In Many Cases, Airlines Aren’t Obliged to Pay Their Trainees

Q: A member of my family was offered conditional employment with a major airline as a flight attendant. A condition of employment was to attend a seven-week training course in another city. During this time, no salary would be paid. The training course is taught by employees of the airline. I find it impossible to believe that they aren’t required to pay minimum wage during this period. The airline’s position is that you’re attending a training college. Is there a statutory exemption under federal law for this?

--A.B., Fullerton

A: The issue is whether a trainee who takes a company course to get a job is considered an employee and required to be paid at least the minimum wage.

The U.S. Labor Department’s wage and hour division guidelines provide a number of criteria.

A trainee is not an employee, for instance, and not entitled to wages under the following circumstances: if the training program is similar to that which would be offered in a vocational school; if the training is only for the benefit of the trainee and the trainee does not displace a regular employee; if there is no immediate benefit to the employer who provides the training; if the trainee is not guaranteed a job at the end of the training period, and if the trainee is informed that there would be no pay for the time spent in training.

This issue has specifically been raised in the airline industry, where most training programs have met the criteria.

--Thomas M. Apke, attorney, Professor of business law, Cal State Fullerton

Policy Cuts Into Time for Restroom Visits

Q: A friend is under medication that requires her to go to the restroom periodically. Her employer just established a new policy that forbids anyone from going to the restroom--no matter what--if any other person in the same area has gone. This is disturbing to me and to my friend. Can the employer do this?

--T.P., La Palma

A: Yes. Your employer probably has concerns in the areas of staffing, proper supervision, security and/or safety that often justifies the decision to allow only one individual at a time to be gone from the work area.

There are wage regulations that require an employer to authorize and permit all employees to take 10-minute rest periods for every four hours of work time.

Your friend should advise the employer that she is under medication. She also needs to inform the employer of her need, as a result of the medication, to use the restroom periodically. I recommend that she try to utilize the 10-minute rest periods for restroom privileges. If additional trips are necessary, the employer should establish a reasonable accommodation, as long as it doesn’t cause undue hardship on business operations.

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

Possible Whistle-Blower Faces Several Options

Q: I was formerly the chief financial officer for a service organization. I am also a certified public accountant.

My employer told me that I was being let go for reporting the company and its practices to a federal agency. The company said it had a tape and witnesses. Even though I asked three times, the company refused to play the tape or bring any witnesses in.

I did make a phone call to the federal agency, but I did so at least six miles from my office, and I placed the call on my cellular phone.

I am fairly certain that my office telephone was tapped without my knowledge and that is how the company found out, since no one else knew. I believe my employer listened in on a conversation I was having with my husband.

Attorneys have told me that I have an excellent case if I choose to take legal action against my former employer. What would you advise me to do?

--N.N., Costa Mesa

A: You have many rights against your employer. It is illegal for an employer to retaliate against an employee who complains about an illegality or violation of a “fundamental public policy” based in law or the Constitution. You would not have a claim, though, if the matter that you are complaining about did not turn out to be as serious as you thought it might have been.

Additionally, your employer might have invaded your privacy. It is illegal for your employer to tap your telephone conversations without your consent. If the employer did not actually listen into both conversations but taped only your end of the conversation and only in your office, then the issue is whether you had a reasonable expectation of privacy. If you had the conversation with your door open where anyone reasonably could overhear, then the taping might not be improper. If someone merely eavesdropped on your end without a tape recording, it would not violate any privacy laws.

You also may have a claim for “constructive defamation” if the employer fired you for alleged improper activity, such as being unable to keep confidences. You should not have been fired for that reason in the first place, but if the former employer casts you in a false light in speaking with prospective employers, you might have a claim for defamation.

As a practical matter, you need to weigh your fiduciary obligations as a chief financial officer and a certified public accountant to maintain the confidentiality of your employer against your duty as a citizen to report perceived illegalities. If what you thought was improper was not really illegal or if you did not have a reasonable good faith belief of its illegality, then your employer might report you to the state authority that gave you your license in the first place. If that is the case, attacking your employer might cause you more harm.

You have a right to look at your employee file. I suggest that you request access to your file in writing. If the employer refuses, you might have a claim against it for damages or for an order to give you access.

Additionally, consider your damages. If you got a better job the day after you were fired, then a judge or jury might not have much compassion in awarding you money. If, however, it took you an extended period of time to find a replacement job and it is not as good as your prior one, then your damages might be big enough to justify legal action.

If you wanted to pursue the whole scope of your rights, you probably would have to go to a lawyer. The Labor Commissioner’s office would assist you on your claim for whistle-blower retaliation. Even though it will not get you any money, if it makes you feel better, you also can report the illegal wiretapping to the police department or district attorney’s office for criminal action against your employer.

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