Can a Firm Require I Pay to Move, Then Terminate Me? : What Questions Can Potential Employers Ask? ... Can I Lose My Vacation Because of Company Limitations?

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.

Q: In early 1993, I was recruited by a start-up company in California. Both the human relations person for contract employees and the chief operating officer indicated that “this will be your last job, so go ahead and pay your own relocation; it will pay off in the long run.” Another manager at a similar level received reimbursement for moving expenses.

I performed the duties as assigned, and after setting up the entire 13 western states was separated from the company in June 1994. I was told that I was not compatible with my supervisor.

I attempted to discuss this matter with an attorney, who said: “You are not in a protected class. It is not worth the effort to go after them.” I am over 50, and I spent a considerable amount to get here. Are there no protections out there for me?

--T.C., Lake Forest

A: Over the years, there has been considerable publicity about “at-will” employment. This is the right of the employer to terminate an employee’s employment and an employee to quit with or without cause. In California, we have not only case law that supports this doctrine, but statutory law as well.

There are limits to employers simply snapping their fingers and saying, “good-bye,” especially without a good reason. There are several exceptions that require “good cause” before an employee is terminated. The at-will rule does not apply to an employer who discriminates, retaliates for an illegal reason or breaches an expressed or implied contract to terminate only for good cause.

In your situation, there are few facts that hint at discrimination or retaliation for improper purpose. It appears that there is a mysterious double standard in the way they treated you as compared to another manager who received reimbursement for moving expenses.

You need to evaluate the real reason behind this difference. Was it because of race, age, sex or some other discriminatory reason? Also evaluate the alleged incompatibility with your supervisor. Incompatibility is not good cause for dismissal if it is based on discrimination.

You mentioned that you were over 50. The law protects those who are over 40 from age discrimination if it in fact exists. One evidence of such discrimination might be the younger age of the other manager who was treated more favorably.

The statute of limitations might be a problem. You were separated from the company more than a year ago. Unless you filed a claim with a state or federal agency, your delays might prevent you from claiming discrimination unless a contractual promise was violated.

You can claim fraud, citing false representations that initially were made to you. It might be difficult to show that they intentionally lied at that time, however.

It should be a lesson to you and others to promptly evaluate potential rights prior to expiration of legal deadlines.

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

Some Psychological Assessment Tests OK

Q: I went to apply for a job and was given two different questionnaires to fill out. One had about 230 questions and the other about 50. Some of the questions were borderline political and others dealt with sexual beliefs and history. I was shocked. Are these types of questions legal?

--F.W., Anaheim

A: This is an uncertain area of the law, as an increasing number of employers are using psychological tests and personality screening instruments in selecting their work forces. The employer’s right (and obligation) to screen job applicants must be balanced with an applicant’s right to privacy and right to be free from unlawful discrimination.

The right to privacy contained in the California Constitution may prohibit unreasonable inquiries into the sexual and political beliefs of job applicants. What is “unreasonable,” however, depends on the job in question and the nature of the inquiry. An applicant for a sensitive government job or a private-sector job with a security clearance can be asked more probing political questions than an applicant for a warehouse job. Similarly, an applicant for a job teaching or counseling children or adolescents may be asked questions of a more personal nature than an applicant for a computer programming job.

It sounds as if you were asked to complete two fairly common psychological tests. These tests place much less significance in an applicant’s answer to one question than in the pattern of answers to a number of questions. Also, they are usually “true/false” or multiple choice-type questions, as opposed to “fill-in-the-blank” questions that require the applicant to provide narrative answers to potentially embarrassing personal questions.

The lawfulness of these tests likely depends upon why the employer is administering them. The Americans With Disabilities Act prohibits an employer from conducting medical examinations of job applicants at the pre-offer stage, and psychological tests are considered to be “medical examinations” if they are used to detect mental illness. If, by contrast, the tests do not diagnose mental illness but instead predict the ability to lead or get along with people, for example, and such an ability is necessary for success at the job in question, the tests are more likely to be lawful.

--James J. McDonald Jr., attorney, Fisher & Phillips, labor law instructor, UC Irvine

Employer Must Give Chances for Time Off

Q: I work for a large drugstore chain as an assistant manager. My store was being remodeled for three months last summer, and nobody was able to take vacation during that time. After the remodeling, my boss gave us a few personal days off, but no vacation was granted for management personnel. The reason for this is that the store had to be prepared for the holiday season (Halloween, Christmas, etc.).

I had one week of vacation left at the end of the year, and my colleague had almost three weeks. Company policy is that vacation has to be taken before Oct. 15. Should I be allowed to accrue the vacation not taken in 1995 and take it, for example, in February (after inventory in January) or be paid for it?

--U.G., Huntington Beach

A: California regulations extend broad protection for accrued vacation benefits of employees in the private sector.

Many employers do not permit employees to carry over vacation time from one year to the next and do not allow employees to receive vacation pay in lieu of taking vacation time off. However, “use-it-or-lose-it” policies that result in forfeiture of accrued vacation are not permitted under the California Labor Code.

Even though your company policy stipulates that earned vacation must be taken before Oct. 15, if your employer was unable to provide adequate time off to take vacation, it cannot be forfeited.

Present this information to your employer and work out some satisfactory arrangements for allowable exceptions to the company policy. Your employer should either schedule vacation time off or pay you for the unused vacation.

--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group

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