Retraining May Cost Less Than Hiring Younger Staffers

Q: I work for a high-tech company that puts a lot of money into constantly retraining older workers(50 and older) in technological advancements. This seems to be a big drain on finances when it would be easier to hire younger workers who already know the new technology. What do you think?

--B.L., La Habra

A: As technology continues to advance at an ever-increasing rate, employee retraining programs are going to become more and more necessary. Older workers can offer companies maturity, stability and expertise that can offset the fact that some of these workers may need retraining.

When you factor in the costs of constantly recruiting, hiring (and doing some orientation and training) of new, younger but technologically sophisticated workers, retraining of proven, older workers may be more cost-effective in the long run.

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

Two-Week Return-to-Job Notice Seems Unrealistic

Q: I have been on disability leave for more than a month and anticipate going back to work within the next two to four weeks. I have a pregnancy-related disability but am not due to deliver until June.

My employer has requested in a letter that, before I return to work, I give two weeks’ notification. My doctor has never heard of such a request and feels this is not proper, for she will release me as soon as I am ready and cannot predict the future two weeks in advance.

It leaves me open for two weeks without compensation and no disability insurance coverage. I feel this is penalizing me for being disabled. Is this legal?

--A.M., Huntington Beach

A: An employer cannot treat workers with disabilities related to pregnancy less favorably than those with other types of medical conditions.

California law requires employers covered by the Fair Employment and Housing Act to provide leaves to women disabled because of a pregnancy-related condition for a reasonable period of time up to four months. This is applicable even if the employer normally restricts the duration of available leaves for other types of disabilities to periods of less than four months.

If an employer, as a condition of granting disability leaves or paying benefits based on other disabilities, requires employees to provide a physician’s certificate confirming that an employee is unable to work, then the company can require the same from an employee with a pregnancy-related disability.

The employer cannot prevent an employee from working during periods of pregnancy when the worker is able to do the job even though the employee may have been absent from work as a result of a pregnancy-related condition.

It also is probably not realistic to request two weeks’ notice for a return to work from any medical condition because disability issues are generally unpredictable and must be determined on a case-by-case, individual basis.

It is realistic, however, for an employer to request a physician’s “return to work” certificate from the worker as soon as it can be determined that the person is capable of performing the job. To staff the workplace adequately, it is also reasonable to request periodic medical certificate updates with anticipated “return to work” dates.

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

Dress Code Legal When It Applies to Both Sexes

Q: My wife works for a major health maintenance organization that recently instituted a dress code prohibiting women from wearing pants. It also says that women must wear undergarments. But the nurses in the company can continue to wear pants. I thought this was all illegal at the first of the year.

--R.L., Santa Ana

A: You are correct that, as of Jan. 1, 1995, it is unlawful for an employer in California to prohibit women from wearing pants to work. This rule does not prevent an employer from requiring that employees wear uniforms, however. The dress code at your wife’s organization is probably unlawful to the extent that it applies to women who do not wear uniforms.

While California law does not address the wearing of undergarments to work, it is usually a good idea for an employer to require that they be worn. Numerous sexual harassment complaints are born out of situations in which the complaining employee was conspicuous in her lack of underwear. It’s best to prevent that sort of situation from ever getting started.

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

Law Allows Latitude on Accrued Vacation

Q: Last spring I took a sales position with an aircraft-parts company in Fullerton. I was told in November that I’d receive eight vacation days beginning Jan. 1 to use in 1995.

I resigned last month, and when I went to get my final paycheck, the company said the vacation was being “pro-rated” and that I wouldn’t get credit for any vacation time until I had been there 12 months. The result was that the company decided not to pay me for those days. Can an employer do this?

--S.K., Norwalk

A: It depends on the wording of any written vacation policy your employer might have--for example, such as might be found in the employee handbook. Although California law provides that vacation generally accrues beginning on the first day of employment and that all accrued but unused vacation must be paid at the time of termination, the law does allow an employer to specify when, within reason, vacation will begin to accrue.

For example, some employers have a rule stating that no vacation accrues during the first six months of employment, which is designed to avoid having to pay accrued vacation to employees who resign or are terminated after only a few months. A provision that employees will not accrue any vacation during the entire first year of employment is rare, though probably not illegal.

Depending on who told you that you would get eight vacation days to use in 1995, however, there may be an oral contract that your former employer would have to honor. The guarantee would have to have been made by a supervisor or managing agent of the company, and it might not be enforceable if you signed a written agreement or there is language in your employee handbook stating that company policies cannot be modified orally.

If you think that such a contract exists, you should contact your former employer again about being paid the value of your vacation days. If you are unsuccessful, you might consider contacting the state labor commissioner.

--James J. McDonald Jr.