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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92505
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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  1. 1.       Schedule issue.


I have been employed in a Mental Health clinic at the Jewish Agency for 19 years where I hold the Supervisory position. The clinic where I used to work for over 18 years was consolidated in November 2012. I was transferred to another clinic of our Agency where I have been working for about six months in the same position. In the past, I was employed for P/T [28 hours per week] with no evening hours and no work on Fridays. This schedule allowed my private practice in the private office that I own. In my interview meeting for the new clinic, it was stated to me and restated in follow up email, that my transfer required full time schedule from me: work on two evenings and on Fridays. My attempts to negotiate were unsuccessful. My decision came with serious financial sacrifices: I had to reduce my clientele while keeping all the office expenses. Sundays issue was never mentioned at the interview meeting and was not mentioned in interim emails later on. However,  the last email from my Clinical Director, which outlined the final schedule, included a foot note regarding new issue: Sundays. Please see below:


Clinical Director:


This is the best schedule that I can offer at this time. Program needs were taken into consideration when finalizing this schedule. This is the best that I can do. Please, let me know your decision.  ……………….


----------------------------------------------------


NOTE:  Friday hours will convert to Sunday, 9:00 am – 5:00 pm, when the clinic expands to Sundays


----------------------------------------------------


My response:


Let’s start from here. I understand that the program needs is a priority.


The need for clinics to be open on Sundays was discussed in the Agency for years. However, only few clinics are open on Sundays. The message seemed vague, non-specific, but would require initiation of a new power struggle issue. Therefore, I decided to give a careful response without engaging in a new conflict.


 


In about three months the requirement for me to work on Sundays was reiterated by my administration. I was informed that the clinic is to be open on Sundays starting from June. I stated that this would be difficult for me to accommodate due to my religious believes as Christian. Most of our stuff members, including our administration, are Jewish. My administration stated that I did commit to work on Sundays at the moment of transfer. I argued that I responded in a non-committing manner. I specified that I understood the requirements and was ready to compromise in a way to protect my ability to observe my religious believes. I reminded her about my commitment to take losses due to new hours and new schedule that I did accept upon transfer. I stated that there were two supervisors (including me) and a Clinical director and that resolving all ongoing issue at the expense of one person seemed unfair. However, this claim was dismissed as my violation of the condition of transfer, which I denied. This issue was brought up in discussions with my Clinical Director and Program director at least four times with no progress. 



  1. 2.       My attendance.


In my 19 years of service, I have always enjoyed good reputation and was happy in any position that I have hold. I have excellent performance evaluations for all my years. I have been promoted several times and I am now in position where I am doing the work that I love the most. On three occasions I asked for the administration’s feedback regarding my performance at the new setting. The response was always positive. The only issue that was repeatedly coming up at every exploration was the need for me to agree to work on Sundays.  My dedication to service in particular, is manifested by my low rate of Sick Leave time from work for decades. I have been making every effort to get medical care on the days and hours away from work.  During at least last four years I was awarded the Discretionary Days given to employees who are absent from work for 3 days per year or less.  I significantly underused vacation time and did not request personal leave days on two occasions when I had family losses and was eligible for it. I was working on hours beyond my schedule when job required with no compensation. However, when I started working at the new clinic full time, medical care in my own time became less accessible and I had to use my Sick Leave hours on multiple occasions. I still tried to do what I could in the after work hours: thus, I had my labs on Saturdays; I scheduled my root canal work on the holiday, and underwent all my routine dental work on multiple late evenings.  Medical record is available to support this statement. The issue of my attendance was never addressed before: nor verbally nor in writing; nor in supervision nor in passing.


On Tuesday, April 23, I felt sick. I still came to work but felt worse; a staff MD checked my blood pressure and recommended me to go to the ER. My clinical director suggested bringing me in to a local hospital. I went to my PCP, where I was treated with new medications prescribed. For two more days my readings stayed very high and I remained in bed. I returned to work on Friday and worked the whole day but went to the Urgent Care the same night after work as I was feeling unwell. The next Monday, April 29, I had surgery scheduled a month prior. I returned to work the day after, on May 1.


The same day I received a request from the Program Director and from the Clinical Director to attend a meeting “to go over schedule changes and other issues”.  I was issued with Notification of Change in Work Schedule which stated:


In implementing the schedule that you agreed to as a condition of your employment when you started working at… . I am providing you with four weeks’ notice of the change in your work schedule.


I was given the option to contest this Notification.


This meeting had another item on its agenda: I was given a Written Warning: Excessive Absenteeism:


Recently, an audit was conducted of your attendance for the past six months. The result of this audit shows that during this period you were absent on twelve days for a total 86.5 hours. This level of absenteeism is well above agency and divisional expectations and is therefore unacceptable … You are required to demonstrate immediate improvement in your attendance. Further absenteeism will result in additional disciplinary action, up to and including the termination of your employment. In addition, be advised that over next six-month period, you are required to provide a doctor’s note upon your return from any occasion of absence due to illness. Failure to provide such a note will result in your being placed on leave without pay status for the period in question. Your attendance will be reviewed on regular basis.


Due to the ongoing conflicting Sunday issue, I consider the Absenteeism Warning an instrument of intimidation and forceful attempt to make me agree to commit to Sunday schedule. This seems to be especially cruel as my current health condition remains fragile and unstable and requires attention to my medical needs.


My recount of the Sick Hours used during last six months indicated that the number of 86.5 hours is excessive.  My recount showed 76 hours. Additionally, the Discretionary Day for 2012 that was approved by the Clinical Director, put on my Sighing Sheet on 12/31/12, and signed by me, was crossed out and replaced by Vacation hours.


 



  1. 3.       Objective: I need guidance in how to proceed on these issues without compromising my employment and my health.

Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Absent a written contract to the contrary, the employer has a right to dictate the time and place of an employee's performance. This means the employer can also set their own policies regarding use of leave as well. What the employer cannot do is deny you extended medical leave under Family and Medical Leave Act (for extended medical leave of 5 days or more or for a qualified medical condition). If the leave did not qualify under FMLA, then I am afraid the employer can punish an employee for using sick days excessively even with a doctor's notes.

If you have a legitimate religious reason for not working Sundays, NY law requires the employer to provide you a religious accommodation for those times and you need to make a written request to the employer for such an accommodation for those days.

Aside from a religious accommodation or protection under FMLA, I am afraid that your employer can mandate you show up at work when required by the employer absent a written employment contract to the contrary.


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Customer: replied 1 year ago.

Thank you for your answer. Please advise me on the following:


 


- Do I have any legal options now: would it be considered an issue of intimidation / hostile work environment ?


- Does it make any sense to "contest" and if yes, how do I do it?


Thanks again.


 

Customer: replied 1 year ago.

One more thing:


Would retaining a lawyer make difference for my case? I am not a union member and as an administrative supervisor would be with no support in HR.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

In order to have a claim of hostile work environment or harassment or retaliation, you have to prove that they are doing this based only on your age/race/sex/disability/religious beliefs or in retaliation for filing a complaint about a statutory right.

In order to contest this, you have to prove you have some type of legal right, such as a right to leave under the FMLA or religious accommodation. If you have evidence of that, then you need to give them a written notice that you are seeking your rights under one of those sections.

Retaining an attorney only makes sense if you can show that you were entitled to time off under FMLA or if you are entitled to a religious accommodation for your Sundays off, if you can do so, then you should consider hiring an attorney to write them a letter and explain the law to them and your complaint.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92505
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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