Ask a Manager

{ 219 comments… read them below }

1. Dan* December 23, 2015 at 12:25 am

   #2

   The ADA isn’t likely to be of much use here. The test has a couple of components: 1) the issue must affect a “major life function” and 2) the accommodation must be reasonable.

   Someone who has to sleep when the median person is sleeping, and work when the median person is working, well, probably doesn’t meet that threshold. (Not being able to work during the day because you’re a night owl and sleep during the day probably would).

   Then one would have to argue that not being able to work an entire shift is a reasonable accommodation, and that’s going to be a tough sell.

   I’ve worked shift work, and am certainly sympathetic to how it screws with your body.
   1. LadyCop* December 23, 2015 at 1:05 am

      I’ve seen shift accommodations for less (she couldn’t work nights because she wasn’t supposed to drive at night, but last I checked it’s dark as night in the morning during winter).
      1. Dan* December 23, 2015 at 3:33 am

         I’m not saying it’s impossible; just that the ADA is probably not the way to pursue it. Really, if a low key conversation with manager doesn’t achieve the desired outcome, the op needs to evaluate if this is the right place for them.
      2. Green* December 23, 2015 at 10:07 am

         All accommodations aren’t necessarily ADA accommodations though, and aren’t required just because you have a doctor’s note. Severe vision problems may fall under ADA (as would narcolepsy), but “Shift work is tough on my body” likely would not — even with a diagnosed condition.
         1. OP #2* December 23, 2015 at 10:23 am

            Actually if you check the exact definition of “major life activities” under the ADAAA, sleeping is listed as a major life activity.
            1. Green* December 23, 2015 at 10:36 am

               That’s not really how to analyze this. I am a lawyer, but I’m not your lawyer. I suggest that you consult an attorney before flat-out refusing to work a night shift.
               1. Green* December 23, 2015 at 10:41 am

                  (If you aren’t covered by the ADA and you refuse to work a night shift, you could be fired for that and have no remedy. If you refuse to work a night shift and are covered by the ADA but a reasonable accommodation is only that you not be *regularly* scheduled for the night shift, you could still be fired and potentially have no remedy.)
               2. Oryx* December 23, 2015 at 10:46 am

                  OP’s not refusing to work a night shift. OP is refusing to work an *overnight* shift due to a note from a neurologist. This isn’t just an example of not wanting to do this just because.
                  1. OP #2* December 23, 2015 at 10:57 am

                     I think that the confusion here is between night shift and overnight shift, and may be due to the original wording of my question, in fact. So here, it’s THIRD shift, and no, I was never hired to work third shift, I was hired to work first and second.
                  2. Green* December 23, 2015 at 11:23 am

                     I’m not distinguishing between an overnight and a night shift (because it’s only relevant to the reasonableness of the accommodation), but the point that I’m trying to get across is that a doctor’s note isn’t the determining factor here. OP needs to make sure — with a lawyer, who has reviewed her job and spoken to a doctor — that her condition is covered by the ADA and that never working an overnight shift is a reasonable accommodation. This is a case that is most likely *not* covered, and if it is covered, it’s going to be right on the line. Otherwise, OP may *think* she’s covered by ADA, but the employer could change their mind at any time or it could negatively impact OP’s salary, career trajectory, and bonuses or OP could even be fired and wind up with no remedy.
                     1. OP #2* December 23, 2015 at 11:53 am

                        Thank you for your advice.
               3. OP #2* December 23, 2015 at 10:55 am

                  I do work night shifts. I do not work overnight due to a diagnosis of SWSD, backed up by documentation.
               4. Ask a Manager* Post authorDecember 23, 2015 at 10:59 am

                  Agreed — OP should consult a lawyer and not try to parse this herself; it doesn’t appear to be straightforward and the ADA in general is often not a “yes, this is covered; no, this is not covered” kind of law. It depends on nuance and legal expertise pegged to her specific situation, and that’s not something we can offer here.
                  1. OP #2* December 23, 2015 at 11:55 am

                     Thank you for your advice.
   2. Mando Diao* December 23, 2015 at 2:33 am

      I had similar thoughts. I hope the OP has a good resume and has already started looking for another job. I’m not sure that being unable to work any night shift ever is a reasonable accommodation in the hotel industry. Unless OP is okay with going down to part-time hours permanently, it’s unlikely that there are long-term solutions for working out a shift schedule that wouldn’t severely annoy their coworkers.

      I too am sympathetic to the OP’s situation, but I think the ultimate answer is that the job is a bad fit.
      1. Dan* December 23, 2015 at 3:41 am

         Yeah… I worked in a 24/7 operation with a small staff. If me and the other guy were the only two people who “could” cover the overnight, when needed, but the other guy had some sort of exception excusing him from ever covering the shift, I think I’d be pissed. Unless the pay was super good.

         That said, I was permanently assigned to midnights for three years. The trick to surviving is playing nice with your coworkers, and not making coverage a management headache. Aka, be the guy that covers other people’s shifts, so when you need someone to have your back in a case like this, you don’t get a trip under the bus.
         1. Janice in Accounting* December 23, 2015 at 8:53 am

            But then there will always be those coworkers who want their shifts covered and then are always busy the night you need off!
            1. OP #2* December 23, 2015 at 8:59 am

               Having had that shift for four years, you keep a mental list of who’s busy… and you stop covering for them if they say no too many times, or no show too many times, etc, etc.

               I actually had one coworker tell me he had a shift swap approved by management… only to find out it wasn’t. Now I confirm everything before saying OK to a coworker, and if my manager says no, it’s no.
               1. Elizabeth West* December 23, 2015 at 10:30 am

                  Yep, this is the way to do it. I’ve been there with weekend shifts, had people ask me to cover and then they never covered for me. I stopped covering and stopped asking them.
         2. Mallory Janis Ian* December 23, 2015 at 9:26 am

            My husband’s plant works a 24/7 schedule, with people working twelve-hour shifts: four days on, four days off, a month of days and a month of nights. Two people can choose to “lock in” with each other, with one working only day shifts and the other working only nights. The high-seniority people get the day shifts, but the lower-seniority people who lock in on nights still benefit from not having to rotate from days to nights each month.
      2. Roscoe* December 23, 2015 at 10:04 am

         That was my thought. If you can NEVER work nights, she may need to change industries, because from what I understand, that just isn’t realistic. They can absolutely try to schedule around it, but if things need to be done, she probably can’t be permanently exempt from it.
         1. Not So NewReader* December 23, 2015 at 6:18 pm

            Yeah, I was thinking that in an example such as Dan’s above here, that second person has to be available to work nights. It’s part of the job. The company could just say it’s not reasonable to hire a third person to do a two person job, so they cannot accommodate.

            These things are tough. I know in a lot of retail settings a doctor’s note like this will get a person unemployed. “No, we are not set up to make this accommodation.”
   3. The Artist Formally Known As UKAnon* December 23, 2015 at 4:04 am

      I would argue it differently (although I don’t know too much about American discrimination laws, and all of this is so inherently vague anyway)

      The OP’s diagnosis isn’t affecting sleep and the ability to sleep at different times – it’s affecting OP’s ability to drive, concentrate, complete tasks etc. The lack of sleep is a cause, not a symptom, in terms of life functions.

      Also, the only way it wouldn’t be reasonable is if the employer had nobody else to cover those shifts and couldn’t be expected to find somebody. Unfortunately, OP’s coworkers feeling disgruntled that OP gets day shifts isn’t enough. The fact that they’ve made it work this long is a very, very strong indicator that it would be a reasonable accommodation and wouldn’t cause undue hardship.
      1. Mando Diao* December 23, 2015 at 4:27 am

         If everyone has to work nights while one person always gets the good 9-5 shifts, that will kill morale and lead to a huge amount of turnover. In the hotel industry, working nights is fairly non-negotiable. Most people who can’t deal with that eventually self-select out so it’s a problem that solves itself, but IMO OP can’t expect the “no nights” thing to be a permanent solution. He/she needs to find a new job with a consistent schedule. Anyone who’s worked in hospitality would likely argue that nighttime availability is a non-negotiable part of the job. Sometimes a health condition disqualifies people from the work they’d rather do. It’s lousy, but there are limits to what a business and coworkers (who probably aren’t being paid all that well) are expected to do to accommodate someone. If someone else’s accommodation forced me to work two extra night shifts a week, causing me my own sleep and schedule issues, that wouldn’t be workable.

         They haven’t been making it work all this time; for the past five years OP worked nights and it seems they haven’t disclosed the need for accommodation yet. It really depends in whether OP can still perform the necessary functions of the job, a major one of which is working nights.
         1. The Artist Formally Known As UKAnon* December 23, 2015 at 4:51 am

            “I went to a neurologist and he oversaw the symptoms and gave me a note to give my workplace that states I can no longer work overnights.

            Fast forward six months to my yearly review”

            I read that as meaning that OP told them six months ago and since then hasn’t been asked to do any night shifts (please correct me if I’m wrong OP!) in which case, the business has managed for six months, it can hardly be causing undue hardship.

            And a reasonable accommodation isn’t about how coworkers feel. It’s about whether the business need is so overwhelming that the business can’t reasonably be expected to be flexible and accommodate OP’s needs. In this case, they clearly have other people to schedule for night shifts, they appear to have been doing so for some time, therefore it’s a reasonable accommodation. In this one instance, if OP had genuinely been the only person, and it was made clear that this was a one-off thing then *maybe* that would be reasonable to ask the OP to do (with appropriate time off either side) But they cannot make night shifts a requirement of OP’s continued employment with them unless that’s absolutely necessary for the business to function.

            And saying OP should ‘self-select’ out a) ignores the realities of the job market and b) is rather the same as saying women shouldn’t go into X career because it might conflict with child care, or people who wear religious headwear shouldn’t go into customer service when it makes other people uncomfortable.
            1. OP #2* December 23, 2015 at 7:37 am

               UKAnon, you are entirely correct. They switched me off the overnight shift as soon as I turned in the note. They have two auditors and are in the process of training a third (I am 90% sure this is because I told them I could not cover that audit shift, period, using No as a complete sentence) to cover problems/vacations/the inevitable things that crop up.

               My concern here is that the question was part of my annual review. That’s what determines if I get a raise and how much it is.
               1. The Artist Formally Known As UKAnon* December 23, 2015 at 7:56 am

                  Thanks for clarifying! I’m sorry that I missed your question a little bit (like Alison, I thought you were asking how to deal with this, in which case I agree with the advice – say no firmly, and if that doesn’t work re-frame it as “how can we make this a reasonable adjustment? I know ADA says no undue hardship, but I’d like to explore a middle ground, like the arrangement we’ve had in place for a while, that would work for both of us”)

                  Annual review – at least in the UK – is trickier. You’d need to check with US law (I assume you’re in the US?) but I’m confident that retaliation isn’t allowed (?) so direct retaliation – “You aren’t getting a bonus because of your health condition” – is illegal. Unfortunately, that’s often hard to prove and there are all kinds of grey lines (is “Bob’s picked up all the unwanted shifts this year” a good reason for a bonus to recognise Bob’s sacrifice, or is a retaliation against you for not taking some?) But if you think this might have impacted your bonus, you can always go back to your boss and ask what you can do differently to improve next year. You may find it’s nothing at all to do with this, or that it was something to do with this, in which case you’d need more specialist advice.
                  1. OP #2* December 23, 2015 at 8:03 am

                     It’s a little bit of both problems here, I guess. I have almost always been the go-to person for covering shifts, but falling asleep while literally driving changes a lot of things. I could have hit a kid, or a pet, or a tree– it was only luck that a) I drive slow in residential areas and b) there was no oncoming traffic and c) nothing happened except that it scared me witless for a few hours.

