Colleagues’ Cologne Prompts Call for a Fragrant Foul
Q: I work in a mid-size office with about 25 employees. Two of my colleagues, one male and one female, use excessive amounts of cologne. Some other employees and I have sinus problems and allergies, and the fragrances that these two co-workers wear are unbearable at times. We also get headaches and even nausea because of the overpowering odor. At times, I can’t venture out of my office because of the physical effects of the scents. Are there any laws against this? Does Cal-OSHA require that an employer step in to prevent such discomfort caused by a co-worker? I have many friends and colleagues who encounter the same problem in their offices. Please help us.
--P.V., Anaheim
A: Have you or your co-workers discussed your concerns with your employer? If co-workers are suffering from headaches and nausea, the employer needs to be involved in the solution.
Most employers have an established dress code policy or practice that requires employees to present a professional image. These dress codes generally request the employees to dress conservatively, in “good taste” and in accordance with the requirements of their position, with special attention on safety, company image and customer interaction. The California Occupational Safety and Health Administration does require an employer to assume the responsibility to do everything reasonably necessary to protect the life, safety and health of employees.
Environmental protection regulations also have guidelines that protect chemical limits extruded in the air. Colognes, however, generally are far below these tolerance levels. Employee complaints and dress code standards usually provide justification for an employer, in this case, to approach those who use excessive cologne.
Most employee odor situations need to be addressed delicately, with sensitivity, and the employer must use common sense. Many employees aren’t aware of the offensive nature of their colognes. Once aware and counseled, with an employer request to “tone down” the usage, the situation can usually be resolved without further development.
--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group
‘No-Compete’ Pledge May Not Be Enforceable
Q: My husband’s company is requiring all employees to sign a statement that they will never go to work for a competitor. Can a company make you sign such a document as a condition of employment?
--L.C., Brea
A: Such documents are known as covenants not to compete, and they are generally not enforceable in California.
However, an employer may prohibit an employee from “moonlighting” with a competitor during employment. Further, a company can prohibit an employee from divulging or using trade secrets or confidential information after employment has terminated.
--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers
He Dislikes Being Out of Commission
Q: I am employed as a regular full-time “big ticket” sales associate at a national retailer. My compensation consists of 100% commission(no base) with payback draw.
My questions are:
1) Since I am a regular full-time sales associate and on 100% commission, can I be requested to leave the selling floor to complete non-selling tasks before completing 40 hours a week of pure selling time?
2) Since I am on 100% commission, can I be required to attend store meetings or training meetings without being reimbursed my average pay for time spent? I have been refused any pay for meetings under an hour; for those over an hour, I am paid $5 an hour.
--R.S., Mission Viejo
A: Employers are required to pay employees a minimum wage. This is computed according to each paycheck. Your commission accrued during a particular pay period, after being divided by the total hours worked during that pay period, must exceed the minimum wage. If it does not, the employer is obligated to pay you the minimum wage for that period.
Whether you are performing non-commission tasks during a certain pay period is not really the issue. What you should be concerned about is whether you have earned the minimum wage. Your employer can agree to pay you whatever additional amount the company desires. If your employer has agreed to pay you $5 an hour for meetings that exceed one hour and that are unrelated to your commission, then the company is obligated to that commitment.
Problems arise when your commission income for a particular pay period exceeds the minimum wage but then might not for the next period. That is the reason why many employers give their salespeople a minimum base, which gets around that problem.
Many employers assume, too, that salespeople will be doing a certain amount of non-commission work and training, even when they are paid on a commission basis. They believe that the commission more than makes up for other time that is simply part of the job. It is similar to comparing “piecework” systems, in which a person is paid according to the number of units produced or sold. Regardless of the method, minimum wages must be paid.
As a practical answer, you should evaluate whether the commission more than makes up for the “down time” of your other duties and assignments. Rather than complaining about the pay period in which you did not make minimum wage and angering your superiors, you might want to keep track of it in writing and then bring it up later if you are laid off or fired or you quit.
The deadline for making such claims is usually two years. It is illegal for the company to retaliate against you--whether through demotion, failure to promote, layoff or termination--for making a wage complaint.
--Don D. Sessions, Employee rights attorney, Mission Viejo
Holiday Pay Must Be Meted Out Equitably
Q: I work for a major hotel. If one department, such as human resources, receives a day off with pay on a holiday, are all the other departments entitled to holiday pay?
--E.B., Tustin
A: No law requires an employer to give paid holidays. However, an employer who gives a paid holiday must treat all similarly situated workers the same.
--Calvin House, attorney, Fulbright & Jaworski L.L.P.
Adjunct professor, Western, State University College of Law
