Wrongful termination attorney: Fired for Taking Your Day Off

Founding Member of Moshes Law, P.C.

During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise.

Published, Feb. 28, 2021

Updated, Jun. 8, 2023

Employment attorneys commonly hear termination stories about firings that simply seem immoral or plain wrong.

As employment lawyers, we have heard plenty of stories about bizarre firings, such as termination over workplace arguments and fights, gossiping about a colleague’s personal life, or downloading personal files onto a work computer.

While these situations may not all seem like valid reasons to fire someone, they all were perfectly legal.

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The same is generally true of refusing to work on a day off. Most employment attorneys will agree that termination cases are difficult to win due to the at-will structure of employment in this country.

There must be a legal reason why a termination is wrongful for any liability to be imputed on the employer.

The question of termination due to taking a day off is relatively complicated, however, and will depend on the circumstances.

Can my Job Make me Work on my Day Off and Fire me if I Refuse?

Firing an employee during his or her day off is a complicated question in employment law. Unfortunately for most workers the answer is: yes.

You can be fired on your day off for refusing to show up at work if your employer asks you to come.

Unfortunately, the employer is not required to change your work schedule merely because you request the same.

But there are several instances where being terminated during a day off may be illegal. We will describe them here.

What Is At-Will Employment?

First, a bit of background on the employment law framework in almost all of the states would be useful to help better explain the current state of whether termination is illegal. Almost every state follows the rule of at-will employment.

This means that employees can generally be fired at any time, for any reason, no reason, or even a false reason.

This rule may seem draconian and ripe for employer abuse at first; however, the rule also benefits employees, who can choose to take any available employment and quit at any time.

Historically, the rule evolved as a response to feudalism and indentured servitude practices. Without at-will employment, landed servitude might still be common practice.

An at-will employee can be fired at any time, for any legal reason. If the employer decides to let you go, that’s the end of your job–and you have very limited legal rights to fight your termination.

If you are employed at will, your employer does not need good cause to fire you.

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.

However, there are cases when termination will be considered unlawful.

For example, you cannot be fired because of certain characteristics, such as your race, religion, or gender.

Similarly, you cannot be fired because you have complained about unlawful discrimination or harassment, or about certain health and safety violations in the workplace.

And you cannot be fired for exercising a variety of legal rights, including the right to take medical leave, to take leave to serve in the military, or to take time off work to vote or serve on a jury.

Am I Employed at Will?

Generally, employees in America are employed on an at will basis.

However, if you have signed an employment contract that promises job security you are not considered an at-will employee.

For example, if your contract says that you are hired for one year and can be fired during that time only if you commit a crime – you are not an at-will employee.

Sometimes New York employment lawyers can prove that an employee was not an at-will worker applying to unofficial statements made by the employer.

This is called implied contract and it takes a skilled lawyer to collect evidence and prove implied contract.

An implied contract may be created in several different ways.

Oral assurances by a supervisor or employer representative (e.g., “We need good people around here, you’ve got a job for life!” or “We don’t dismiss employees without giving them a chance to correct their behavior.”) may give rise to an implied contract.

Likewise, the employer’s handbooks, policies, practices or other written assurances may create an implied contract.

In the case of the implied contract it is up to the judge to decide if the contract is valid or not. Usually a court requires:

The employer made a clear and unambiguous promise of employment;
The employee relied on this promise;
The employee’s reliance was reasonable and foreseeable; and
The employee was injured as a result.

In this case “injured” does not mean physically injured but means that you suffered a sufficient consequence because of breach of the contract.

For example, if your new employer asks you to relocate and assures you that you are a longtime employee, and you spend a lot of time and money to relocate yourself and your family, and then your employer abruptly terminates you, this could be considered as ‘injury’.

The implied contract is an ambiguous concept in employment law and as such, we recommend not to rely on your own judgement if you suspect you have an implied contract.

Consult an employment lawyer to discuss your situation.

Can you get fired for refusing to work overtime?

Employers generally are able to require employees to work overtime hours. If you refuse to work overtime hours, your employer may be able to fire you under the Fair Labor Standards Act which is the federal overtime law. The Act does not limit how many hours a week your employer can ask you to work. Rather, the Act just requires that employers are paying overtime for any hours over the typical 40 that an employee works in a single week.

