Question:
I’m a full-time student but need my part-time job to pay my bills.
When I took my current job, I was one hundred percent clear with my employer that I sought and accepted part-time work so I could continue my education. My classes have a definite schedule and if I miss class, my grades suffer.
Things worked out well for the first two years. Then everything shifted. My employer lost the other assistant manager. They often order me to come in on days when I have back-to-back classes and am not scheduled to work.
My manager doesn’t ask if I’m available, she tells me I have to come to work. The other assistant manager calls in with lots of excuses, and my employer seems to expect me to pick this employee’s slack.
When I say, “I can’t,” she threatens to fire or demote me.
Is this right? I’m in my third year with this employer and from time of hire they agreed to work around my school schedule. How do I handle this?
Answer:
Employers generally may set an employee’s job duties and the hours during which the employee works. Employers can say, “this is what we need you to do” and “this is the work schedule we need you to meet.”1
Because work environments are not static, employers can require that employees work hours outside of their regular schedule. This often happens to employees who work for retail, restaurant, or hospitality employers, particularly those who work part-time.
Unless you have a collective bargaining agreement or employment contract that provides you with specific rights to a certain schedule, or unless you work in a state or municipality with “predictive scheduling laws,” your employer may change your job duties or schedule without your consent.
If your employer significantly alters your work schedule without your agreement, for example, by insisting you change from normal workday hours to regularly working evenings and weekends, this may trigger a constructive dismissal in which you state that your employer forced you to quit your job because of your employer’s conduct. Constructive dismissal comes into play when poor working conditions, a demotion, altering your job description, compensation or hours of work, leaves you with no choice but to quit. You may have to prove that the conditions or changes were so miserable, your employer left you no choice but to resign.
Predictive schedule laws require that employers provide employees advance notice of schedule changes or face penalties. Some states have “show up pay” or “reporting pay” regulations that require a minimum number of hours to be paid to employees who experience an unexpected loss of work hours. These regulations kick in when schedules are changed when the employee arrives at on site or the employee’s total work hours have been reduced from what was understood as the schedule the previous day.
A quick Internet search reveals laws governing employees’ schedules in Seattle, New York City, some cities in California, and Oregon. The Oregon statewide predictable scheduling mandate requires that large employers in the hospitality industry give hourly workers at least fourteen days advance notice of which shifts they need to work.
Further, employers take a risk when they change an employee’s schedule. They can lose employee morale and productivity. They can lose employees.
Next, you mentioned a sudden shift in the past year. Was this because of COVID, your employer’s loss of another assistant manager or in retaliation because you exercised your employee rights? When an employer changes an employee’s schedule in retaliation because an employee exercised her rights, such as raising a safety complaint or filing a wage or discrimination claim, it may violate employee protections within Occupational Safety and Health Administration, Fair Labor Standards Act or Equal Employment Opportunity laws.
Finally, you may be able to negotiate with your employer. You might say you’re comfortable with an occasional schedule change, but don’t want erratic scheduling to become the rule. When you put forth your reasons, don’t mention that you don’t want to risk your ability to graduate. Your employer may have no interest in you graduating, guessing that you plan to leave them as soon as you have your degree.
Alternatively, some employers, such as the beer distributor N.K.S. Distributors Inc., pays bonuses to workers who accept shifts outside of their scheduled hours.2
You may also want to quietly search for another job. You have a three-year history with your current, which might make you an attractive hire for an employer offering a more consistent part-time schedule.
2https://www.shrm.org/hr-today/news/hr-magazine/1117/pages/is-on-call-scheduling-on-the-way-out.aspx
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The case offers a “classic” problem: scheduling part-time workers for varying and changing needs vs. workers who have some fixed hours that they may not work because of school or other responsibilities. Unfortunately, the person may have to quit. Hopefully, as you suggest, they may be able to find another job that is more school-friendly. Often employers (even not in a pandemic) SAY they’re school-friendly but than prove not to be. This is putting the staffer between a rock and a hard place.