Salaried Employee, question about working after hours.
March 31, 2014 4:28 PM   Subscribe

Im in IT, paid a salary for 40 Hours a week. On a on-call rotation. Anyways my questions is this. I am occasionally asked to do a server room clean up. These are usually done around 7PM and last until any where from 3AM to 7AM in the morning. This is also asked of us if after we have worked a 8 hour day. Sorry beating around the bush, but I want to give details. I have chronic insomnia and take something every night to help me sleep. Have done so for many years. Can I get a doctors note that says I cant work these night shifts cause it messes my schedule up just to bad? If I do get a doctors note for this, can my employer fire me? If fired do I have recourse or unemployment? Thanks in advance. FYI..In Texas.
posted by flipmiester99 to Work & Money (8 answers total) 1 user marked this as a favorite
Can I get a doctors note that says I cant work these night shifts cause it messes my schedule up just to bad?

That's a question for your doctor, not us.

If I do get a doctors note for this, can my employer fire me?

Possibly. The Americans with Disabilities Act (ADA), in general, requires employers to make reasonable accommodations to employees with disabilities. Employers are not required to make any accommodation (only "reasonable" ones), so the question would be if the server room cleanup absolutely needs to happen at 7 PM through the middle of the night. What's the reason for that? If it's just because that's when it's happened in the past, for no good reason, then you have good reason to ask for a reasonable accommodation to move it to the middle of the day. If it's because server room cleanup requires unplugging a mission-critical server used during normal working hours to plug in a vacuum, then there is at least some reason the accommodation might not be reasonable. This is highly dependent on your particular circumstances.

If fired do I have recourse or unemployment?

In Texas, employment is at will. Provided your termination is not specifically illegal (see ADA above), your employer can fire you for any reason. In general, termination that is not done for misconduct (ie, you setting fire to your workplace) makes you eligible for unemployment.

If your employer fires you illegally (see ADA above), you can choose to pursue that claim with a lawyer. You will have to make a decision whether pursuing a claim with a lawyer is worth risking future employment possibilities. In the worst case, it is entirely possible to be legally in the right, but still end up worse off in the long term due to future employers not being willing to hire you after you pursue legal action against your current employer. However, alternatively, your company may fall into compliance with the law very quickly when a lawyer is brought into the mix, with no further consequences. Employment law is tricky both in terms of what the law requires (the ADA is notoriously hard to litigate) and what the de facto reality is for people that are treated illegally, but have no way of fixing that situation without going to a lawyer.
posted by saeculorum at 4:41 PM on March 31, 2014 [5 favorites]

They may not fire you directly for that but you could be fired for not being a team player. If all the other guys have to do it and you don't, you will not be well liked.
posted by myselfasme at 4:45 PM on March 31, 2014 [9 favorites]

This sounds like pretty standard salaried IT stuff to me. (Depending on the definition of "server room cleanup". If you're mopping floors, that seems a bit more dubious.) If you're in an on-call rotation, how is this different than getting called for an on-call issue during those hours every now and then?

Have you talked to your manager and explained the issue to see if there's some sort of alternative way or time the work can get done? Weekends, maybe?

While you can almost certainly get a doctor's note and work it out with HR, (especially if you're not the only one doing these tasks), as the saying goes, the carrot is often more successful than the stick. If you don't have a good working relationship with your manager, this may not be as successful, but it's probably worth a try.
posted by jferg at 5:35 PM on March 31, 2014

Was this requirement disclosed to you prior to accepting the position? IANAL, but my understanding is that would bolster a claim that the late night work is an essential part of the job function. You can find lots of information about exemptions at the EEOC site. From my non-lawyery reading of it, they could have a pretty easy defense against ADA claims, as late night maintenance windows are pretty much industry standard.

You might see if there's some other unpleasant duty that you could trade with a coworker on so they'd cover your night shift.

If the place is so badly managed that the server room requires 7-12 hour cleanups on a regular basis, that might be a sign to look elsewhere anyway.
posted by Candleman at 5:46 PM on March 31, 2014 [1 favorite]

By all means, get a doctor's note if possible. However, it does not mean your employer is obligated to honor it or make any actual accommodations you may ask for. Firstly, you need a qualifying disability in order to reap the protections of the ADA. Insomnia is a very fuzzy subject when it comes to disabilities because it's such a common diagnosis and generally does not impair major life activity (one of the qualifiers of a disability). Even if you get your doctor to give you a disabled diagnosis for insomnia, as saeculorum stated, the ADA only requires employers to make a reasonable accommodation. If an accommodation may harm or impede business, your employer is allowed to refuse (and would be protected by those very same ADA laws).

So it really boils down to whether server room clean up MUST take place overnight. If it MUST take place overnight, then you are probably out of luck. It is an essential aspect of your job that cannot be accommodated, even if you have a qualifying disability. If the clean up doesn't have to take place overnight, then you should definitely pursue an accommodation.

As for begin fired... Yes, you could be fired if you do not perform aspects of your job. Even with a qualifying disability, you can still be fired if you do not perform aspects of your job - even if it's a direct result of your employers inability to accommodate you.
posted by stubbehtail at 5:52 PM on March 31, 2014 [2 favorites]

Could you maybe suggest some sort of plan where a little clean up gets done every day on an ongoing basis instead of having to do these giant multi-hour cleaning binges? I'm not sure what is actually involved in this, but it seems like the sort of thing from this brief description like maybe your real beef is with the nature of the work rather than the hours (if you manage on call well enough at other times) and if you hate it, your coworkers probably also hate it, and everybody might be amenable to, say, some kind of daily checklist breaking it up in a less generally suck kind of way.
posted by Sequence at 6:50 PM on March 31, 2014

In my experience with this kind of thing in IT, they should be pretty flexible about giving you time off around any overnight work (ie, you can go into work late the next day and/or leave early the day of).

Talk to your manager about getting some flexibility with your schedule, but I can tell you right now "My doctor says I can't do this" will get you laid off, eventually.
posted by empath at 7:38 PM on March 31, 2014

If I do get a doctors note for this, can my employer fire me? If fired do I have recourse or unemployment?

To be more specific -- the way this usually works is, if you get all formal with the complaint about working the overnight shift, they'll accommodate you, for a while. Then the next time they need to do some layoffs, your manager will be given a number of people he'll have to get rid of, and you can rest assured that the guy that won't work extra hours will be #1 on his list. You'll get a nice severance, you'll be able to collect unemployment, you can use them as a reference, but you won't have a job with them for very long. So if you like working there, I would suggest being accommodating about it and doing what you can do to make it work. If you don't care about keeping the job, give them the doctors note and start scouting out potential new employment.
posted by empath at 7:45 PM on March 31, 2014

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