Shiftwork and the Law

Source: Robert C. Bird and Niki Mirtorabi, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2

… Professors Bird and Mirtorabi examine and describe shiftwork, the growing practice of working non-traditional hours, particularly in the evening and at night. … ” Shiftwork weakens these bonds between parent and child by reducing contact time and requiring children to remain quiet when the shiftworker sleeps during daylight hours. … If the court in Witter can reject ADA coverage for an employee claiming a psychiatric disability not related to shiftwork, then a court likely will have little difficulty rejecting a pilot’s ADA claim based upon an impairment tied to a particular shift. … Furthermore, the employer’s actions changing the plaintiff to the night shift to accommodate a white employee constituted a component of the harassment leading to an intolerable work environment, and thus constructive discharge. … Without much discussion, the court concluded that “it could not be determined as a matter of law that a permanent transfer to the night shift cannot constitute an adverse employment action. … If at least one court can conclude that working in the face of unnecessary pain and injury can constitute a material disadvantage in employment, certainly transfer to shiftwork, with its host of physical and mental risks, can constitute an adverse employment action under conditions where the effect of shiftwork will be the most severe. …

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