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My employer changed my scheduled working hours

Discussion in 'Employment, Labor, Work Issues' started by HELGAP, Nov 9, 2009.

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  1. mightymoose

    mightymoose Moderator

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    When you are fired the clock starts ticking for an employer to give you your pay. You were not fired, you quit voluntarily without notice, so the employer did not have to pay you until the regular pay period ended. You had brought up 72 hours as an issue, and it was not an issue.
    Yes, they did give you your job back. They are obligated to offer you the same or a comparable job with the same pay and benefits. They did exactly that. The schedule change is well within the employers rights. You were not fired or put out of work by reasons beyond your control.

    "Upon granting an employee a CFRA leave, the employer must guarantee reinstatement to the same or comparable position and provide the guarantee in writing upon the request of the employee. Employment in a comparable position means employment in a position that is virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site, and ordinarily means the same shift or same or equivalent work schedule."

    You were offered the same job with the same conditions and a reasonably equivalent work schedule. You won't get a violation over the simple change of work hours, especially if that is the only change and the employer has a legitimate reason for it, which they apparently did.

    Did you get something in writing that guaranteed your return to the same shift upon your return. That would be the only way you could make an argument.

    I'm not trying to be mean- I am actually trying to help you out. There is a good chance that you will initially get unemployment benefits, but one the paperwork catches up they will cut you off and demand repayment, and that gets ugly.

    If you didn't burn your bridges, you can probably still get the job back if it hasn't been filled. You are in a jam and these are not good times to be searching for a job.

    Good luck.
     
  2. mightymoose

    mightymoose Moderator

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    Since there is a child involved you could still sign up for WIC... that would help a bit.

    Also...it appears you were right about the 72 hours... that rule varies by state. California actually does have a 72 hours limit. You still won't be able to make much of a complaint over it since you have already obtained the check.
     
    Last edited: Nov 14, 2009
  3. theretoo

    theretoo New Member

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    It is a bit of a quandry. Under FMLA/CFRA you are entitled to the same job back, with the same benefits, etc. as though you never took leave. Would they have changed your hours if you hadn't taken leave?
    Constructive discharge is possibility here if they did no return you to the exact position (and hours) you had prior to leave. Talk to an employment atty in your area that works with employees only and does not defend employers as part of their business.
     
  4. jharris352

    jharris352 New Member

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    I would agree with you theretoo but the business has a right to change her hours. They could bring her back with the "same" job and then change her hours as they please. The assumption here is that they changed her hours to make her job untenable so that she would quit. That can't be proven. This could have happened with or without the FMLA. They could have shown up on any given day and changed her hours and had every right to do so. Don't you think so?
     
  5. mightymoose

    mightymoose Moderator

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    They aren't obligated to give her the EXACT job or hours. The language of the law allows wiggle room for the employer to provide COMPARABLE/EQUIVALENT job with COMPARABLE/EQUIVALENT schedule. PAY, BENEFITS, and WORKING CONDITIONS must be the same.
    It happens frequently that while an employee is gone the position gets filled by someone else, and the employee is given a similar job upon return. In this case, the employer was offering the SAME job at SIMILAR day shift hours for a legitimate purpose of handling an important account (which really suggests that the employer wanted her back and was not forcing her out).
     
  6. mcarson87

    mcarson87 New Member

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    Actually no, the fact that the final pay has already been obtained means nothing. The labor code provides what is referred to as waiting time penalties for employees who are not paid their final wages in accordance with law. Penalties are at the rate of your regular daily wage for each day you remain unpaid, up to 30 days. Penalties also carry a statute of limitations of one year, so I don't think you are out of luck.
    HELGAP:
    1. Did you quit without 72 hours notice?
    2. If you did quit without notice; Did you return to your place of work, 72 hours after you quit, and demand final wages? Normally this is a requirement for employees quitting without notice to receive waiting time penalties.

    P.S. I'm not very familiar with CFRA leave. But for the purposes of determining unemployment eligibility, this does indeed sound like a voluntary quit. Nevertheless, it is important to note that voluntarily quitting ones jobs, per se, would not preclude the claimant from being eligible for UI. You are however, going to need to show that you have left your job with "good cause." UI determinations are extremely fact driven, and it is difficult to say with any degree of certainty whether or not the EDD will find you left your job with "good cause."
     
  7. HELGAP

    HELGAP Law Topic Starter New Member

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    mightymoose: i still haven't found a job, and i still haven't been paid any unemployment benefits and probably won't be until i've had my phone interview so i'm safe in that sense in case they deny me benefits. there are so many opinions about this, the best thing for me to do is what i was going to do and just apply and see the outcome. at least there's no penalty for applying. thank you for your help anyway.

    mcarson87:
    1: Your question is very hard to answer. They called ME before I was to get off of maternity leave 3 days before, so I was never even at work when they changed my hours. When they notified me I was going to work new hours, I tried to work it out with them to give me at least half an hour difference (instead of 8-430, 730-4) so I could make sure my oldest (I have two children. Trust me, they forced me out, because all the other times they've only ever asked if I could change shifts, and so with everybody else. They never make you change your schedule, only if you can. But since I was gone for so long, 2 1/2 mos on disability, and 2 mos on CFRA, I think they were sick of me being gone) was picked up from preschool on time, which they didn't care about and stated either i take the job or i had no position. So after they told me that, I stated there was no way for me to take that schedule therefore they knew I had resigned.