An employee cannot generally be fired for refusing to work overtime if the overtime breaches a contract, if the employee is not paid according to state or federal law, or if working that overtime could create a health or safety hazard. Some states may have regulations as well about working overtime.

However, there is some good news for hourly employees. Hourly employees have to be paid for all hours worked, so they will be paid for working on their days off. And if you are a non-exempt employee, meaning you are eligible for overtime, you will get overtime if working on your day off pushes you over the 40 hour work week.

Can my employer change my work schedule without notice?

If you are an employee, you have probably wondered if an employer can just change your work schedule. Under the Fair Labor Standards Act, employers can make changes to an employee’s schedule. The Department of Labor allows work shifts to be changed not only without the consent of an employee, but without notice as well. This means that you may place yourself at risk of discipline if you are not compliant with the changes.

However, if you have a prior agreement with your employer specifically stating that your employer cannot change your schedule, then your employer likely is not able to make those changes without consulting you. Additionally, employers cannot change your schedule if you are on leave under the Family and Medical Leave Act. If you are on this leave, your employer cannot change your shifts or hours during your leave. Instead, the same scheduling must be provided upon your return. Certain industries also disallow changes to schedules, especially in instances where there is a legal limit on the number of hours someone in a certain profession can work. And finally, employers cannot make changes that would be in conflict or violation of local, state, or federal law.

When It Is Illegal to Terminate on The Day Off?

While at-will employment does give everyday employees the freedom to change jobs at will, it understandably has negative consequences when it seems that employees are terminated unfairly.

For example, assume an employer sets a weekly schedule and assigns each worker a day off. An employer is permitted to thereafter change his or her mind and not allow the employee to take that day off.

In fact, it may even be considered insubordination to refuse to work. That said, there are some common exceptions to this general rule that may apply.

However, there are still several situations when termination on the day off could be proven wrongful.

New York’s “One Day Rest in Seven” Statute

Like many states, New York also has what is known as a “One Day Rest in Seven” statute.

Under this law, certain employers are required to provide their employees at least 24 consecutive hours rest in any calendar week.

Employers covered by this law include those operating factories, mercantile establishments, hotels, and restaurants.

Any employer in non-compliance with this rule must answer to the New York Department of Labor.

So, if you have been working for six days during a week, and you are forced to work on your day off after the 6-day work-week, this is illegal.

If you refuse, your employer has no right to fire you for this.

Many employers consciously or through the lack of knowledge violate this rule.

There are several exceptions for this rule as stated in Section 161 of The New York State Labor Law:

It does not apply for foreman in charge
Employees working in an industry where a continuous work process is required, under the condition that the employees do not work more than 8 hours per shift.
Employees working on a small (less than 7 employees) milk factories
Some other exotic cases, like maintaining fires, caring for live animals, setting sponges in bakeries, if this work does not require more than 3 hours on the 7th day.
Employees in seasonal hotels and restaurants in small rural communities\
Employees in dry docks repairing ships

New York law requires employers to keep a time book counting the exact time every employee worked. Failure to keep a time book could result in penalty and could be considered a violation of the Labor Law.

Religious Accommodations Requiring Employee Time Off

Employers cannot legally require an employee holding strict religious convictions to come into work on religious observance days.

Under Federal and State laws, religious employees are entitled to a reasonable accommodation of their genuinely-held religious beliefs unless the accommodation poses an undue burden to the employer.

This accommodation can require employers to permit religious employees to wear certain religious clothing at work or abstain from performing certain job duties.

An employer’s duty to accommodate also extends to allowing religious employees time off for religious observances.

This means that if you are an observant Jew, your employee cannot force you to work on Saturdays. Your employer cannot make you work Easter Sunday if you are a Christian.

As simple as this seems, this type of requirement often raises disagreements between employer and employees.

Often employers claim that the worker is not that religious (that beliefs are not genuinely held) and refuse to provide a reasonable accommodation.

Remember that failure to provide religious accommodations may constitute religious discrimination, which is forbidden by law.

FAQ:

Do I have to answer my boss on my day off?

The general answer is yes. If you have an at-will employment with a company, they can fire you for any reason or no reason at all. Not working on your day off could very well be a reason for an employer to terminate you, however unfair that may seem. The legal restrictions on this have to do with discrimination. If you are disputing medical leave, that is usually not something that you can be terminated for. Be sure to talk to your boss about their expectations with your days off.

