Terminated Probationary Worker Seeks Overtime Pay

Question: I was recently employed as an operational supervisor. During my 90-day probation I worked a lot of overtime, for which I was not paid. Before the end of the first 90 days my job was terminated. Is there any recourse I can follow?

Answer: The answer depends upon whether you were an exempt employee for overtime purposes at the time. Because your title was operational supervisor, it may be that you were an exempt executive employee. If you were exempt, you would only be entitled to overtime if your employer had promised orally or in writing some compensation for extra hours worked. If you were not exempt, you would have a claim for overtime under state and perhaps federal law.

You could pursue any valid claims for overtime with the state labor commissioner. In Orange County the number is (714) 558-4111.

As to the question of your termination, the answer depends on whether you were terminated for reasons that violated your employer’s contract or various discrimination laws. You should seek legal counsel to determine whether you have any rights that may have been violated.

--Michael A. Hood, employment law attorney, Paul, Hastings, Janofsky & Walker

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Question: Since being laid off in April, I have been unable to contact the pension fund representative at my former company. She is unavailable and has been avoiding me, as well as others, who have attempted to get forms or information. I suspect the company is unfunded and stalling long enough to move all of its operations across the border. The company has manufacturing operations in Hong Kong, Taiwan and Mexico. Is there a governmental body regulating pension funds or am I on my own in attempting to collect?

--J.A., San Clemente

Answer: The U.S. Department of Labor enforces federal laws relating to pensions and benefit programs through the Pension and Welfare Benefits Administration. Call the Federal Information Center toll-free at (800) 726-4995 for further information. However, the government can only provide limited help.

To collect what is owed you, you will almost certainly have to consult an attorney who specializes in this area. It is important that you act quickly, because some benefit plans impose rather quick deadlines for filing claims. For assistance in finding an attorney, call the Orange County Bar Assn. Lawyer Referral Service at (714) 835-8811.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., adjunct professor, Western State University College of Law

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Question: I have been approached by another company about accepting a job. Though I am not dissatisfied with my current position, a chance for a promotion and more money is very enticing. At what point should I inform my current employer that I am talking to another firm and possibly considering another job?

--J.H., Rancho Santa Margarita

Answer: Unless you want to use the possibility of taking another position as a bargaining tool with your current employer, I cannot think of any reason why you need to inform your employer that you are simply looking at alternative employment possibilities and your own career development. The time to inform your employer is when you have already made a decision to accept another job.

In that case, unless you have agreed to some company policy governing termination notice, the amount of notice you give is up to you. The rule of thumb for minimum notice is two weeks, but you may want to give a longer notice if you think that your leaving would cause your current employer a hardship.

Here is the way I look at the situation: Exploring career alternatives is a worker’s prerogative. It is also your own personal business, as long as you do it on your own time and it does not interfere with your current position. When a decision is made to leave an employer for work elsewhere, providing reasonable notice so that it does not inconvenience your employer just makes good sense.

You don’t want to burn any bridges--you might need good references from previous employers down the line. Of course, there are risks involved if you give too much notice and your employer gets upset and decides to terminate you before the date you planned.

Ron Riggio, professor of industrial psychology, Cal State Fullerton

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Question: I am a non-exempt employee for a major freight express company. I’m paid a night differential because I work the graveyard shift. I worked a holiday, July 4, and the company said that because I was already getting paid at a special rate compared to my normal rate of pay, they wouldn’t pay the differential. Is that legal?

Answer: Neither federal nor California law expressly requires employers to pay night-shift differentials on holidays. This would instead be a matter of contract between you and your employer that likely would be determined by a collective bargaining agreement, if your are represented by a union, or by your employer’s written policies or unwritten customs and practices.

If you are union-represented, you should take this up with your union steward. If you are not, you should review your employee handbook and any other policies your company may have regarding holiday pay and night-shift differentials.

If there are no written policies, try to find out from other employees working the night shift if they had been paid the differential on holidays in the past. If you are not union-represented and you still feel you may have a valid claim, the office of the labor commissioner may be able to assist you.

--James J. McDonald Jr., attorney, Fisher & Phillips, labor and employment law instructor, UC Irvine