                     I am still (mostly) the go-to person, but my boss’s boss is one of those ‘you never give them 100%, there is always room for improvement, make them SLAVE for their promotion’ types, and I question whether she’d approve anything for me with a doctor’s note on file.
                     1. KR* December 23, 2015 at 11:34 am

                        Falling asleep while driving changes everything. I fell asleep while driving and wasn’t as lucky as you. I drove into a ditch and plowed over a mail box, totaling my truck and bruising me up heavily in the process. For probably a year afterwords I was really scared to drive at night with anything less than a great night’s sleep and refused to drive past 11PM unless my job required it.
                  2. Green* December 23, 2015 at 10:12 am

                     Eeps. This analysis is not at all accurate under American law. All health conditions are not protected and do not require accommodation, whether or not you have a doctor’s note. If they’re accommodating a request to not work nights that doesn’t fall under the guidelines of the ADA, then they can also choose to end that accommodation or to penalize the person with compensation/bonus repercussions.
               2. INFJ* December 23, 2015 at 9:11 am

                  I understand your concern! My SO’s boss had been trying to get him to work extra (sales), and he does when it’s busy, but they wanted him to do it more regularly. Like your situation, they brought it up during his review. He’s a top salesperson, so he doesn’t HAVE to work extra to do well, they just want to squeeze him for all he’s worth.

                  Based on this experience, just be as clear and direct as possible. (Can’t work past midnight. Is this required? Does this factor into my performance review? Etc.)
               3. INTP* December 23, 2015 at 10:58 am

                  The way your question is written, it seemed to me that at your review they were asking if you could occasionally cover an overnight shift in an emergency, or whether you absolutely cannot work them at all, for planning purposes, not necessarily to factor into your raise. There are medical situations where you can’t do something regularly, but every so often is not a problem, so it’s a reasonable question. The way you worded your answer might have given the impression that you could take the night shift if your own shifts were rearranged (i.e. you just can’t work multiple shifts in one day, or a regular night shift) which is why they asked you about it later. Obviously there is context and wording that I’m not aware of here, so I could be off base, but that was my take.
                  1. KR* December 23, 2015 at 11:43 am

                     That stood out to me too. OP didn’t specifically say that no, they were unable to work night shifts at all. It sounded like they were saying that they could do it if the rest of their schedule was arranged to fit the night shift (ex, you cover coworkers night shift and they give you different shifts to ensure you’re not driving while tired to and from work that night). I’m not sure about your managers, OP, but mine are often really busy with a billion other things and while they like to talk to you and know about your life, with scheduling it’s a lot easier for everyone involved if you give them clear “Yes I can work.” “No I cannot work” “I can only work from X time to X time” instructions and not ones that are contingent on certain things or not absolutely clear.
                  2. myswtghst* December 23, 2015 at 7:36 pm

                     I noticed the same thing – the way it read to me was that OP2 gave a rather noncommittal answer which may have led the manager to believe OP2 could cover an overnight shift once in a while, leading to the request for OP2 to cover a single overnight shift.

                     (This probably stuck out to me especially because I’ve been having a number of conversations with my fiance lately about how important it is for him to have a conversation with his boss about his schedule and how much more effective he can be if he consistently works the same shift (rather than rotating shifts), because alluding to these things or mentioning them to the shift leads offhandedly and expecting them to get back to the manager who sets the schedule do not equal the manager understanding and acknowledging his request.)
            2. doreen* December 23, 2015 at 7:40 am

               And saying OP should ‘self-select’ out a) ignores the realities of the job market and b) is rather the same as saying women shouldn’t go into X career because it might conflict with child care, or people who wear religious headwear shouldn’t go into customer service when it makes other people uncomfortable.

               I am trying to figure out what you mean by “conflict with childcare”. Because if what you mean is that people shouldn’t self-select out of a job that requires work during hours that they don’t have child-care, I disagree.
               1. The Artist Formally Known As UKAnon* December 23, 2015 at 7:48 am

                  Sorry – that probably wasn’t the best example (early morning feeling, ugh!) and I wasn’t very clear. I was thinking of “women can’t be [career outside 9-5 jobs] because children” when actually, it’s perfectly possible to do jobs outside 9-5 and balance things like children as long as all parties are a little bit flexible. But I am sure there are better examples!
            3. Zillah* December 23, 2015 at 11:22 am

               And saying OP should ‘self-select’ out a) ignores the realities of the job market and b) is rather the same as saying women shouldn’t go into X career because it might conflict with child care, or people who wear religious headwear shouldn’t go into customer service when it makes other people uncomfortable.

               I disagree. It’s a massive simplification to call this “the same” as either of your examples. Not all situations where people self-select out are on equal footing, and sometimes, it’s either unavoidable or nearly so.

               I’m not saying that to be mean or because I think it’s a good thing. I don’t. However, as someone with a couple significant disabilities, I’ve had to self-select out of a lot of jobs I would otherwise like to do because I knew that there just wasn’t a way to accommodate me. It sucks, but that’s sometimes the reality.

               I don’t know if that’s the reality of the OP’s situation, and they should absolutely figure out how much leeway there is either in this job or in comparable jobs elsewhere in the industry. It may well be that this can be accommodated (either with or without a legal mandate), and they should absolutely talk to a lawyer. However, the way you’re representing self selecting out is really problematic.
            4. Mando Diao* December 23, 2015 at 2:27 pm

               As others have said, things don’t work that way in the States.

               Your argument about self-selection treads on really uncomfortable territory. I have not been diagnosed with any disabilities, but I am still subject to the limits of (and other people’s assessments of) my abilities. I was not born a genius, and I do not possess all of the natural talents I wish I had. These things are not my fault; it is the way I was born. Am I entitled to jobs for which I am not suited simply because I had the bum luck of being born more or less average? One of the wonderful things about our increasing open-mindedness is the way in which disabilities are starting to be seem as “just another normal way to be.” Having a disability doesn’t mean that an employer has to pay you for a job you can’t do, and it absolutely does factor coworkers into it, as they’re the ones doing the accommodating.

               It is also helpful to understand how disabilities are identified in the context of employment and benefits. In the US, pregnancy is often filed under “disability.” The face\t that OP’s current health situation places them in the purview of the ADA (in terms of questions about legal protections) does not necessarily mean that there is an actual disability in play. You can say, “hey, you can’t fire me for this,” without having much leeway to expect accommodations.
               1. Ask a Manager* Post authorDecember 23, 2015 at 2:46 pm

                  Hmmm. I might be misunderstanding your last paragraph, but if the ADA covers a person, it is indeed usually about accommodations, not just having one’s job protected.
                  1. Mando Diao* December 23, 2015 at 4:00 pm

                     I was thinking in terms of *desired accommodations vs. *reasonable ones. You can’t just label anything an accommodation, as if that somehow makes it bulletproof.
         2. OP #2* December 23, 2015 at 7:30 am

            You’re assuming a couple of things here: one, the question that I wrote in specifically says no OVERNIGHTS. Overnights are not nights, and yes I do work “evening” shifts. I just don’t work past midnight, which IMO, is a permanent solution.

            Example: I volunteered to work Christmas Eve until 11pm, and be back again at 7AM on Christmas morning.
            1. INFJ* December 23, 2015 at 9:13 am

               That sounds more than reasonable. I can’t believe the expectation to work extra long shifts, given the obvious safety concerns.
               1. OP #2* December 23, 2015 at 9:15 am

                  I think the obvious safety concerns aren’t really a concern to most people until they experience it? I would never have thought it’d be that bad, but I also would have sworn I’d never fall asleep behind the wheel of a moving vehicle either.
                  1. Dan* December 23, 2015 at 11:19 am

                     Yeah… I did shift work for seven years, and I’ve done far worse things on the road sleep impaired than I ever have after a few drinks. Yet we as a society focus so much on alcohol impaired driving and not a lick on sleep deprivation.

                     I once blacked out and drove 20 miles, waking up in a part of town I had never been in before. Scared the shit out of me. We’re also talking about Los Angeles traffic here, not some country road.

                     My comments elsewhere in this thread have nothing to do with downplaying the seriousness of sleep issues – only that the ADA is likely not a fruitful avenue to seek redress.
      2. Dan* December 23, 2015 at 4:46 am

         I’m not understanding your second paragraph. I’m reading a few things into it based on personal experience, so I’m taking sure liberties, but…

         Op’s problem is that working at a time that they would normally be sleeping is screwing with their circadian rhythm, causing bad things to happen driving home. Op’s doctor basically said, “sleep when you normally sleep. At night. Don’t be working.”

         It’s not obvious that this “condition” satisfies the major life function criteria that is relevant to the appropriate law. Phrased differently – I’ve been there, done that, and can’t say with a straight face that having your circadian rhythm disrupted and its followed on side effects are a *disability*. In fact, it’s normal and expected. This makes the ADA a tough sell here.
         1. The Artist Formally Known As UKAnon* December 23, 2015 at 4:59 am

            According to the EEOC:

            “An “individual with a disability” as defined under the ADA is a person who: (1) has a physical or mental impairment that substantially limits a major life activity, (2) has a record of a substantially limiting impairment, or (3) is regarded as having a substantially limiting impairment. EEOC Regulation 29 C.F.R. § 1630.2(i) defines “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” The Interpretive Guidance to the regulations further notes that “other major life activities include, but are not limited to, sitting, standing, lifting, [and] reaching.” 29 C.F.R. Part 1630 Appendix § 1630.2(i). The Commission has also identified “[m]ental and emotional processes such as thinking, concentrating, and interacting with others” as examples of major life activities.”

            (Link to follow)

            So, if the lack of sleep means that OP struggles or is unable to concentrate to a significant extent, or falls asleep at their desk, for example, then their condition has “substantially limited a major life activity”.

            You’re right that it isn’t clear. But because it covers secondary symptoms (it seems – I know that our Equality Act does) it would at least behove the employer to be cautious and not just dismiss this out of hand, because there’s a good chance that it is covered (the problem with fact based law like this is that you never genuinely know until you go to court, except the rare cases where it’s so clear cut)

            Also, OP says nothing about how arrangements are working out so far, so I don’t think we can speculate, except to say that they *have* worked so far. I honestly don’t see how a business can accommodate somebody with no problems for six months, have somebody else who can work the shift (so there’s no lack of coverage) and still say it’s a hardship to accommodate OP’s health.
            1. The Artist Formally Known As UKAnon* December 23, 2015 at 4:59 am

               http://www.eeoc.gov/eeoc/foia/letters/2003/ada_definition_sleep_apnea.html
            2. BRR* December 23, 2015 at 6:03 am

               There’s a part about the accommodation for the person not being an undue hardship for the business and the person must be able to perform the essential functions of the job without the accommodation.

               I think it’s not the disability as much as the accommodation that makes this fall into the gray area of is the lw covered. As others have stated, a night shift is pretty normal in the hotel business.

               Also it’s possible there just hasn’t been a coverage need for the lw to work nights in the past six months. But as Alison suggested, start by assuming the manager forgot.
               1. Kathlynn* December 23, 2015 at 7:18 am

                  So, just because something is frequently apart if an industry doesn’t mean it’s a requirement/essential. Or that it’s an undue hardship to keep one person off the shift, when it could be dangerous to put that person on the shift.
                  1. BRR* December 23, 2015 at 7:54 am

                     I completely agree that frequency in an industry doesn’t automatically make something an essential function. I wanted to address that it’s not about just a disability but also the accommodation. That working nights is much more common in the hotel industry than other industries and might be an undue hardship. I think it should be an accommodation and that the lw’s safety should be a top priority but it could be reasonably be argued by the employer that it’s an undue hardship. It’s not about what I think but addressing the situation as it is.

                     Searching shift work Ada as wakeen’s teapots wrote below seems to show there is a high burden of proof for an employer to show it would be an undue hardship though.
               2. Ask a Manager* Post authorDecember 23, 2015 at 10:43 am

                  It’s very unlikely that that a court would find this to be undue hardship, since they’ve been doing it for six months and the business continued to function. The bar for undue hardship is really high.

                  The only question in play, in my opinion, is whether the condition is covered under the ADA at all. I have no idea if it is (the OP may want to talk to a lawyer and not take anyone’s word for it here).
                  1. Mando Diao* December 23, 2015 at 2:34 pm

                     Does the progressive nature of the situation have any bearing on the notion of undue hardship? I can see the scheduling working out at first, because lots of things work out at first, but gradually becoming more and more difficult as time went on.
                     1. Ask a Manager* Post authorDecember 23, 2015 at 2:48 pm

                        I suppose I can imagine a situation where it would, but this one doesn’t sound like it to me (again, that’s if the OP is covered under the ADA, which we don’t know). The bar for undue hardship is really high and wouldn’t generally include “this person can’t occasionally cover a different shift.”
            3. Wakeen's Teapots, Ltd.* December 23, 2015 at 7:16 am

               Well I came to write a completely different answer (no way the ADA applies) and then I googled ADA and shift work and found out I was wrong.