Can I get fired for not answering my phone on my day off?

Again, you may be required to work on your days off, and this can include the need to answer your phone on your day off. If you are an hourly employee, you may be paid for the time you are spending working, including if you are taking calls on your day off. Luckily not every employer will require you to answer calls on your day off, at least not regularly. The best thing you can do is talk to your boss about what is required of you on your days off.

How to ask for a day off on short notice?

You may find yourself suddenly needing a day off from time to time. Unfortunately, it may not be plausible to give much advance notice every time you need time off. Once you find out you need a day off, tell your boss right away. This will give them the most time possible to change the schedule around so that your work is not as impacted by your last minute time off. Try to also choose an appropriate time to make this request. The best way to go about asking for the day off is to make it easy for your boss to allow you to take the time off. Try to figure out coverage before approaching your boss. And make sure you do not make a habit of the last minute requests.

Can I get fired for missing one day of work?

If you are an at-will employee, you may be fired for missing one day of work if you did not get prior authorization to miss work. Unless the employee has a legally protected disability, illness, or obligation that causes them to miss that day of work, the employee can be fired. If you are a contract employee, the provisions of the contract will outline whether the employee can be fired for missing that day of work. A typical provision in contract employee agreements is that an employee can only be fired for “just cause.” This may include missing one day of work without previous permission. The contract may have more specific terms which could disallow the employee from being fired for missing one day of work. It will depend on the terms of your specific contract.

Can I be terminated because I was on a sick leave?

It depends. If you are out on leave under the Family and Medical Leave act or under the American with Disabilities Act, you cannot be terminated because you took a medical leave of absence. It is also illegal to fire a person who was on leave for jury duty. If your employer forces you to come to work while on jury duty, you have a right to file a claim. If you are out on leave under the Family and Medical Leave act or under the American with Disabilities Act, you cannot be terminated because you took a medical leave of absence

How long can you work in one day?

Unless a worker is 15 or under, federal and state laws do not limit the number of hours in a work day.
However, union agreements or corporate policy may step to keep working hours in check.

Can an employer keep you past your scheduled time?

Finally, under both Federal and State laws, employees are entitled to overtime when they work more than 40-hours in a workweek. Employers often carefully plan employee work schedules to maximize the 40-hour standard pay period to avoid paying anyone overtime. A sudden change in schedule, however, will often result in an employee working at least some amount of time over the 40-hours per workweek threshold. If a non-exempt employee works more than 40 hours in a one-week period, that employee will be owed time-and-a-half pay for each hour worked over 40 hours. According to the Department of Labor, non-exempt employees must receive overtime pay for hours worked more than 40 in a workweek at a rate not less than time and one-half their regular rate of pay. This does not apply if you are qualified as exempt.

What to do to avoid being fired on your day off?

Check if you are working under a contract that guarantees you a job for a certain period. Check if you have a reason to believe that there is an implied contract. Consult a lawyer about it. If you practice a religion that requires you to observe religious holidays (like Sabbath) make sure you let your employer know about this in advance. This will protect you against accusations that you’re just pretending to be religious to get a day off. Keep a time book of your hours worked. This could help if you decide to file a claim for unlawful termination. If you are confused or don’t exactly know what you are entitled to, consult an employment attorney to know your rights as an employee.

What to do if my employer threatens to fire me if I don’t work on my day off?

Check your time book. If you had 6 working days and 40 hours and you are called in on a day off, you have a legal right to refuse to work. Remind your employer about it. In case this is a religious holiday that you observe, inform your employer about it. If you have a written contract that guarantees your job, remind your employer that under that contract you cannot be fired for refusing to work on your scheduled day off. Document all interactions with your employer, especially if you’re informing the employer that you have a religious holiday, or you are out on medical leave. Consult an employment attorney immediately. Sometimes a qualified letter from an attorney is enough to make your employer reconsider its actions.

If you believe that your employer has violated the law or believe that you are owed overtime, you should call an experienced employment law attorney or unpaid wages lawyer to help you resolve this issue with your employer.

The Law Office of Yuriy Moshes provides white glove service to all our clients, and we may be able to help you resolve any issues that arise with your employer.

We help workers in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.