1995 State Dress Code: Most Women Can Wear Pants

Question: My employer requires women to wear dresses only, no pants allowed. After Jan. 1, if the women do start wearing pants, would the employer have any grounds for termination if they have not issued a dress code?

--A.G., Tustin

Answer: As a result of new legislation that is effective Jan. 1, an employer may not refuse to permit an employee to wear pants on account of the sex of the employees. The only exceptions are: (1) an employer may require an employee to wear a uniform; (2) an employer may require an employee to wear a costume while portraying a specific character or dramatic role; and (3) for good cause shown, an employer may secure an exemption from the Fair Employment and Housing Commission. Adoption of a dress code by itself would not exempt an employer from application of the new statute.

--Calvin House, attorney

Fulbright & Jaworski L.L.P.

Adjunct professor, Western State University College of Law

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Question: If my employer has given me a negative written performance review, what are the appropriate methods to dispute it--and their advantages and disadvantages?

--G.M., Mission Viejo

Answer: Trying to justify any of your failures at the time of the review is too late. Frequent written communication to the boss throughout the year detailing your continuing plan of action and asking for input, which you follow, creates the favorable dilemma of linking any criticism of your performance with the boss’s advice. Also, sign the review. Too many employees refuse to sign a negative review, which usually only acknowledges receipt. Even if it doesn’t, an employee can so condition the signature. Refusing to sign is often interpreted as insubordination and makes a bad situation worse.

Finally, don’t try to win a battle that could cause you to lose the war. Carefully weigh the advantages of clearing up a negative review with the disadvantages of alienating or insulting your boss. If you, like most workers, can be fired at the will of the employer--with or without cause--then the most important review is not written but the subjective one in your boss’s mind. If you contest your review, be diplomatic and respectful of a boss’s often fragile ego.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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Question: I work full time for a company where I have been for the past 15 months. Next month, my baby-sitter will be moving to another state and I won’t have anyone to take care of my 19-month-old daughter. In case I don’t find a baby-sitter, can I apply and receive unemployment if I quit? If so, please let me know where I can apply.

--A.B., Downey

Answer: Generally, individuals are entitled to receive unemployment insurance for involuntary termination of employment. This includes discharges and layoffs. However, an employee cannot receive unemployment insurance if the employee is terminated for gross misconduct or otherwise voluntarily quits.

However, you may be entitled to obtain a leave of absence either under the U.S. Family Medical Leave Act or California’s Family Rights Act. These laws apply to employers of 50 or more workers and allow employees up to 12 weeks of leave in a 12-month period to care for a child. If the protection of these acts are not available to you, your employer may still provide some form of personal leave of absence for a short period of time. You may want to investigate these possibilities so that you may be able to return to your position after the leave has expired.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

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Question: My wife recently began work for a new retail outfit that has just opened a store in Orange County. She’s an assistant manager and has worked 15 to 16 hours each day for the past 14 days to get the store open and will likely work like this through the holiday shopping season. I know managers are exempt and don’t receive overtime, but aren’t there some limits to how long someone can be asked to work without extra compensation?

--R.M., Garden Grove

Answer: No, there are no limits for exempt employees. However, there are laws in California that restrict an employer’s ability to require employees to provide services without some days off where the employees are full time (i.e., work more than 30 hours each week).

In addition, though your wife’s employer may treat your wife as exempt for overtime purposes, it is possible that as an assistant manager she is not exempt; for example, if more than 50% of her time is spent in performing managerial duties. Under such circumstances, she may be entitled to overtime compensation for her extra hours. If she has a question about her exempt status, your wife should contact the Division of Labor Standards Enforcement.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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Question: I have worked for a small company for four years. I run the office and am in charge of the two other employees. In the past few months, my boss’s girlfriend has tried to become involved in the business by telling us what to do, though she has no knowledge or experience. How should I handle the situation? I’ve already approached the boss and he is not rectifying the problem.

Answer: Situations like this are always difficult. You should try to approach your boss again. However, this time ask him to clarify the role that his girlfriend will be playing in the company. Will she be an employee? Does he expect her to be your “official” supervisor?

I think if you try to pin him down on specifics, he will have to face the situation and do something about it. Of course, he could end up putting her in some supervisory role, and then you will have to make some decisions about whether you want to remain with the company under those circumstances.

--Ron Riggio

Professor of industrial psychology

Cal State Fullerton

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Question: In reference to two earlier columns, you stated that the California wage orders require rest periods for non-exempt employees whose total daily work time is at least 3 1/2 hours. We have been told that as hourly, part-time school employees this law does not apply to us as written in the state Education Code. Is this true? Is there a difference between the California wage orders and the state Education Code? If so, which takes precedence? Also, please define non-exempt and exempt employees.

--T.I., La Palma

Answer: Yes, there are some distinct differences between the California wage orders and the Education Code. Employers directly employed by the state of California, any county, incorporated city or town, or other municipal corporation are completely exempt from the wage orders.

However, the government and education codes establish state wage and hour requirements which are applicable to some state employees of school districts.

The California Education Code does authorize school districts to establish a method of compensating employees for overtime work. Overtime generally is defined as work in excess of eight hours in a workday and 40 hours in a calendar week. Often school districts are subject to the applicable federal wage regulations, which do not require meal or rest periods, or other employment practices, such as vacation or holiday pay.

A non-exempt employee is defined to include all regular employees who are covered either by the overtime provisions of the federal or state wage regulations and are entitled to premium pay for work in excess of 40 hours in a workweek or eight hours in a workday. This typically includes employees who work hourly as clerical and secretarial workers.

All regular employees who are classified by a company as exempt from the overtime provisions of the federal or any state wage orders are qualified as exempt employees. These employees include executive, administrative, professional or outside salespeople.

Your questions are complex and do overlap between state and federal wage orders and education and government codes, perhaps even collective bargaining agreements. To decipher which are applicable to your employment situation, I recommend you discuss your concerns with your employer for further clarification.

--Elizabeth Winfree-Lydon

Senior staff consultant

The Employers Group

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Question: I resigned my job for a professional sports team last spring. I had continuing COBRA health benefits but I forgot to send in the second monthly payment, so I was dropped from the policy. My new employer’s health coverage does not begin for another month. In these days of past-due notices, I’m surprised I could be dropped without any prior notice. Can they do that?

--J.W., Costa Mesa

Answer: Yes. COBRA provides for a 30-day grace period, running from the first day of the coverage month, in which a payment may be made and still be considered timely. If payment is not made within that grace period, coverage may be terminated as of the first day of the coverage month. COBRA does not require that your former employer notify you before terminating your coverage for failure to make your premium payment.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Law instructor, UC Irvine