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When does a heavy workload support a lawsuit against an employer?

October 25th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

Think an employee is just venting when she complains of a heavy workload and no action is required on your part? Think again. Forget for a moment that excessive workloads can lead to low morale and high turnover; we are talking lawsuits. While a heavy workload is not always actionable, there are circumstances when a court considers it to be evidence of bias, perhaps even an adverse employment action for purposes of a discrimination or retaliation claim. And an employee’s “venting” may constitute a “protected activity” under anti-retaliation provisions. While the success of such claims will depend on the facts, one thing is certain: It is not in an employer’s best interest to simply ignore complaints over excessive workloads.

Discrimination. One obvious time when it is a bad idea to ignore complaints over workload is when an employee has a physical impairment. Indeed, in cases where a physician has placed limits on an employee (such as a lifting restriction) or required periodic breaks, the fact that an employer ignored the limits could, by itself, be found serious enough to alter the terms and conditions of employment, thus establishing an adverse action in a disability discrimination case (Pierce-Schmader v Mount Airy Casino & Resort). And if the workload itself is not an adverse action, an employee may argue it was so intolerable that a reasonable person would be compelled to quit, providing “constructive discharge” as the adverse employment action element in a discrimination case.

Outside of the disability discrimination context, it is more common for a court to find that a heavy workload is not, by itself, an adverse action. However, it may still be evidence of bias. For example, in one pregnancy discrimination case, the Seventh Circuit reversed summary judgment for an employer based, in part, on evidence that an employee’s workload was increased soon after she announced her pregnancy (Hitchcock v Angel Corps, Inc). In another case, a Hispanic housing inspector assigned to a large geographic area complained that he had too many files backlogged and that a much smaller area was assigned to five Caucasian employees. Not only did management not respond to his complaints, it disciplined the employee for falling behind. A federal court in New York refused to dismiss his race discrimination claims, find that the disparate assignments and discipline supported an inference of bias (Santana v City of Ithaca).

Retaliation. An excessive workload (or an employee’s complaint about an overload) is more likely to support a retaliation claim than a discrimination claim for two reasons. First, complaining about a heavy workload can be seen as a protected activity if the employee reasonably believes he or she is complaining of unlawful activity (such as complaining that the heavier load is due to race). Second, when a workload is increased following a protected activity, it is also more likely to constitute an “adverse employment action” because, unlike a discrimination claim (which requires a change in the terms and conditions of employment), a retaliation claim only requires showing that the heavier workload was likely to dissuade a reasonable employee from making or supporting a discrimination claim — which is an easier standard to meet.

Thus, even if a court finds that an excessive workload did not constitute a sufficient adverse action for purposes of a discrimination claim, it could still support a retaliation claim. For example, in one case, allegations that an excessive workload, negative reviews, and undue discipline were due to an employee’s race as well as retaliation for her complaints were enough to avoid summary judgment on the retaliation claim, but the discriminatory workload claim failed because it did not involve an “ultimate employment decision” (Carter v Target Corp).

In cases where a court does not consider a heavy workload to be an adverse action, it can still be evidence of retaliatory intent and support a lawsuit beyond the summary judgment stage. After one professional employee complained internally that her supervisor treated her differently than white male colleagues, including by requiring her to fetch coffee for meetings, her supervisor increased her workload, slighted her contributions, and excluded her from meetings. In the court’s view, this circumstantial evidence of a “pattern of antagonism” raised an inference of retaliation and was enough to support her Title VII claim (Brangman v AstraZeneca, LP). Likewise, five African-American employees were allowed to proceed on their retaliation and hostile environment claims based, in part, on an allegation that, after a coworker filed an EEOC charge on behalf of herself and a “class of Black employees,” they were given excessive workloads as compared to non-African-American workers (Rogers v Ford Motor Co).

Accommodating a disability. Another context in which an excessive workload can support a lawsuit involves failure to accommodate claims under the ADA and similar state laws. The ADA does not require an employer to place an employee on permanent light duty or give other workers an employee’s assignments to accommodate a physical impairment (Josey v Wal-Mart Stores East, LP). However, a temporary lightening of the employee’s load could be considered by a court to be a reasonable accommodation if the employee is recovering from a physical impairment. For example, an employer that ignored a nurse’s request for light duty due to a work-related injury and then forced him to take leave was denied its motion to dismiss his ADA, FMLA, and state law claims (Hepner v Thomas Jefferson University Hospitals, Inc). In other cases, employers ignored physician restrictions for employees to work no more than 40 hours a week. Try arguing to a court — or jury — that it would be unreasonable or an undue burden on the company to refrain from requiring overtime by a physically impaired employee. It likely will not go well.

Meal breaks and rest periods. Not surprisingly, an allegation that an employee was unlawfully forced to do too much work can also arise in wage and hour cases under the FLSA and state laws, including those that require meal and rest periods. The typical FLSA case involves employees who were not paid for after-hours work — which is less about workload than it is about compensation. Claims of excessive work can also support lawsuits over breaks required by state law. For example, a federal court in California ruled that an employee, who was given a “voluminous workload” that prompted her to work through lunch and rest periods, could proceed to a jury trial on her claims under the state’s labor code (Butler v Homeservices Lending LLC). The court was not convinced by a manager’s assertion that the employee simply chose to skip her meal and rest periods after she was given permission to freely construct her schedule as she saw fit. I wonder what the jury will think.

Free speech. For public employers, an employee’s complaints over excessive work could be considered protected speech under the First Amendment. In one case, a female forensic pathologist complained to the director of the office of the medical examiner that the caseload for medical examiners was too heavy due to a recent reduction in force and the chief’s moonlighting elsewhere; she was fired. Refusing to dismiss her retaliation claims under the First Amendment, Title VII, and state law, the court found that her complaints raised a matter of public concern as to the mismanagement of the department’s workforce (Chen v Maricopa County).

So what should an employer do? These cases show that excessive workloads can support a myriad of claims against an employer. In response, some employers have successfully argued that the workload was imposed for lawful business reasons. For example, perhaps there was a reduction in force because the employer needed to increase profits. And in other cases, employers have avoided liability by showing they were unaware of any discriminatory or retaliatory conduct and took action once the employee complained. With that in mind, here are some steps to take if an employee complains that he or she is being given too much work:

  • Investigate — both “how” and “why” are important
    • Ask in what way it is excessive
    • Find out if the employee is comparing his or her workload to someone else
    • Find out if the workload has always been heavy or if this is a change (in reality or in the employee’s perception); investigate why any change happened
  • Accommodate special circumstances (e.g., physical impairment)
  • Make sure meal and break periods are being honored
  • Work with the employee toward a solution — minor adjustments may go a long way
  • If the workload is due to a legitimate business reason (e.g., seasonal increase in business), explain to the employee (be consistent; don’t change reasons if the EEOC comes calling)
  • Address any unfairness — it may turn out that the employee is correct and that there is an unequal distribution of work; if that is the case, address it

Not only will taking these steps support a defense in any lawsuit filed over excessive workloads, it will also improve morale. Moreover, when the workload is spread more evenly, there should be an increase in efficiency and decrease in turnover.

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