Nonpaying Job? Document Conditions Before Quitting. Also: Do I have to buy my own uniform? . . .Must my employer pay extra for holiday shifts?
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 message; or send e-mail to shoptalk@latimes.com. Questions of general interest will be answered in this column on Mondays.
Q: I am planning on leaving my job. I can no longer stand the fabrications and embarrassing situations that the company president puts me in. He has trouble meeting the payroll from week to week and is not paying any of his current or past expenses. He has no ability to obtain any capital. He has already liquidated several items.
Basically, he should close shop and lay off the remaining employees, but he is being sued by the investors and doesn’t want to accept defeat.
What are my chances of collecting unemployment if I quit? Can I lay myself off?--H.B.
A: You should have no problem collecting unemployment if you quit. The Employment Development Department will not hold your quitting against you when it is for such justifiable reasons as not receiving your wages, not receiving wages on time or intolerable conditions in the workplace.
A layoff occurs when the employer terminates your employment because of downsizing. That term should not be applied to your situation. You still should get your unemployment compensation whether your departure is called a layoff, quitting or being fired.
It may be important to document the conditions in the workplace before you end your employment. You might send your boss a letter documenting the nonpayment of wages, late payment of wages and other conditions. This may constitute appropriate proof in a subsequent application with the Employment Development Department for unemployment, or other actions that you might take.
Even though it appears the company itself is in great financial trouble, you still may have a claim against the president. Evaluate the president’s financial situation before you close the book on your claims against the company. The president may also be liable for the company’s failure to pay your payroll taxes if it failed to do so.
The company and he may also be liable for penalties to the state for failure to pay wages in a timely manner. There may also be criminal penalties.
--Don D. Sessions, Employee rights attorney, Mission Viejo
Salesclerk Has Right to Some Lost Commissions
Q: A woman has worked for a department store for 22 years and just recently discovered that for the past seven years she has been paid a commission that is 2% lower than everyone else’s.
The company told her that by law they are required only to pay her the difference for the past year, but that doesn’t sound right to us. What is the employer’s obligation, since they made the error?
A: If the employee has a written contract, she would be entitled to lost wages for the previous four years, assuming she has proof she was not paid correctly. If she does not have a written contract, she can recover her lost commissions for only the past two years.
The employee has a chance of recovering lost wages for the entire seven years only if the employer were to agree that the underpayment occurred.
If the employer refuses to pay, the employee can file a lawsuit in a state court and/or a claim with the state labor commissioner.
--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers
Employer Must Pay for Specific Uniforms
Q: Is there some kind of uniform allowance that employers are required to provide?
I work as a food server, and about three months ago the restaurant switched from providing uniforms to requiring employees to supply their own. A new manager isn’t happy with our khaki-colored shorts and wants us all to go out and buy black. Is there a limit?
--L.W.
A: Yes, there are limits.
If a nonexempt employee is required to wear a uniform as a condition of employment, the employer must provide and maintain such a uniform, regardless of the amount of the employee’s compensation.
Uniforms include apparel and accessories of distinctive design or color. There is no obligation to pay for uniforms generally usable in an employee’s occupation, such as nurses’ white uniforms and/or black and white uniforms of unspecified design worn by food servers, since these individuals can generally wear such uniforms wherever they work. However, the employer must provide uniforms for food servers if any other color is specified.
If the uniforms are made of fabrics, such as drip-dry items, that require minimal care, the employee can be required to maintain them.
But if the uniform requires ironing, dry cleaning, or separate laundering, the employer must maintain or pay for the maintenance.
--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group
Law Does Not Require Extra Pay for Holidays
Q: I work for a hotel that does not provide extra pay for working holidays. Do labor laws require that time and a half be paid on specific days, or is that up to the owner to offer as a benefit?
--D.N., Laguna Beach
A: It’s up to the employer to decide whether to offer premium pay for work on holidays. The law does not require it.
Of course, if employees who work on holidays have already worked 40 hours in that workweek, or if employees are required to work more than eight hours on a holiday, they would be entitled to be paid overtime at a rate of time and one-half.
--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine
