Firms Can Ban Holiday Work, Require Makeup Time

Question: My husband works for a large company that makes its employees make up the time they take off for national holidays. Workers don’t get the choice of working the holiday either. How cheap can a company get? Have you heard this before?

--R.L., Los Alamitos

Answer: Companies are allowed to prohibit work on a national holiday, to pay compensation for the holiday and to require employees to make up the time later. They are restricted, however, as to how the work is to be made up.

The employer cannot require a non-exempt employee to work more than eight hours in any day or more than 40 hours in any week, along with other requirements, without paying appropriate overtime compensation.

Exempt employees have flexibility in work schedules to meet productivity requirements of the employer. But there is a risk that the exempt status may be destroyed if an employer requires an exempt employee to make up a day’s missed time on another day or to give credit on one day for excess time worked on another. If that happens, the employer might have to comply with all of the rules for non-exempt status, including premium payment for overtime.

If an employee is not able to make up the time on a Saturday or a Sunday because of religious beliefs or family care commitments, the employer must reasonably accommodate such concerns to avoid legal liability.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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Question: I voluntarily quit a job under much duress. It’s been about two years. Is there a time limit on trying to do something legally about the situation?

--L.S., Cypress

Answer: The time limit for filing a lawsuit for employment discrimination is one year, so you are too late to file such a claim. You may still be able to file a lawsuit for “constructive termination” in breach of contract, but you face a number of significant hurdles.

First, you will have to show that you and your former employer had a contract under which you could not be terminated except for cause. This would not have to be an explicit, written contract, but you would have to be able to prove that your former employer had a policy or practice of not terminating people without a good reason.

Second, you would have to show more than that your job was stressful. You would have to show that your former employer’s treatment of you was so egregious that a reasonable person in a similar position would have had no choice but to resign.

Third, if the duress to which you refer was your boss’s criticism of your work, you would have to show more than just that you do not believe the criticism was warranted. You would have to show that your former employer deliberately made up false reasons to criticize you in an attempt to make you quit.

Finally, you may have a time problem as well. The time limit for lawsuits based on oral contracts is two years and though the limit for a lawsuit based on a written contract is four years, in order to qualify for the longer limit you would have to rely substantially on any written policies of your former employer to make your case.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

labor law instructor, UC Irvine

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Question: When you leave a company before completing a full year, are you paid prorated vacation time? I’ll be leaving one month short of my sixth year and should be entitled to two weeks’ vacation time.

--S.B., Rossmoor

Answer: There is no employer obligation to provide vacation benefits for their employees. It is, however, among the most common of benefits provided. Any legal rights to such benefits would depend on whether vacation benefits are included as a provision in an employment contract, a collective bargaining agreement or stated as a written employer policy.

Vacation policies vary, but typically employers establish vacation benefits that are earned or accrued over the course of a year of employment (e.g. two weeks--10 days--of vacation for each year of service). If your employer has established such a policy, you need to determine the amount of vacation time provided for each year of service. You also need to determine how much vacation time you have already taken.

I’m assuming that you have exhausted allowable vacation for the first five years of service but have not taken any vacation time for the sixth year. If so, you would be entitled to receive a prorated portion of vacation for the sixth year (11/12 of the sixth year’s vacation earned). Review your company’s policy and practice on vacation benefits. If after careful review you determine you are eligible for partial vacation pay, discuss the issue with your employer and request payment.

--Elizabeth Winfree-Lydon

Senior staff consultant

The Employers Group

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Question: For nine months, I have been allowed to work 10 hours a day, four days a week. No one else in my department does, although the option is there. I was recently told that I had to go back to a five-day-a-week schedule because it was illegal for me to be the only one in the department to work the four-day schedule. Is there such a law?

Answer: Yes, in a way. The California Industrial Welfare Commission Orders, which apply to virtually all employees in California, require employers to pay to non-exempt employees a premium pay of 1 1/2 times the regular rate for all hours over eight daily.

The orders contain an exception for employers who want to have a recognized work unit on a schedule of 10 hours a day for four days a week. But an employer is entitled to that exemption only if it conducts a vote among the employees affected. A two-thirds majority of them must then support that schedule.

Assuming that your employer never held such a vote and that it has not been paying you premium pay for hours worked in excess of eight hours daily, your employer is probably correct in what it has told you. You may have a claim against your employer for overtime pay worked in the past under that schedule.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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Question: What exactly constitutes age discrimination and how do you prove it? I am a few months past 60 and have worked in a sales territory in Southern California for 33 years. My present manager told others that I was too old to be fired. This statement was made less than three months after we met. It was followed by statements to me such as, “If you can’t change, quit.”

She admitted making the statement about my age, but apologized--not so much for saying it but because I found out she said it. I have seen a doctor twice because of the stress she has caused me this past year. She does not like to talk to me directly but uses voice mail or a district manager to pass on messages. What recourse might I have?

--E.S., Orange

Answer: Workplace discrimination on the basis of age against those at least 40 years old is prohibited. However, to sue for age discrimination you must show that you were let go, demoted or were the object of some other adverse job decision. You have not indicated whether any adverse change in your job has been made by your employer.

If such a change has occurred, you may have grounds for age discrimination. As an alternative, you may be able to argue that your manager is acting in an extreme and outrageous manner so as to cause you severe emotional distress.

--Thomas M. Apke, attorney

Professor of business law

Cal State Fullerton

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Question: To what degree is a major employer obligated to adjust work schedules to help a worker participate in a van pool? I’m usually scheduled to work from 8 a.m. to 4:30 p.m., and every third month my shift begins and ends 30 minutes later. The van pool at my company arrives at the office at 7:30 a.m. and departs at 4 p.m. I would need my supervisor to shift my permanent schedule in order to take advantage of the van pool. Only one other person in my department works an earlier shift, but that person would not trade with me. My boss says he can’t afford to adjust the schedule. Is there anything I can do?

--G.M., Mission Viejo

Answer: The South Coast Air Quality Management District requires companies with more than 100 employees to adopt a ride-sharing program. However, it is up to each employer to devise and implement its own program. There are no particular requirements with respect to how such a program is implemented.

Therefore, this problem is one that you will just have to work out with your supervisor. Perhaps you could find someone else in your neighborhood who has a schedule similar to yours, and establish your own ride-sharing arrangement.

--Calvin House, attorney

Fulbright & Jaworski L.L.P.

Adjunct professor, Western State University College of Law