift and overnight routinely sleep during their lunch breaks.
  2. #2
    TheGeekess is offline Senior Member
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    To quote a friend of mine: A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law.

    To add: I worked at an AL hospital for 7 years, days, evenings and some nights. Sleeping on the job was against policy. No matter if it were lunch break or not.
    Last edited by TheGeekess; 03-15-2011 at 05:01 PM.
  3. #3
    cbg
    cbg is offline Senior Member
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    Firing you for sleeping on your break does not a wrongful termination make.

    What EVIDENCE do you have that you would not have been fired for this, were you not pregnant?
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  4. #4
    forever_broke is offline Junior Member
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    other than the fact that others have been "caught" doing the same and nothing was said.

    my big issue is the fact that this was during my lunch break...my time...
  5. #5
    xylene is offline Senior Member
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    You were pregnant, there was a pattern of firing pregnant workers, and you were discharged for a policy that was not uniformly enforced.

    You should talk to someone about this.

    BUT - sleeping on the job is not a good jumping off point as a wrongful thing.

    and this is totally confusing.

    In the hearing, the COO asked HR if there was a policy in place that prevented employees from sleeping during breaks, she replied that employees are prevented from sleeping on hospital time wasn’t sure if the policy cleared defined break time as hospital time; it doesn’t.
    You seem to be blending what someone said and your interpretation, but I don't know exactly what you mean.
  6. #6
    Zigner is offline Senior Member
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    Quote Originally Posted by xylene View Post
    You were pregnant, there was a pattern of firing pregnant workers, ...
    Where did you get THAT from?
  7. #7
    forever_broke is offline Junior Member
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    the COO was heading up the grievance hearing.

    he asked HR for clarification on the "no sleeping on company time" policy. he asked if it clearly states that employees are prevented from sleeping during lunch breaks. he didn't know what the policy actually stated.

    the HR rep told him the policy states that employees aren't allowed to sleep on company time.

    he told her, that wasn't what he asked. he asked specifically about break times and if the policy addressed whether employees were permitted to sleep during their breaks

    she said she didn't know and that she'd have to research and get back to him.

    i honestly thought i had a chance there and that they'd reinstate me...or at suspend me without pay or something.

    i read through the policy handbook several times, paying close attention to anything dealing with sleeping on the job and no where does it clearly state that employees aren't allowed to sleep during break times.

    the bad thing about hospital's is the categorize offenses on a scale and sleeping on the job is a class 4 offense; it's on par with patient neglect and stealing drugs. to potential employers it looks like i snuck out to a broom closet to sleep my shift away...instead of nodding off while on my lunch break for 5-10 minutes.
  8. #8
    commentator is offline Senior Member
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    What applied in unemployment does not mean you have any kind of case anywhere else. Did you also have a grievance hearing at your work, or are you talking about the unemployment appeal hearing?

    What they were trying to determine in the hearing for unemployment was whether you knew, because there was a fixed policy in place, that you might be fired for sleeping on your lunch break. Also, there seemed to be some very unclear policy about when a person was actually on their lunch break.

    This does not add up to genuine deliberate misconduct, and because of this, the employer can legally fire you, but they would likely (as happened here) lose in the unemployment decision, as in order to keep you from getting unemployment, the employer would have to show that you were terminated due to deliberate misconduct reason, that you knew that this action might lead to your termination and chose to do it anyway.

    So you got approved for unemployment. But that has nothing to do with EEOC, your pregnancy or wrongful termination. So don't confuse the issues. it will have nothing to do with your unemployment hearing or material that was presented there, or the decision that was made in unemployment.
    Last edited by commentator; 03-15-2011 at 05:34 PM.
  9. #9
    forever_broke is offline Junior Member
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    i did manage to finally get unemployment, but the state disqualified me for six weeks as a penalty. the state determined that i was negligent on the job since my employer terminated me for sleeping on the job.

    this process has been a nightmare. no one would employ me since i was so far along in my pregnancy. my husband was self employed and had to take a job making less money for insurance.

    we've lost our house (foreclosure) and are staring hard at bankruptcy. i was always the primary wage earner and still can't find a job.

    essentially we lost approximately 65% of our take home pay for an extended period of time (~6-7mos).