               I’ll post the links after this but in the meantime you can google
               ada shift work

               and see what you get!

               Basically, there’s no one answer but the ADA is definitely in play and the employer should treat this situation very carefully.
               1. Wakeen's Teapots, Ltd.* December 23, 2015 at 7:24 am

                  I didn’t spend a ton of time looking at everything but the information I found hinged on this one case where I don’t see a judgement for the plaintiff but a federal court opinion that the ADA is in play (and so the case was not dismissed).

                  http://www.natlawreview.com/article/ada-americans-disabilities-act-graveyard-shift-accommodation-issue-not-yet-dead

                  and then an explainer version of it:
                  Does the ADA require accommodating a graveyard shift employee with insomnia?
                  http://www.theemployerhandbook.com/2014/02/does-the-ada-require-accommoda-1.html

                  the source is “The Employer Handbook”

                  this is a different case which implies that if the job description had been written to require night shifts, the employer would have had better legal ground:
                  http://www.lexology.com/library/detail.aspx?g=3735f4ce-7025-49c2-8708-38ddf2cd2612

                  (which, is interesting, because a lot of us were responding to this as “of course you work night shift in the hotel industry, everybody knows that.” not the same thing as job description that requires it!)

                  Anyway, quick tour. Other people may find more interesting things with a different angle.
               2. Green* December 23, 2015 at 10:28 am

                  That case I think you’re referring to just stated that someone diagnosed with an abnormal condition (“severe” and “chronic” insomnia) who was fired for requesting the accommodation could proceed to the evidentiary phase of the case, assuming the facts in the most favorable light to the plaintiff. It’s more procedural than substantive.
            4. Green* December 23, 2015 at 10:17 am

               This is really not an accurate analysis under American law. OP’s problem is almost certainly not covered by the ADA. It is really problematic when people rely on legal analyses from people without legal training, especially in a highly specialized area.
               1. Wakeen's Teapots, Ltd.* December 23, 2015 at 11:27 am

                  Well of course you shouldn’t rely on legal analysis from people without legal training. If you want to *rely* on legal analysis, you should go to a lawyer and then probably get a second or third opinion while you are at it.

                  You can’t get legal advice on the internet. Even if a post or a page comes from a lawyer, a responsible lawyer is going to make sure you understand that you can’t rely on that for specific legal advice.

                  What is factual is that ADA claims re shift work and sleep disorders have reached the courts, with mixed decisions and results. I’d be surprised if the HR at a hotel chain didn’t care at all, given the heightened sensitivity at hotel chains to ADA generally (public accommodation). That’s not legal advice or analysis, it’s “keep HR looped in if you have to and see what happens next”.
               2. Dan* December 23, 2015 at 12:11 pm

                  While I’d likely never represent myself outside of small claims court, getting a little background information before consulting a lawyer is something that I haven’t found harmful. It also helps in figuring out how well your lawyer knows his stuff. I don’t mean that in an argumentative way – but if your background reading suggests there is a lot of grey area somewhere, I’d be wary of a lawyer who says that something is cut and dried and that a judge is “going” to rule a certain way.

                  One needs to educate them self to help ensure that they do get proper legal representation.
               3. Green* December 23, 2015 at 12:58 pm

                  That was mostly directed at a few commenters who were offering pretty conclusive assessment that this was definitely covered under the ADA. If that reinforced what someone already believed, they may not actually seek legal advice and there could be some pretty negative consequences. People know they should talk to a lawyer, but they don’t want to (or often can’t) pay for it, so people do tend to rely on advice about the law from non-lawyers on message boards. All the time. Even the people who offered more nuanced positions posted things that don’t actually say what they think it says (for example, Wakeen, the cases you cited don’t conclude that it is covered — only that the case could continue to the next procedural phase, and under a specific fact pattern and relying on a rule of construction which assumes that all of the plaintiff’s facts are true).
            5. Dan* December 23, 2015 at 11:03 am

               But it’s not clear that the op’s “condition” is covered under the ADA. I used quotes, because with the phrasing the op is using, she’s describing every human being on this planet, except superman. I’m sympathetic – I’ve been there done that, fell asleep at the wheel after working a double overnight, the whole nine yards. Managed to stay out of the hospital by the grace of God.

               But there is no way on gods green earth that I would ever consider that a disability. It’s friggin’ normal. The link below described somebody diagnosed with an extreme medical condition which rose to the severity of a disability. I hate slippery slope arguments, but tbh, the op describes pretty much every coworker that isn’t s full time auditor. What happens if the whole staff walks in with a note from the doctor saying that working a midnight shift disrupts Johnny’s circadian rhythm, and therefore none of them can work midnights? The company is truly in a pickle then.

               The ADA isn’t designed to cover every medical issue, and the op isn’t describing anything out of the ordinary. She’s describing a perfectly normal human being.
               1. OP #2* December 23, 2015 at 11:13 am

                  Wow. I could say a lot of things, but honestly, you don’t have a right to know more than this about my medical history: a certified neurologist has done required testing and confirmed a diagnosis of SWSD, and he has given me notice that I should not work overnight/third shifts for my continued health.

                  Thank you for your opinion, Dan.
                  1. Green* December 23, 2015 at 11:27 am

                     I am not saying you don’t have a medical impact — and I don’t think Dan is either. I am saying that a diagnosis and a note from a doctor isn’t what determines whether or not your particular accommodation is required by the ADA or whether your particular condition rises to the level required by the ADA. There are lots of people with medical conditions–diagnosed by their doctors–who are not covered by the ADA.
                     1. OP #2* December 23, 2015 at 11:34 am

                        Sadly, I think Dan is implying that there is no medical impact in my case, but we can agree to disagree on that, because yes, I see that the ADA really is not helpful in this case.
                     2. Green* December 23, 2015 at 11:43 am

                        You could also make the decision that — whether or not your condition is covered by the ADA — you simply won’t work overnight shifts because your safety (and others on the road!) is more important. That’s absolutely a reasonable position to take. If there are negative consequences, you could fight them on ADA grounds (with an attorney) and if you lose, you could know that you still made the right decision for you.
                     3. Zillah* December 23, 2015 at 11:44 am

                        There are lots of people with medical conditions–diagnosed by their doctors–who are not covered by the ADA.

                        Yes, this. Having a doctor’s note or a diagnosis doesn’t guarantee accommodation, and reasonable accommodation doesn’t necessarily meet a person’s ideal.

                        I’m in no way doubting that you were suffering from serious health issues, OP, or that you would begin to again if you had to work overnight. You should absolutely consult a lawyer so you better understand what your legal rights are, because that’s good information to have. However, it’s important to be aware that you may not be covered under the ADA at all.
                     4. Zillah* December 23, 2015 at 11:50 am

                        @ OP#2 (no more nesting, sorry) – I understand your frustration, but I think that it may be leading you to misread Dan’s comments. Both in this subthread and elsewhere, he’s seemed to me to be very clear in saying that there’s a medical impact here – he just seems to be saying that what you’re talking about is a pretty common problem among people who do shift work and that the ADA isn’t necessarily going to help here. Saying that a problem is common is not the same thing as saying there isn’t a medical impact.
                     5. Dan* December 23, 2015 at 11:56 am

                        I think this is the part where we try not to nitpick posts to death. If you read my many posts in this thread, I think the average person would conclude that I feel that sleep issues are very real, and that they have serious safety implications. On the whole, do you feel that my posts indicate otherwise?

                        But there’s a big step between real serious safety issue, and something that rises to the level required for ADA accommodation. And IMHO, I just don’t see it. It’s not because it’s not serious – but because it is common.
                     6. Green* December 23, 2015 at 12:05 pm

                        I’m a little more sympathetic to OPs nitpicking posts –since the conversation is about them and thus feels (and may be) intensely personal — a bit more than average commenter.
                     7. OP #2* December 23, 2015 at 12:22 pm

                        Zillah, I hear what you’re saying, and I even understand what Dan meant, but frankly, I found the way he tried to make his point belittling. Now, I don’t know Dan. He could be an orangutan. This could be the way he normally speaks. But this is the internet, and I have no way of knowing that.

                        That being said, what I read was the equivalent of “haha, you’re sleepy? Get a life, welcome to the human population.” That may not have been what he meant, but how do you take “she’s describing every human being on this planet except superman” as part of a polite and nuanced conversation? I’d love to know.

                        Still, the takeaway is “The ADA will probably not be helpful, but check with a lawyer who’s on the up and up” and also “your manager may have forgotten” and also “maybe make sure your manager knows it’s not something that will be cured”, and those three things are helpful.
                     8. Mando Diao* December 23, 2015 at 2:42 pm

                        I think this is a point worth underscoring. I’ve never scammed for prescription drugs or anything serious, but have I asked a doctor to write me a note that would get me out of something at work or school? Sure. They don’t always do it, but it’s not the hardest thing in the world to get a doctor to write you a note saying that you shouldn’t be working overnight shifts. It’s distorting this conversation if we continue to proceed as if a doctor’s note carries more weight than it does.
                  2. Dan* December 23, 2015 at 11:29 am

                     I guess you missed the part where I flat out stated I’m sympathetic? And that Ive fallen asleep at the wheel in similar circumstances? I’m not dismissing the seriousness of sleep issues surrounding shift work. Really. In fact, just the opposite. But we aren’t talking about a rare disability here, we’re talking about something that affects quite a number of people. The Cleveland clinic’s web page on the topic says that the disorder is “common” in people who do shift work.
                     1. Green* December 23, 2015 at 11:39 am

                        Yes. If it went to a trial, OP would likely need to present evidence that her problems are more severe than those affecting the general population. Severity of condition/symptoms or chronic nature can weigh in favor, but you need to show that it is abnormal (i.e., severe migraines vs. frequent headaches from stress, severe back pain vs. frequent soreness).
      3. Dan* December 23, 2015 at 4:51 am

         Also, it’s worked this long because there’s a night auditor or two who are regularly scheduled for the shift, who presumably don’t have attendance issues. When one is sick or on vacation, and coverage is required, there is now a problem. Which is pretty rare. So I can’t buy the frequency argument.
      4. YaH* December 23, 2015 at 10:49 am

         Concentrating is considered a major life activity by the ADA. (Just ask all of the people with ADHD who need an accommodation to help them at work.) As is thinking and working.
         1. Green* December 23, 2015 at 11:34 am

            ADD/ADHD is only sometimes a disability for ADA purposes, and only some accommodations are covered as “reasonable” depending on the job and employer. I’m not arguing whether it “should” be this way or not, but this is another situation where layman may think they have more rights than they do.
   4. OP #2* December 23, 2015 at 7:27 am

      Actually, they switched me off the overnight shift without complaint as soon as I gave the doctor’s note to HR and copied one for my manager. They were extremely accommodating, mostly because in the five years I have been there, I have been extremely accommodating. I do still work both first shift (7a to 3p) and second shift (3p to 11p) without complaints.
      1. Wakeen's Teapots, Ltd.* December 23, 2015 at 7:49 am

         Sound like you have a great relationship.

         In the vein of Alison’s advice, I’d say remind your manager that while you will help any way you can, the one thing you can’t physically do is night shift. Is there anything else you can do to help? I agree with Alison that I barely remember a fraction of the things that people who work for me think I remember.

         Depending on what happens next then back to HR?
         1. OP #2* December 23, 2015 at 7:52 am

            My biggest concern, really truly, is if her asking this question is going to impact my getting a raise/upward movement. No, I don’t know the legality of it, but I don’t know that being asked to go against a doctor’s note on your record is something you want to be asked during a review, no?
            1. Wakeen's Teapots, Ltd.* December 23, 2015 at 8:04 am

               Well, it could. There’s the law and then there’s what people do to get around the law that you may not ever be able to prove.

