Timeliness Can Be Critical in Filing Worker Claims

Q: I was a quality engineer in a company located in El Segundo and was offered a technician supervisor job at the company’s San Jose operation. I accepted the job and took a cut in pay because they were going to take me off salary and place me on hourly wages. In San Jose, I worked everything from truck driver and dock worker to office personnel and technician supervisor.

Around midnight one night, I was moving a piece of equipment that weighed about 400 or 500 pounds. There were several small holes in the floor, and one of the holes caught one of the wheels of my two-wheeler, causing a quick stop. I tried to stop the forward process and hurt my neck and back.

My doctor sent letters to my company advising them that I should slow down and stop lifting. The company just kept pushing. I turned in a two-week notice, but the doctor did not tell me he was putting me on disability a week before I was to quit.

This happened in 1990 and I was under the care of a doctor in Norwalk and went to trade school in Anaheim. My understanding was when I finished school in 1992 I would have a job. At present I am still unemployed.

I am now on general relief to get medical help for my back, which has never been right since. At present, I cannot do physical labor. I have tried, but pain is the reward.

I also believe my age is a problem. I am 57.

I do not know where to turn and am not sure if I have any rights. Do I?

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A: It appears that many of your rights may have been violated by your former employer. However, the problem is not particularly which rights you have, but the enforcement of them. The law requires that people must take appropriate legal action regarding a violation of rights within a certain period. If such deadlines are not met, the right becomes unenforceable. Even though there are many exceptions, the statute of limitation deadlines generally are one year for breach of rights involving a workers’ compensation claim or a tort, two years for breach of an oral contract, three years for fraud or statutory violations and four years for breach of a written contract.

It appears that most of your claims have long since passed any applicable statute of limitation period. Assuming that you did not have a statute of limitation problem, you might have had many enforceable rights. However, it is difficult to determine because many of your facts are vague.

Laws governing overtime work require that you should have been given additional compensation either at time and a half or double time, depending upon the number of hours that you were putting in. The law prevents an employer from requiring you to work more than 72 hours a week, if that is what they did.

You make reference to an injury sustained at work. It is illegal for a company to retaliate against you because of your attempts to file a workers’ compensation claim or because of your medical disability.

I am unclear as to whether you have continued on work disability or on a workers’ compensation claim since the date you left your employment. If you had appropriately filed a workers’ compensation claim, then your claims may continue for an indefinite time as long as you are disabled. Additionally, workers’ compensation claimants have various rights to reinstatement once the disability has been resolved.

One of the biggest problems in all employee rights matters is timeliness. Victims of workplace wrongs need to be continually reminded to promptly evaluate their claims and to either waive them or try to resolve them before statutory deadlines pass.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Accruing Vacation Can Be Linked to Using It

Q: I noted in your May 15 column that vacation is 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. I am a salaried exempt employee of a large aerospace company that requires employees to use vacation within two years of earning it. If they don’t, they lose it.

An employee’s pay stub contains vacation hours due and this is updated each month.

For example, an employee who qualifies for a three-week vacation, or 120 hours, each year receives 10 additional hours credit each month until that total reaches 240 hours. If no vacation is taken before the end of the next month, no additional hours will be added. There is no provision in the company policy to permit the deferral of vacations or gaining back lost vacation hours. Is this legal?

--D.G., Orange

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A: Yes. Your company’s policy is not an illegal “use-it-or-lose-it” policy because you don’t lose any vacation that you have already accrued. You just don’t accrue any new vacation after the maximum accrual is reached unless and until you take some of your already-accrued vacation. The California Labor Commissioner considers this kind of vacation policy, which enables employers to limit the amount of unused vacation an employee may accrue, to be lawful.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine