Pension Plan’s Language Sets Who May Join

Q. Last year, I worked more than 1,000 hours for my employer--at least 40 hours each week.

Though classified as an hourly employee, I believe there is a law that grants certain benefits to an employee who works more than 1,000 hours a year.

I think they include profit-sharing or pension benefits.

The company handbook states: “An hourly employee will become eligible to participate in Bank Amerishare Plan if the employee converts to a salaried position.”

My department manager is not offering any salaried or full-time positions that carry benefits.

Nevertheless, I continue to work full-time hours this year.

--M.C., Placentia

A. California law does not require an employer to establish pension or profit-sharing plans.

If an employer establishes a pension plan, eligibility is established by the plan. Once a pension plan is established by an employer, participation is governed by the eligibility language contained in the pension plan, not by your employer. If you meet the minimum requirements, you can participate.

Profit-sharing plans are similar to pension plans, but not identical. An employer can decide the eligibility requirements for participating in profit-sharing plans. Once eligibility is met, the employee can participate.

You have to determine the eligibility definitions of the Bank Amerishare plan. If the definition is different than what is stated in the handbook, the plan controls. However, if the definition is the same, then you will have to comply by converting to a salaried position. If no position exists, then you will not be eligible.

Further, your employer can select who will participate in its profit-sharing plan as long as it does not violate any discrimination laws. From the limited facts provided, your employer’s decision to include only salaried employees does not violate any laws.

There may be a breach-of-contract issue if your employer is refusing to convert you to a salaried position. Of course, you have to be qualified for the position and the position must be available. The employer has the right to select another person over you that he or she feels is more qualified, but the employer cannot discriminate against you.

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

Guidelines Needed for Telecommuting

Q. I have a new baby, and my boss is letting me work at home so I can breast-feed. Are there any books or other resources available on working out of your house when you have small children around? I have trouble getting everything done on days when the baby is fussy.

A. Working at home, better known as “telecommuting” is gaining in popularity among workers and employers across the country. Touted as a means of reducing commuting time, cutting air pollution and enabling employees to spend more time at home, telecommuting can be successful with proper planning.

I suggest you and your employer develop guidelines that clearly outline expectations of both parties. Policies should define the amount of time expected to work per day or pay period as well as production output/goals to be accomplished.

Your work space at home will be considered an extension of the company work space. Therefore, you should have a productive work environment at home that will foster concentration and productivity. This may even require some child-care assistance. These are just a few areas that need to be carefully considered for success.

In addition, bookstores as well as public and college libraries should have books available under the heading of “telecommuting” and/or “homework” for your perusal.

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

Address Tardiness on Worker’s Evaluation

Q. My assistant is constantly tardy. He is only a few minutes late, but I find this very disruptive. What is a good way to approach tardiness?

--K.R., Mission Viejo

A. A good way to deal with your assistant’s chronic tardiness is to incorporate tardiness (punctuality) into his or her performance appraisal--making it an important aspect of the job. In addition, provide a rationale for why it is important that your assistant get to work on time (i.e., explain the specific disruptions it causes you).

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

Talk to Boss About Break-Time Conflict

Q. My employer has told me that I can only take my 15-minute break at an assigned time. Sometimes I am so busy that I can’t take a break then and I am not allowed to take it later. Is this legal?

--M.L., Westminster

A. California law provides that employees are entitled to one paid 10-minute break for each four hours worked. Your employer is permitted to assign you a specific time to take your break, particularly if it is necessary to provide adequate staffing to cover work flow.

If you are too busy to take your break at the assigned time, you should notify your supervisor. Perhaps it can be arranged for another employee to cover for you, or for you to have your assigned break time changed.

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