               Lookit, good employees are hard to find. We don’t have overnights but we do have to have coverage for customer facing from 8am to 8pm, and we work really hard to accommodate the needs of our top performers because one it’s a perq and two, good employees are hard to find. (Hell, I’m working 12/28 and 12/29 to cover some support functions myself so some good employees can have those vacation days, even though I blocked them out first myself.)

               If you are truly willing to do whatever you can to make things successful and be a help, you are above the average bird. So see what happens next?
            2. BenAdminGeek* December 23, 2015 at 9:16 am

               It may also be your manager’s way of obliquely asking if the condition has been “cured.” I don’t know your boss, but he/she may not really understand the long-term nature and think that maybe you’re “all ‘fixed’ now and can start doing overnights again.” It seems unlikely to be malicious to me- I think it’s probably a combination of not understanding, not paying much attention, and pushing a solid performer to see what the response is.
               1. OP #2* December 23, 2015 at 11:03 am

                  This is also going on my own personal chart list of psossibles. The best news about this is that I have a follow up neurologist appointment coming up. I may have him do another note for me saying that I can’t work an overnight shift for the forseeable future/until further notice/etc.
                  1. Zillah* December 23, 2015 at 12:03 pm

                     Hmm. It can’t hurt to have another note, I guess, but I feel like you may be putting too much emphasis on the doctor’s notes, which don’t really address the problem here. It sounds like your last note said pretty definitively that you can’t work overnights; what would a second note add to the situation?

                     As Alison said, you should address it with your boss in case she either doesn’t remember or doesn’t realize the scope of this. When you do, you can certainly ask if it would help for you to bring in another note and if so, what needs clarification, but if your employer stops accommodating you, it seems to me like the next stop needs to be a lawyer, not a doctor’s note basically saying the same thing the last one did.
            3. Case of the Mondays* December 23, 2015 at 10:24 am

               I wonder if your manager is asking whether you can cover a night shift versus being on the shift rotation. I worked shift work for awhile and we had people that couldn’t do regular shift changes but could do one night a month or what not. That would be between you and your doctor. I understand given your past, why you wouldn’t even want to try it. I fell asleep driving once too and luckily wasn’t injured. I also learned I had sleep apnea. But, while I can’t constantly be changing my hours of sleep, one all nighter I can handle. If you can’t just say so but your boss might just be asking about the extent of your restrictions.
               1. Green* December 23, 2015 at 10:30 am

                  Yes — those are separate accommodations. Never working the night shift versus being scheduled for day shift and occasionally covering the night shift on a standby basis.
                  1. Stranger than fiction* December 23, 2015 at 11:04 am

                     Yeah, but the problem is, if she says yes once, the boss will probably think she is “cured” and then before you know it, she’ll expect her to do it more often and she’ll be right back where she was.
                     1. Dan* December 23, 2015 at 11:41 am

                        Well… I think we all know that “once” doesn’t mean “once”, but it doesn’t mean every week either.

                        When I worked midnights, about the only time we ever needed coverage on that shift from someone on a different shift was when someone was out on a long vacation, or there was a “real” sick call when the guy was otherwise working alone. Those really are rare events, with that happening a few times year, and that’s BEFORE getting to the guys who would prefer not working the shift.

                        I’m not quite seeing the slippery slope on this one.
            4. CMT* December 23, 2015 at 5:19 pm

               I understand that it would really suck if this didn’t mean you got a raise or bonus, but it also seems perfectly reasonable to me that they wouldn’t give a raise or bonus to somebody who can’t do all the functions of the job. Which I realize really sucks, and truly I empathize, but it might just be that you’re SOL in this situation.
            5. myswtghst* December 23, 2015 at 8:07 pm

               Prefacing all the below with the fact that I know I’m late to the party and haven’t read all the comments, so I apologize for any redundancy. :)

               Without knowing more about how your yearly reviews are structured or how your manager asked the question, I’m obviously just speculating here, but I’m curious when and how this came up in the review. Was it clearly in the middle of the conversation about your performance, or was it an offhand question at the beginning / end of the review? Do you regularly meet / chat with your manager, or is it rare you two get to sit down and talk?

               (I ask all this because during my yearly reviews, my manager and I have a tendency to talk about anything and everything, not just performance stuff that directly impacts my raise / bonus, so I could see this coming up at some point as a question she’d been meaning to ask me but hadn’t gotten the chance to do so without it impacting my performance evaluation in the slightest.)

               All that being said, I do think the best thing for you to do is to reinforce for your manager (assuming they forgot / misunderstood) that per your doctor’s advice, you really cannot work the overnight shift at all, but you are willing to do ***insert possible solution here*** if an overnight needs to be covered. That might mean offering to help find someone to fill in, working a little late / coming in a little early, covering a 1st / 2nd shift so that employee can work the overnight, or something else you think makes sense. You want to be clear about what you can and cannot do, so your manager isn’t making assumptions.
   5. Feel for the Op but don't think the manager is obligated to help* December 23, 2015 at 4:32 pm

      First time posting, so please forgive me if this is isn’t the appropriate place. After reading all the debate about Op2’s situation a couple things stuck out to me. I’m a nurse and this kind of thing often pops up in 24/7/365 continuos coverage situations. I do believe that too much weight is being put on the doctor’s note. I’ve seen doctors write notes with vague recommendations for all sorts of medical related conditions. It’s understood that a lot of employers/schools/people in charge of over seeing other peoples lives will often make *reasonable* accommodations, when seeing a note, that they otherwise wouldn’t (regardless of ADA being in play). I personally wouldn’t take it as any indication that scheduling should be changed due to a condition in this situation. To me it’s more along the lines of A) Jane would benefit from regular sleep, a healthy diet, less stress, and more exercise. This is something everyone would benefit from. A lot of Dr’s would write the note, it’s a simple task. If it persuaded someone in a way that benefited the patient why not? It’s dosent seem the same as B) Jane has regular occurring/ chronic medical condition such as the inability to stand for long lengths of time so please provide her a chair to rest her knees. Or even, Jane has a sleep disorder/ medication regime where she may occasionally be drowsy so please note Jane can’t help this and needs *reasonable* accommodation at such times.
      I also think the manager could have fair reason to ask in the review. Like others have said maybe she forgot, maybe she wanted to know if Op was cured, maybe she wanted clarification if never meant never vs. not regularly but occasionally. And this could effect a promotion without being discriminatory. For example, a promotion could entail a manger needing to come in overnights to cover in an emergency and the Op wouldn’t be able to do that.
      The last thing I will add is that in a lot of my readings on this (related to nursing) the court system still has more grey area then black and white on this kind of thing. There was a semi-recent case where a nurse died driving home after being forced to do a double (and work overnight) multiple days in a row at an understaffed hospital. The nurse’s husband tried to sue the hospital and the defense was that the nurse could have slept in her car before attempting the drive or called for a ride. The defense insisted (and seemed to have the upper hand) that the drive home wasn’t anything they had control over. A lot of people where rightfully outraged that this happened because it also brought into question how safe she was before leaving the job,when patient safety could have been effected. If this kind of circumstance would not be held against the employer I don’t know what would. :(
      My advise for Op would be to seek clarification with the manager on how often this is expected. If she can work around that great. If not her safety is more important and she may have to look for a job with a better schedule. The manager might not be able to keep her on days indefinitely.
      1. Not So NewReader* December 23, 2015 at 6:37 pm

         ” The defense insisted (and seemed to have the upper hand) that the drive home wasn’t anything they had control over. ”

         Hey, what happened to human compassion, they are a hospital, right?

         Sleep in the parking lot? Boy, that is not something you’d want to do at my local hospital. They are using the buddy system there so they can get to their cars without being raped.

         So, let’s see. This nurse that could not function enough to drive home was giving meds to patients? Hmm. I wonder how that went. If nothing else, the publicity should cause people to take their health care issues to other facilities, not the one in this story.
         1. Feel for the Op but don't think the manager is obligated to help* December 23, 2015 at 7:26 pm

            I agree with everything you’ve said. Lots of people in healthcare watched this case to see if any changes would come from it. It also happened (from best of my recollection) at a time when the states representatives were debating changes to overtime and patient nurse ratios. A lot of the laws for overtime and what not don’t apply to healthcare/emergency services/police and get abused.
2. Uyulala* December 23, 2015 at 12:38 am

   #2 – what did you mean by “shifts would be rearranged” when talking to the manager? If they asked if you could cover the shift and you implied that you could magically rearrange things to cover the time, I can see why they would be confused when you couldn’t work the shift. Or are you in charge of scheduling and you were saying that you could schedule others to fill the time? The rest of the question seems to imply that you don’t do scheduling.

   Since you already told your work about the medical issue, it isn’t as though it is a secret. Much easier to be direct and just remind them that you cannot.

   Q: Can you cover for the night auditor?
   A: No. As we discussed before, I am unable to do that.
   1. MK* December 23, 2015 at 1:13 am

      I think the whole confusion comes from the OP’s reluctance to outrigight say that they cannot cover the night shift ever due to a medical issue. Sounds like she tried to give a vague answer along the “we ‘ll work something out” lines; which I understand, because in a hotel it’s hardly ideal to say you can never work nights. But the manager probably got the impression that it’s not prohibitive; and it’s possible that she wants or needs employees to work the occasional night shift.
      1. Uyulala* December 23, 2015 at 1:21 am

         I think you are right about how things happened. But, I still see why the manager would take that as a “yes” of sorts. Anything that implies the OP will be involved in covering the shift does not help the cause if they can’t cover the shift.
      2. AndersonDarling* December 23, 2015 at 9:32 am

         I also wonder if the manager thought the health situation has improved and was really asking if she was now able to work nights.
         1. OP #2* December 23, 2015 at 9:52 am

            That… is possible, I suppose? Though I’d think that kind of conversation wouldn’t happen during an emergency, unless maybe it’s another forgotten thing, like she meant to check on it earlier, but hey a reminder? Huh.
      3. INTP* December 23, 2015 at 11:20 am

         Yeah, as written I could see how the manager might assume that the OP meant that if their *own* shifts were rearranged, they could possibly work a night shift. As in, OP can’t work multiple shifts in one day, or nights with any frequency, but a night with other shifts rearranged in a major emergency might be doable.
   2. OP #2* December 23, 2015 at 7:43 am

      I meant that either I would swap with someone, or I would find coverage by staying late so the next person came in late: the desk can’t be unmanned, basically, because we’re a 24/7 operation. So either I (working a morning) would stay until, say, 7PM, and the next person would do 7PM to 7AM, or (if there were two people on evening) the more senior person would come in at, say, 9PM or 11PM and there would be coverage. Not ideal coverage, true, because the person isn’t trained, but the desk would be manned.
      1. Enid* December 29, 2015 at 9:54 am

         I know I’m responding very late to this. But what really confused me is that the “shifts would be rearranged” response, and your explanation here, sounds like you’re taking some responsibility for ensuring the desk would be manned. But then it sounds like when you were tasked with manning the desk overnight, your reaction to your manager was “I won’t do it and it’s not my problem.” I’m not saying that you SHOULD take responsibility, but I was really baffled by the incongruity.
3. LadyCop* December 23, 2015 at 1:03 am

   #1 Oh the rumor mill… I once took 5 days off for vacation…people thought I was fired. I suppose that says something about my use of vacation, but it’s also my business, not theirs. If I had to guess, security is notified of people who are suspended and fired, for the reasons Alison pointed out. All it takes is one to answer “What happened to Fergus?” and people make their minds up about the rest. Or, as with many companies, so few people return after suspension that people conclude someone is fired. It sucks either way, but it’s unlikely that corporate lied about suspension.
   1. Random Lurker* December 23, 2015 at 3:58 am

      I had a termination go very poorly once. He threw a chair, he made threats, he sat in his car outside our parking lot for a week. Lesson learned? I tell our security before I deliver the message to the impacted individual. I depend on them to spread word of mouth that this individual is no longer allowed onsite. I do everything I can to deliver the message to the person’s coworkers in a controlled way, but the rumor mill beating me has happened.

