Employer Is Free to Juggle Shifts Almost at Will

Question: Can a company continually move you from shift to shift anytime it likes?

--M.P.

Answer: Unless otherwise provided in an employment agreement or a manual or by company policy, an employer is pretty much free to set working conditions, including a requirement that the employee work different shifts. I assume, however, that you are being paid extra for any overtime for all hours worked over eight hours in a day and over 40 hours in a week.

--Thomas M. Apke, attorney, professor of business law, Cal State Fullerton

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Question: Our office has recently instituted a new policy in which non-exempt employees must sign in and out for the day and in and out at lunchtime.

We were told that it was a state law. Is this true?

--P.P., Irvine

Answer: Yes. Employers are required to keep accurate time records that show when non-exempt employees begin and end each work period. Because the records must reflect the “actual hours worked” of such workers, employers may not rely on work schedules that have been posted in advance.

There is no legal mandate that the employee keep the record, but some employers require them to do so and they require the employee’s signature as proof of hours worked. Meal periods, split-shift intervals and total daily hours worked must be recorded. There is no requirement, however, to record authorized rest periods, since such periods are paid for. Neither do you need to record meal periods when the total business operations cease.

--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group

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Question: With all the stories in the news about sexual harassment lawsuits, should a company consider creating an “anti-fraternization” policy to discourage dating among co-workers, which could later result in legal action? If no policy is recommended, how can management work to ensure no illegal behavior occurs? --L.H., Costa Mesa

Answer: An anti-fraternization policy seems a bit extreme, particularly if there have been no problems resulting from dating between workers at your company. What does make sense, however, is to develop a policy concerning sexual harassment and to foster a company culture effective in discouraging it. In many instances, sexual harassment occurs out of ignorance. Therefore, a number of companies have begun information workshops and other training programs to educate workers and managers about sexual harassment issues.

--Ron Riggio, professor of industrial psychology, Cal State Fullerton

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Question: I took a full-time job two years ago as a secretary- bookkeeper for a real estate broker. I answered phones, wrote checks, made calls to arrange repairs and ran personal errands for the broker. I worked in her office and received paid holidays, sick days and vacation. Eventually, my duties were expanded to include holding open houses on rental units.

My problem is that I was never paid for the overtime I worked in 1992, because the broker maintains that I was an independent contractor working for the various owners of the real estate being managed. Am I entitled to overtime pay?

--M.F.

Answer: The law generally provides that an employee who works more than 40 hours a week is entitled to overtime pay. You have correctly identified the extent of the employer’s control over the work as the most important factor in determining whether or not you might be considered an employee.

You can obtain a ruling on your right to overtime pay from the California labor commissioner. For further information, call the commissioner’s Division of Labor Standards Enforcement at (714) 558-4111.

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