Dealing With the Threat of Violence in the Workplace

Q: At my workplace there is an employee whose husband is of a violent nature. Usually this only affects her at her home, but recently he came on the premises, and police were called.

What more can be done about this, and what sort of implications does this have for the rest of the employees?

He does own guns and he lives only a mile away from the workplace. The woman was taken aside privately, and it was recommended that she go to a women’s shelter. But she has not taken this advice.

--J.L., Rancho Santa Margarita

A: It is unclear from your question to what extent your employer has made the work environment secure. Cal/OSHA requires employers to provide a safe and healthy workplace as part of their obligation to establish, implement and maintain an effective Injury and Illness Prevention Program.

It is therefore important for employers to address and combat the problem of potential violence issues before violence strikes.

A security plan should be developed that takes into consideration the physical layout of the company premises, staffing, availability of security personnel, company policies and training on the appropriate response to violent acts.

The employer should develop a relationship with local law enforcement and ask police to audit the employer’s current policies, physical layout and existing security measures before a crisis arises.

The employer also should establish a plan for contacting other outside authorities, such as legal counsel, district attorney’s office and courts for injunctive relief, if necessary.

Many employers also have established employee assistance programs, which address and help ease employee concerns as well.

Cal/OSHA consultation offices are available to employers for additional information. There is a pamphlet with guidelines that discusses the means and methods to accomplish security endeavors. The pamphlet can be obtained through the Cal/OSHA Anaheim office, (714) 935-2750.

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

Several Factors Involved in Leave for Disabled

Q: I am a worker with disabilities. Sometimes my disabilities interfere with my ability to do my job, and I have to take time off. This happens every couple of years and may last a month or more.

Can you tell me how much time is allowed under the law for a leave of absence and what the rules are regarding unplanned departures or emergencies?

--S.S., Costa Mesa

A: The answer depends on the nature of your disability, the size of your employer and your employer’s policies.

First, if your employer has a written leave of absence policy, you would be entitled to at least the amount of leave provided for under that policy. However, depending on how the policy is written, you might not be entitled to be reinstated to your job when your leave is over.

Second, if your employer employs 50 workers or more within a 75-mile radius of each other, if your condition is a serious health condition--one requiring hospitalization or continuing medical care--if you have at least one year’s seniority with the employer and if you have worked at least 1,250 hours during the past year, you are probably entitled to family medical leave, regardless of your employer’s policies.

Under family medical leave law, you are entitled to as much as 12 weeks of unpaid leave in any 12-month period, and you must be reinstated to your former position if you can return within 12 weeks, unless the position has been eliminated. In addition, you are entitled while on leave to continue receiving any medical insurance benefits your employer provides as though you were actively working.

Third, if your disability constitutes a physical or mental disability within the meaning of the laws pertaining to discrimination against the physically disabled, your employer may have an obligation to reasonably accommodate your disability by providing leaves of absence periodically. Such leaves may be required even if your employer has no express written leave policy.

If you have any questions about your treatment, you should contact the California Department of Fair Employment and Housing.

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

Time Really Counts for Clock-In Workers

Q: The company I work for has just started a new policy. It states that any employee who forgets to clock in or out has 15 minutes automatically deducted. And if you punch in even one minute late, you are also docked 15 minutes. Yet you are expected to start working right away.

This is true whether you punch in one minute or 14 minutes late. The company pays only in 15-minute increments. Is this legal? Can a company make up these kinds of policies? It seems that if you work an extra 10 minutes and are paid hourly, you should be paid for this time.

L.D., Huntington Beach

A: An employer is required to pay you for all work performed. According to federal law, an employer can round off your time as long as it averages out to be the appropriate amount of time that should have been paid to you anyway. This means, however, that your time could either go back to the time that you should have started or forward to the next established increment, whether it be to the tenth of an hour or to the quarter of an hour.

It does not appear that your employer is following this law. The company actually is making money off your lateness. Even if you are one minute late, it doesn’t pay you until the next 15 minutes. They improperly round it off ahead but not back.

There is a state law that states that if an employee arrives at work late, with a loss of time less than 30 minutes, an employer can deduct half an hour’s wage. This appears to be in the nature of a penalty. If there is any conflict between different laws, the California Labor Commissioner’s office will enforce the more favorable law for the employee. According to the Labor Commissioner’s office, the federal law requiring payment for all time worked should prevail over this state statute.

It is illegal for your employer to retaliate against you if you complain about a violation of these rules. If you think that complaining will brand you as a troublemaker, simply keep track of the time for which you have not been paid and make a claim if and when you are fired or laid off.

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