Recent Decisions Support Requirements for Working Extra Hours
By Ruder Ware Alumni
July 2, 2018
Several recent federal court decisions have reaffirmed the right of an employer to require an employee to work extra hours or rotating hours of work as a part of the normal duties of a position provided there is legitimate reason for such requirement. In two cases, the federal courts have acknowledged that overtime can be considered an “essential function” of a position, and therefore an employer is not required to “accommodate” an employee by eliminating that requirement from the job duties for a position.
The United States Court of Appeals for the Eighth Circuit recently held that the essential functions of a delivery driver job included working overtime because of the unpredictability of workloads and delivery schedules. The Court held that the company (United Parcel Service of America, Inc.) was not obligated to accommodate an employee who had work restrictions limiting him to only working an 8 hour work shift. The Court noted that this mandatory overtime requirement was set forth in the job description for the position and was something that was negotiated over with the Union representing employees in this position. With those factors in mind, the Court held that the mandatory overtime requirement was an essential function of the job of delivery driver, and there was no duty to accommodate the work restrictions of the employee, because it involved eliminating an essential function of the job. Wisconsin employers must be careful, because the Wisconsin Fair Employment Act has been interpreted more broadly and may require the transfer of an essential function of a job to another employee, depending upon the circumstances.
In another decision, the United States Court of Appeals for the First Circuit held that an employee who was unable to work rotating shifts was not considered a qualified individual with a disability, because the obligation to work rotating shifts was an essential function of the job of an assistant restaurant manager. In this decision, the employee was seeking a permanent fixed schedule because of a diagnosis of depression and post-traumatic stress disorder but the employer was able to show that working a rotating work schedule was necessary for coverage purposes and for equal work distribution. After showing the business necessity for this essential function, the Court concluded that the employer was not obligated to accommodate this request for a permanent fixed schedule.
These decisions send a strong message for employers that working extra hours, or working a different schedule of hours can be supported by business justifications and therefore be considered an essential function of the job for a particular position. The employer must show the absolute necessity for these types of requirements in order to justify the determination that the requirement is an essential function of the position and need not be changed because of a disability suffered by an employee. These are important decisions for employers but we must remember that we must be able to prove the need for these requirements of working extra hours or a rotating work schedule as a business necessity for the company.
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