Most employees in the U.S. know that they are part of the approximately 74% of American workers employed at will, but they have an incomplete understanding of what that really means.
Employment at will means that their job is not guaranteed and they could be fired at any time, for any or no reason. Likewise, an employee is free to leave a job at any time for any or no reason.
From a general viewpoint, this understanding is correct and reflects how most people experience at will employment.
In every state but Montana (which protects employees who have completed an initial “probationary period” from being fired without cause), employers are free to adopt at-will employment policies, and many of them have. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.
What is At-Will Employment? Read this excellent summary from the National Conference of State Legislatures (NCSL).
The reality is that your employer can change your job completely, with very few limitations, so long as they are not doing it for illegal discriminatory reasons. Here are 7 surprising things your employer change about your job without notice or your consent:
Your Employer Change Your Work Hours, Schedule, or Shift
The Federal Fair Labor Standards Act (FLSA) has no provisions regarding scheduling for adult employees. According to the US Dept of Labor, an employer may change an employee’s work hours without prior notice or consent. Unless bound by a contract or written agreement, your employer can change your schedule however and whenever they see fit.
Expert Tip: How you respond to the change can have a big impact on the final outcome. Learn the 5 easy-to-follow steps in our post How to Respond When Your Boss Changes Your Schedule.
Oregon is the only state that has implemented predictive scheduling laws under the Fair Work Week Act (Oregon Senate Bill 828) that was enacted on August 8, 2017.
Oregon Fair Work Week Act
Employers are required to give your work schedule in writing at least two weeks in advance (as of July 1, 2020) and must pay you a penalty if they change your schedule without advance notice. You may decline shifts that are not included in the written work schedule
You have the right to provide input into your schedule and your employer may not retaliate against you for making those requests, although they are under no obligation to grant your request. You also have the right to rest between shifts.
Read the plain-English guide from the Oregon Bureau of Labor & Industries.
Work Schedule Instability Statutes in Other States
Vermont (21 V.S.A. § 309) and New Hampshire (NH Rev Stat § 275:37-b) have established “right-to-request” laws that prohibit retaliation against workers who request flexibility in their work hours or location.
The majority of work schedule instability statutes are implemented at the city-level and may provide additional protections depending on your location, notably:
- San Francisco Formula Retail Employee Rights Ordinances (March 2016)
- Washington, D.C. Hours and Scheduling Stability Act of 2015 (June 2016)
- San José Opportunity to Work Ordinance (March 2017)
- Emeryville, CA Fair Workweek Ordinance (July 2017)
- Seattle Secure Scheduling Ordinance (July 2017)
- New York City Fair Workweek Law (November 2017)
- Chicago Fair Workweek Ordinance (July 2020)
The US Department of Labor maintains references of key information applicable to each state:
You Can Be Fired For Not Changing Shifts
If you are employed at will you can be fired if you do not work the hours your employer schedules you to work. More commonly your boss will first apply disciplinary action if you miss a shift or do not work your assigned hours, but termination is also an option.
Your employer does not need to consider constraints in your personal life and is not required to obtain your consent before making the changes. Your job can require you to change shifts between days/nights and can change your work days to include weekends/holidays as they see fit.
Even if your employer has published policies in their employee handbook or company intranet, they are are not required to follow them. It may not be fair, but in most cases employers have the discretion to selectively apply policies, change the policy to fit a situation, or disregard the policy altogether. In some situations, the language of a policy may create an implied contract or failure to follow a policy may be evidence of employment discrimination. Contact a lawyer for guidance.
Expert Tip: Most salaried employees enjoy flexible schedules because they do not receive overtime pay. However, nothing in the FLSA prevents an employer from requiring exempt employees to punch a timeclock, work a specified schedule, or make up lost time from absences.
Your Employer Can Change Your Title or Position
You worked hard to get that Senior title, then you come in one day only to learn that your employer is reclassifying everyone and flattening the org chart and …poof… your Senior title just disappeared. It may seem like a demotion, it might actually be a demotion, but even if it’s not deserved your employer can change your position and title.
If this happens to you there are ways you can still list the higher title on your resume. When people are promoted through several titles at the same company it is normal to list the most recent title for the entire date range, at least until the responsibilities change enough to warrant a separate entry. Continue to list the highest title you’ve held unless it was a formal demotion.
Your Employer Can Change Your Job Responsibilities
Union contracts and collective bargaining agreements normally explicitly cover what duties and job functions are associated with each position. For example, a UAW worker on the automobile assembly line can not be asked to cover for someone who called in sick on the receiving dock – those are separate job functions and positions.
At-will employees do not have the same protections. Most job descriptions contain a phrase similar to “And other duties as assigned” and even if yours does not your boss is free to change your responsibilities as they see fit. This means that you can be hired after applying to one job description and perform completely different job duties.
You can refuse to do work not in your job description … Your employer can’t force you to do work that you refuse. If you normally work in the office and your boss tells you to go work in the warehouse you can deny their request.