    2: I didn't go to work after or demand any of my vacation time because I thought at the time if they considered I had quit, I wasn't entitled to my vacation pay. It was only 2 weeks after I had resigned, then I got a check in the mail and that's when I started reading up on the regulations of getting your final pay check. It was my lack of knowledge. and PS, like I told mightymoose, i'll just have to wait it out, and see the outcome after my phone interview.
     
  8. mcarson87

    mcarson87 New Member

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    If you believe you were not paid final wages in accordance with the law, you may want to file a wage claim with the DLSE (labor commissioner). Do a google search for DLSE and find the section "how to file a wage claim." Sorry I can't post a link.

    Just put on the form that you have been paid all wages (assuming you have) and that your claim is for waiting time penalties only.
     
  9. HELGAP

    HELGAP Law Topic Starter New Member

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    Thank you for your advise mcarson87. I may just file a claim, after all if my unemployment is rejected, I'm going to need all the money I can spare until I find a job.
     
  10. mightymoose

    mightymoose Moderator

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    Hmm... there is still an issue for the paycheck. If she never returned to pick it up then I don't know she can claim it wasn't on time... unless the check is normally mailed.
    The employer doesn't have to mail a check unless requested and given an address. They may have had it ready and just sent it after she hadn't picked it up after awhile. It sounds like she never attempted to collect her check within that 72 hours, so tough to prove. I wonder what the date on the check was?
     
  11. HELGAP

    HELGAP Law Topic Starter New Member

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    From the Labor Code itself:
    202. (a) If an employee not having a written contract for a
    definite period quits his or her employment, his or her wages shall
    become due and payable not later than 72 hours thereafter, unless the
    employee has given 72 hours previous notice of his or her intention
    to quit, in which case the employee is entitled to his or her wages
    at the time of quitting.

    And why would they have me come pick up my check when I was never even going back to work? The check is dated 2 weeks after. Anymore questions?
     
  12. mightymoose

    mightymoose Moderator

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    The date on the check would be enough to make the point then.
    If you normally collected the check at work then you would be expected to pick up your final check at work as well, unless you specifically asked for it to be mailed.
    You could make this complaint to the labor commisioner.... no telling what they would do about it though.
     
  13. HELGAP

    HELGAP Law Topic Starter New Member

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    Phone interview today...

    I just had my phone interview today...the lady seemed nice overall. Asked me basic questions, why I wasn't working there anymore, and what made me quit. I explained my situation, and she asked some questions I didn't expect as far as me paying more for daycare, how much in addition to would it be and how far ahead did I pay my deposit for my son's preschool... She also kind of caught me off track because she asked if there would only be a certain time I could work then, and I advised her no that I would be able to work pretty much anytime. She then asked what the difference between back then and now was, and I advised her I have now adjusted my schedule according to what I come across, meaning now there is somebody who can pick up my son if i have to be off after 5, but at the time they were making me switch my schedule, I had arranged my time to pick up my kids around my original hours of 530-2 instead of 8-430, in such short notice ( they had only given me 3 days notice) which I couldn't find a possible rearrangement for at the time and also mentioned that they wouldn't give me anymore time, that they complained i had been gone too long and they wouldn't work with me when i suggested 730-4, just to make sure i could get to my son on time. She did ask what the change in hours were (and I hope they were drastic enough to qualify me). I will hear back in 7-10 business days according to her, so I will update when I hear back. Thank you all for listening to me and giving me your advice and opinions.
     
  14. mightymoose

    mightymoose Moderator

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    Just be cautious if you should be approved. It is not unusual to receive benefits only to have them retracted later after they dig deeper into things. If they retract it then they will expect the full amount returned and can be particularly nasty about taking it back.
     
  15. HELGAP

    HELGAP Law Topic Starter New Member

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    Approved.

    I did not recieve a letter granting me benefits yet but through the automated system, I did find out that a check was sent to me today. So I take it I was approved. Thank God for the understanding lady at unemployment.
     
  16. mightymoose

    mightymoose Moderator

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    Just be careful with it... your case has not been reviewed fully. It is not uncommon to get another letter in several weeks explaining the terms for how you can repay the money. If you don't pay up then they will swipe it from your taxes and they will even make you appear in court.

    It is very unlikely that they have spoken with your employer yet.
     
  17. HELGAP

    HELGAP Law Topic Starter New Member

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    I'm not worried.

    I didn't lie about my situation. And I'm pretty sure that my employer, if they even speak to the unemployment people, will pass it off to the HR department who won't fight my claim for unemployment especially because they don't like to appear in court. Besides, what would they claim would be a grounds for dismissal for me? They wouldn't work with me, and they changed my working hours significantly.
     

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