Solving Low Morale Is Difficult Until the Cause Is Found

Question: I work for a major air freight company that just gave a bonus to its employees as well as holding a company picnic. Still, morale is very low in the company. What else can the company do to solve its employee morale problem?

--M.M., Fullerton

Answer: The causes of the employee dissatisfaction and low morale are many and complex. For example, low morale can result from workers’ perceptions that they are unappreciated by management, from interpersonal conflicts among co-workers, from perceived unfairness in compensation, or from worries about job security. Although bonuses and company-sponsored social events can in certain instances raise morale, such strategies may not be effective if the reasons for employee dissatisfaction are deep-seated.

The first step in addressing morale problems is to assess why employees are dissatisfied. This can be done through employee interviews or a survey. The next step is to develop a plan to alleviate the source of the morale problem. Finally, it is important to evaluate whether the intervention is successful in improving employee morale.

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

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Question: I work for a medical equipment company in Irvine, which last June set up a new attendance policy to discourage people from taking too much sick time.

All workers were allowed to have a limited number of illness or other “occurrences” that resulted in an unscheduled absence; after four such incidents an employee would be fired. We were told that this would only apply for six months, and thereafter we would have up to seven occurrences in a 12-month period before we were fired.

Just before we were supposed to switch to the more flexible policy, management said that those who already had been out twice since June 1--me included--would still be subject to firing after four times away from work, at least until we had six consecutive months without any further unscheduled absences. Can an employer change company policy retroactively?

--T.B., San Clemente

Answer: The answer depends on whether your employer is an “at will” employer or you have an express or implied agreement that you will not be terminated except for cause, and whether it is otherwise legally inappropriate to single you out for action based on your absences. For example, if you are not an at-will employee, your employer’s action may be a violation of your employment agreement.

Similarly, if you are being penalized for absences you are entitled to take under the federal or state Family Medical Leave Act, or are being singled out because of your sex, race or age, you may have legal recourse under federal or state law. You should consult legal counsel to determine whether you have any rights that are being violated.

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

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Question: I am more than four months’ pregnant. My doctor has put me on bed rest because of extremely high blood pressure, passing out, dizziness and vomiting. Can my employer terminate me because of “hardship to the company” or when I return to work, reduce my pay and job responsibilities--even if I have a full release from my doctor to return to work with no restriction?

I am an accounting clerk. The company has about 50 employees but the company is moving out of state in May.

--E.M., Huntington Beach

Answer: According to federal law, employers cannot discriminate against pregnant employees if the employer has 15 or more workers. According to state law, if the employer has at least five employees the employer cannot so discriminate and must give you up to four months of leave for a pregnancy-related illness. Such leave does not need to be taken at one time.

Additionally, other federal and state legislation has provided another four months worth of leave to care for yourself or your family. In total, a pregnant person might claim eight months of leave.

Upon your return to your work, the employer must return you to your former job unless your job has been eliminated for reasons other than your leave or there is a reasonable hardship for the employer to hold your job open rather than leaving it either unfilled or filling it with temporary employees.

The employer’s finances and size may be a factor in deciding what is in fact a reasonable hardship. If the employer cannot return you to your former job, you must be returned to a substantially similar job unless one is not available or if one is available, given such a job to you would again be a reasonable hardship. Often it is very difficult for the employer to justify not giving you such a job.

If the company is moving out of the state, the employer has to give you the same opportunities to move with the company that it gives its other employees who are not pregnant.

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

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Question: Is it OK for an employer to rotate employees on the day shift through a night shift? They decided to do this when a person on the night shift quit and wasn’t replaced. This rotation occurs once every eight or 10 weeks. My concern is that it could be dangerous if someone wasn’t used to working at night.

--T.N., Lake Forest

Answer: Yes, it is perfectly legal for an employer to assign employees to work a different shift, at least in the absence of a collective bargaining agreement or an express policy limiting the employer’s right in this regard.

You express a concern for safety, but you suggest that the night shift does not involve inherently unsafe work, but only that it might be unsafe for employees not accustomed to working it. Although federal and state laws require an employer to provide a safe workplace, the fact that an employee is new at a particular job does not qualify that job as unsafe. Besides, everyone who is currently on the night shift had to start sometime.