      I would hope that the company was upfront with OP1 if they were terminated, but if not, there are very legitimate reasons that security would know and is talking about it.
   2. Bob* December 23, 2015 at 11:35 am

      #1 – I was fired once (and deserved it) and expressed my concern about how the information would be handled. The boss said he wasn’t going to tell anyone but couldn’t guarantee anything beyond that and I think that was the correct answer. A lot of people are involved when someone leaves the company for any reason – HR, payroll, your supervisor/manager/director, your previous co-workers, etc. All of those people aren’t going to toe the line, even if they were directly instructed to keep their mouths shut. If you’re currently suspended, there were already multiple people informed and it only takes one with a big mouth.
   3. darkwing duck* December 23, 2015 at 11:58 am

      At OldJob – I got a huge promotion from the worst department to the hottest department in the company. Next thing I knew, there were rumors flying in OldDepartment that I had been fired.

      I contacted OldDepartment’s newsletter and asked if they would like to announce my promotion. The newsletter regularly announced promotions into, within, and out of the department – because hey it’s good news!

      Well suddenly the manager of the person I was 99% sure spread the rumor reaches out to tell met that they don’t announce promotions outside of the department (which I know is not true).

      I played dumb and put on a really pleasant tone – “Really? It’s reflects so positively that someone from [crap department] could get a promotion to the [HOT] department. It speaks volumes about the leadership over there! … No matter. Actually I believe you can help me with something. Apparently someone is incorrectly telling people that I was fired! I’m not sure how this got started, as you know I actually received a major promotion! Could you help me put a stop to these rumors? I would hate to have to bump this up the chain and I know that [Hot] department’s director would be disappointed to hear my promotion to her team being misrepresented this way.

      She immediately changed her tune, apologized profusely and assured me she had heard no such rumor but that she thinks it would be a great idea to publish my promotion and that of course it reflects well on her and the herself and the other department managers I worked with!
4. Anonymouse* December 23, 2015 at 1:05 am

   After reading a lot of AAM, I don’t know why I’m still surprised by how many people write in asking if something’s illegal or a violation of their rights merely because they don’t think it’s fair. LW4 calling her husband’s company discriminatory raised an eyebrow, if I’m being honest. It sucks not to get a bonus, but I thought it was common knowledge that unless your bonus is part of your contract, it’s never guaranteed.
   1. Mando Diao* December 23, 2015 at 2:27 am

      People ask if things are legal because they want to be able to give definitive answers to idiotic coworkers and managers who can’t see basic logic. Saying, “It’s the law that you have to fix the lock on the women’s bathroom door,” ends the conversation when the other person would rather insist that you can just use the garbage can to keep the door closed.

      As for #4, it looks like the OP’s husband gave notice but was still working during the time when bonuses were distributed. I agree that it would absolutely suck to have worked as much as anyone else for the past year and be the only one who isn’t getting that extra bonus. I can even see how it’s worth asking whether it’s fair or legal to only skip over one person under [whichever] circumstances.
   2. Lucy* December 23, 2015 at 4:03 am

      Agreed – there seems to be a wide misconception that discrimination means treating any employee differently to any other employee for any reason (which is legal and can be fair or unfair depending on the circumstances), rather than treating employees who are members of protected categories (usually because membership of one of those categories make them potentially more vulnerable) differently for reasons related to their membership of that category.
      1. Natalie* December 23, 2015 at 8:10 am

         Well, everyone’s in a protected category – we all have a race, a sex, a religion or lack thereof, and so on. It’s different treatment because of those characteristics that is illegal. It doesn’t become less illegal if you discriminate against the dominant group.
      2. fposte* December 23, 2015 at 9:46 am

         Well, that is what discrimination means. It’s just not what *illegal* discrimination means. I think the perception is that all discrimination is illegal, and not only is not not always illegal, it’s usually not even unethical.
         1. Green* December 23, 2015 at 10:32 am

            +1. Discrimination (“differentiation” in corporate speak!) is fine. Discrimination *on the basis of* a protected class is not.
         2. Another Job Seeker* December 23, 2015 at 10:56 am

            Can you explain what you mean? I’d like to understand your perspective regarding ethical discrimination a bit better.
            1. Artemesia* December 23, 2015 at 11:17 am

               I can discriminate on the basis of my perception of how effective or easy to get along with an employee is rewarding Susie and not Jane. I can fire Aaron for something that I didn’t fire Joel for because Aaron has been a pita for years and it is Joels first major screwup. Discriminating i.e. differentiating is part of management. Nothing illegal or unethical about that. I remember a group of students in a special program for working professionals getting up and arms because a couple of them were singled out for offers for fellowships for a full time PhD program and others didn’t get those opportunities. They cried discrimination. Well yes. The faculty were discriminating based on their perception of who was smart and likely to be excellent researchers. Not everyone need be treated the same. It is not unethical to differentiate. It is illegal and unethical to discriminate on the basis of race, gender, religion etc.
            2. fposte* December 23, 2015 at 11:20 am

               When I assess job applicants, I’m discriminating. I’m discriminating based on expertise and skills, which I consider to be ethical.

               “Discrimination” gets used mostly about the illegal stuff (I do it too!), but I make this point not just for semantics. I think some people back form from illegal discrimination to genuinely get the idea that you can never, ever prefer one person over another, and of course you can.
               1. Another Job Seeker* December 23, 2015 at 12:50 pm

                  I see what you’re saying. I guess my question came to mind because evaluating job applicants based on their expertise and skills is not something I have ever heard described as discriminatory. Since historically (in the US, anyway) the word has come to be identified with unfair treatment that targets a specific group of people, that’s many people use it. Thanks for sharing – this post let me know that the word discrimination is used in other ways, also — and that’s good information to have when working with others. It helps to understand the perspective of those with whom you come into contact.
                  1. Ask a Manager* Post authorDecember 23, 2015 at 12:54 pm

                     Think of the phrase “discriminating palate” and it will probably be more intuitive!
   3. SCR* December 23, 2015 at 6:01 am

      Agreed. It definitely sucks and I can understand why you’re frustrated but bonuses are just that — a bonus. He’s decided to leave and they want to retain other talent so I completely understand the logic of giving it to them and not him. Just chock it up to another reason to be glad he got a different job.
      1. SCR* December 23, 2015 at 6:02 am

         Well not you, the OP.
      2. Green* December 23, 2015 at 10:35 am

         A lot of people think that bonuses are for past work done that have already been earned. And they can be — like sales commissions or set bonus levels for achievement, contractual bonuses, etc. But most companies treat them as a retention “bonus” that can be taken away. I can see the confusion on that point, just not on the “discrimination.”
      3. Stranger than fiction* December 23, 2015 at 11:11 am

         I don’t really understand the logic. He worked there. All year. The bonus is a thank you for that to all the general managers. They’re being cheap ass jerks, but of course they can legally do that, but it does suck and doesn’t speak well for the corporation as I’m sure her husband will make that well-known to all his friends and family. It must be a really big chain that doesn’t care or think it will have much impact.
         1. Ask a Manager* Post authorDecember 23, 2015 at 11:20 am

            It’s actually really common practice! Companies think of it similar to raises — you probably wouldn’t expect to get a raise for your last two weeks of work, even if they fell right after company-wide raises were given, right? You’d get that they were a retention strategy for people staying on. Many companies look at bonuses the same way.
            1. Green* December 23, 2015 at 11:31 am

               Similarly lawyers often get substantial bonuses (which, realistically you figure is part of your compensation, particularly because it’s based on billable hours), but if you leave before bonus time the firm has the option to grant you the bonus or not. If you leave for another law firm, you’re not getting the bonus. If you leave for a company (where you might wind up as a client), you’ll get your bonus. Companies almost always differentiate between “discretionary” bonuses and required/”earned” bonuses — even if the distinction is lame and comes down to a word in the employee manual.
            2. LCL* December 23, 2015 at 1:38 pm

               I learned something today! I have had a government job for so long, I forgot there were places that paid year end bonuses. But I remember some friends getting them, and they and their management always called them Christmas bonuses, and all involved thought they were for work already done.

               And for those of us in the US that work under a contract (usually union members) we would get a raise during a two week notice period, if one was negotiated for that classification.
         2. The IT Manager* December 23, 2015 at 11:37 am

            The purpose of the bonus is to incentivise the managers to continue working for them, to build goodwill. “We got a bonus last year; we might get one this year.” The LW’s husband is leaving and so he doesn’t need to be incentivised. I don’t think the LW and her husband bitching about it to all their friends and family will hurt the company that much in the end. In fact many people (not all obviously but many) do understand that bonuses like that are retention tools and there’s no purpose other than generosity to give it to someone who has already given notice.

            Yeah, they could have been generous and kind to a departing employee, but they chose to go for the business benefit. Hell, maybe they had X amount for the bonus to split among the managers and all the other managers got a bit more because the LW’s husband was left out.
      4. Bob* December 23, 2015 at 11:57 am

         Personally, if the bonus is the direct result of a successful year, I feel as though OP’s husband should still get it. But I got the impression form OP’s letter that they didn’t get bonuses in previous years so it was unexpected. Otherwise, most people would have automatically waited until they cashed the bonus check to quit.

         I think a lot of this has to do with the way some owners view people quitting. Too many owners take it as a personal insult when someone quits and want to punish that person. I would assume that is why you occasionally hear those ridiculous stories about insisting on 3-month’s notice when you quit. Like any new job is going to wait 3 months for you to start. We all get that replacing a good employee will not happen during the two-week notice period and can affect the bottom line but this isn’t the 1950’s and people don’t stay in one job until they retire. One way to avoid this would be to have an open line of communication with your employees AND a reputation for being honorable and supportive when they resign.
         1. Doriana Gray* December 23, 2015 at 12:37 pm

            I think a lot of this has to do with the way some owners view people quitting. Too many owners take it as a personal insult when someone quits and want to punish that person. I would assume that is why you occasionally hear those ridiculous stories about insisting on 3-month’s notice when you quit. Like any new job is going to wait 3 months for you to start. We all get that replacing a good employee will not happen during the two-week notice period and can affect the bottom line but this isn’t the 1950’s and people don’t stay in one job until they retire. One way to avoid this would be to have an open line of communication with your employees AND a reputation for being honorable and supportive when they resign.

            All of this. So very much. I gave notice in my current division in my current company at the end of the first week of December (I got promoted into another division within the same company), and my current division still has not made a formal announcement to the division that I’m leaving. My current manager even tried to hold me hostage in my current division until the beginning of February! I’ll be starting my new job 48 days after I was hired because of her – absolute nonsense.

            The only saving grace is the bonus situation – my company gives them based on business unit performance. So because I stayed within my company, I’ll still get the bonus I would have received from my current division come bonus time in March even though I’ll be in my new division. They couldn’t screw me out of that. (And I don’t know that if I had left and started a new job in January if they would have honored the bonus in my last paycheck – I’m thinking not.) I feel sorry for OP #4’s husband because I too would have been bitter not to have received my bonus for the work I did all year. It sucks, though I agree with Alison that this kind of thing is very common.
         2. Ponytail* December 23, 2015 at 4:11 pm

            3 month notice periods are not that uncommon in the UK, where a month’s notice is the standard. It’s usually a sign that you’ve reached a certain professional level or, occasionally, that you’ve been with a company for a long time – some organisations have contracts where your notice period increases the longer you work there.
            Any organisation that demands three months’ notice has to be prepared to accept this from any new, potential employees, so it works out. Also, the odds of moving from a 3 month notice job to a 1 month notice job are low, due to the whole seniority thing mentioned above.
   4. BRR* December 23, 2015 at 6:10 am

      Rationale people assume there would be more employment laws than there actually are (combined with tv and film misusing phrases like “hostile work environment” all the time). I’ve also discovered that not every body reads AAM multiple times a day, so what’s common for us isn’t common for all (I have had to explain many times where my chocolate teapots ltd mug is from).
   5. Wakeen's Teapots, Ltd.* December 23, 2015 at 7:56 am

      I don’t think it’s common knowledge. I remember some regular posters here (higher percentile of general knowledge) being surprised when I described contractual bonuses that are indeed part of your compensation. They’d never heard of them because it hadn’t come up in their work lives. I’ve learned lots of things here that I didn’t know a thing about because it has never come up in my world before. (like, the ADA can apply to shift work! see above)

      “Is it legal?” questions come from people who have never encountered the situation before so they ask before they run into the boss’s office yelling “This isn’t legal!”. They are asking first.
      1. get some perspective* December 23, 2015 at 9:45 am

         I know this will sound insulting, but far too many people here, including some regular commenters, have not had a diverse work experiences PLUS are not aware of how different things can be in other fields and other organizations. So they generalize too strongly from limited information (even if they’ve worked a long time) about isn’t possible. What they say based on their own experience is true, but too often deny that things can be different in other places.

