Possible Wrongful Termination

[aslinds]

Can a part time employee be terminated because the employer changed the working days and hours that were originally agreed upon at the time of hiring? A special circumstance prevents the change of schedule for the employee, the employee is the main caregiver of 2 disabled children. Employer was made aware of this at date of hire and agreed with the requested schedule at that time. It is explicitly stated on the application what days and hours the employee can work. Employer also stated that they understood that the disabled children put limitations on the working schedule of the employee. Employer is also aware of the stress that a change of schedule would put on the employee because it has been stated repeatedly that the change of schedule would not be compatible with the employees care of the disabled children. In fact, employer knows that employee has no one other than herself to care for the children during the proposed change. The state this is in is Indiana. I am wondering if the ADA can apply here as discrimination of a disability? According to one source I have found: The Americans with Disabilities Act applies to employers with 15 or more employees, and to employees with any length of service. The ADA applies to an employee's own disabilities, but it also protects employees who need to take time off in order to give care to family members with disabilities. Also, do constructive discharge and possibly intentional infliction of emotional distress apply since the employer is well aware of the circumstances?

 

[Beth3]

If the employer changed the working schedule BECAUSE of the disabled children (purposefully making it impossible for the caregiver to continue working), that would be intentional discrimination and a violation of the ADA. If the employer failed to look into work schedule options that might reasonably accommodate the caregiver, that would be a violation of the ADA.

But if business conditions/workplace requirements necessitated a change in the work schedule, that would not be a violation of the ADA. The ADA does not mandate that the employer must accommodate the caregiver or a disabled employee/job candidate or make an accommodation that is unreasonable. Nor is an employer required to have a crystal ball and forsee that a work schedule agreed to at the time of hire won't work down the road.

So not knowing what was in your employer's mind, I can't say whether an ADA violation occured or not. Even if it did, I think that a cause of action for intentional infliction of emotional distress is very unlikely. An individual's/the employer's actions have to be truly egregious to meet that standard. A schedule change, even under the present circumstances, isn't going to cut it.

 

[aslinds]

I would say the your second point applies: 'If the employer failed to look into work schedule options that might reasonably accommodate the caregiver, that would be a violation of the ADA.'
The reply I received when I stated that it would be impossible for me to add the Saturday hours was that "it isn't fair to the other workers that they had to work the weekend hours and I didn't." To me, that is not an attempt at accommodation to my situation. Out of the whole schedule change, only the added Saturday hours conflict with my caring for my two disabled sons. The supervisor knows this and has known it from the beginning. She also knows that my sons are not candidates for daycare (no daycare will accept the care of them) and that it is not financially feasable or in the best interest of my sons to hire an outside worker. I have made it clear that I am able to accommodate the company 6 out 7 days with a restriction on going past 2:30 p.m. during the weekdays when my sons are released for the day from their special classes (and I will take no breaks), and all day Sunday. Yet she persisted in adding a Saturday. Even if this was not my circumstance, I would call that a bit unfair and premeditated.

 

[Beth3]

What you also need to know is that the ADA does not require an employer to disaccommodate other employees to accommodate you.

If business conditions dictated that schedule changes were required and everybody had to have weekend hours, they are not required to exempt you from that if it would require other employees to work those hours in your stead and they are unwilling to do so. Even if she knew this would be a problem for you, that doesn't make it a premeditated discriminatory act - she's right that it wouldn't be fair to the other employees and she's not required to be "unfair" to them to accommodate you.

It appears the step your employer missed performing was at least talking to other employees (or having you do it) to see if others would be willing to work extra Saturday hours so you didn't have to. They were all free to refuse however and at that point, your employer would be free to put you on the Saturday schedule.

It appears the employer is already accommodating your other scheduling requests and I think there was a violation of the ADA here in that they failed to at least look into accommodations on the Saturday schedule (even though the end result might well have been the same) so you do may have a legitimate case, albeit a weak one.

 

[macckkk]

What if the employer dint hire you in the first place because of the restrictions?

And being part time, i puts you at a second class status anyway...Full timers get first choice of hours.

So the ADA should not apply, yeah its rough but business has to adjust its hours and people to fit the customers needs

Just think how many times have you walked in some government office or even a Bank and there is a big long line and only 1 window open out of 5,well thanks to Unions they MUST take lunch at that that particular time, and DAMN the customer.

Well business cant operate that way so the employees have to be flexible for the customer.

 

[aslinds]

The thing is, they did hire me knowing of my restrictions.

The business isn't union, and other workers are accomodated for whatever reason (other jobs, family, vacation, sports). Part time employees are just as important as full time. We just don't qualify for the insurance benefits, paid vacation time and sick pay. Part timers also do not sign on for any and every hour because we specifically apply for those hours that work within a restriction we have on our lives. If we didn't have a reason preventing full time work or a change of schedule then we most likely would be working any and all hours that were scheduled.

There are things about this situation that I think impact the working agreement. When I was hired, I stated that the days and hours, agreed upon by me and the hiring supervisor, would be perfect. I did state explicitly I couldn't do a change of schedule, now or down the road, because of my disabled sons. She assured me that that was not a problem or would be a problem. When she made that statement, to me it was a promise that my schedule wouldn't change. There were no qualifications to that statement about 'if this or that happens' or 'if we need you to work these other times, that you must.' It is her job to know about future scheduling (she's been on the job for more than 3 years), so she shouldn't have made that promise to me if she wasn't going to keep it.

 

[Beth3]

It is extremely doubtful that the schedule agreed upon when you were hired constituted a contractual agreement. Statements like that fall into the category of what an employer anticipates or intends to happen.

An employer is not required to have a crystal ball and forsee that "x" months or years down the road, business conditions will dictate that changes in work schedules or other conditions of employment will be necessary.

It's very likely that when your supervisor told you that the hours you preferred to work wouldn't be a problem, she made that statement in all good faith and didn't anticipate there would be any problems down the road.

As an example, let's say you did hire someone to care for your sons three afternoons a week because they had a school program those mornings. You anticipate that's the way it will always be. A year later, the school notifes you that they're changing their schedule and your boys will have classes in the afternoons instead. Using your logic, you'd still be committed to the same schedule you agreed to with the babysitter when you hired him or her, even though there were unforseen changes that arose that no longer made that sensible. I expect you would tell the babysitter that there was no choice - either she'd have to change her schedule or you'd have to look for somebody else who could work the new hours.

Again, it looks like the only legal issue here may be the ADA violation in that as far as I know, it appears your employer didn't at least try see if accommodating your Saturday schedule was possible.