… and your employer can fire you. If you refuse a task assignment, you risk disciplinary action and employer may decide to terminate your employment for insubordination.
There are some situations where the courts have affirmed the rights of workers to refuse assignments: situations where imminent danger exists, the act is illegal or immoral, or the request is discriminatory.
Your Employer Can Change Your Pay Rate or Salary
As many workers learned during the COVID-19 crisis, employers have the ability to make sweeping changes that reduce salaries and hourly pay rates. According to Pew Research, more than one-third of American households reported a cut in pay due to the pandemic.
Employers will implement pay cuts across an entire group of employees to make the action more defensible to discrimination claims. Although painful, most companies are using pay cuts as a way to avoid layoffs, or at least delay them during this global recession.
Change From Exempt to Nonexempt: Your employer can also change an exempt employee to nonexempt, even when the position qualifies for nonexempt. All positions are nonexempt by default and nonexempt positions are considered to be more generous under the law because they receive overtime pay.
Also, the U.S. Department of Labor has written that classifying one position as nonexempt does not affect the exempt status of other positions with the same job title.
When a Pay Cut Is Not Legal: Pay cuts made for discriminatory or retaliation reasons are not legal, nor are pay cuts made in breach of contract. Pay cuts must also be communicated to the employee in advance, with hours already worked paid at the previous pay rate. Pay cuts can not be a surprise and they can not be retroactive, but pay cuts can be in effect immediately after the employee is informed.
As always under at-will employment, employees are free to reject the change and end their employment with the company.
Your Employer Can Change Your Work Location
This happens frequently in the healthcare sector – PRN workers expect to pick up shifts when they are needed and frequently volunteer to work at other locations within the hospital network. However, any at-will employee can have their work location changed to meet business needs.
Protections under FLMA: When an employee is on Family and Medical Leave Act (FMLA) leave, the Act protects an employee’s job duties, number of hours worked, work schedule, benefits, and work location.
Your Employer Can Terminate Benefits
Many people change jobs simply to obtain health insurance, and will even take a pay cut to do it. Of the 91.5% of Americans who have health insurance coverage, more than half (55%) get it through their employer according to 2018 census reports.
Since January 1, 2015, the Affordable Care Act (ACA) has mandated that employers with 50 or more full-time equivalent (FTE) employees must either provide health coverage or pay a tax penalty, commonly referred to as the employer mandate.
No law directly requires employers to provide health care coverage to their employees (per Nolo). Employees do not have the right to demand health care under the ACA and it is perfectly legal for employers of any size to refuse to provide it.
Companies that do not employ 50 employees on average during the calendar year are not required to offer health care insurance, although many of them do provide health care benefits. With health insurance premiums rising 3-5% per year, employers are requiring employees to contribute a larger percentage.
Changes to how your healthcare benefits are governed fall under the federal Employee Retirement Income Security Act (ERISA) and generally require 60 days’ notice. However, there are still circumstances that can cause you to lose health coverage without notice.
Your employer can change their vacation policy and paid holidays without notice. There is no fedreal law that requires employers to offer any vacation time or paid holidays, In all 50 states employers are free to modify their vacation and paid holiday policies with no advance notice, eliminate the benefits completely, and even revoke already-approved time off.
In some states and cities, paid sick leave is required by law and accrued hours can not be revoked. Some companies combine their vacation PTO and sick leave under one accrual and in those cases the benefit can not be reduced below the requirements mandated by statute.
Similarly, in some locations accrued PTO hours are considered part of your wages and can not be revoked after they have been accrued. However, employers are free to reject all time off requests and simply leave the accrued hours on the books until they are required to pay them out at employee separation. 27 states, and the District of Columbia, have laws regarding payment of accrued vacation time.
Expert Tip: Check your company’s employee handbook and other policies regarding vacation PTO time accrual and payout.
When a policy exists, the courts have generally ruled that the employer must follow their own policy even in the absence of a governing statute. Although employers are free to change their policy first and then apply the PTO change going forward.
Your Employer Can Change Your Reporting Structure
Just like everything about your job can change, the same changes can happen to your boss and everyone else in the company. If you’ve worked for any length of time you’ve probably already had your boss changed several times due to company reorgs so this may be the least surprising item on the list.
Your employer can move you to a different department or assign you to a different boss. Supervisors can arrive to work and find their entire team has been reassigned to someone else – with or without a title change.
Why Employers Don’t Make These Changes Frequently
Even though employers have the ability to make these changes, you rarely hear of them in actual practice because employers want to protect their reputation.
Employers always want to attract and retain the best employees and all 7 of the changes listed above are highly disruptive to employees. When employers do apply these actions to their workforce it generates negative press and their reputation will take a major hit.
These actions are used more frequently by struggling companies and can be a signal that they are unable to maintain healthy financials and are resorting to last-ditch efforts in order to survive.
Because these actions are not used frequently, many employees have false confidence that their jobs are secure or that it is illegal for employers to make these drastic changes, and that is simply not the case.
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