         I haven’t had particularly diverse experience myself, but I’m aware of that. So I can talk about what’s possible from my own experience, but not on what is not possible or how things “always” are.
         1. fposte* December 23, 2015 at 9:47 am

            I think that’s just called “the Internet.” And also, “life.”
            1. Lurker* December 23, 2015 at 3:46 pm

               +1
         2. LQ* December 23, 2015 at 10:20 am

            Part of that is the way our brains function. So saying that other people should always just understand that their experience is limited is often difficult. Sometimes assuming your experience is normal is protective too. Assume everyone has had moments in their life where they weren’t sure how they were going to get their next meal and you aren’t going to be wasting energy you could be spending on getting more food on being mad that the people in your life who are supposed to provide it for you aren’t. It isn’t all bad. (Not all good either, but assuming it is all bad, is an assumption based on experience itself.)

            Luckily it is something that a lot (not all) people experience more, and more varied, things as they get older and have more ability to respond to things more reasonably.

            As an adult, I’m super glad that 10 year old me didn’t know a lot of other people’s experiences because things were already really hard, feeling bad about all of it wouldn’t have helped any. As an adult I’m glad that adult me can better look around and evaluate things, but I’m still occasionally shocked by things I assumed were normal because I’ve not had a reason to question them.
            1. get some perspective* December 24, 2015 at 10:32 am

               I heard a pre-school educator tell me that meta-cognition – knowing how we know things – is one of the most important skills she teaches.
         3. SystemsLady* December 23, 2015 at 10:37 am

            Yeah, seeing a bunch of people disgusted and surprised at a holiday party that’s mostly an excuse for the employees (in my case their spouses as well) to get drunk together really opened my eyes to this last week. That’s…pretty normal in the industry I’m in, and that’s the only experience I’d had. (Not that there’s not a formal entertainment part where you can get by sipping a Coke then leave but that’s OT)
   6. De* December 23, 2015 at 8:28 am

      Well, as I always say, sometimes these things are actually illegal in other countries. The expectation that something might be illegal isn’t as out there as it may seem.

      In Germany, for example, employers have to be very careful about the way they give bonuses, or employees will actually be able to sue to get them after a few years. After a few years, they become part of the expected compensation unless the word “bonus” is very carefully used every time it is given.
      1. De* December 23, 2015 at 8:35 am

         And yes, the OP’s husband could probably get the bonus here, if everyone else is getting it. Even if a work contract specifies that bonuses are only paid if no notice has been given, that clause can be determined to be invalid if the bonus is for work that has already been accomplished.
   7. Chriama* December 23, 2015 at 9:53 am

      The thing is though, it doesn’t need to be illegal to be litigated. I remember reading a post on reddit about someone whose company reversed a direct deposit that included a bonus because they gave notice after it was paid out. They eventually got the bonus back after getting a lawyer involved. I know this situation isn’t identical but I think it’s not unheard-of for a company to cave in this situation under threat of legal trouble.

      The unfortunate thing is that whether or not something is illegal you probably need a lawyer involved to get a satisfactory conclusion. I think people think that if something is illegal you can just tell your employer and they’ll start behaving themselves, but that’s often not true.
      1. Observer* December 23, 2015 at 10:35 am

         However, I think the case you mention is different. For one thing, clawing back wages is illegal, even if there was more in the payment than the wages. That alone was probably enough to get the employer to back off. Also, there is a difference between not paying out a bonus in the fist place and taking it back when someone proceeds to do something, unless there is a payback clause in a contract that the person signed.
         1. fposte* December 23, 2015 at 11:08 am

            I’m not sure that it is illegal, actually–can you clarify on what basis? It’s certainly arguable that leaving somebody unpaid for the period is a violation of FLSA, but usually companies correct that by sending a corrected deposit/check (obviously some states have stricter limits on the time period). And a direct deposit is legally reversible within a few days, and it’s apparently not legal to only reverse part of it–it’s all or nothing.
         2. Chriama* December 23, 2015 at 2:47 pm

            But it wasn’t a wage, it was a bonus. And they did pay the regular salary afterwards, just clawed back the bonus part of it. The point is that in both situations the act wasn’t illegal (hence the drawn-out battle in the case I saw on reddit) but a good lawyer can help you get a good settlement. And again, even when something is illegal, you often need to get a lawyer involved if you want a resolution other than “living well is the best revenge”.
            1. Observer* December 23, 2015 at 3:33 pm

               But, they reversed the whole thing. And, there are some strict rules about how soon you have to pay someone who is not longer working for you, so they were, at best, on very thin ice there.

               And you can’t get to take a way a bonus that was paid out correctly post facto, regardless of what the person does.

               Of course, it’s true that good legal representation helps. In fact, I would bet that the protracted battle was not because they were in a legally sound position, but because someone thought that the person would not get a lawyer and then didn’t want to back down.

               So, I’m not disagreeing about getting a lawyer.
5. CMT* December 23, 2015 at 1:45 am

   Hey Alison, I know you’re trying new things with the ads this month. Is having them show up in the middle of a question one of those things? It seemed kind of weird.
   1. CMT* December 23, 2015 at 1:49 am

      Although now that I’ve refreshed, it’s gone. But there was a big ad right in the middle of question 5.
   2. Ask a Manager* Post authorDecember 23, 2015 at 2:31 am

      Are you on a phone or tablet? On mobile devices, there are up to two ads per post (and they will show up mid-post). But if you’re not on a mobile device, that shouldn’t be happening and would alarm me.
      1. Merry and Bright* December 23, 2015 at 2:54 am

         By the way, I really love the dog video I keep getting. He travels in a car and wears sunglasses and he’s so sweet. :)
         1. Kelly L.* December 23, 2015 at 6:52 am

            Awww!
         2. LabTech* December 23, 2015 at 10:28 am

            Definitely beats my “Is sex painful for you?” ads I keep seeing on my lab’s computer. (Don’t have permissions to install adblock there.) Also the “Hot tech talent!” recruiting firm ad, featuring a scantily-clad, muscular man with thick-rimmed glasses. Eesh.
            1. Elizabeth West* December 23, 2015 at 10:42 am

               Also the “Hot tech talent!” recruiting firm ad, featuring a scantily-clad, muscular man with thick-rimmed glasses

               WHAAAAAAAT O.O :D
               I REALLY need to disable that thing. But not at work!
               1. LabTech* December 23, 2015 at 3:03 pm

                  Heh, that was pretty much my reaction, after hastily closing my web browser.
         3. ThursdaysGeek* December 23, 2015 at 11:57 am

            For a while I was getting some sort of snowboarding ad, that was pretty fun to watch. Dunno what they were selling, but those boarders could sure do some nice spins in the air.
      2. CMT* December 23, 2015 at 11:39 am

         I was on mobile. Thanks for letting us know!
6. Merry and Bright* December 23, 2015 at 3:00 am

   #3 I think Alison’s suggestion of bringing some nice food for the office as a compromise at least for this year is an excellent one.
   1. lawsuited* December 23, 2015 at 8:56 am

      I think OP#3 is totally fine to just skip a gift to her boss this year. My assistant has given me a gift the last few years and, although I’m gracious when she gives it to me, I would be really relieved if she would just stop.

      As a side note, I’ve said in the moment when my assistant has given me a gift, “you really don’t need to give me a gift. I’m just grateful for your hard work this year”, but she’s not taken it seriously. I don’t feel comfortable saying at the beginning of the season, “you know, people really don’t have to give holiday gifts to their bosses” because it sounds so presumptuous. Any way I can stop this?
      1. Ask a Manager* Post authorDecember 23, 2015 at 10:50 am

         https://www.askamanager.org/2013/12/how-can-i-tell-my-staff-not-to-give-me-gifts.html
   2. OP3* December 23, 2015 at 11:04 am

      Agreed! I wish I would have done this…next year! :) This year, my boss gave $50 gift cards, I did $25 (for boss and other members of the team), and the department paralegal did $10. So basically we all passed around money and ran errands at the busiest time of year for no reason. Dumb.
      1. Artemesia* December 23, 2015 at 11:25 am

         I really feel gift cards ‘up’ are particularly inappropriate — gifting those down is like a bonus and appropriate but you shouldn’t be ‘paying’ the boss.
         1. Oryx* December 23, 2015 at 4:36 pm

            Agreed. A physical gift is one thing, but giving your boss the equivalent of cash makes me give a serious side eye.
   3. RubyJackson* December 23, 2015 at 11:06 am

      I used to give gifts to everyone in our department, including the boss. But there are now so many of us, all I could possibly afford to spend is about $5-$10 on each person and what kind of meaningful gift can you give for that amount? So now, I make a charitable donation in recognition of our department every year instead and hand out candy canes and a note acknowledging that year’s charity. Everyone seems to like it and looks forward to seeing which charity I have chosen. It’s a different charity every year. No one seems to mind not getting a gift and the money I spent goes to something worthy.
      1. OP3* December 23, 2015 at 11:11 am

         Great idea! There are already so many baked goods around the office at the holidays–nice way to do something different.
7. Christy* December 23, 2015 at 7:38 am

   How do you, as the manager, set the expectation that you do not want to receive gifts from subordinates? I was trying to find that answer for my girlfriend (a manager) and couldn’t. Also, does the answer about managers receiving gifts change if the employee gives everyone in the office the same token gift?
   1. MK* December 23, 2015 at 8:46 am

      Well, you can work “gifts in the workplace should flow downwards” into a random conversation well ahead of time (as in September), but you risk people forgetting it by December. Or you wait till they give you one and then you explain that you appreciate the gesture, but it wasn’t necessary and they shouldn’t do it again, though they may just think you are just being polite. You could refuse the gift, but that would be rude. Ideally, this would be covered in a companies policy manual.

      And I don’t think it’s any issue if it’s something of really token value, like 3 euros or less.
      1. Aunt Jamesina* December 23, 2015 at 10:30 am

         “Or you wait till they give you one and then you explain that you appreciate the gesture, but it wasn’t necessary and they shouldn’t do it again, though they may just think you are just being polite. ”

         I get the sentiment here, but I think that would be really embarrassing for the gift-giver when they’ve made a kind, though misguided, gesture. It’s always best to graciously accept a gift unless it’s truly inappropriate or barred by policy. Working it into conversation months beforehand might be your best bet, as is making it a formal policy.
   2. Ask a Manager* Post authorDecember 23, 2015 at 10:51 am

      I posted this above too:
      https://www.askamanager.org/2013/12/how-can-i-tell-my-staff-not-to-give-me-gifts.html
   3. Sunflower* December 23, 2015 at 10:56 am

      If your girlfriend is giving a gift, I would just have her give the gift on the early side and say ‘and please, no gifts for me.’ If you’re a person managing other managers, I think it would be okay to send an email on gift etiquette in the office. I think the key is you really need to do it near late Nov/early December before anyone starts handing out gifts in order to avoid awkwardness.

      I think its’ ok if you give the same gift to everyone in the office to include your boss. I would assume if you’re doing that the gift is very small and not of high value. I tend to think that baked goods or homemade things get more of a pass on this than things you purchased.

