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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6768
Experience:  Significant experience in all areas of employment law.
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I work part time (20 hrs a week w/ benefits) in a hospital

Customer Question

I work part time (20 hrs a week w/ benefits) in a hospital in orange county, ca and due to a medical problem I am having my neurologist does not want me working any shifts other than day shifts. My supervisor is now not scheduling me for enough hours to keep my medical benefits. The hours are there...she is just scheduling others in that position. Do I have any recourse?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear about your neurological condition and hope I can provide some helpful information.

As a general rule, and employer typically has the freedom to cut an employee's hours or change their schedule at any time. This tremendous freedom stems from Labor Code section 2922, which provides that employment in the state of California is "at will," absent an agreement to the contrary. Courts have interpreted this to mean that, since an employer retains discretion to terminate employees for no reason, he or she also retains the authority to dictate the terms of employment and change them whenever he or she feels appropriate.

The only notable exception to this general rule is that an employer must provide reasonable accomodations to any employee with a "disability" as defined by the Americans With Disabilities Act. Reasonable accommodations may consist of a modified work schedule, as has been recommended by your doctor.

The determination of what constitutes a qualifying disability is a complex issue, but in general, in order to have a “disability” you must have a mental or physical condition that “significantly impairs a major life activity.”

According to the most recent Supreme Court decision, this analysis requires the courts to review whether the person is able to perform the tasks of daily living (washing, brushing teeth, fixing meals, housecleaning, etc.), and decide if the person is significantly more impaired in those tasks than other persons in the population who are not “disabled.” It also requires the courts to consider the person’s abilities with corrective devices, such as prostheses and medication, but may consider side effects that result from medication. For more information on what constitutes a qualifying disability, visit this link: http://www.ada.gov/qandaeng.htm

If a person is “disabled” in accordance with the ADA's definition, is having difficulty performing his/her job, and the employer knows that the reason for the difficulty is the employee’s disability, then the employer may have a duty to reasonably accommodate the employee, as long as it will not pose an undue burden on the employer to do so. In determining whether a reasonable accommodation is available, and would actually work in helping the employee do his/her job, both the employer and employee had required to talk to each other and consider each other’s ideas. An employee is not entitled to the accommodation he/she wants – he/she is only entitled to an accommodation that works.

So, if your condition qualifies as a "disability" pursuant to the ADA, and an all day-shift schedule is a reasonable accommodation under the circumstances, your employer would be required to provide such a schedule pursuant to the ADA. However, please bear in mind that if your employer needed to cut hours for economic reasons or something unrelated to your condition, he or she would of course still retain the authority to do so pursuant to Labor Code 2922 cited above.

If you believe that your ADA rights are being violated, you can sue but must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue you an authorization to sue after they investigate your claim. You don't need to file with both agencies. Finally, if you decide to sue, don't miss your deadline. Under federal law in California, you have 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to brig a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

I sincerely hope that this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.

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