Exempt Workers Are Not Due Extra Pay

Question: The wholesale retail establishment I work for is seeking to increase business by extending its hours, but the company wants us managers to come in a sixth day each week. Can exempt employees be required to regularly work four additional hours on Saturday without compensation, added pay or time off later?

--L.P., Yorba Linda

Answer: Yes, if the employees are truly exempt under state and federal law and if there is no written policy of the employer promising extra compensation in such circumstances. However, although your employer may treat you as exempt, you may in fact not be if more than 50% of your time is spent performing non-managerial duties. If you have a question about your exempt status, you should contact the Division of Labor Standards Enforcement, (714) 558-4111.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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Question: I work for the county of Los Angeles, and they are not allowing me to cancel my health benefits even though I have showed them proof that I’m covered by an outside insurance company. They’re telling me that when they had open enrollment I should have canceled then and that now I’m stuck. Do they have the legal right to do this?

--C.S., La Palma

Answer: It appears they do. Eligibility and contribution requirements are generally governed by the terms of each individual health insurance plan. Most health insurance plans provide that participants can enroll or disenroll only during the open enrollment period. Exceptions exist when the participant experiences a change in status, such as marriage, death of a dependent or termination of employment.

The dilemma you face is quite common. Many times, one spouse may have a more favorable health insurance plan, but the other spouse is unable to jump and change plans because of the different open enrollment periods. Health insurance companies have limited enrollment periods not so much to keep you in their plans, however, as to maintain the viability of the plans and to appropriately assess risk.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

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Question: I worked as a tax analyst for a tax software company in Anaheim. I was in a salaried, non-managerial position where I had to inform the programmers about changes in the tax law that required software changes. The company required us to work a lot of overtime from November through April to prepare for tax season--I worked every Saturday for more than five months--but the trade-off was that employees only worked half days on Fridays from May 1 through Sept. 30.

But I was terminated on June 28, which means I did not collect on all the compensatory time off I was due. I went to the labor board for back pay, but the company is trying to have me exempted as an administrative employee, but I didn’t have any supervisorial responsibility. Can I lose this case?

--E.B., La Habra

Answer: Yes, you might lose. But you also might win. The exemption from the wage and hour laws that your employer has invoked is not limited to employees with supervisorial responsibility. It extends to anyone employed in an administrative, executive or professional capacity. For example, licensed professionals such as accountants and attorneys are exempt even if they have no supervisorial responsibilities.

Determinations with respect to other positions are made on a case-by-case basis by analyzing whether those positions involve work that is primarily intellectual, managerial or creative, and that requires the exercise of discretion and independent judgment.

--Calvin House, attorney

Fulbright & Jaworski L.L.P.

Adjunct professor, Western State University College of Law

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Question: How long can an employer keep you on the payroll before giving you hours to work? I’ve been told that my employer is waiting for sales to pick up before I work again. Isn’t there some time factor set by the labor board? I’ve gone a full month without being called to work.

--D.C., Corona

Answer: An employer may continue to keep an employee on the payroll for indefinite periods of time without scheduled work. If you become unemployed or other work is not available for more than a workweek, you may be entitled to unemployment insurance through the state.

Full-time (40 hours a week) employees actively on an employer payroll can also have hours reduced significantly and apply for partial unemployment benefits as well.

There are certainly many factors to determine eligibility, and each case is decided on its own merits according to unemployment insurance statutes. In order to receive benefits, you must be physically able to work, available to accept work and actively seeking work.

California employers pay the costs of unemployment insurance to provide you with a weekly income when you are out of work through no fault of your own.

I recommend that you contact the local Employment Development Department nearest your residence. The EDD can assist you with applications and in determining your qualification for unemployment benefits. Perhaps it could even help you find suitable employment.

--Elizabeth Winfree-Lydon

Senior staff consultant

The Employers Group

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Question: If my attorney has encouraged me to sue my former employer, what are the advantages and disadvantages of trying to solve an employment dispute through litigation?

--J.P., Laguna Hills

Answer: My response to clients whose first reaction to an employment dispute is to file a lawsuit is, “Not so fast.” There are numerous ways to resolve such a dispute, including negotiation by yourself or an attorney, an employer’s internal grievance procedure, mediation, arbitration or other private settlement services, and help from an appropriate government agency. Which of these methods is best depends on how you evaluate the option of litigation. Usually, it isn’t just a question of suing or not suing but an evaluation of whether you could obtain your minimum demands through other, easier means.

Before deciding to sue, consider these factors: emotional stress, your financial needs now and in the future, the future value of a lower money settlement now and the tax consequences, the value of your lost time, possible publicity about your case, attorney fees and other expenses of litigation, the future availability of witnesses, unforeseen changes in the law, your ability to collect a judgment, the effect a lawsuit could have on your credit rating and future job prospects and, of course, the risk of defeat. Think carefully before determining whether to seek a settlement with or to sue a former employer. Selecting litigation may drastically change your financial and emotional health.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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Question: My husband works for a public utility as a programmer. The company has been downsizing his facility in a rather unusual manner, and we want to know if this is legal.

Many people have been told that their jobs have been transferred to the main office, more than 60 miles away. For many affected employees, this is too far for a normal commute and, therefore, they have had to move or quit. Because they were not actually terminated, these people receive no unemployment benefits. How far can your job be relocated and still have an employer say you were not effectively terminated, if you can’t move?

--C.K., San Juan Capistrano

Answer: There is nothing illegal about an employer transferring jobs to another facility, at least to the extent the transfers do not have a greater adverse impact upon older or minority workers than upon other employees.

Whether unemployment benefits would be available for employees who decline the transfer is a closer question. Unemployment benefits are not available to individuals who quit their jobs without “good cause.” The Employment Development Department and the Unemployment Insurance Appeals Board have held that while commuting distance alone will not ordinarily constitute good cause for an employee to resign and still be eligible for unemployment benefits, certain additional factors may tip the scales in favor of eligibility.

One such factor is whether the commuting problem is the result of the employer’s transfer of the job or the employee’s change of residence. Another factor is whether the employee attempted to make the commute before deciding that it would not be feasible.

Unfortunately, there is no clear answer with respect to your husband’s eligibility for unemployment benefits should he decline the transfer. You may want to contact the EDD for an opinion, but such an opinion may not be the final word, since the agency’s initial eligibility determinations are subject to appeal by the claimant and the employer.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Law instructor, UC Irvine

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Question: I work at a U.S. export company where the employees are from two different nationalities. It seems the two groups are totally divided. How can we improve the unity of our company?

--M.N., Fullerton

Answer: Increasing employee diversity in the workplace is one of the most important management issues today. The key seems to be education. Employees need to be made more aware of cultural differences among workers. They need to be educated about different cultures and taught to be more tolerant of others. This is particularly crucial in organizations such as yours, with a multinational work force.

Many cutting-edge organizations are developing ongoing training programs in cultural diversity. These programs not only educate workers about different cultures but also emphasize the advantages of a culturally diverse work force.

--Ron Riggio

Professor of industrial psychology

Cal State Fullerton