Many Avenues Can Be Taken in Dispute Over Layoff

Question: I worked for a publishing company until last spring, when I got into an argument with my supervisor. Two weeks later, I was conveniently “laid off”--as part of a restructuring that eliminated my job only. On the day I was let go, I was given only four hours to clean out my desk.

All full-time employees at that company are given 10 hours each month to be used for vacations and sick leave. When I left the company, I was owed 45 such hours for which I have never been paid. Is there any way, short of a lawsuit, that I can get the company to give me that money due me?

--F.A., Dana Point

Answer: The Labor Code requires payment of all wages immediately upon discharge. “Wages” include accrued vacation time. Sick leave is not generally treated as “wages” by law, but if your employer had a policy that unpaid sick leave is payable upon termination of employment, then it too would be included as wages.

If the employer does not pay your wages as required, the wages for which it is responsible continue for up to 30 working days.

You may have other claims as well. Many companies have an “open door” policy and encourage dialogue to resolve differences. Your manager may have violated this policy if he was unnecessarily belligerent and vengeful, and you were laid off in bad faith. You may then have a claim for lost earnings until you find new work at equal pay.

“Restructuring” or “downsizing” is a legitimate reason for layoff, but it cannot be used as an excuse for violating company policies, discrimination or getting rid of whistle-blowers. If the “argument” you had with your employer concerned your objection to illegal practices or discrimination, and the employer retaliated against you for those objections, you would have a claim not just for lost wages, but also for emotional distress and even “punishment” damages.

Without filing a lawsuit through an attorney you can encourage your employer to pay you those wages in the following ways:

1. Explaining the law--Perhaps the easiest way to educate your former employers regarding the law is by sending them a copy of this response.

2. Labor commissioner--The California labor commissioner will help you recover wage claims without charge. Call (714) 558-4111. It may take many months to complete the process.

3. Small-claims court--A quick alternative is filing a small-claims suit yourself. However, you are limited to $5,000, and if you win your employer can appeal it to a higher court, where attorneys would be used.

4. Attorney negotiation--Even without filing a suit, an attorney can put pressure on your employer to pay you what is owed.

--Don D. Sessions

employee rights attorney

Mission Viejo

Question: I’m a manager at a mid-size company and oversee the work of several supervisors and other exempt personnel. We count on those who are on salary to stay in the office as long as needed to get the work finished, but we let them set their own hours.

What should I do with a salaried worker who performs his duties but often slips out early while others are busy and who usually comes in late the day after a late-night session to meet a deadline?

--G.M., Tustin

Answer: You need to communicate your expectations to this employee as soon as possible. The problem could be as simple as a lack of understanding about what the supervisor’s job entails. On the other hand, it sounds as if there might already be quite a bit of resentment from the other supervisors who feel this individual is not pulling his or her weight.

If this is the case, a group meeting might be needed so that you and the supervisors can discuss what the expectations are for completing work projects. It may be that you need to have greater structure--developing some guidelines or policies concerning work hours and workload.

Since the majority of supervisors seem to understand the importance of working late on projects, you probably want to allow the group some say in the implementing of any policy decisions regarding work scheduling.

--Ron Riggio

professor of industrial psychology

Cal State Fullerton

Question: I worked for a company as an independent contractor and have two contracts signed by these people, both of which have 30-day termination clauses. The job was terminated by them in June, without the 30-day notice. One of the contracts indicates that litigation can take place only in Indiana. When should I start legal action?

--J.M., Newport Beach

Answer: You can start legal action immediately, but you should first think carefully about whether litigation is really worth the cost and trouble. It appears that the most you could recover in a lawsuit is 30 days’ worth of pay.

Most independent contractor agreements may be terminated for any reason whatsoever upon the giving of the prescribed amount of notice, but if such notice is not given, all you can sue for is the pay you would have earned during the notice period. You cannot collect emotional distress damages, punitive damages or attorney fees in this type of lawsuit.

You should weigh the cost of hiring an attorney, paying court costs, and perhaps even having to travel to Indiana to sue (though a California court might allow you to sue here and apply Indiana law) against the amount of money you are likely to recover if you win.

--James J. McDonald Jr.

attorney, Fisher & Phillips

labor and employment law

instructor, UC Irvine

Question: I work for a large retail organization that pays no salary, only commission. We are required to punch in on a daily basis and work certain hours. We’re also required to spend about 50 hours in the store and work overtime, as much as 20 extra hours a week, depending on when there are sales. Is this legal or do they need to give us a salary?

--J.L., Orange

Answer: In general, the law does not impose any limit on the number of hours an employee may be required to work, nor does it give employees the right to refuse to work overtime.

The issue appears to be whether you are entitled to overtime pay, (i.e. 1 1/2 times your regular pay). The law excludes from the minimum wage and overtime provisions executive, administrative and professional employees and outside salespeople--employees who customarily and regularly work away from their employer’s place of business. Also excluded from the overtime pay provisions are certain commissioned employees of retail and service businesses.

Your job description may fall within this exclusion. However, since the regulations concerning this area are quite complex, it would be advisable for you to contact the state Labor Department to determine whether you are an employee entitled to overtime pay.

--Thomas M. Apke

professor of business law

Cal State Fullerton