Special Provisions for Holidays Not Required by Law

Question: The fact that Christmas and New Year’s Day both fell on Sunday this year sparked a lively discussion. My sister says that when a legal holiday falls on Sunday, an employer is required by law to give employees the following Monday off with pay. Some of us believe this is a decision the individual employer makes personally. Please give us the correct answer.

--E.R., Seal Beach

Answer: Holiday pay as well as sick pay benefits are principally a matter of employer policy or contract. There are no state law restrictions. Federal regulation also doesn’t require employers in the private sector to recognize any specific days as legal holidays by giving employees either a day off with pay or premium pay for work on such days. Employers generally select the days they wish as “holidays” for purposes of company policy.

Among the most commonly recognized holidays are New Year’s Day (Jan. 1), Memorial Day (the last Monday in May), Independence Day (July 4), Labor Day (the first Monday in September), Thanksgiving Day (the fourth Thursday in November) and Christmas Day (Dec. 25). However, remember that employers are free to establish any holiday that is consistent with their objectives, budgetary limitations, industry practices and their geographic locations.

The most commonly established procedure when a holiday falls on a weekend is to observe the holiday on the closest workday near that holiday. As you mentioned, both Christmas and New Year’s fell on Sundays this year. Typically, company policy would observe that closest work day as a paid day off. In this example, Monday would be the recognized paid holiday observed. If the holiday fell on Saturday, typically the preceding Friday would be the observed paid holiday.

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

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Question: Graduate students of psychology are required to put in 3,000 hours of practice therapy in registered clinics before they can get a license. They are not paid, and they are no longer students. This seems to me to be an outrageous use of these people. Is this legal?

--S.G., Huntington Beach

Answer: That depends on whether the student is an employee or not. Employees are entitled to wages; non-employees are not. Under the Department of Labor Standards and Enforcement guidelines, a student working as an intern or trainee to fulfill a licensing requirement is not an employee if the training is academically oriented, designed for the primary benefit of the student and is supervised by a school or disinterested agency. If these requirements are not met, the student is an employee and entitled to wages.

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

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Question: I was employed by a company that allowed female employees to arrive late and leave early with no written remarks on their semiannual reviews. I’m a service-connected veteran with hearing problems and had to go for treatment at the Loma Linda VA Hospital about four times a year for tests and for hearing aid adjustments or repairs. I always received a write-up on my reviews that I left early or came in late because of my hospital appointments.

I pushed the issue when a female employee had come in late 40 consecutive days. She was written up and verbally warned. She came in late two more times and was finally terminated. Where do I stand regarding a sex-discrimination complaint, case or lawsuit?

--R.H., Perris

Answer: It is difficult to answer your question without more information about your circumstances. First, you state that you were employed by this company, but you do not reveal whether you left voluntarily or were terminated. If you left of your own accord, it is unlikely that you could prevail in a discrimination action. Assuming instead that you were terminated, you do not provide the reason for the termination.

If you were given a neutral reason for termination, such as tardiness, you would have to show that the actual reason was your sex; for example, by showing that women who had equally or more egregious attendance problems were not terminated. It is not clear from your letter that you could make such a showing.

While you ask only about sex discrimination, your letter suggests that you may have been treated unfairly because of your hearing disability or because you needed time off for medical attention. Thus, you should also be aware that the law prohibits disability discrimination and prohibits discrimination against employees who take intermittent medical leave under the California Family Rights Act or the Federal Family and Medical Leave Act. Again, it is not clear from your letter whether these laws apply to your situation.

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

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Question: My wife is a salesperson for a Taiwanese company that sells computer accessories. She scheduled two weeks off over the holidays to recuperate from some elective surgery.

The company had to devise a company procedure for such time off--a policy that was published on Dec. 1. The employer decided that the commissions a salesperson would normally earn from regular customers would be turned over to whoever writes up the latest order, which most often turned out to be the sales manager. Most of my wife’s compensation is in commissions, so to avoid taking such a large loss in pay, my wife decided to instead use one week as vacation time (so as not to lose the commissions) and one week as sick time.

The personnel manager approved this switch, but two days later the company’s senior managers refused this change of plans and my wife was told that she would have to take the two weeks off as a disability leave and receive pay only from the state. Is this legal to alter a published policy with no warning and to shift regular commissions like that?

--R.O., Aliso Viejo

Answer: There is no requirement that an employer provide paid sick time or private disability insurance. The federal and state Family and Medical Leave Acts only require the employer to allow an employee to take up to 12 weeks of unpaid medical leave for a serious health condition. There is also no requirement that an employer provide any paid vacation time.

However, if an employer does provide paid vacation time, the employee accrues the time throughout the year. The employer may not adopt policies that prevent the employee from getting the benefit of the vacation time, although the employer may control the scheduling of time off. If the shifting policies applied to your wife resulted in a loss of her vacation time for the year, there might be a violation.

The employer’s attempt to shift the entire burden of your wife’s time off to the state disability system may also be a problem. Generally, disability pay is available only for days on which an employee is unable to perform his or her regular work because of a physical or mental condition. Your wife will receive two weeks of disability pay from the state only if her surgery in fact causes a two-week disability.

