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

October 25th, 2013  |  Lorene Park  |  15 Comments

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.

Responses

  1. lp30 says:

    July 17th, 2014 at 3:05 am

    Aflac needs to be sued
    We are overworked, expected to be perfect, told to put work ahead of everything, and pentalized for being human.

  2. Anon says:

    April 15th, 2015 at 2:26 pm

    Thank you for the article. It’s provided me with a few more viewpoints in regards to my Husband’s employment situation.

    He is paid 40hrs a week, but he literally works 80-90+hours a week! He’s up at 5 or 6am, and works past midnight often. On top of the little sleep and extreme stress, he is required to drive over 2k miles a week, in rough mountain conditions. I’m worried his lack of sleep and extreme workload are putting him at risk for an accident. He is a General Foreman for a large Tree Company.
    We are currently searching for Attorneys in the area, but we are unfamiliar with labor laws.

    Thank You!

  3. Lulu says:

    August 4th, 2015 at 8:24 pm

    I don’t get it, if you have heavy work load just start looking for another job!

  4. Dolores Geisner says:

    October 29th, 2015 at 10:15 pm

    I read this article and feel that I am being reprimanded by my supervisor and given a final warning with no verbal warning about my average work done from 4 months ago and now I was told that I had to increase my work load from 85% to 120% . It was fine before and now I am told I have to increase it or be fired.
    I have ADA Restrictions base on my Arthritics and now my work load increase is unreasonable not to mention I am not suppose to carry over 15lbs. Yet they ignore that and I got no verbal warnings what so ever about any problems until I return from FMLA and I was place in another job which is harder and I could barely walk. I am being force out of my job. I am 63 years old and work with employees under 30 years of age. I need someone to help me before I lose my job. Got any advice. All I ask for was reasonable accommodations.

  5. bunky says:

    October 30th, 2015 at 6:36 pm

    I just got terminated from manufacturing cause i been doing a 4 man job and started messing up and worked 12 hours nights and 6 to 7 days straight nights im thinking bout getting a lawyer for overworked ,wrongful firing and discrimination (i wear hearing aid).

  6. mattie caldwell says:

    January 7th, 2016 at 5:45 pm

    I work for the State of Alabama and because of the shortage of officers we are being forced to work sometimes 4 hours over on the other shift after working a 12 hour shift which sometimes cause us to report back to work the next day ready to work on 4 to 5 hours of sleep in a prison.I tried talking to our EEOC Representive about this,the Warden and Captains no one seem to care.We also are forced to work on 2 of our off days each month.I have also tried filing greivance about this and got no answer trying to explain when I got mandated to work over for 4 more hours on the next shift and on my way back to work the next day I fell asleep at the wheel and almost hit a big truck head on.Also I filed for fmla which the Warden denied 2 times.

  7. Mrs Jones says:

    May 25th, 2016 at 5:56 pm

    I work for American senior communities corp, I was denied a pay increase, due to workload this company( skilled hall etc…) gives a bonus to management for saving the company money they get money bonus in their pocket, by that they work our facility short staffed a lot of times, for example only 2 cna’s in the whole building 4 halls 105 bed facility, providing poor care to patients, in which is considered not proper care not provided due to high acuity in work load is considered abuse or if patients being charged for services not rendered due to short staffing that this company gives bonuses to management for saving the company money…. this company does not expect neglect or patient fraud of services from employees, has in-services to its employees yet the company is committing this ungodly act them selves, not rendered due to management getting this bonus an working us short staff I do not consider this Fair to its patients, the patients complain of care to employees which causes stress anxiety to employees which is no fault of their own…..could be your Mom or Dad being treated this way…which is not right to do to a elderly patient or its employees that are overworked short staffed deliberately, to place money into managements pocket.

  8. Aqua says:

    August 9th, 2016 at 10:59 am

    I work for a Government Agency, and I am being overworked and being mistreated then others. I am in the field mostly all day while others Investgator stay in the office and hardly do nothing. My job requires a vehicle its Mandatory!!!!! While one individual does not own a car and higher Superior only gives him work that’s located around the job. And I get to service the whole Cook County Area. This person who does nothing is a Male and I am a female with a disability illness but I do what’s in my job description and more. Can you please give me some advice on this situation. Thank You.

  9. julie says:

    August 12th, 2016 at 6:40 pm

    My work expects a 65 to 70 hour work week and since we are salary they get away with it. Heck just the CEO said 2 weeks ago,…not enough hours in a day…theres always enough hours in a day…come in earlier and stay later…I said yep I did that, I came in at 7 am and worked til 9 pm. He said see there you go, thats how it works

  10. Kevin says:

    August 23rd, 2016 at 2:46 am

    I feel the same..when I signed my application acceptance it said salary+overtime..overtime is time and a half..but I am being denied my overtime because I am told my supervisor does not want to explain to the managers boss why I am getting overtime

    I feel my workload has increased..i rarely get a chance to take my breaks and lunch..and when I do I get in trouble..i work 2nd and I am working this shift without any partners..i have to pick up the slack from 1st shift and do my housekeeping all at the same time..im doomed if I do more housekeeping than my actual job objectives..and im doomed if I do more of my job objectives than the housekeeping either way I get in trouble..

