Orientation, Other Mandatory Hours Count Toward Pay

Question: I was hired as a temporary helper for a store in the local mall. We were required to come in on a Sunday for a three-hour orientation. Are they required to pay us for that?

L.C., Brea

Answer: Yes. Generally, hours devoted to activities required by an employer count toward the maximum of 40 hours of work permitted per week. Calling the activities orientation, training or continuing education does not exclude them from the maximum hour calculation.

--Calvin House, attorney, Fulbright & Jaworski L.L.P.

Adjunct professor, Western State University College of Law *

Our organization is composed of salaried employees involved in apartment management. All of our offices are staffed seven days a week. Our question is: What are the holidays, if any, for which the employer must allow his or her employees time off?

--S.D., Laguna Hills.

Answer: Neither the California Industrial Commission Welfare Order nor the federal wage and hour laws require an employer to give holidays off. However, an employer may have to grant time off to reasonably accommodate the religious needs of its employees unless this would cause the employer undue hardship. For example, an employer does not have to close its entire operation on Christmas Day.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

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Question: Is it legal for an employer to withhold any vacation, holiday or sick pay accrued until the 91st day of employment?

--L.F., Westminster

Answer: There is no employer obligation to provide vacation, holiday or sick leave benefits for employees. Any obligation would depend on whether these benefits are included as a provision in an employment contract, collective bargaining agreement, stated as a written employer policy or a company established practice. Vacation as well as sick leave plans can vary significantly among employers. If your employer has a policy or a practice that accrues vacation from the first day of employment, you can’t lose what the employer states you will receive.

Employers will often write policies that disallow accruals during probationary (orientation) periods, typically the first 90 days of employment. Therefore the accrual is based on only the last nine months of employment in the first year.

It is certainly not uncommon for an employer to permit accrual from the first day of employment but clearly indicate that an employee must complete a full year of service before being allowed to request vacation time off. However in this situation, if an employee should leave the company, all vacation pay earned but not taken must be paid at termination at the employee’s final rate of pay.

If the company policy states that sick leave accrual can be taken only after completion of 90 days and only if the employee is sick, there is no entitlement at separation. I recommend you review company policies very carefully, if indeed there is an obligation.

--Elizabeth Winfree-Lydon

Senior staff consultant

The Employers Group

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Question: I worked for a large company and was denied breaks for two years. I was wondering if it was too late to seek compensation, as it has been two to three years since I worked there.

--L.C., Aliso Viejo

Answer: According to state law, an employer must provide a paid rest period for at least 10 minutes for non-exempt employees working at least 3 1/2 hours in one day. For an eight-hour work period, two rest periods are required (in addition to an unpaid lunch break of at least 30 minutes). The required rest period must be, if possible, within the middle of the work period. It is clearly improper for your employer to deny you the breaks allowed you by law. You have a variety of ways of possibly handling this matter.

If you rely upon breach of the statutory law, according to the Orange County office of the state labor commissioner’s office, you have no additional claim for compensation because you were in fact paid for the time worked. You cannot treat the denied breaks as a claim for unpaid vacation. They do say, however, that complaints made to their office can result in a civil penalty against the employer payable to the state as well as an order to cease such practices in the future. Even if the labor commissioner’s office does not think that you have a valid claim based on such a statute, a judge may feel differently if you pursued it in small claims court or through an attorney. The statute of limitation’s deadline for breach of a statute is three years from the date of each denial of breaks, which you still may be within.

You may also have contractual claims. It the employer orally represented that it would allow you these breaks, then the deadline is two years from the date of each breach of such agreement, which you have passed. The deadline for breach of a written agreement, as shown by an employee’s handbook or a poster regarding such polices in the office, is four years from the date of each breach. Thus, you still may have a claim in this regard.

If your employment ended because you complained about such practices, then you may also have a claim for illegal retaliation, with a three-year deadline from the date of your termination.

If you were fired for performance reasons, you also might have a possible claim against the company for wrongful termination if your poor performance was due to the failure of the employer to follow the law giving you breaks, which were designed to improve performance.

If you quit because you objected to the denial of your breaks, you might have a “constructive wrongful termination” case. You would have to show that the conditions of working there under those circumstance were so intolerable that any reasonable person would have likewise quit. This may have a three-year statute of limitation deadline from the date of termination.

Even if you do make a claim for compensation, evaluate whether it is even worth it. If it has been, for example, 2 1/2 years from the date of your termination, then you can realistically only argue for a half year of denied breaks, at least on a statutory deadline of three years. Six months of denied breaks of 20 minutes per day would amount to approximately 43 hours at your normal hourly rate. Conceivably, if you show that the breaks would have extended a normal eight-hour work day to beyond that period, you might be able to argue overtime compensation of 1 1/2 times your normal rate. Combining your claim for unpaid compensation with one of your other potential claims might give your case enough substance to get your former employer’s attention.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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Question: My company has always been a direct manufacturer with a direct sales force. They have now decided to open up all their production facilities to brokers but also keep a direct sales force. As their direct salesperson for almost 20 years, I feel that it is in my best interest to go out on my own and broker my product to my current customer base through my current company, or any other company that can give my customer a better deal. Is the work contract that I signed 20 years ago enforceable by the company now that they have changed their method of operation?

Answer: Probably, unless the contract you signed is somehow an invalid restraint of trade. However, even if the contract is illegal there are various laws, such as the Uniform Trade Secrets Act, that would prohibit you from taking confidential information that you have learned from your employer and using it to compete with your employer. You could subject yourself to substantial legal liability if you pursue the course of action you are apparently contemplating.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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Question: I was terminated by my company less than two months after being placed on disability for severe back problems. I am over 50 and had been employed in a salaried professional-technical position for 20 months. My benefits were terminated immediately, but I received two weeks’ severance pay and the company paid for short- and long-term disability to supplement my SDI payments. I was told the reason I was fired “was the need to fill my position.” My termination letter said “because of the nature of the business.” The company . . . employs more than 100 people.

No mention was ever made in company policies of the California Family Rights Act or the federal Family and Medical Leave Act, although it does mention 12 weeks of unpaid “family care leave.” I understand that the law allows 12 weeks of leave in a 12-month period for the employee’s own serious health condition. Was my termination legal? Should I file a complaint? All employees were required to sign a document agreeing to arbitration for dispute resolutions regarding termination or harassment in early 1993, when a change was made in the company’s benefit package. Does this prevent me from filing a complaint? Could I receive any financial compensation? I am now able to return to work after 10 months on disability and was told to check with the company for possible openings when I was available.

--B.P., San Clemente

Answer: Employees who have worked for more than one year for a company with 50 or more employees and who have worked a minimum of 1,250 hours in the previous 12 months may take leave for up to 12 weeks for a serious health condition under the federal Family and Medical Leave Act and the analogous state law. These laws entitle the employee to various job protections, including the right to be restored to the same or an equivalent job when they return from leave. The right to job restoration applies only if the employee is capable of returning from family act leave within the statutory 12-week period, however. Thus, while you have had a valid Family and Medical Leave Act claim if you had been able to return to work within 12 weeks of beginning your leave, you do not have a right to reinstatement to your old job 10 months later. Since your company has expressed an interest in re-employing you, instead of filing a lawsuit or a claim against the company that likely would not be successful, you should take them up on their offer to explore possible open positions.

--James J. McDonald Jr.,

Attorney, Fisher & Phillips, and labor and employment law instructor, UC Irvine