Notice of Job Openings Is Not Required by Law

Question: The large company I work for has a variety of positions that become available periodically. Is it discrimination if the company doesn’t publicize openings that become available so that everyone knows about them? The way it is handled now is that management approaches certain people about a position and others are not given an opportunity to apply.

--G.H., Huntington Beach

Answer: An employer generally does not have to notify employees regarding job openings unless it has agreed to do so through an enforceable internal policy or other contractual agreement. Absent such an agreement, an employer is free to hire or promote any individual it desires. An employer cannot, however, approach, notify or select an individual based on illegal, discriminatory factors.

For example, an employer cannot decide to only notify white men regarding job openings simply based on their race and sex. Further, an employer may be discriminating if it appears that the only people notified are white men, regardless of the employer’s actual intent. This does not mean, however, that an employer cannot approach a white male if indeed that individual is believed to be the best qualified person for the position, regardless of the person’s race or sex.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

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Question: What legal action can be taken if my employer laid me off with no notice or severance pay, even though we had a good-faith verbal agreement that I would be given two months’ salary so that I could find a new job?

Answer: If your employer made a specific promise of severance benefits to you to induce you to remain in its employ or if you gave some other consideration to your employer in exchange for its promise, you may have claims for breach of contract or fraudulent promise against your employer for failure to pay the promised severance pay. You should consult an attorney to determine whether you may have valid claims that could be pursued in court.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker

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Question: Does a commissioned salesperson own his customer lists and files regarding upcoming sales after he leaves a company? My former employer maintains that it owns the paperwork and has refused to pay about $4,000 owed me for vacation pay and expense reimbursements, but without that paperwork how can I be sure that the company will pay the commissions I earned on these deals I arranged earlier? Is there an easy way to resolve this? Answer: Unless there is a specific agreement to the contrary, a commissioned salesperson would not “own” the list of company customers or the customer files. In fact, under certain circumstances, a former employee who uses a customer list or other customer information to solicit the company’s customers may be considered to have misappropriated a trade secret or to have engaged in unfair competition.

On the other hand, the former employer may not condition its payment for accrued, but unused, vacation on the return of the customer paperwork. The company has an obligation under the California Labor Code to pay an employee all earned and unpaid wages (including vacation pay) at the time of the discharge or within 72 hours after the employee’s resignation. Failure to do so may subject the employer to waiting time penalties.

If you have reason to believe that your employer has not paid the full commissions you have earned, you can ask your employer for an explanation. If that fails, you have the right to file a claim with the Division of Labor Standards Enforcement or to file a civil court action.

--Josephine Staton Tucker, Employment law attorney, Morrison & Foerster

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Question: Every six months my company gives all employees a questionnaire. A computer analysis afterward tells about each employee’s personality and performance in four-hour feedback sessions. Is this a good method for motivating workers’ performance? Does it promote work group team spirit or unity?

Answer: Providing workers with good, constructive feedback about how they are performing their job is always a good idea. Whether your particular company’s program is working effectively is something only the people in your organization can answer. However, it sounds like an extensive feedback program, particularly given the four-hour feedback sessions. But such programs, if done correctly, can be quite effective in fostering team spirit and cooperation.

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

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Question: I am confused. Do the state and federal governments have different rules for overtime pay? If I have an overtime claim, should I go to the state labor commissioner or to the federal Department of Labor?

--M.S., Newport Beach

Answer: Overtime regulations are the most common laws broken by employers. Not only are there different state and federal laws, but there are scores of exceptions to the rules--and exceptions to the exceptions. No wonder there is such confusion among both employers and employees.

It does make a difference whether a person evaluates an overtime claim by federal or state law. It also matters which of the agencies pursues a claim. For example, according to state regulations, a person can be exempt from overtime rules even if their compensation is on a non-salaried basis. This is usually not the case under federal rules. If a person is not on salary, overtime rules usually apply. Of course, there are exceptions depending upon the nature of the work. The point is, filing a claim with one agency might result in success while filing with the other might mean failure.

As a practical solution, I suggest going to either of the two agencies until they accept your claim. The problem is they may accept your claim but not pursue it for all of the benefits to which you may be entitled. I recently met with a person who filed certain claims with the state agency. After we reviewed the case, we discovered that tens of thousands of dollars worth of other claims had been overlooked. The most reliable method of knowing which agency to use or which laws most fully benefit you is to consult an attorney with experience in this area of the law.

--Don D. Sessions, Employee rights attorney, Mission Viejo

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Question: A security company I worked for required a $60 uniform deposit. When I left the company I returned the uniform, but three months later I still have not received my deposit back. The company said it was not necessarily refundable. The labor board said it can’t get my money back because it is not considered wages. What can I do to get my money?

--M.W.

Answer: State law requires an employer to refund a uniform deposit upon return of the uniform, with no deduction for normal wear and tear. Therefore, you have a right to get your money back, even if the labor board cannot act on your claim because wages are not involved. You may enforce your right by filing an action in Small Claims Court, which has branches in Santa Ana, Newport Beach, Fullerton, Westminster and Laguna Hills. For further information, call (714) 834-3584.

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

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Question: Previously our company paid 100% of accumulated sick time when an employee terminated employment. Now, the company only pays for those sick time hours over 100. Are there any legal repercussions we will have to deal with?

Answer: Maybe, but there isn’t enough information given with your question to make that determination. There is absolutely no obligation for employers to grant sick leave benefits to employees. Sick time pay is established by company policy, which can and does vary greatly by industry and company. Policies are also reviewed, modified or amended periodically by employers to satisfy business operations; generally most changes are permissible revisions.

If an employer establishes a sick leave policy that allows time off with pay for employees’ sickness only, there would be no obligation to pay for such time when the person left the company. This practice is usually stipulated in company policy.

Some employers, however, develop policies that designate so many days a year as “personal time off” to be used as the employee deems necessary. In such cases, an employee has an absolute right to these days. Employees in this situation would be entitled to receive all hours earned or accrued up to the day they left the company. A worker cannot lose what the employer policies state has been earned. These plans fall under the same guidelines as state vacation pay regulations.

For further clarification on your company policy, you might contact the California labor commissioner’s office. The Orange County regional office of the Employers Group would also be happy to interpret the employer plan for you. Call us at (714) 251-1980.

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

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Question: I work as a civilian employee at a police department, which switched to a modified work schedule in February, 1993. At that time, our chief announced that all sworn personnel--including all investigators and sworn managers--would be paid for their lunch break. The reason was they were all subject to being called out on a case while at lunch.

I agree that the patrol division may now and then be called away from lunch, but this does not really apply to officers assigned to the station and to sworn managers. The scheduled lunch for all sworn personnel is 30 minutes, but those who work in desk jobs take at least an hour for lunch. The way I see it, civilian employees have to work the equivalent of more than five extra weeks each year just for being non-sworn personnel. Do we have any recourse?

Answer: No. While federal wage and hour law is not entirely clear on the issue--local government agencies are not covered by state wage and hour laws--the law generally requires that employees be paid for their lunch period if they are subject to being called away to handle emergencies during lunch. Since all sworn personnel--even those who are managers or who are assigned to the station--could conceivably be subject to be called into duty during lunch in the event of some emergency, your department apparently adopted a uniform rule for paying all sworn personnel for their lunch period, as opposed to trying to determine which specific sworn personnel might be called to duty during lunch. There is nothing illegal about such an action. Even though you might feel it is unfair to non-sworn personnel, it is not a form of unlawful discrimination because there is a rational bias for making the distinction.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor and employment law Instructor, UC Irvine