      Something else that might work out nicely is what our Chief did. She told her admin the whole gifts flow downward spiel and wanted her to make sure that everyone in the office who was at a coordinator or assistant level was aware they do not need to purchase gifts for their boss and that this was coming from the Chief directly. I think knowing that the person at the top of the food chain is saying that but hearing it from a person at the same level as you is beneficial in making it the least awkward as possible.
      1. Artemesia* December 23, 2015 at 11:26 am

         You make this clear by November 1. so that there is no awkwardness when they have already thought about or bought something.
8. Jake* December 23, 2015 at 7:46 am

   #4

   It is unfortunate that this is how it is. When I left my last job I gave 5 weeks notice because I wanted to give my boss as much time as possible to prepare. I knew it wouldn’t be held against me.

   Now I’m leaving my current job,and I’m waiting until exactly 2 weeks before I leave to tell them so it doesn’t negatively impact my bonus and scheduled vacation. It is just an unfortunate reality that we can’t just be 100% open without hurting ourselves.
   1. AdAgencyChick* December 23, 2015 at 8:59 am

      I don’t see withholding a bonus from an employee who has quit as “holding it against her” — it’s simply that employees often think of bonuses as a reward for hard work, whereas management thinks of them as a tool to retain their best employees.

      This does lead to situations like you describe, though. I once worked at an agency where a coworker waited until her bonus check went through to her bank account. Then she resigned via email with one week’s notice!

      I think it’s just something people have to plan for when they quit. In my industry, people typically don’t quit in the period right before bonuses are handed out. And agencies know that when they hire someone around bonus season, they may have to wait a few weeks longer than they’d like for that person to actually start, or else pony up a signing bonus to compensate for the lost income.
      1. Mike C.* December 23, 2015 at 11:04 am

         I really can’t blame employees for thinking this, given the mountains of KPIs from the past year I’m looking at that determine my bonus.

         This whole retention thing really is news to me. This sounds like a business specific thing to be honest.
         1. Stranger than fiction* December 23, 2015 at 11:27 am

            You and me both. The concept of a bonus being like a pay it forward type thing boggles, but now that both Adagencychick and Alison have both mentioned a bonus as a retention tactic, I guess it’s a thing, but maybe specific to certain industries?
         2. Not the Droid You Are Looking For* December 23, 2015 at 11:39 am

            I do think it has a lot do with the way a company defines/uses the term bonus.

            I have a contractual bonus that was part of my offer letter. There are metrics that go along with it and a specific payout date. Because our fiscal year coincides with the calendar year, I get my contractual bonus on 12/31 (last pay date).

            What the letter writer and Ad Agency chick are talking about are more the old school, “the company did well, so here’s a bonus.” My company does that on top of our contractual bonus, and they are definitely intended as part of the retention toolkit.
         3. McAnonypants* December 23, 2015 at 11:44 am

            Same. I’ve got a whole host of factors that determine my bonus amount: KPIs, my compensation from last year, my company’s financial performance in the previous fiscal year, etc.

            It’s even in our performance management system as part of one’s ‘target compensation’.
            1. Mike C.* December 23, 2015 at 2:17 pm

               Yeah, it doesn’t help that the primary factor is how much we worked in the past year.
         4. Engineer Girl* December 23, 2015 at 12:20 pm

            I agree. In Aerospace most of the mid level bonuses are performance based.
         5. Koko* December 23, 2015 at 6:02 pm

            Both kinds exist.

            Company A awards raises and merit bonuses based on our annual reviews. A merit bonus is not guaranteed, and if you do get one, it will vary in size depending on how well you performed in the previous year. There is no formula or clear rubric to determine whether a bonus will be awarded and what size it will be. These are part performance-based but part retention strategy. If an employee gave notice before the raises and bonuses were announced at the end of the review, the employee likely isn’t getting a bonus.

            Company B gives out “Christmas bonuses” or similar in the same amount to every employee, or perhaps varying the amount by seniority/company rank, but not according to performance. These are 100% retention strategy. A departing employee likely isn’t getting the bonus.

            Company C awards quarterly contractual bonuses with a set formula to calculate the value of the bonus earned by hitting performance KPIs. These are entirely performance-based. A departing employee is almost undoubtedly still contractually obligated to get the bonus.
      2. neverjaunty* December 23, 2015 at 12:01 pm

         Let’s be honest: those are after-the-fact rationalizations. If the business wants to lay the bonus, then it’s part of your compensation, a reward for your hard work, etc. If it doesn’t want to pay the bonus, then the bonus is “dependent on company performance”, a retention bonus….
   2. ThursdaysGeek* December 23, 2015 at 12:31 pm

      I worked at a place where we got quarterly bonuses based on profitability (and they were nice! 15-25+%). We knew that we had to be employed, not given notice, in order to get them. Management often really took their time getting them out. The year end bonus might not be distributed until February or early March. So if someone was looking for another job, they would hold off giving notice until the bonus checks came out.
      1. Anonymous Coward* December 23, 2015 at 4:45 pm

         My last job gave quarterly bonuses, with the restriction that you had to be employed not only on the date when the bonus was calculated (it was based on past work) but also on the date (2 weeks later) when they were paid out. I gave 6 weeks’ notice as a courtesy to my boss/department in getting projects wrapped up and transferred, and negotiated for my “final date of employment” to be the day after that paycheck with the bonus. I’d worked hard all quarter!
   3. Newbie* December 24, 2015 at 12:03 am

      Ah, yes. The annual bonus. A few years back at a previous job, everyone in a different (entry level) department who had been employed for at least 12 months were advised that they would receive a bonus of $1,000 each. The department I was in (the next level up) had struggled because of a significant employee absence due to injury/hospitalization. The rest of us had to be flexible and work extra hard to make up for that absence. It was an extremely challenging year, and there were those among us that figured if entry level employees were given $1K to be retained, surely we would get something in that neighbourhood, too. At the time, I had been with the company more than 6 years.
      I knew several months before that I was leaving my job to return to school (career change), but I held off until the last possible day to give my two weeks notice, because I knew that *if* was going to receive a bonus, I would be told before a certain date. Never assume. That day was the Monday before pay day, and I was stunned at the small sum. It was a harsh sting when my manager told me that he just couldn’t justify more than $300, due to the fact that some people in the department had overdue work – never mind that it was work that I was never trained on and couldn’t help with. A ridiculous and lame reason.
      It felt so incredibly awesome to hand him my letter of resignation with two weeks notice on Wednesday morning – after the funds had been sent to the bank for direct deposit.
      Now the company doesn’t do ‘the annual bonus’ as it has replaced it with ’employee recognition’ and significantly lower amounts. Yeah. I don’t miss that.
9. AvonLady Barksdale* December 23, 2015 at 8:40 am

   #1 – I hope you were able to make Alison’s last paragraph apply. There’s an excellent chance that your friend had much less knowledge than you gave her credit for. In a situation like that, when you’re on edge and uncertain, it’s so easy to make a lot out of something innocuous. “Why did you get fired?” “I didn’t.” That’s all you need.
10. Erin* December 23, 2015 at 9:56 am

    #2 – Is it possible that your manager understand and remembered that you can no longer do overnights on a regular basis, but was hoping that you’d be willing to step in occasionally to cover if someone is out? But she didn’t come right out and say that? (In which case, you’d have to think about if you want to do that or not. On the one hand, it would be probably be fine for you if it was just once in a blue moon. On the other hand, that could start a slippery slope where they’re like, well clearly she CAN cover overnights and you end up back where you started.)

    Either way, maybe you could email her a copy of the doctor’s note. As you’re in a hotel I don’t know if you normally correspond by email or not, but if that’s a norm for you I’d do that.

    “Hey Jane – I don’t know if you recall, I know you have a lot of employees’ schedules to juggle, but here’s a copy of that doctor’s note indicating I’m unable to work the night shift anymore. I will talk to Celia and see if she can get Wednesday night covered. Going forward, please do continue sending these to me and I will go ahead and check in with the staff to see who can cover what. And of course, if someone calls out during the 7 to 3 or 7 to 11 shifts I’ll do whatever I can to cover shifts there.”
    1. Colette* December 23, 2015 at 10:13 am

       I suspect that doing it once would be a problem, but the OP needs to say that directly (and not via email). “I’m sorry, my doctor has been clear that I’m not able to work overnights.”
       1. Erin* December 23, 2015 at 10:29 am

          I was thinking email would be better for the sake of documentation, and she’d be more likely to keep a copy of the doctor’s note if it’s electronic, than if she handed her a physical copy.

          But on the other hand, yes, there’s something to be said for doing it in person. It would depend on their usual work norms and how they typically interact with each other.
11. Sunflower* December 23, 2015 at 10:05 am

    #5- I can’t echo what Alison has said enough. Personally I have had terrible experience with recruiters. I will hear from them and they will tell me they have a position I’d be perfect for and then disappear and I never hear from them again or they will pop up 6 months later with a random job. Like Alison said, recruiters work for companies and themselves, not you. Recruiting is really similar to sales- the more positions they fill, the more money they make. I am not trying to make them out to be slimy(they aren’t at all and what they do is totally ethical and fine) but just keep in mind that their goal is to fill every job ASAP, not to get you a job. It’s pretty common to get sent postings or be contacted about jobs you’re overqualified for or don’t relate at all to your experience.

    All that being said, It’s definitely worth it to continue working with her as it’s no cost to you and I know plenty of people who have gotten jobs and had great experience with recruiters. I would just continue to aggressively job search as if you weren’t working with her.

    And PLEASE PLEASE PLEASE do not send job postings to recruiters for all the reasons Allison said. It will most definitely put you at a disadvantage and the recruiter has absolutely no leeway to get you in the door.
    1. Christian Troy* December 23, 2015 at 11:09 am

       I am with you 100% on this. There is nothing wrong working with a recruiter, you just have to manage your expectations and look out for yourself.
    2. JM in England* December 23, 2015 at 6:35 pm

       This is exactly my experience with recruiters too, Sunflower. I regularly get emails from them for jobs totally outside my field………….
    3. coffeegirl* December 23, 2015 at 11:28 pm

       OP5 here. After reading Alison’s reply, I laughed at how naive I sounded. Duh, I should keep looking. I’ve never worked in a field with recruiters before, so I just feel like I’m a little fresh-out-of-college kid again working with one. Thanks for the feedback!
12. Kassy* December 23, 2015 at 10:16 am

    “I was told that I had to call on the fifth day and ask if my job would still be available to me.”

    This sounds sketchy to me. If management is actually taking that time to ponder the decision, that’s understandable (although you’d still think they could call her). But it sounds suspiciously like a decision has already been made (now, which one it was, I don’t know) and they’re just putting OP through this for the embarrassment factor, as a sort of extra punishment. Like she’s a little kid and has to ask if she can get up from her time-out yet.
    1. fposte* December 23, 2015 at 10:25 am

       It’s pretty unlikely, though–that’s extra trouble for no particular purpose. It’s possible that they wanted security in early, as somebody above said, or that they wanted to talk to HR or legal first.

       I’m not familiar with how suspensions work, so somebody in an office will have to shed more light. However, it seems plausible to me that an employee would be suspended pending investigation and could then be terminated following that investigation. (I think making the employee call in is ridiculous, though–that’s literally a management call.)
       1. Elizabeth West* December 23, 2015 at 10:49 am

          I’d say it’s a done deal. They suspend to get the person out of the office. That’s what happened to me. The next day, I opened the classifieds and saw my job listed. A day after that, I got a FedEx mailer with a termination letter in it. They packed up all my stuff and sent it to me, and I mailed my key fob back (I used snail mail–I wasn’t going to spend any money on shipping it after that).

          It was actually a relief by then; I really had grown to dislike the work, so even though I had finally got the bout of depression that instigated this under control, I was glad to be out of there.
          1. Ask a Manager* Post authorDecember 23, 2015 at 10:53 am

             But that’s not a universal experience; yes, sometimes it can happen that way, but other times the suspension is lifted and the person returns to work.
       2. NotherName* December 23, 2015 at 10:56 am

          Yes, since we don’t know what the OP’s mistake was, so we don’t know everyone who might have had to be involved in the decision. It’s possible that they also did not know the actual effect/cost of the mistake and whether it was something that could be corrected, so that might have to be determined also.

