Does your organization require employees to work in shifts? Many do. Can you hire an employee in one shift and later ask the employee to work another shift? Generally speaking, yes. Wait. Generally speaking? What does that mean? Doesn’t an employer have a right to determine its needs and hire accordingly? Same answer. Does that mean that if your company’s needs change you can’t change an employee’s shift? That unfortunately triggers what I call the attorneys’ fall-back answer, “It depends”. Sorry I’m not trying to be a smart aleck (many argue that that just comes naturally to me, but I digress). The truth is though, that legal consequences depend very much on the specific facts leading up to them. I’m sure it doesn’t take a cracker jack detective to guess that I’m leading up to something here. Sometimes a shift change can lead to discrimination, harassment, retaliation or similar claims by the employee whose shift you changed. Yep, I have a specific case in mind. Let’s have a look at that so you know when you might want to re-think the schedule change, shall we?
(image from youtube.com)
The case is Delbert Johnson v. Jeffrey Halstead, No. 17-10223 (5th Cir. Dec. 14, 2018). Mr. Johnson was an officer with the Fort Worth Texas Police Department. Officer Johnson, an African-American, complained about harassment and discrimination based on his race. The City hired investigators, who agreed with him and also found that the Department allowed the behavior to continue despite Officer Johnson’s multiple complaints to upper management. Three months later, Officer Johnson found himself transferred to the traffic department. The transfer included a shift change. Whereas his work hours had been 6 a.m. to 2 p.m. Monday through Friday, with the transfer his new hours were 4 p.m. to 2 a.m. Monday through Friday.
Now, you may be thinking, someone has to work that shift, and employers do have discretion to assign employees to different shifts. What’s wrong with this transfer? For one thing, according to Officer Johnson the consensus in the Department was that it was “one of the worst shifts in the entire police department”. Also, as a result of the transfer and shift change, he lost the opportunity to work overtime and had to quit another part-time job he’d held for 11 years, which in turn resulted in a $50,000 decrease in his income.
Not surprisingly, Officer Johnson sued the Chief of Police, alleging hostile work environment and retaliation and violation of his civil rights under the Constitution. Since our focus here is on employment law issues we’ll leave the constitutional ones alone for now. That leaves these two questions:
- Can a shift change/transfer be retaliation?
- Can a retaliation claim include results that occur outside the workplace or one’s normal working hours?
The 5th Circuit Court of Appeals seems to have responded to the first question in the affirmative. The court said that the “widely acknowledged inferiority of the new shift would have been apparent to any reasonable person making the decision” and found that Officer Johnson had therefore made a plausible argument that the shift change was an adverse employment action, most likely taken in response to his complaints of racial discrimination. The court did acknowledge that not every shift change would constitute retaliation or discrimination. For example, the court cited on case that involved changing a 4-day week to a 5-day workweek when the total number of hours and amount of compensation remains the same finding that it was not an adverse employment action amounting to retaliation. On the other hand, it found in a prior case that switching police officers from a permanent to a rotating shift where the change resulted in disruption to sleep schedules and greater difficulty working overtime or part-time day jobs was an adverse employment action. (Sounds a lot like this case, no?) Similarly the court also cited a case. Similarly, it found a lateral transfer to a 9-to-5 schedule for an employee in need of flex time to care for a child with Downs’ Syndrome to be an adverse employment action.
As for the second question, the EEOC has, on multiple occasions responded to the second question in the affirmative. In fact, the EEOC has taken the position that prohibited retaliation can include implementing work-related decisions or policies that affects an employee’s outside life more than the actual work day.
OK, so let’s pull this together with some takeaways:
- When an employee complains of discrimination or other suspected misconduct, don’t retaliate.
- Before you implement schedule changes, or any policy changes, think through the consequences to the employee(s) impacted by them. If they have adverse consequences then it may be an adverse employment action;
- For any changes that may be adverse employment actions be aware of which impacted employees are in protected classes and explore alternatives.
- If you must take the adverse action and if the employee is in a protected class under federal or state anti-discrimination laws, or has alleged discrimination, make sure you have and can prove a legitimate, non-discriminatory or non-retaliatory reason for doing so. If you can’t, do so then don’t take the contemplated action.
- Discipline any employee that does retaliate against anyone complaining of harassment, discrimination or any other misconduct.
- Be proactive. Talk – and listen– to your employees. I’ve said this before and I cannot say it enough. If your employees know they can talk to you and that you will listen they will be your best indicator of any brewing problems in need of fixing– often before they escalate to an EEOC (or state) discrimination charge or a lawsuit or an otherwise messy employee relations issue.
OK, that’s all for now. See you next week!
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