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Employers should ask 3 questions before piling on work

January 17th, 2017  |  Lorene Park

By Lorene D. Park, J.D.

Normally, employers are pretty free to pile on as much work as they want. If an employee doesn’t like it, that employee can simply leave. Employers may not have happy employees and they may have high turnover rates, but courts won’t usually sit as a “super-personnel” department and find violations of employment laws. There are exceptions, though. For example, a heavy workload may not by itself be an adverse employment action, but it can be evidence of discrimination if only certain individuals are assigned more work or more difficult tasks, particularly if an inability to do the added work leads to discipline or termination. With that in mind, and even if you have legitimate business reasons to add to someone’s to-do list (e.g., recent turnover), it’s a good idea to ask three simple questions first.

1. Are you being consistent?

When it comes to consistency, the issue is usually fairness as between employees. For example, in a Title VII suit by a maintenance engineer in New York, the employee claimed his supervisor assigned him a heavier workload because of his Indian descent. The employer allegedly provided him with no assistant, as provided for other engineers, so he did both his job and the work an assistant would do. In the court’s view, this raised a plausible inference of discrimination and, combined with allegations of being yelled at and called names, was also enough to support a hostile work environment claim (Pothen v. Stony Brook University).

Employers should make sure they have a legitimate business reason for assigning new and more difficult tasks to an employee, particularly if the change is substantial (in terms of the effort or time required to do the new tasks). In some cases, if an employee is assigned additional duties but has not received training on how to perform them, courts find a triable question on whether he or she was “set up to fail.”

For example, a federal court in Alabama denied summary judgment against the ADEA and state-law age discrimination claims of a 63-year-old employee who was fired for poor performance despite decades of positive performance reviews. A jury could find that he was methodically set up to fail by a new supervisor who imposed requirements on the employee that were not imposed on others (Hollis v. Southern Co. Services, Inc.).

In another case, an HIV-positive food services manager who also had cancer was denied his request for an uninterrupted lunch and was required to work long hours despite his need for rest. He was also given additional cooking duties when he returned from medical leave and disciplined for a single deficiency found during a survey, while another manager was not disciplined despite several deficiencies. This was enough to have a jury decide whether the employer failed to accommodate his disability and otherwise violated the Washington Law Against Discrimination (Edman v. Kindred Nursing Centers West, LLC).

Similarly, an Iowa appeals court recently revived a state employee’s retaliation claim based on her allegations that a personnel manager assigned her to a demanding supervisor and didn’t provide proper training. If true, a jury could find that her subsequent termination for poor performance was causally linked to, and in retaliation for, her acting as a class representative in a civil rights class action against the state (Couch v. Iowa Department of Human Services).

2. Is the timing suspicious?

Related to consistency is the question of whether a change in workload comes at a suspicious time. Avoid increasing an employee’s workload immediately after he or she has engaged in a protected activity because you do not want the change to appear causally related to protected activity.

In one case, two long-time employees of a Kentucky packaging facility avoided dismissal of their FMLA retaliation claims, and one also advanced his age- and disability-based discrimination claims under state law, based on evidence that upon their return from FMLA leave, they were immediately reassigned from their regular jobs to “the most rigorous and labor intensive job at the company.” They further contended that their superiors laughed while watching the employees struggle with their new duties. Due to their ages and the physically impaired employee’s health condition, they could not perform the rigorous duties and eventually resigned—or were set up to fail and constructively discharged, as a jury might see it (Marcum v. Smithfield Farmland Corp.).

Based on these and similar examples, it is clear that, before substantially increasing an employee’s workload, supervisors should ask whether the employee recently engaged in a protected activity. If so, make sure the change was made for legitimate reasons unconnected to that activity and be able to document those reasons. Examples of protected activities include but are not limited to: requesting or taking FMLA leave; reporting discrimination or harassment; requesting an accommodation for a disability; asking for a religious accommodation; engaging in union-related activities; taking leave for military service; whistleblowing; or participating in an investigation into potential unlawful workplace practices.

Also keep in mind that, while courts vary in how close in time a protected activity and increased workload has to be to appear suspicious, a good rule of thumb is that a month or less is suspicious. Six months is on the outer edge of suspicious temporal proximity, and in such cases there needs to be other evidence suggesting a causal link. Again, though, it depends on the court and the context. In one case for example, a federal court in Tennessee found a causal link between a Sears’ employee’s FLSA-protected activity and her termination even though two years had passed, because during the interim, her supervisor gave her an overwhelming amount of work, put her under increased scrutiny, and put her on an unusually long PIP (Brabson v. Sears, Roebuck and Co.).

3. Does the workload prompt employees to work through legally required breaks?

While the FLSA generally does not require meal or rest periods, many states do. Some states also have “day of rest” laws that require employers to provide a certain amount of time off each week. In those states, employers that assign heavy workloads should also ask whether meeting its requirements typically causes employees to skip meals, breaks, or other required rest periods. In a case out of California for example, a federal court found triable questions of fact on whether Comcast knew its schedule forced communications technicians to skip required meal times to keep up with their excessive workloads, in violation of state law. The company had policies requiring techs to take a half-hour meal break for every five hours worked, a second meal break for every 10 hours worked, and a 10-minute rest break for every four hours. It also prohibited them from working off the clock. But testimony by technicians indicated that the policies were not followed and that they had informed dispatchers and supervisors the assignments forced them to miss meal breaks. One supervisor allegedly responded that “the customers come first” (Zimmerman v. Comcast Corp.).

Context is key. As these questions suggest, context is extremely important. For example, even a reduced workload could be considered too much if it doesn’t comply with an employee’s injury-related medical restrictions. In one case, an employer created a “light duty” position for an employee with a shoulder injury, but the new job was still strenuous enough that it did not comply with his medical restrictions. When he complained of pain, he was sent on medical leave, and as his return approached upper management exchanged emails on what to do with him. The CEO allegedly suggested: “Have him paint every wall . . . and then when he’s done with that, have him paint the . . . walls again.” In the court’s view, this was strong evidence of a conscious disregard for the employee’s rights, and he would get to trial on his claims under California law (Latham v. Cambria Co., LLC).

On the other hand, the Eighth Circuit recently affirmed summary judgment against ADA and state law discrimination and retaliation claims by an employee who was a point of contact with patients who used medical devices manufactured by her employer. After she took FMLA leave and requested accommodations for cancer treatment, she was put in a new position carrying difficult responsibilities. She was required to stay until all tasks were complete and she was the only employee required to stay in the queue of answering incoming calls while working on other assignments. Despite the increased difficulty, though, it was clear to the court that there were a myriad of unrelated concerns justifying her eventual termination for poor performance. Indeed, she was the subject of multiple complaints and she gave incorrect and life-threatening advice to one patient about a pacemaker. It was also significant that the employer had granted her multiple accommodations. Thus, the context worked in the employer’s favor (Oehmke v. Medtronic, Inc.).

Given that context can be outcome-determinative in a dispute over whether an employee’s workload is discriminatory or otherwise violates federal or state laws, the three questions above should be considered merely a good starting place. In addition to asking these questions, employers and other decisionmakers should be encouraged to adopt an objective point of view and look at the whole picture. So long as the change is for legitimate reasons and seems fair in context, the employer is not likely to face a challenge in court.

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