          I work somewhere with a terrible rumor mill, so I totally feel for the OP in terms of other employees gossiping.
    2. Jennifer* December 23, 2015 at 10:29 am

       I thought the same thing. I would reasonably assume the OP has lost their job, but…technically yeah, they should still call in on the small chance it isn’t lost.
       1. Green* December 23, 2015 at 1:03 pm

          It’s also an opportunity to discuss what the reference will be — you typically want to try to get a neutral reference (confirmation of employment and dates only).
    3. Erin* December 23, 2015 at 10:30 am

       Right? Like what is going to change between now and then.
       1. michelenyc* December 23, 2015 at 10:46 am

          I would not even want to go back to a job that had suspended me. I actually did not realize they still did things like that but it has been a long time since I have worked retail.
       2. Oryx* December 23, 2015 at 10:54 am

          Eh, depending on the job they could be using that time to do an internal investigation (which sounds far more ominous than it is: when I worked at the prison a co-worker was put on suspension due to some incident and I had been in the room at the time so I got called into a meeting and asked questions about what had happened).
       3. Ask a Manager* Post authorDecember 23, 2015 at 10:54 am

          Depending on what happened, they may want to talk to witnesses or people impacted by whatever happened, talk to a lawyer or HR, or just have time to think about what makes sense.
          1. Erin* December 23, 2015 at 11:08 am

             That’s fair, good answer.
       4. A* December 23, 2015 at 7:52 pm

          Except OP is guaranteed to lose his/her job without calling in — and right now OP is just going by what the rumors are, which could be incorrect. OP, please call in.
    4. Sunflower* December 23, 2015 at 11:10 am

       I actually strongly disagree with this. This really depends on what the incident was. The only people I know who have been fired on the spot are people who are breaking company policy very blatantly. Think a ‘no guns on the property’ rule and you walk into the office with a non-concealed weapon. When people are fired on the spot for stealing, it’s very rarely the first time someone has done it. The company usually suspects it, monitors them and then fires them ‘on the spot’ once they have all the documentation and proof in place. I’d think it’s very common- even in incidents of workplace violence- to suspend someone and be legitimately debating on a decision during the suspension.
    5. Kassy* December 23, 2015 at 11:31 am

       After reading these, I can see where a suspension might be called for. I guess the making-the-employee-call-in aspect of it colored my judgment of the rest of the story (which, that part I still think is silly. I feel pretty strongly that this is a conversation the employee should not have to initiate).
    6. Stranger than fiction* December 23, 2015 at 11:32 am

       I’m just dying to know what she did.
       1. The_artist_formerly_known_as_Anon-2* December 23, 2015 at 1:27 pm

          Did the OP do it, or accept the blame?

          That’s another topic = don’t EVER allow yourself to be set up as a fall guy/gal.
13. Erin* December 23, 2015 at 10:25 am

    #1 – In my opinion with retail environments, sometimes they don’t even extend the courtesy of telling you you’re fired. They take you off the schedule – and yes, even tell other employees about it – in hopes you’ll read between the lines and go away.

    So yeah, you probably are fired. But you do still need to call. They’re probably hoping you won’t – this is probably why they told other people you’re fired, in hopes that you won’t bother calling and they can avoid conflict – but don’t give them the satisfaction. Remain professional until the end, if if they aren’t. Make them say it to you.

    Also, what Alison said – there may be a slight chance you in fact that one employee is wrong and you aren’t fired, in which case, you need to know that too.

    But, yeah. Don’t expect them to tell you you’re fired with that phone call, and certainly don’t expect any rights to privacy.
    1. Erin* December 23, 2015 at 10:32 am

       (Apologies for more typos than usual in my comments today – multitasking. :))
    2. Mimmy* December 23, 2015 at 12:11 pm

       In my opinion with retail environments, sometimes they don’t even extend the courtesy of telling you you’re fired. They take you off the schedule – and yes, even tell other employees about it – in hopes you’ll read between the lines and go away.

       This probably happens in any environment that involve frequent scheduling. A friend of mine used to work at a daycare for children of employees of a special-needs school, and over time her hours kept getting reduced until she was no longer on the schedule. No one outright fired her, but I bet they didn’t want her there anymore. Unfortunately, my friend has a disability, and probably didn’t pick up on the hints because she admitted to calling frequently to check if she was needed. The sad part is, prior to the daycare position, she was a long-time, well-liked volunteer in the school itself.
       1. Erin* December 23, 2015 at 1:04 pm

          Yeah, I don’t disagree with you. That is such a sad story, I wish people would just do the professional and decent thing by telling you you’re fired (or laid off, or whatever it might be). It often seems like the retail world – or jobs where the schedules change frequently as you pointed out – don’t have to operate under the same professional rules and norms of the rest of the working world.
    3. Terra* December 24, 2015 at 2:46 am

       They do this because it sometimes allows them to avoid paying unemployment (if they fire you then you can apply for and often receive unemployment, if you’re still supposedly employed but not receiving any hours they don’t have to pay you for work and you don’t get unemployment). Some areas have laws against doing this for that very reason.
14. Oryx* December 23, 2015 at 11:00 am

    Re #1, I feel like a lot of people are missing the fact that the OP is unable to work *overnight* shifts, which are different from night shifts. This isn’t about just wanting a 9-5 schedule or something. OP even states they have offered to work late one night and come in and work the morning shift the next morning.

    I’ve worked overnights and those are a very different beast from just working nights.
    1. Oryx* December 23, 2015 at 11:01 am

       Ack, I meant #2
    2. Stranger than fiction* December 23, 2015 at 11:35 am

       Yes, it sounds like she works first and second shift, just not third shift.
       1. LCL* December 23, 2015 at 1:48 pm

          I think where the confusion comes in, is the way things are described in the states, vs what the OP is saying. Second shift can also be called swing shift, or afternoon shift. Some places will call it evening shift if it starts late enough. But it is not a night shift. Nightshift implies you are working past midnight and going home early in the morning. You will raise peoples hackles if you say but I can work nightshifts, just not overnights.
          (only trying to clarify, not be the language police, forgive me!)
15. The_artist_formerly_known_as_Anon-2* December 23, 2015 at 11:19 am

    #1 – a suspension-before-termination serves two purposes (assuming your manager wants to fire you). First of all, when someone’s about to be fired, most management teams perform a risk assessment – what will this person’s departure entail, how will it impact the workplace? If there’s a hiring freeze in place – it can be a disaster. Thus, it gives management a chance to back away from the situation if the employee is actually highly productive, and can’t be easily replaced.

    Also – it permits a workplace morale issue to generate smoke signals. Are the employees happy over this guy/gal’s suspension? Or did it upset the entire staff – infuriating people? Management finds this out QUICKLY when there’s a suspension.

    Also – it gives the manager wanting to execute this a “cooling off” / re-assessment period. Assuming that the manager who is heading this effort has some type of a conscience, and is concerned about his company – he can say “let’s NOT fire OP”…. the disciplinary process is preserved, the employee has had his/her “time out”, and management “saves face”. The punishment was delivered. And if an admonition was justified, delivered, etc., the point was made.

    Of course, there’s always the risk that OP might call back — find out that yes, “we want you back to work Monday, hopefully you’ve learned your lesson”…. only to have OP tell management “Stick it. It’s best for ME that I don’t go back there — too toxic for me. And this is about ME.”
16. Katie the Fed* December 23, 2015 at 11:20 am

    I wish I could put this on a t-shirt:

    “Managers often don’t remember things that employees assume they remember — like accommodations that aren’t regularly on their radar, schedule restrictions, etc. — simply because they have a zillion other things they’re juggling.”

    Story of my life. It’s not personal, it’s just really hard to keep track of that many things!
17. Mimmy* December 23, 2015 at 12:16 pm

    #5 – Good to know that job seekers can search on their own while working with a recruiter at the same time. My only question–and apologies if it’s been addressed before–are there employers who use an agency AND allow individual applications? I would be worried about finding a good prospect on my own only to learn that they are using an agency. Or vice versa.

    Separately, there’ve been a couple of times where I see the same job posted by more than one recruiting agency. Is that normal?
    1. The_artist_formerly_known_as_Anon-2* December 23, 2015 at 1:30 pm

       It used to be, Mimmy – and when two guys submitted the same candidate to the same company – that disqualified the candidate, the company didn’t want to get into a stink over who’s gonna get the vig.
18. Blight* December 23, 2015 at 12:24 pm

    #1 – I wouldn’t jump straight to thinking that someone let it slip that you were fired – it is more likely that there is just rumours floating about. When an employee suddenly takes time off, especially after having a meeting with the boss and maybe looking upset, rumours start immediately. The question was probably an attempt to get more info, the coworker was digging for a “I was fired for X” or an “I wasn’t fired”. Rather than responding about the suspension it would’ve been wiser to ask “I was not fired, where did you hear that?” which would determine if someone let it slip or if employees are just speculating the sudden absence.

    I would not wait until the end of the suspension period to call and find out if I have a job – having heard that you were fired through another source is reason enough to call management immediately and demand to know your status, and then if the rumour is true then demand why other people knew before you.
19. The_artist_formerly_known_as_Anon-2* December 23, 2015 at 12:31 pm

    #5 – if you’re looking for work – explore ALL possibilities. Headhunters (oh sorry, “recruiters”) work for themselves and the agency that has contracted them.

    If a recruiter says “only work through ME” – run like hell.
20. Not So NewReader* December 23, 2015 at 7:20 pm

    “Fast forward six months to my yearly review, and my manager asks me point blank if I would cover it if the night auditor calls out. I felt weird about answering, and so all I told her was that shifts would be rearranged to cover a night auditor absence. I in no way suggested that I myself would do it.

    Today I received a text telling me that the overnight shift had to be covered by me or another coworker. I told my manager that I could not cover it. Am I right in feeling like she shouldn’t be asking this? What else can I do to make it clear that I will in no way go back to doing overnights again? I work in New Jersey (if that helps).”

    I had to go back and find what your actual question was, OP.

    It appears to me that she is giving you back your own words. She asked about coverage for absences. You said something to the effect of someone will cover it. So now she is asking about the shift itself and she is saying one of you has to cover it. Similar to what you said about the absences. Even though you did not suggest that you would do the shift, you did not point blank say you wouldn’t either.

    OP, I know first hand that if I do not speak clearly in situations like this it WILL bite me. Now it bit you. Always speak clearly. I understand being hesitant to say anything but if you let it go it gets worse later. I have learned this in very painful ways.

    I think you are right in feeling that she shouldn’t be asking this, but being right does nothing to help you here. I have had many times where I had to explain things three or four times in order to be heard. Is that right? No. But it’s human nature. People forget. People get distracted. People underestimate/fail to understand. Eh, there are a thousand reasons why this conversation could be happening. Fair or not, you still have to bat clean up here, which means going back in on the conversation and reminding her of your doctor’s note.

    I got a bit confused when you started talking about raises and promotions. In general, I would expect a medical note to impact my raises and impact my ability to get promoted. It’s done with finesse, such that it would take an army of lawyers to prove that something illegal had transpired, and therefore may not be worth pursuing. The explanation goes like this: We need someone who does X. Bob does X. So Bob will be getting a larger raise/promoted/whatever. You could spend years or even a decade proving that something illegal happened there.

    My best advice is just talk to them. It’s cheaper than that army of lawyers. It will take less than ten years. You will find out what kind of company you are working for. And you may have better results talking person to person. People get defensive when attorneys get involved, not so much so on an individual basis.

    Story: I don’t do ladders. I put in for a promotion in a retail store. They did not promote me. They said I was insubordinate because I refused to climb up a mile high ladder. (Okay, it was to the ceiling, but in my mind’s eye it was a mile.) The bones in my ears are misaligned. I never know when the vertigo will hit, so, no ladders for me. I did not bother chasing that one and it’s a good thing. I found out later that the real reason they did not want to promote me is because I was married. They were paying $5 per hour, a bit more than minimum in those days. No married couple is going to move across the country because one spouse has a new job paying $5/ hr in West Overshoe. They wanted someone they could move all over the country. Had I chased the ladder story, I would have just hit another hurdle later on. That is because they had no intention of promoting me.
    Go as far as you can working with the situation. If things go well, then good, this is done. If things go bad, then decide to find yourself something better. Sometimes a bad situation is just the kick we need to move ourselves along in life.

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