Who’s in the Sleigh-Driver’s Seat on Holiday Policy?

Q: Since my company’s customers are retail, we are often open on holidays that other office workers get off. On these slow days, such as the Fourth of July and the day after Thanksgiving, my department manager tells us that only one employee needs to come in. Everyone else is to take the day off--as a vacation day.

With Christmas coming up, it doesn’t seem fair that we will have to take the day before Christmas as a vacation day if we are willing to work it. Either the day is an office holiday or it’s not.

Please advise if my company is violating the law.

--R.P., Los Alamitos

A: There is no law that requires employers to honor any day as a holiday or even pay wages to employees who get holidays off. Even though this does not sound like the appropriate holiday spirit, the law is the law.

Employers, however, must abide by any promises made to employees regarding holiday time off or payment of wages for holidays. Additionally, employers can’t enforce their holiday policy in a discriminatory manner.

In your situation, you probably won’t complain too much if the one employee required to come in on those holidays is not you. But if you have to work holidays, evaluate if the policy is being applied unfairly. If each employee takes a turn, then it may be a fair policy. If the employer defines “office holiday” in its procedures handbook or oral policy as a paid day off for everyone except one employee on a rotating basis, then that is office policy. The challenge you have is to get a clear statement from the employer as to the precise policy.

If the employer promised that all of the employees would get certain holidays off and that these are paid holidays, you should be paid double your actual time as well as the holiday pay.

I hate to be the bearer of bad news, but some employers can even change past favorable holiday policies, although they may have to give you sufficient warning of such change.

In any event, if the policy seems unfair, talk to your employer. Even the Grinch eventually changed his attitude.

--Don D. Sessions, employee rights attorney, Mission Viejo

Prospective Employer Has a Right to be Nosy

Q: After submitting a resume in response to a job advertisement, I was contacted by a prospective employer for an interview. Subsequently, I received an application in the mail that included an authorization form, to be signed by me, permitting the company to investigate “prior employment history, personal references and education background, as well as other relevant information that is reasonably available.”

The pretext for such an investigation was to ensure that the company “maintains a safe workplace” by hiring only “employees who are honest, trustworthy, qualified, reliable and nonviolent and do not present a risk of serious harm to their co-employees or others.” I was instructed to sign the authorization, or I would be disqualified from further consideration.

I was quite astounded by this request. I had no idea how broadly they would choose to interpret “relevant” and “appropriate” information. Would such blanket authorization give them the right to access medical or other personal records if they could gain access to them? Can a company deny employment because they do not approve of an applicant’s credit history or investment choices?

Although I have nothing to hide, I would never sign a blanket authorization permitting access to such confidential information. Do job seekers not have some rights to privacy?

--J.T., San Clemente

A: Job seekers, like any other individuals in the State of California, do enjoy a right of privacy under the California Constitution. However, that right is not absolute. Employers have the right to make certain inquiries regarding the suitability for employment of those who seek work with them.

Indeed, employers have a statutory obligation to ensure that their employees have a safe place to work. All one has to do is to read the newspapers these days to understand that some prospective employees may present a risk of violence to co-workers.

Employers, therefore, certainly have the right to make inquiries that will enable them to determine whether those seeking employment present such a risk, and to condition employment on an applicant’s agreement that inquiries may be made. Such inquiries reasonably would include checking prior employment history, references and educational background. Although an employer probably should not be basing employment decisions on a prospective employee’s investments, there may be circumstances in which it is legitimate to base an employment decision on a prospective employee’s credit history.

Of course, an employer’s right of inquiry does have limits. An employer may not ask questions about matters that are purely private and confidential and have no bearing on a prospective employee’s ability to perform the duties of the position safely. Moreover, an employer may not ask questions, such as the age of the applicant, because of federal and state law prohibiting employment discrimination.

Under the Americans with Disabilities Act, an employer may not make pre-employment inquiries seeking information about physical or mental disabilities of a prospective employee. However, such questions may be asked once a job offer has been extended and before employment has begun.

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

Do 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.