Except for these possible concerns, changes in time off and commission policies are simply a matter of agreement between employer and employee. Unless your wife could show that she suffered an independent economic loss because she relied on a particular policy, she would probably have no recourse.

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

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Question: I have worked as a commissioned salesperson for a manufacturer’s representative for computer and other high technology equipment for 6 1/2 years. For years my company was small and had a very flexible vacation system--with only three salespeople, we could basically take off as much time as we wanted.

But we hired two additional sales people and, beginning in January, 1994, they started a new vacation procedure of two weeks for each person. Last year, I inadvertently took off three extra days and told management to dock my pay rather than reduce my 1995 vacation time. The company agreed but wanted to cut not only my base pay for three days but also three days’ worth of the commissions that I earned, and commissions make up about 90% of my salary. Is that legal?

--B.H., Mission Viejo

Answer: It depends on how your company pays vacation. If, for example, you take a two-week vacation and your company just pays you your base pay for that period--plus any commissions actually earned previously but that did not become payable until your vacation period--then your company can only deduct your base pay in “docking” you for excessive vacation taken.

On the other hand, if while on vacation you are paid not only your base pay but some additional amount representing commissions you likely would have earned while on vacation, your company can deduct a similar amount in “docking” you.

--James J. McDonald Jr., attorney, Fisher & Phillips and law instructor, UC Irvine

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Question: I teach English as a second language for an Anaheim technical school. My program is funded through federal government grants and regulated by the state. I’ve worked with this company, on and off, for about 12 months. I left in September because I was working a split shift, but agreed to come back after about 60 days for higher pay, better benefits and the working hours I preferred.

Within weeks of my return, the company decided--without warning--to give all full-time employees a retroactive 20% pay cut. The choice the company gave us was basically to quit or deal with it. The company said that it was having cash-flow problems but that our reduced biweekly paychecks would be temporary. We were told that the withheld money would be returned to us in the following five pay periods.

Can they, in effect, force us to give the company an interest-free loan?

--A.B., Mission Viejo

Answer: Probably yes. Unless you have a written contract that guarantees you a particular salary for a prescribed period of time, your employer is free to reduce your salary in the future, so long as it does so on a non-discriminatory basis (i.e., so long as it does not single out employees for salary reduction on the basis of sex, age, national origin, race or some other prohibited characteristic).

However, your employer is probably not permitted to reduce your wages retroactively. Moreover, if the reduction in your wages is inconsistent with representations that were made to induce you to come back to work for your employer, you may have a claim against your employer for fraudulent promise. You should consult an attorney if you feel you were intentionally misled.

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

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Question: If one has a variety of employment claims, what are the advantages and disadvantages of seeking help through a government agency, as compared to an attorney?

--S.M., Laguna Niguel

Answer: The main government agencies that handle employment disputes, such as the state’s Labor Commissioner Office, Department of Fair Employment and Housing, the U.S. Department of Labor or the U.S. Equal Employment Opportunity Commission, often are very helpful in resolving employment discrimination, whistle-blower or wage disputes. The biggest advantage is that they are free.

The agencies’ clerical workers may even have more specialized knowledge on various types of employment disputes than a generalist attorney. In some circumstances, filing with a government agency may even extend a statute of limitations deadline.

The problem is that government agencies are often very slow. It may take up to a year to begin an investigation. They are underbudgeted and understaffed, and as a result it is difficult for them to give much personalized service. The clerical staff, who are not lawyers, may not give complete legal advice as to all potential employment claims. Each agency seems to have blinders that limit it to handle only its own particular type of dispute, but not others. None of the agencies handle certain types of employment claims, such as fraud, slander or breach of contract, which can only be handled by an attorney.

Attorneys help resolve employment disputes by evaluating and pursuing all potential employment claims. Accordingly, they may be perceived as a bigger threat to an employer than a government agency would for a limited claim.

The biggest problem with attorneys is their cost. Some attorneys may charge on an hourly basis with no limit.

Others may charge on a contingency fee, in which there is no fee unless there is a recovery. Some attorneys have a combination of the two with a small retainer up front.

Another disadvantage may be in receiving advice from an attorney who may not have complete knowledge of this area of law. The best solution may be to initially consult with a specialist attorney--on a limited-fee basis--on all possible claims and how to use, if needed, the cheaper government agencies to one’s best benefit.

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

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Question: If trust and company reputation are valued, why would a company lay off employees who have impeccable performance records with the excuse of company “downsizing”? What are the effects of such downsizing on those laid off, the business and society?

Answer: While organizational downsizing is typically done for financial reasons, there has been a general trend toward cutting back on personnel as a means of increasing organizational efficiency. Recent research, however, indicates that some companies may be overdoing it. When companies cut back on staff, they need to do so carefully, keeping in mind the long-term effects.

Downsizing makes sense when there is actual “excess” in the personnel lines. On the other hand, if a company cuts back too far, it puts added workload and stress on the remaining employees, which may lead to costly delays in getting the job done.

Laying off good workers hurts those who are laid off, can negatively impact the company’s image and increases the workload (and perhaps the anxiety levels) of those who remain. The key to any company layoff is to ensure that any layoffs are justifiable and that those justifications are made clear to all involved parties.

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