Single? Employer Can’t Take Advantage of That : Also . . . Can I bank vacation hours? . . . His boss flirts with female workers . . . When does overtime start?

Q: I was recently in a situation where I was questioning my work schedule. They said that since I wasn’t married and didn’t have any children, I shouldn’t be complaining.

Can you offer some direction on whether my rights have been violated?

--K.L.

A: It appears you have been discriminated against because of your marital status. California’s Fair Employment and Housing Act prohibits such discrimination, and an employer cannot give preference to employees based on whether they are married, single, divorced or widowed.

You may want to contact the local Fair Employment and Housing office to file a discrimination claim.

But before filing the claim, you should check to determine the basis for the employer’s work schedules.

Employers are obligated to attempt to reasonably accommodate employees who have a family medical care concern.

If the employer has several employees who need to be scheduled to accommodate family medical care issues, the employer can alter the schedule of other employees who don’t have such concerns.

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

Banking Vacation Legal

Q: I read the article about “unused vacation” at the Broadway (Sept. 18), which mentioned California’s ban on “use it or lose it” vacation policies. I think my employer has a policy that is meant to circumvent the ban.

My employer has a “vacation hours bank” and a policy that says if you have already earned so many hours, you cannot gain any more until you use some of the vacation hours that you already have accumulated.

The company says that it is not a “use it or lose it system” because you simply are not earning vacation after you have accumulated a certain number of hours. I think this is just mincing words to circumvent the California ban.

What do you think? Could you identify the specific California law or code that forbids “use it or lose it”?

--E.H., Placentia

A: The California Division of Labor Standards Enforcement has specifically declared that a policy that sets a maximum number of hours or days of vacation that may be accrued by employees, beyond which they cannot accrue more until they have taken some of their vacation accrual, is legitimate and is not the same thing as a “use it or lose it” policy.

It would appear from your description that your employer’s policy complies with the directives of the labor standards division and is a lawful policy.

There is no specific law or code that prohibits “use it or lose it” vacation pay policies. However, the labor standards enforcement division and the state Supreme Court--interpreting California Labor Code Section 227.3--have concluded such policies are unlawful.

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

State Law Dictates Pay for Daily Overtime

Q: A friend of mine works for a day-care center in Orange County. She often works nine to 12 hours a day. She was told by her employer that she will receive overtime only if she exceeds 40 hours in a week. They told her it was an Orange County law.

It was my understanding that any work over eight hours in a day also constitutes overtime. I also work in Orange County and receive overtime for working more than eight hours in a day and for anything exceeding 40 hours in a week. Should she be seeking back pay?

*

A: There is no Orange County law that addresses the obligations of private employers to pay overtime. Federal law provides only that employees receive overtime for all hours more than 40 worked in a week, even though they may work more than eight hours in one day. California law, however, provides generally that employees must be paid overtime for all hours worked beyond eight hours in one day. California law overrides federal law in this respect.

There are some exceptions to the daily overtime rule. Employers may adapt alternative workweek arrangements whereby employees may work up to 12 hours in one day without receiving overtime, so long as they do not work more than 40 hours in one week. Several specific prerequisites must be met, however, for such an alternative workweek to be valid, including a written agreement, a meeting with employees to explain the arrangement, and a secret ballot election among employees.

In the absence of a valid alternative workweek arrangement at her place of employment, your friend would appear to be eligible for overtime.

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

Manager’s Flirting Needs to Be Addressed

Q: One of the managers in the company I work for is constantly flirting with the female employees, to the extent that they are not meeting their production goals. Yet the manager never reprimands any of the female workers. However, when a male employee such as myself does not meet the standard, he is immediately reprimanded. I want to bring this to his attention, but I do not think he will react rationally. What can I do?

--A.D., Garden Grove

A: There are two potential problems here: First, the manager is treating groups of employees--males and females--differently, and this needs to stop. Second, his flirtations may be construed as sexual harassment if the behaviors are unwanted by or offensive to the women workers in your organization.

This manager needs to be made aware of this situation immediately. If you feel that you cannot go directly to the manager, speak with his supervisor or to a representative from your human resources department.

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

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 ; call (714) 966-7873 and leave a voice-mail message, or send e-mail to shoptalk@latimes.com. Questions of general interest will be answered in this column on Mondays.