Employers Are Not Required to Warn Before Firing

Q My company has a misconduct policy that covers everything from wearing your hair too long to beating someone up. What the company can issue is a final written warning or a termination notice. Is this right, or is it necessary to have an initial warning system of some kind?

-R.M., Rancho Santa Margarita *

A No. Employers establish workplace rules for two essential purposes: 1) maintain a safe and enjoyable workplace, and 2) to promote a positive image to customers and clients. Warning systems are designed to put an employee on notice regarding violations of company policy. Generally, an employer is not required to establish a warning system.

It is important to keep in mind that an employer has more invested in you than your wages and benefits, such as expenses relating to hiring, training, and retention. Therefore, employers generally will warn employees about violations of their code of conduct to correct action before termination is necessary.

Any employer can decide that certain offenses are subject to immediate termination, while others may not be. Further, an employer can have an elaborate warning system, with several levels of warnings. However, absent a written or established policy of providing informal warnings, an employee can have a policy that only is a final written warning and/or immediate termination.

Once an employer establishes a warning system, it becomes part of the employment contract and the employer must comply with its guidelines. Smart employers, however, provide language that legally enables them to immediately terminate employees for egregious violations.

--William H. Hackel III employment law attorney, Spray, Gould & Bowers

Lawyers Seek Advice Too

Q We are associate attorneys at a law firm. We are frequently required to use our own cars to go to client meetings, to court and to depositions. We often travel to places where we have to pay for parking. Our employer does not pay mileage or reimburse us for our parking costs, saying that since we get to “bill” clients for our travel time and we get bonuses based on the number of hours we work, we do not need to be reimbursed for our out-of-pocket expenses.

The firm also has a rule that states that no client is ever to be allowed to pay for his or her own meal. So we are expected to pick up the tab even though we are not going to get reimbursed for the expense of the client’s meal. These policies were never told to us at our job interviews, and we know that these policies are not standard practice at other law firms.

To top things off, the firm recently instituted a policy that will require us to pay for the entire replacement cost of a portable dictating machine if ours is lost or stolen. Of course, none of our offices or desks have locks.

Is our employer required to reimburse us for our out-of-pocket expenses? Can our employer make us purchase a new Dictaphone if ours is lost or stolen? If our company is doing anything illegal, is there any way to report it anonymously to the labor commissioner?

--H.A.K. and W.J.L., Orange *

A The California Labor Code requires employers to reimburse employees for out-of-pocket expenses incurred in the performance of their duties. This would include parking, mileage and client meals--if you are required by your firm’s policy to pay for client meals. Whether you can be required to pay for a new Dictaphone depends upon how the old Dictaphone was lost.

California law does not permit employers to charge their employees for losses due to simple negligence or ordinary wear and tear. The law does permit an employer to charge employees for losses attributable to their own dishonesty, willful conduct, or “gross” negligence.

The labor commissioner is not likely to investigate an anonymous complaint of this nature. If you are afraid to discuss this matter with the managing partner of your firm or to file a formal complaint with the labor commissioner, you might want to seek a position with some other firm that has a more liberal reimbursement policy.

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

Computer Porn Is Out of Place in Workplace

Q There is a man at my place of employment who views pornographic material on company computer monitors during normal business hours. I find this to be offensive and unprofessional. How should I deal with this problem?

--K.R., Mission Viejo *

A You are definitely right that this is extremely unprofessional behavior, and an inappropriate use of company equipment. Yet, your problem has broader implications.

First, is the issue of using company computers and company time for non work-related issues. For example, companies need to be concerned about employees spending large amounts of time exploring on-line information, such as surfing the Internet, that is totally unrelated to work. Organizations need to develop policies to deal with this issue, just as many companies have created policies to govern employees’ use of telephones for personal calls, or use of company time for personal business.

The second issue is employees’ viewing (or posting) of material of a sexual nature that can be seen by other employees who may find it offensive. This could be construed as a form of sexual harassment if a worker feels that he or she is being “forced” to view this sexually offensive material.

My suggestion is that you bring the general issue to the attention of your superiors (perhaps without singling out any individuals), with the encouragement that a policy statement be issued to all employees.

--Ron Riggio

professor of industrial psychology, Cal State Fullerton

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