You do not say in what way you think night shift work might be unsafe. If perhaps some added lighting or additional training might make night work more safe, you can suggest these measures to your employer, although your employer will not likely be legally obligated to adopt your suggestions.

It appears, however, that if you refuse personally to work the night shift, your employer would be justified in terminating your employment or otherwise disciplining you.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Law instructor, UC Irvine

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Question: I am a non-exempt employee, an administrative assistant, whose company has requested I cover for someone and attend a trade show out of state. I normally work eight-hour days on weekdays. The company has a policy and procedures manual, but it is only designed for exempt management personnel.

While I am grateful for the experience, I’m also concerned about how to correctly count my hours worked while on this trip. Does my time worked start from the time I leave (i.e., is travel time considered hours worked)?

As planned, I would work the first three days of the week in my office, then travel and work the trade show over the weekend and into the next week. I would then continue to work out the second week in my office. Is all this consecutive time worked? Should I receive any extra time off to make up for working the weekend?

--V.D., Huntington Beach

Answer: An employee’s time spent traveling during regular work hours must be compensated for if the travel was performed pursuant to the employer’s instructions. Further, travel time that keeps an employee away from home overnight is considered work time when it cuts across the employee’s regular workday and corresponding hours on non-workdays, but does not include meal periods.

An employee on travel away from home is entitled to pay for his or her normal workday, excluding meal periods. Thus, if the employee regularly works eight hours during a normal workday, the employee is entitled to eight hours for each full day away from work.

Regarding consecutive time worked, entitlement to overtime depends on when the employer’s workweek begins and ends. For example, if the workweek is from Sunday to Saturday, overtime for hours worked over 40 in one week would end on the Saturday. If, however, the employee’s week begins on Monday and ends on Sunday, overtime would include work on the Sunday. Remember, employees are entitled to time and one-half for each hour worked beyond eight hours in one day and over 40 hours in one week.

Generally, California law prohibits employees from working more than six days in seven. Exceptions exist if the employee is covered by a collective bargaining agreement, works for a common carrier in the railroad industry, emergency situations, or for work performed to care for animals and crops or to protect life or property from destruction. An employer or employee can request an exemption of this limitation from the Department of Labor Standards and Enforcement.

Time off in lieu of pay is in more commonly known as compensatory or comp time. Comp time is strictly regulated by federal and state law and generally is prohibited.

An employer can only provide comp time if there is a written agreement between the employee and employer before the work is performed, the employee requests comp time in writing, the employee is regularly scheduled to work 40 hours in a workweek, and, if the employer is engaged in interstate commerce, the employee uses the comp time before the end of the pay period. Comp time cannot be used for exempt employees, or for non-exempt employees engaged in the manufacturing, carving, freezing, preserving, public housekeeping, amusement or recreation industries, or who handle products after harvest.

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

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Question: Our company employs more than 50 drivers with a Class-B commercial license. We haul merchandise; not people. The company said that, beginning in 1995, new Department of Transportation regulations require, among other things, random drug testing. Currently we have pre-employment drug testing. A number of drivers were under the impression that random testing is illegal.

I called the Department of Transportation in Washington. A legal department employee told me there was no new program, but that there had been some changes in the Federal Highway Program dealing with pre-employment testing. She also referred to the pending resolution of litigation, which has since been resolved, regarding transportation employees.

What really are the regulations concerning random testing for use of alcohol and drugs? We are now required to report any prescription drug use, including antibiotics, but that doesn’t include over-the-counter antihistamines, which could make a driver drowsy.

--M.B., Irvine

Answer: The Department of Transportation does have detailed regulations regarding drug testing by employers that come under its jurisdiction. You did the right thing by calling the department to ascertain the current specific policies that are in force.

There is no easy answer to your broader question about the extent of an employee’s privacy rights in this area. There are no generally applicable regulations with definite rules like those adopted by the Department of Transportation. Nor have there been any rulings that imposed a flat ban on random testing of employees.

However, California courts have made it clear that the privacy rights conferred by the California Constitution protect employees from unjustified testing. The courts judge each situation by balancing the privacy expectations of the employee against the legitimate interests of the employer. In arriving at a decision, the courts weigh facts such as the intrusiveness of the testing and the sensitivity of the particular position.

About all that can be said with certainty at this point is that the courts are much more likely to allow testing of job applicants than they are to allow testing of employees with an established employment relationship.

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