Employer Must Have the Money to Back Up Paychecks
Q: I’m one of about 30 employees working for an electronics company in Irvine. For the last four weeks, we got our weekly paychecks but the bank said there were insufficient funds in the employer’s account.
We brought it to the owner’s attention, and were told that we would have to wait, and that if anyone didn’t like it, just quit. We have to pay rent and buy food like everyone else.
Please advise us if the owner has violated any labor law by working people without paying them. How can we approach the owner to solve this problem?
--T.P., Yorba Linda
A: Under the California Labor Code, it is unlawful to pay employees by checks on an account in which there are insufficient funds to cover the checks. Any employee who is paid with such a check can go to the Division of Labor Standards Enforcement to complain, and that state agency will pursue a claim for wages on behalf of the affected employees.
It is also unlawful for an employer to retaliate against an employee for making a complaint that he or she has not been properly paid.
What I would suggest you do is to tell your employer that his payment practices are in violation of the law and that if it happens again, you will contact the Division of Labor Standards Enforcement.
If that does not produce the desired result, I would contact that agency directly.
--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker
Benefits Seem Warranted
Q: Our son and daughter-in-law just moved from Northern California to Southern California because he had a job opportunity here. My daughter-in-law left a job after three years. Her employer tried to place her here but there was no position available. She wants to collect unemployment, but it was denied because they said she left for personal reasons. Is she entitled to collect?
A: When a person voluntarily quits a job, he or she generally will be disqualified for unemployment insurance benefits unless there is proof that the resignation was for a compelling or urgent reason. Further, there must be evidence that quitting was the only alternative. So when a person quits work for family reasons, he or she has to show there was a compelling reason and no other remedy existed.
From the facts you gave, it appears your daughter-in-law left work to accompany her husband to a new location. Marital unity is respected in unemployment law so this kind of resignation will generally be considered good cause. If it was her husband’s decision to relocate, if the new residence is outside commuting distance to her former employer, and the employer could not provide a transfer to a position near her new residence, she would have met the criteria for eligibility.
Your daughter-in-law will need to file an appeal to the decision denying her benefits. She has 20 days from the mailing date of that decision to file it. The appeal to the Employment Development Department needs to be in writing and should state the basis for her appeal.
--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group
Flirtations Escalate Into Harassment
Q: I have been working for a company where, for some time, the manager would constantly flirt with me and I would flirt back. Lately, his flirtations have gone too far. My manager’s behavior is making me feel uncomfortable, especially since I work alone with him much of the time.
I have gone to the head of the company and complained, but the boss says that my manager is just flirting. What can I do to get this manager to stop harassing me?
--W.D., Anaheim
A: Because your manager’s flirtations have become unwanted and have started making you feel uncomfortable, they are no longer innocent flirtations and may now constitute sexual harassment.
Your manager must be made aware of how you feel. The most direct solution would be to approach him and let him know in no uncertain terms that his behavior is unwanted. Unfortunately, the head of the company should have listened to you and spoken with the manager.
If you cannot get the unwanted behavior to stop by speaking to the manager or the company head, then you need to consider additional steps, including seeking legal counsel. It may also be important for you to let a trusted co-worker know what is going on in order to protect yourself in the case of unfair managerial actions.
--Ron Riggio, Professor of industrial psychology, Cal State Fullerton
City May Be Shielded From Personnel Law
A: I have worked for a small city in Orange County for more than two decades. During this time, I have taken several promotional exams. As part of this process, three higher-ranking personnel from other cities usually give an oral exam.
It has been the practice of my employer’s personnel department to restrict the inspections of the “results,” “notes” and/or “comments” by the examiners. The personnel department refuses to allow applicants to read the written material associated with their exam. They insist on reading it to the applicants. They claim files associated with promotional exams are not personnel files.
I believe I have the right to read the written results in their entirety, complete with the names of the examiners. Am I right?
--G.K., Buena Park
A: The Labor Code provides that employers must permit an employee to inspect any personnel file that is used or has been used to determine the employee’s qualifications for employment, promotion, additional compensation, termination or other disciplinary action.
It would appear, according to this section and the cases interpreting it, that you have a right to review and read the results, notes and comments of the examiners on your exams. This right would only extend to your own file and not the exams of others.
The only problem is that public employers, as of 1993, became exempt from this law. It is possible that the city may have committed itself contractually in writing through the employee handbook or other documents to provide you with appropriate access to your file. Evaluate these documents.
--Don D. Sessions, Employee rights attorney, Mission Viejo
