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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7663
Experience:  Significant experience in all areas of employment law.
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If you are hired as a full-time employee and the employer is

Customer Question

If you are hired as a full-time employee and the employer is suppose to provide you with at least 40 hours of work per week, what are the employees option if the employer does not provide that much work and asks the employee to take vacation time/none paid time off when there is no work?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.

LegalPro54 :

Hello and thank you for entrusting me to answer your question.

LegalPro54 :

Do you have a contract that guarantees you employment for a specified period of time? Also, are you a government employee?

Customer :

I have a contract and that states I'm a full-time (at least 40 hours, full benefits)

Customer :

and no I'm not a government employee

LegalPro54 :

Does the contract state that it "guarantees 40 hours per week" or other words to that effect, or does it simply state that you are full time.

Customer :

The contract is like a form with different "types" of employment which the employer checks.

Customer :

one of the options is this:

LegalPro54 :

I see. That is pretty standard.

Customer :

FULL TIME(At least 40 hrs, Full Benefits)

Customer :

exactly like that

LegalPro54 :

Thanks for clarifying.

Customer :

sure

LegalPro54 :

In the state of California, employment is presumed to be "at will" absent an agreement specifically stating to the contrary, i.e. ("A 3 year contract with X corp")

LegalPro54 :

More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

LegalPro54 :

Since you do not have a contract that guarantees you employment for a specified term, and you are not a public sector employee, you are an "at-will" employee. As an at will employee, you are free to leave your job at any time. In exchange, your employer is free to change the requirements, promote, terminate or demote you as it sees fit and without reason.

LegalPro54 :

This is a long way of saying that absent an agreement specifically entitling you to "guaranteed employment at 40 hours per week," your employer is typically free to cut your hours.

LegalPro54 :

If your employer demands that you take unpaid time off, you would be eligible to colelct unemployment benefits during that period of unpaid leave, provided you otherwise meet the EDD's eligibility requirements.

LegalPro54 :

More specifically, you would be eligible to receive benefits provided that you have received enough wages during the base period to establish a claim (either $1300 in one quarter of your "base period," or at least $900 in your highest quarter and total base period earnings of 1.25 times your high quarter earnings), you are physically able and available to immediately accept work, actively seeking work, and your hours have been cut or you have been terminated "through no fault of your own."

LegalPro54 :

Finally, an employer can require that an employee use accumulated vacation days.

LegalPro54 :

Does this adequately address your concerns?

Customer :

so even though the contract says "At least 40 hrs" they are not obligated to provide at least 40 hrs. of work and they can ask you to leave for a period of time within an hour or so of notice?

LegalPro54 :

Typically yes. This is because an employer in this circumstance would be equally free to terminate you for no reason.

LegalPro54 :

Since an employer, in theory, would retain the discretion to terminate you for no reason and then hire you back at a reduced, part-time position, it also retains the authority to simply reduce hours.

LegalPro54 :

This is a basic tenet of "at will" employment.

LegalPro54 :

Put another way, while your contract says essentially that you are hired full time, which is at least 40 hours, your employer retains discretion to revoke your full time status.

LegalPro54 :

I realize that this is not the answer that you were hoping to hear. Nonetheless, I hope that you will appreciate an accurate legal response to your question.

Customer :

dont they have to give you some type of notice in writing?

LegalPro54 :

No. Advance notice is not required, though it is typically a courtesy that many employers offer.

LegalPro54 :

Essentially, the policy behind the law is that employers need to have the flexibility to adapt to the changing demands of their business. From an employer's perspective, it would be unfair to force them to pay workers for hours in which they were not needed. In fact, that would probably cause a lot of companies to go bankrupt, which would put those employees out of jobs entirely.

LegalPro54 :

Does this clarify my response?

Customer :

Is there any type of employment that requires the employer to guarantee the amount of work you will be given?

LegalPro54 :

Certain type of unionized workers have such guarantees, but typically the collective bargaining agreements that govern their employment permit employers to reduce hours or pay in the event of financial hardship.

LegalPro54 :

Also, you would have legal recourse if you have a contract that guaranteed you employment for a specified period of time with a particular number of hours a week. Such contracts are uncommon, however, because employees want to avoid being legally responsible in exactly this type of situation.

LegalPro54 :

I am very sympathetic to the powerlessness that workers have in this type of situation. Unfortunately, though, I cannot change what the law provides for.

LegalPro54 :

Do you require any further clarification, or have I adequately addressed your question?

Customer :

sure I understand that it's not your fault

Customer :

but how can some employees at the same company I work for come to work regardless and work load and still get payed?

Customer :

but as soon as there is a little of work load shortage they ask some other employees (including me) to leave

LegalPro54 :

It is within an employer's discretion to determine how many hours employees will be given to work, or which employees should be sent home.

LegalPro54 :

Private sector employers retain a tremendous amount of discretion in determining how to schedule their employees and what hours to offer.

Customer :

I see so they dont have a different type of contract which provides them with that type of protection against work load fluctuations?

LegalPro54 :

I can't say whether they do or not. Simply that such contract would not be required for the disparity in treatment.

Customer :

thank you for your help

LegalPro54 :

It's my pleasure to assist you, and sorry I could not tell you better news. Please remember to "Accept" my answer so that I can receive credit and be paid for my time.

LegalPro54 :

Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

LegalPro54 :

Again, please remember to "Accept" my answer because I will not be paid for the time I spent answering your questions until you do so. Thanks again.

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Patrick, Esq.
Patrick, Esq.
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Significant experience in all areas of employment law.