Boss Makes Vacationer Phone In and Pay for the Call

Q: I am an exempt-level manager. My company requires that employees at this level be “available” even while on vacation.

This has taken the form of telephone work, calls back to work, requirements that I provide addresses and telephone numbers of where I’ll be on vacation, and calls back even while out of the country at my own expense.

Generally, I am on call at all times while on vacation.

There is no compensation or compensatory time off either for being on call or being called back to work.

To what extent does this infringe upon California and/or federal labor law?

--R.B., Huntington Beach

*

A: Your employer’s calls to you when you are on vacation and the demand that you leave addresses and phone numbers of where you will be does not violate any law.

This is akin to “uncontrolled” standby, which is not considered “hours worked” under state or federal law.

To the extent you may need to spend a few minutes talking with your office while on vacation, that is considered just part of management responsibility.

But your employer should reimburse you for the cost of business-related long-distance telephone calls you make while on vacation.

To the extent that you are actually required to come into work or work a significant period of time on the telephone while on vacation, however, you are entitled to be compensated for the time involved, either in the form of additional time off or pay for the time worked.

This is because vacation is itself considered a part of your earned compensation, not a gift from your employer, and an employer is not permitted to take away vacation time that has been earned by an employee.

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

*

Q: Would it be a good idea to allow employees to decide when it is time for them to have a performance review? Wouldn’t this create less stress on employees and let them feel they have more control in the workplace? Wouldn’t it lead to higher morale?

--A.R., Fullerton

A: Allowing employees to decide when they should receive performance reviews could have some positive effects under certain conditions. For instance, employees might ask for reviews only when they felt they were necessary, such as when they required some constructive feedback about how to improve performance. Employees might also feel more in control, and perhaps more satisfied, if they could decide when evaluations would occur.

On the other hand, some employees might avoid requesting reviews, while others might ask for reviews too frequently. Regular performance evaluations are extremely important for employees, managers and organizations. Whether employees are allowed to “trigger” their own performance evaluations or whether they are done at predetermined time intervals, it is imperative that the company have an explicit policy governing performance appraisals to ensure that they are conducted effectively.

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

It’s Legal for Firms to Get Together on Pay

Q: The firm I work for recently changed its pay policy so that base pay will be adjusted to be equivalent to similar jobs at other companies in our field, as determined by annual surveys. Base pay will increase only through promotions or changes in survey results. All other increases are in the form of bonuses based on the company meeting performance goals. In the past, these goals have been met only by severe downsizing.

Supposedly, this survey method of compensation soon will be the industry norm. My question is, if these companies are all surveying each other to determine employee compensation, which one would take the hit on profitability first by raising salaries for, say, the cost of living? Do employees have any protection under the law from employer collusion under these conditions?

--M.Y., Tustin

A: Employers have a right to discuss levels of compensation with other employers and base their own compensation plan upon standards in the industry. In fact, the State of California regularly surveys unions and employers throughout the state to determine the prevailing wage that it sets for certain trades and crafts in the construction industry. Just as employers have a constitutional right of free speech, so do the employees through collective bargaining. Employers cannot retaliate against employees for pursuing these rights.

Consultation between employers becomes improper “collusion” only when the employers coordinate pay practices for unlawful violation of rules, such as overtime, minimum wage, right to associate and discuss union activities or equal opportunity in employment. You may have a claim against your employer if you can show that the violation of one of these laws is at least, in part, the result of such collusion. You should not confuse employers trying to coordinate lower salaries with employers illegally fixing the price of their goods for consumers.

Which employer will make the first move to increase salary depends upon their desire to retain valuable employees who might otherwise quit. This is really no different than many other businesses that must meet the “going rate.”

Lastly, before you decide that your employer’s system is improper, evaluate its possible advantages. Your salary increase is tied to certain performance goals and may be even more secure or give possibly higher raises than one linked to the cost of living.

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