Disabilities Act Is in Effect Before a Worker Is Fired

D o you have a question about an on-the-job situation? If so, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626. Or call (714) 966-7873 and leave a voice mail message with your name and where you live. Questions of general interest will be answered in this column on Mondays.

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Q: I worked in the accounts receivable department of an Orange County medical billing company for almost a year. I have a hearing loss that makes it difficult for me to learn how to do a job. I need accommodations for my hearing problem, such as special training that lets me learn by having someone show me how to perform tasks.

At first, my supervisor suggested that perhaps I wasn’t cut out for the job. I went over her head and then she was required to give me the training. I think this bruised her ego. I also needed an amplifier for the phone I used, which I didn’t receive. I had my 90-day probation period extended twice. When I made a mistake on paperwork my supervisor would make a copy and place it in my personnel file, but I don’t know if that happened to my co-workers when they made errors.

I thought that my work was improving, but unexpectedly my supervisor pulled me into her office and gave me a written notice to place me on another 30-day probation and demanded that I sign it immediately. When I declined to sign it, saying that I needed a day to review it, I was fired.

I’m finding that the Americans with Disabilities Act and the Equal Employment Opportunities Commission don’t do anything for you until you’re fired. Are any laws or government agencies designed to help a person with a hearing loss while they’re still on the job?

--P.G., Carson

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A: The federal Americans With Disa bilities Act and the state Fair Employment and Housing Act protect employees from disability discrimination. This means that you are protected from discrimination even while you are an employee.

Specifically, an employer is required to make reasonable accommodations to allow an employee with a qualified disability to perform the essential functions of his or her job. If you make your employer aware that you need such an accommodation--such as an amplifier for your telephone--and your employer refuses to provide it, you may seek help from either the Equal Employment Opportunities Commission or the California Department of Fair Employment and Housing.

In addition, the President’s Committee on Employment of People with Disabilities operates the Job Accommodation Network. The network provides suggestions and information regarding accommodations, and can be reached at (800) 526-7234. You do not need to wait until you are fired to receive assistance.

--Josephine Staton Tucker

employment law attorney

Morrison & Foerster

Company Must Provide Mandatory Uniforms

Q: I’ve been employed by a company for 13 years and we are required to wear a photo ID badge for admission to the premises. I lost my badge and the company says I have to pay $10 to have a new picture taken and to have a new badge issued. My position is that I shouldn’t have to pay for it.

--T.M., Fountain Valley

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A: Despite what many employers believe, employees are not responsible for the unintentional acts of damaging, losing or misplacing an employer’s equipment.

The state labor commissioner’s California Wage Orders require employers to provide mandatory uniforms at their expense. Some employers comply with this requirement by providing a uniform allowance for employees. If your employer requires you to wear an ID badge, it is considered a “uniform,” and must be provided by the employer.

An employer can require its employees to provide a security deposit for any equipment provided to employees, including the cost of replacing an ID badge. Terms of the security deposit must be in writing. Upon termination of employment, the employer can dip into the security deposit if the badge is lost, as long as this is spelled out in the security agreement. The employer, however, cannot keep money to cover the ordinary wear and tear of the badge.

If the badge is lost, the employer must replace the badge at its own expense. Employees are liable for replacement costs if they destroy, deface, discard, or otherwise act with reckless disregard in caring for the badge.

To avoid these issues, employers can establish rules regarding property lent to an employee. Employers can prohibit employees from taking equipment home or leaving the equipment in the employee’s car. If an employee wants to use an employer’s equipment and take it off premises, the employer could require a security deposit. If the equipment is not returned, the employee is responsible regardless of whether the item was intentionally or unintentionally broke, lost, or misplaced. Further, employers could prohibit employees from taking the ID badge off the premises. Too many times employees leave the badge in their car, wallet, friend’s house, beach, etc., and then the employer has to replace it.

--William H. Hackel III

employment law attorney

Spray, Gould & Bowers

Get Employees Involved in Their Evaluations

Q: I have five employees who are located all over the United States. How should I go about evaluating their performance?

--S.I., Anaheim

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A: One strategy would be to have your employees put together portfolios that give details of their work-related accomplishments and evidence of their good work performance. These self-assessment portfolios can then be sent to you for evaluation and you can provide constructive feedback. Getting employees involved in the performance appraisal process is a good idea, whether or not it is motivated by geographical distances.

Ron Riggio

professor of industrial psychology

Cal State Fullerton

In Most Jobs, Overtime Right Can’t Be ‘Waived’

Q: An employee wants to work seven days on and seven days off, so he “waives” his right to overtime. A year later he sues the company for lost overtime dollars. Is the company at fault? What if a waiver has been signed?

--W.R., Placentia

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A: A few employers such as hospitals, nursing homes and residential care facilities are permitted under California law to adopt special 14-day “workweeks” in which employees may work more than 40 hours in one week without being eligible for overtime, provided that (1) they do not work more than eight hours in any one day, and (2) they do not work more than 80 hours during the 14-day “workweek.” Such an arrangement requires an agreement or understanding between employer and employee.

Employees of other types of employers may not “waive” their entitlement to overtime, however. Any attempted waiver, even if suggested by the employee, will not be recognized by the state Labor Commissioner or the courts. An employer may be held liable for lost overtime, therefore, in the situation you describe.

--James J. McDonald Jr.

attorney, Fisher & Phillips

labor law instructor, UC Irvine