Chicago Secretary Fired For Working During Lunch Wins Court Battle

Sharon Smiley fired working during lunchA Chicago woman fired for working through her lunch break has won her legal battle to collect the unemployment benefits denied her by her former employer.

The aggrieved employee, Sharon Smiley (pictured at left), succeeded in her effort despite a lack of legal help. None of the attorneys from whom Smiley sought counsel agreed to take the case, she says, because they thought she was bound to lose. Smiley ended up representing herself -- and won, the Chicago Tribune reports.

Though Smiley was ultimately successful in her legal fight, she has endured tough times since being fired two years ago. She had to put together a living working odd jobs before landing another full-time job last month.

In January 2010, she worked downtown as a receptionist at Equity Lifestyle Properties Inc., a position she'd held for 10 years. One day she decided to work through her lunch break because a manager assigned her work that Smiley wanted to finish.

"I thought, 'Well, I'm not hungry; I'll just do this work ... so when I get back from lunch, I can do my original work that I'm supposed to be doing,' " the 48-year-old Smiley told the Tribune.

Smiley was under pressure to do more and more work, she says, a tactic that she felt was being utilized to force her to resign. Instead, as the newspaper reports, Smiley committed to working harder, even though the added stress contributed to a stroke, she testified at an unemployment hearing in 2010.

From the Tribune report:

On this day, a new manager told her she needed to take her break. Both sides agreed that this was the first time Smiley worked during lunch, records show.

Smiley told her manager that she had already punched out but wanted to finish the extra work because she thought her break time was her own.

"I asked her how she had taken a break when she remained sitting at the desk, answering phones and working on a spreadsheet," the manager testified.

Smiley testified: "I would call myself, you know, being considerate (for) doing the work for someone else on my lunchtime, and I didn't think it was going to be a problem."

Smiley's boss then told her to report to the director of human resources. During the meeting, the company charged that Smiley became insubordinate and she was fired.

Knowing that she was eligible for unemployment benefits, Smiley applied three times but was denied. She then took her case to circuit court, which ruled in her favor, granting her the benefits.

An appeals court subsequently agreed with the lower court's ruling, finding that Smiley's insubordination wasn't sufficiently egregious to warrant her discharge.

"Workers generally have to be guilty of gross misconduct, which includes insubordination," Cheryl Anderson, law professor at Southern Illinois University School of Law told "Good Morning America."

"The bar is set high for the employer to prove that, and in this case, the court found the employer's argument that her actions amounted to insubordination to be inadequate."

As for Smiley, she's true to her name in her new receptionist's position. Her current employer has a much more liberal lunch policy, GMA reports.

She is free to sit at her desk during lunch or read magazines, Smiley says. "And in my area, they have two flat-screen TVs on the wall."

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I should clarify: they called her on the carpet for working through a lunch break, even though she had punched out and legally was on her own time. But even then, a company that would call you on the carpet for that 'infraction' and then fire you because you expressed your displeasure (and you're a 10 year employee) would not be my first or second choice for an employer anytime soon.

March 13 2013 at 9:48 PM Report abuse rate up rate down Reply

Where is it written in their HR handbook that an employee MUST leave their work station during every break? And indirectly she was fired for working through a lunch break. If they had not sent her to HR for that so-called infraction, she would not have been put in a position to express her disdain and dislike for their uncalled-for decision to fire her. I hope her new job is wonderful. She deserves better than the ex-employer ever provided.

March 13 2013 at 9:45 PM Report abuse rate up rate down Reply

I remember reading on the EEOC website that there is such a situation as a "constructed firing" where a workplace makes conditions so unbearable for an employee that they basically have to leave or suffer physical trauma if they stay. It sounds to me like this is EXACTLY what happened to Sharon Smiley. I also believe that age discrimination was involved, as she was an older worker.

I have purposed to be an advocate on whatever level I can for workers' rights, as I do not believe the EEOC has been doing its job, and I plan to e-mail this "Equity Lifestyle Properties Inc." place and tell them a thing or two.

February 01 2012 at 6:22 AM Report abuse rate up rate down Reply
1 reply to N68Firebird's comment

It's called "constructive discharge" and this isn't what happened in her case. They terminated her for being insubordinate. She would have to have quit the job to make a charge of constructive discharge.

March 13 2013 at 12:11 PM Report abuse rate up rate down Reply
Lynne Baxter Bender

Really, your going to bring Race into this? Aren't you people ever going to learn to leave race out of every issued that happens to make news? What the hell happen to created equal? I don't care if you are purple with yellow poke a dots..If I choose to work during my own time, that is MY choice, I have that right...I am not on the clock so there for I do what I want. As for not leaving your desk for lunch, Some of us don't have lunch rooms..I work at a College and when you have 100 students looking at you for help the first week of term Do you really expect me to tell the 100 students in my line that I will help you only if you make it to my window before 5pm? I think not..My job is to be a service to the students.., Are you going to sit there and tell me you would turn everyone one of them away and not help them even thought they were there before 5pm? This is what I'm faced with every 3 months. I work during my lunches when I need to get something done, I also DO NOT account for all the OT I put in either, as I am doing what I suppose to be doing Serving the students..

January 31 2012 at 11:42 PM Report abuse rate up rate down Reply
1 reply to Lynne Baxter Bender's comment
Oscar Goldman

"Really, your going to bring Race into this"

Your WHAT is going to bring race into this?

