Employees Are Usually Allowed to Compare Pay Scales

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: My supervisor has made it very clear that workers should not discuss our hourly rates of pay with each other.

I feel that if my co-workers and I do not mind disclosing this information to each other, we should be allowed to discuss it.

Shouldn’t employees have a right to know what their co-workers make in order to protect themselves from being underpaid for equal work?

It seems to me that my supervisor wouldn’t want us to keep quiet unless there is some type of unfairness going on.

--D.I., Long Beach

A: Unless your company has an explicit, written policy or agreement about not disclosing rates of pay, employees can discuss what they make if they so choose.

Employees often feel the need to discuss pay rates with colleagues both within the same organization and at other companies to determine whether they are being compensated fairly.

In fact, pay equities / inequities can be a major factor in determining employee motivation, morale and voluntary turnover.

However, the fact that your supervisor doesn’t want employees to discuss wages does not necessarily mean that there are pay inequities. I would discuss your concerns with your supervisor.

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

Smoking Not OK in Office

Q: I work in a small office where everyone smokes but me. To mitigate the situation, I have been assigned to work in the corner office, which has better airflow and a fan. But it doesn’t alleviate the problem. What state or federal government agencies can assist me in this issue?

--J., Huntington Beach

A: Since Jan. 1, smoking has not been allowed in “enclosed places of employment,” but there are a few exceptions. Among them:

* Smoking is allowed in break rooms that are designated by employers for smoking and have direct, outside ventilation. The room must be a non-work area. The employer also must provide a sufficient number of nonsmoking break rooms.

* The California Labor Code permits an employer with five or fewer employees to create a smoking area if the employees consent--without coercion. But the break room must meet proper ventilation requirements as well.

Infractions are subject to provisions of the California Penal Code. Local law enforcement and / or health agencies are responsible for enforcing the law.

It is always advisable to discuss these concerns with your employer, allowing the employer an opportunity to make corrections before involving any state or federal agencies.

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

Non-Competitive Pact Can Be Part of Contract

Q: What are the differences between a non-competitive agreement and a contract of employment?

--T.S., Riverside

A: A contract of employment governs the terms and conditions of the employment relationship, such as compensation, benefits, duties and grounds for termination. It need not be set out in one single document in order to be enforceable. For example, many courts hold that employee handbooks and other employment policies constitute terms of an employment contract.

As far as termination of employment is concerned, the rule in California is that employees are employed “at will” unless they have an express or implied contract to the contrary. This means that the employee is free to quit at any time, and may also be terminated at any time without cause or prior notice.

A non-competitive agreement may be included in a written contract of employment, or it may exist as a separate document. Such an agreement prohibits the employee from going to work for a competitor of his employer after the termination of his employment.

Courts in California will not enforce a non-competitive agreement in most cases, although courts of many other states will enforce such agreements if they are reasonable in terms of the time, place and manner of their restrictions.

It should be pointed out, however, that even in California, employees may be barred from competing with their current employer while still employed, and may also be prevented from taking or using a former employer’s trade secrets and confidential information in their new job.

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

Type of Job Determines Workers’ Exempt Status

Q: Who determines whether an employee is exempt? Short of joining a union, how do employees escape exempt status? Does an exempt employee have any “rights” under federal or California labor laws? As females?

--W.F., Santa Ana

A: Under federal and state wage and hour laws, exempt status normally is based upon the nature of the employee’s duties and responsibilities. The four most common exemptions are for executive, administrative, managerial and professional employees, but there are others.

Whether or not a particular employee is regarded as exempt is ultimately determined by judges or juries applying the applicable statutes to the facts concerning the employee’s duties and responsibilities. (The employee’s union membership has no bearing on the determination.)

Exempt employees have the same rights under federal and state labor laws as non-exempt employees, with one exception: They are not entitled to receive additional compensation for working more than eight hours daily or 40 hours weekly. An employer may not discriminate against an exempt female employee to any greater degree than it may discriminate against a non-exempt female.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker