Qualifications Are Key in Wrongful-Demotion Claim : Can companies not pay for overtime? . . . Can I get benefits I failed to sign up for if the information given was hard to understand?


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 Questions of general interest will be answered in this column on Mondays.


Q: I have been employed by a very large health-care company for five years. Two years into my employment as a vice president’s secretary, my boss was promoted to our main office in Chicago. After eight months of teaching his successor the ropes, he called me into his office to tell me that I would be demoted and that a secretary, new to the organization, was to take my job.

He gave no explanation for the decision other than he wanted the other secretary. I checked with the human resources manager and was told: “He can do whatever he wants.”


Since that time there has been a reorganization. Both my boss and the human resources manager were laid off and the replacement secretary quit.

As a result of the demotion, I did not get a pay cut, but the salary framework for my level has prohibited any raises for the last two years. There is nothing in my file regarding the demotion other than the paperwork to make the change in jobs. My performance review is “outstanding.”

Do I have ground to take legal action?

--S.L., Fountain Valley

A: You may have a claim for “wrongful demotion.” The key is to understand the real reason for the demotion. Compare yourself with your replacement. Was the new secretary more qualified? If not, were there any differences between you and her based on age, race, sex or other type of illegal discrimination? What promises were made to you by management or the employee handbook regarding seniority and demotions? These questions need to be answered to fully evaluate your rights.

It is improper for management to demote you based on discrimination or retaliation against you for an improper purpose. Also, they need to abide by any contractual promises with you.

It appears, however, that your damages may be very limited because of the action. Apparently, there has been a reorganization and your superior was laid off. It is unclear whether your replacement quit on her own accord or because of an impending layoff.

If your old job no longer exists, they may have actually done you a favor by giving you this other job. Even though your job prohibited raises in the last two years, it appears that it was simply based on your level of employment rather than being discriminatory against you individually.


Since more than two years have passed, many of your claims might have expired because of your delays. Claims based on discrimination probably expired after a year. Claims for breach of oral contract might have expired after two years. Other claims might still exist, however.

You also can still complain to the company about the situation. I would suggest you do your homework first and evaluate other jobs outside your company. You might find that your current job position, although a demotion from your former one, earns you more money than other comparable jobs on the outside.

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

Overtime Doesn’t Apply to Higher-Level Jobs

Q: My son was just hired by an accounting firm and one of the policies is that overtime is paid as straight time. Is that legal in the state of California? He interviewed at three companies and this seems to be the industry standard.

A: If your son works in an administrative, executive or professional capacity, he is not entitled to overtime. For example, if your son is a certified public accountant, he would be exempt from the overtime laws.

If your son does not qualify under these exemptions and is 18 or older, or is 16 or 17 years old and is not required by law to attend school, he is entitled to 1 1/2 times his regular rate of pay for all hours in excess of 40 in one workweek or in excess of eight hours in any workday. If your son is younger than 18 and required to attend school, he is entitled to 1 1/2 times his regular rate of pay when working more than 40 hours in a workweek.

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

Reviewing Benefits Is Workers’ Responsibility

Q: I work for a state agency with a two-tier retirement plan. In the second tier, only the employer contributes. In the first tier, the employer contributes and also matches the employee’s contribution. The first tier also allows earlier retirement and vestment dates.


I and several of my co-workers would have signed up for the first tier had we been aware of its benefits. However, because the personnel department’s only action was to hand us a large folder filled with personnel and benefit information, many of us failed to sign up. Now, the first tier is no longer available to new employees.

Are we out of luck, or could we argue that our agency was negligent and therefore they should allow us to enroll in the first tier retroactively? If the latter, what type of action would be required?

A: It does not appear that you have any valid claim against your employer. From your description, the information that would allow employees to determine what plan was the most desirable to them was provided by your employer, but because the information may have been cumbersome to review, many of you chose not to read it.

Under those circumstances, it would seem that the employees--not your employer--were negligent.

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

The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.