February 07 2012 at 6:42 AM Report abuse +1 rate up rate down Reply

I wonder if her employer is part of a French company. I have friends who have worked in U.S. offices of French companies, and the main offices in France really frown on working through lunch, even though working through lunch is quite common in the U.S.

Now, it's good to encourage people to take a break, even if it's sitting at one's desk, eating lunch and reading a book, newspaper, or magazine.

Yet, if someone feels that they need to work through lunch to accomplish assignments or to prepare for a meeting, then why discourage the work ethic?

January 22 2012 at 11:48 PM Report abuse rate up rate down Reply

She wasn't fired for working during lunch. She was fired for insubordination. It doesn't make for the same exposive headline though. The real problem here is that a company does have the bar set too high to prove misconduct. I find it very hard to believe when she was told that according to her HR policies on breaks she kindly took note of the comment and agreed to not break the HR regulations. There is more that was done or said than you find written in this story. And please, before you claim it was a racial move call the company. You will find her position is filled by a minority and there are plenty other minorities that work there in many different positions. Before you claim racism because you think everyone and every company is racist, do your homework.

January 19 2012 at 9:35 PM Report abuse -2 rate up rate down Reply
1 reply to neversosimple's comment

You weren't there in the room during Ms. Smiley's conversation with HR. They most likely had it planned that they would fire her anyway because they did not want to have an older worker who had a stroke on their hands, spoke to her in a threatening manner, then said she was being insubordinate when she expressed surprise at the treatment.

February 01 2012 at 6:24 AM Report abuse rate up rate down Reply

I feel that what happened to her was a racial move because if she choose to work on her lunch break or even eat at her desk while working should be showing this so called boss just how serious and hard working she is. I have worked thru my lunch plenty of times and just ate my food at the desk while working, it was work that I wanted to get done and out of the way before getting to my next project that had to be done.

Working in an office is not peaches and cream the work is time sensitive in most cases and needed ASAP and if it's not done in a timely efficient manner one has this scrooge of a supervisor over your shoulder making you nervous and susceptible to making and error.

What the hell is wrong with the logical verses illogical thinking in some of these comments?

January 19 2012 at 11:35 AM Report abuse +4 rate up rate down Reply

she SHOULD HAVE BEEN FIRED, and they should've thrown eggs at her on the way out!!!! working during ur lunch break just to get the work done?? r u F*****G kidding me?? i understand that lunch/break time is ur own time to do what u want, but to voluntarily do more work just to get it done for ur boss is ridiculous. it sends a message to the companies that employees can have lunch and do work at the same time.....then it becomes the standard to work and have lunch at the same time.... or eliminate lunch all together since people just work thru it anyways. breaks/lunches are there for a reason, and they were fought for by our forefathers. the more u hand over to big businesses, the more they will take! ENJOY YOUR BREAKS AND YOUR WEEKENDS! people fought for us to have those luxuries at the workplace..... don't piss on them by giving it all up! you see what it got this genious.... she had a stroke, which she admits was due to overworking. she is UNAMERICAN, and all u idiots immidiately going to the race issue, wake the F**K up! it's not 1960 anymore. stop crying about race! it's old news. if u want to be taken seriously, pull up your damn pants, and try speaking somewhat proper english so EVERYONE can understand u. until then, people aren't judging u because ur black, it's because u look and sound ridiculous!! Dr. King is a role model...........not Kanye West or Chris Brown! and when u stop thinking everyone is picking on u for being black, u can actually tackle important issues that ACTUALLY exist

January 19 2012 at 9:52 AM Report abuse -9 rate up rate down Reply
6 replies to's comment

Picking on a WOMEN and MOTHER? Go UNCLE TOM, GO

January 19 2012 at 8:50 AM Report abuse rate up rate down Reply
1 reply to ANICK's comment

i'm not sure u get the concept of an "UNCLE TOM".......

January 19 2012 at 10:24 AM Report abuse rate up rate down Reply

Only a BLACKS will be FIRED for WORKING too hard, or even brought into HR for this, and only this by another RACE. Martin Luther King Jr birthday was Jan 15th, but THEY will never hear his words or change.

January 19 2012 at 8:48 AM Report abuse -2 rate up rate down Reply
1 reply to ANICK's comment

That's just idiotic. Your own racial prejudices need to be addressed. Yeah, it's likely that the higher-ups in her office seem to have been targeting her for termination unfairly, but it doesn't have to mean that it was racially motivated.
AND if they do have a policy for NOT working during your lunch hour then so be it. In my mind it's not grounds for termination, but it is a policy nonetheless. You don't know all the circumstances here and the story is vague on a great many points.

January 19 2012 at 10:01 AM Report abuse -1 rate up rate down Reply
2 replies to drawmeister's comment

every company has the policy of no working thru your lunch because it's a LAW! during any 8 hour shift, the employer is REQUIRED to have the employee take a 30 min food break. otherwise these companies would have you work 8, 10, 12, 14 hour days with NO breaks and NO weekends! so to all of you non-union supporters............. you're welcome for what WE fought to bring you!!!

January 19 2012 at 10:08 AM Report abuse -3 rate up rate down
Oscar Goldman

"it's a LAW"

WRONG. Millions of people work with no right to even be paid for overtime. They're called "exempt", as in exempt from those laws. Basically we're talking about all salaried employees.

February 07 2012 at 6:52 AM Report abuse +1 rate up rate down

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