Generally OK to Schedule Workers Whenever Needed

Q Some of my co-workers and I were hired with the understanding that we must be available to work Saturdays. When we do work on a Saturday, we are given Monday off so as not to exceed 40 hours for the week. Everyone has Sundays off.

However, our employer now wants us to come in on Sundays too. Isn’t there some sort of implicit contract that Sunday would not be a workday, since at the time we were hired Saturdays were specifically mentioned as a possible workday but Sundays were not?

--D.E., San Clemente

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A Unless the employer and the employee have a written agreement listing specific days of the week that an employee may be required to work, an employer generally is free to schedule employees to work whatever days of the week the employer requires. There are a couple of exceptions, however.

You may be able to insist on having Sundays off if the company has a handbook or manual that identifies the workweek, excludes Sundays, and doesn’t give the employer the right to change this policy.

The second exception applies if you claim that you should not have to work on Sundays because of your religious beliefs. In that case, your employer has an obligation to reasonably accommodate those beliefs and give you Sundays off, without pay, unless it can show that this would cause undue hardship to the business.

I suggest that you talk to your employer and explain that you were hired with the understanding that the job might require Saturday work but not Sunday work.

Explain why it is important for you to have Sundays off. If it is because of your religion and your employer fails to give you the day off, you may go to either the state or federal antidiscrimination agency and explain the situation. The state agency is the California Fair Employment and Housing Department and the federal agency is the Equal Employment Opportunity Commission.

If the agency thinks that potential religious discrimination exists, it will look into the situation for you and attempt to resolve it with your employer. The law prohibits retaliation against you for making such a claim.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Job Doesn’t Live Up to Its Billing Q I work for a large corporation and recently applied for a job that was advertised internally. After about a month, I realized that the job I had accepted was not even close to the position that was advertised.

I feel the job was misrepresented. I have many years with this company, yet I am not happy and may have to leave. I have spoken to my old management and to the company’s employee relations department, but so far have not received a response to my request to have my old job back.

I am an exempt employee. Do I have any recourse?

--P.T., Woodland Hills

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A Theoretically, you may have a claim for fraudulent misrepresentation. If you had to move your residence to accept the new job, you may also be covered by a California statute prohibiting an employer from fraudulently inducing an employee to move from one location to another to accept employment.

As a practical matter, however, it may be difficult for you to prove that your employer misrepresented the job. Unless a precise and detailed description of the job was advertised that differs significantly from the job in reality, your employer may argue that you misunderstood the nature of the job, or that a change in economic or organizational circumstances caused the job to become something other than what was originally intended.

You can only prove fraud by showing that your company knew at the time it advertised the position that the job duties would not be as stated. This could be very hard to show.

Also, if you sue your employer while you are still working there, you would probably create an uncomfortable situation for all parties. But there may not be enough legal justification for you to quit and then sue.

Your best bet may be to continue to work internally to get your old job back or to be assigned to a similar job. You might also consider sticking with your current job if it appears that the position might eventually become the job you had hoped for.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Proper Allocation of Withholding Q I was let go last December as part of a corporate downsizing. I received a severance check and a bonus check this year, but my ex-employer withheld payments to be made to a private disability insurance plan. Was this legal, because I was not employed by this company in 1997? If not, what recourse do I have?

--J.A., Buena Park

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A I assume the amounts that the employer withheld from your severance and/or bonus checks were to cover your share of the disability insurance premium. If the premium is related to coverage you received in December 1996, your employer acted properly. However, you may want to contact your employer to verify that the amounts withheld were properly allocated to coverage you received before your employment was terminated.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

If you have a question about an on-the-job situation, please mail it to Shop Talk, Business Section, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626, or e-mail it to [email protected]