  11. Angry wife says:

    December 10th, 2016 at 9:18 pm

    My husband worked 120 hours this week! He is paid for 40 hours and had to sleep in his car for the hour or two per night he was able. I want to sue the company he works for.

  12. Christian says:

    February 15th, 2017 at 1:51 am

    My workplace wants me to carry plane Galley carts down very hazardous stairs. Its very unsafe especially with some of the carts weighing over 200 pounds. One other person assists and agrees its definitely not a safe thing to be doing. By the way, im a caterer delivery. Its even out of the regular job description.

  13. Tired says:

    March 18th, 2017 at 1:37 pm

    I work in a large health system in the Pacific Northwest and negotiate contracts and budgets, responsible for meeting revenue goals. For a previous employer, I did the same job for close to 6 years and was salaried. However, with this new employer I was hired hourly to do the same job. I have the workload of a salaried position, but am told I have to do it all in under 40 hours without the option of overtime (they have once or twice considered overtime with the request that I let them know exactly what contracts or budgets I will be working on a week or more in advance of actually doing the overtime, but that is difficult to do since I never know what I will be able to get through in between the time of the request and when the actual overtime scheduled and there is always more work added during that time). I do work through lunches and breaks and sneak in hours off the clock or my performance will suffer. It suffers anyway, even when I do these things. After being laid off from a job I had for 15 years, I breifly worked part time at another company before coming to this one. When I received this job offer and told the part time employer I was leaving and where I was going, the director there warned me about this company and their unrealistic workload expectations even before I started my first day at the new job (she used to work there). I am only the third hourly person hired in this department (everyone else, except for 3 hired after me, is salary). Like me, the first person hired also worked off the clock and eventually escaped by changing jobs (the new job is salaried). The second person was (I believe) penalized because she refused to work off the clock, set boundaries, but then fell behind in her work – they made the situation so horrible for her she quit. I am currently looking for another position (at another company entirely) to try to get out of my predicament (I’m pretty sure I have no other options since i have not done anything for them to retaliate against, I don’t have a disability and I am not in one of the protected classes). This company has faced labor lawsuits in the past and I’m pretty sure covers their a**es enough now to avoid getting in trouble.

  14. Beefred00013 says:

    March 20th, 2017 at 3:35 am

    I work in a warehouse order selecting on a pallet jack the company has two buildings with to different standards with the same job occupation the dry food product building has an easy standard where the people with more seniority have it easy. For the rest of us we are in the refrigerator side where the standard is ridiculous and we have to meet the standard of over a hundred percent or you get written up.not every batch pulled is unfair all goes according to the system which the supervisor has access to.for example I get a batch 132 cases each case over 10lbs and over 20 locations including down time to get a pallet and plastic wrap the order I get 13 minutes that’s over 1300 lbs I try not letting it get to me but wish there was something I could do to direct the issue because HR is no help email after email and they don’t respond .supervisor say don’t waist his time when I’m on the company’s clock.

  15. isis56 says:

    October 31st, 2017 at 1:45 pm

    When my husband came home from the Navy in 1985 I thought I was helping the community keep my husband in his place by getting him to work 7 days a week 3565 days a Year so Other needs could be met. It was not His management idea he does this but the Social structure in the community that really insisted on it.After getting him to Postpone his first vacation since 1976 in 1987 to let a young couple with years less seniority go to Rome in our group to get married, I, of course, understood it had Been six years between the navy and where he returned and reinstated from A military leave since he had had a day off but we felt he was Tough enough to absorb another six months of work in the plant and then figure out something he would Like to Do in mid-winter. Just stay out of disrupting those that felt they had to have their vacations that summer. We Flew In On June 13th, 1987 with the suggestions He tries for a tropical vacation in 1988. I ended up sent home to my mothers 20 minutes later. for two years and his father got an anti-union Judge to tell him under a court order he was working all offered hours and not taking an Immediate vacation but had to get to the court with his wants, The order was not removed when I came home in 1989. He had been physical with his father and several friends wanting his time off Even to the point of breaking bones. Then he still had to get the courts permission until 2000 when we had him jailed over the Millennials to keep him from Going to Bavaria with me. I thought that everyone had to be someplace why did he have to have something away from the plant. Couldn’t he just let us select a week here and a week there and he could stay close do things around home Be an agreeable person about the Times and places he was being denied as well as other things in life?

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