    ** grievance hearing was work related...i lost that...fyi, no one ever "wins" them...no one.

    ** i did go through arbitration for unemployment, phone hearing only and it seemed like the state really didn't want to hear anything i had to say. my employer was able to postpone the hearing for several weeks dragging the process out

    ** i have been told by friends/previous co-workers/even doctors i've worked with in the past to consult with an attorney and seriously consider a suit, but i'm concerned that suing will only make it harder for me to get a job down the road.
    Last edited by forever_broke; 03-15-2011 at 05:38 PM. Reason: additional information
  10. #10
    TheGeekess is offline Senior Member
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    So now you're delivered Baby, yes? As an RN, it should not be that difficult to find a job, even in Bama. If you don't wish to work in Nursing, pharmaceutical companies love to hire nurses for their sales force.
  11. #11
    forever_broke is offline Junior Member
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    Quote Originally Posted by TheGeekess View Post
    So now you're delivered Baby, yes? As an RN, it should not be that difficult to find a job, even in Bama. If you don't wish to work in Nursing, pharmaceutical companies love to hire nurses for their sales force.
    Yes, I have had baby and am wrapping up "maternity leave". I'm nursing so its not really possible to work right now. In about 2-3 weeks, I'll be really hitting the job hunt hard though. i applied everywhere right when i was fired and spoke with everyone. the few interviews i did get, i was all but told to not bother even applying until after i have the baby.

    I'm considering omitting this employer from my resume all together. I only worked there about 6 months. the gap in employment is easily explainable since we have a 20 mo old daughter and now a 5 week old daughter.
  12. #12
    commentator is offline Senior Member
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    We once had a case where a security guard was persistently sleeping on the job. He propped himself against the door so that as soon as someone came in, he would be jostled awake. When his supervisor caught him, he jumped to his feet and said, "Amen! I was just having a moment of deep prayer there!" That's truly thinking on your feet. Of course, in the cameras, it was a very long prayer.

    Seriously, I am sorry this happened to you, OP, but I sincerely doubt if it would be worth a lot of time and trouble to try to sue. I don't see a case here. An ethical attorney will give you a reasonable opinion about this if you want to check it out.

    When you are not pregnant any more, it is much easier to find jobs, you're still employable and still qualified, and will have other chances.

    Don't spend too much time trashing this employer when seeking other jobs. Sleeping on the job is pretty much one of those things that will likely get you fired if the employer so chooses.
  13. #13
    xylene is offline Senior Member
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    Quote Originally Posted by Zigner View Post
    Where did you get THAT from?
    3 of 4 dismissals in something like one quarter year were of pregnant women, per the poster.

    The average percent of women who are pregnant is around ~4.5% in Alabama per my calculation of the census data.

    That massive discrepancy is a pattern.

    Doesn't mean there is a case, doesn't prove anything, doesn't establish anything other than the pattern that pregnant women make up a dramatically higher percentage of those dismissed than the population. Of course the small sample size is problematic, but discrimination is an act against an individual.
  14. #14
    Zigner is offline Senior Member
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    Quote Originally Posted by xylene View Post
    3 of 4 dismissals in something like one quarter year were of pregnant women, per the poster.

    The average percent of women who are pregnant is around ~4.5% in Alabama per my calculation of the census data.

    That massive discrepancy is a pattern.

    Doesn't mean there is a case, doesn't prove anything, doesn't establish anything other than the pattern that pregnant women make up a dramatically higher percentage of those dismissed than the population. Of course the small sample size is problematic, but discrimination is an act against an individual.
    Fair enough - missed it
  15. #15
    mlane58 is offline Senior Member
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    Quote Originally Posted by xylene View Post
    3 of 4 dismissals in something like one quarter year were of pregnant women, per the poster.

    The average percent of women who are pregnant is around ~4.5% in Alabama per my calculation of the census data.

    That massive discrepancy is a pattern.
    A pattern of what?

    Doesn't mean there is a case, doesn't prove anything, doesn't establish anything other than the pattern that pregnant women make up a dramatically higher percentage of those dismissed than the population. Of course the small sample size is problematic, but discrimination is an act against an individual.
    So why bring it up xylene?

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