Can I Keep My Sexual Harassment Complaint Quiet? Also . . . I Can’t Collect My Vacation Pay . . .The Boss Docks for Sick Days . . . Why Can’t I Vary My Shifts?

Q: I complained to the human resources manager where I work that I had been sexually harassed by my supervisor, and asked the manager to keep my complaint confidential. I was shocked when she told me that she had to investigate my complaint and would probably even be talking directly to my supervisor about what I had told her. My whole reason for confiding in her instead of talking to my supervisor was because I was afraid of what might happen to my career.

Do I have any right to prevent the human resources manager from going ahead with this investigation? After all, having been victimized once through sexual harassment, I do not want to be victimized again by losing my job or having my boss think I went behind his back.

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A: Having been notified of a complaint of sexual harassment, the company would not be living up to its obligations under the law if it failed to investigate whether sexual harassment has occurred. You must remember that there are other employees in the workplace, and if your supervisor is harassing you, he or she may be harassing others as well.

The company has a responsibility to all of its employees to prevent sexual harassment in the workplace or to stop harassment if it does occur. This means that the human resources manager must investigate and take prompt, remedial action even if the person complaining would prefer to bury the issue.

On the other hand, you should expect the human resources manager to protect your interests as much as is feasible during any investigation. To protect your privacy interests, she should not raise your name during the investigation unless it is necessary either to obtain accurate information or to apprise those in the company who have a business-related need to know.

To protect you against possible retaliation by your supervisor, the human resources manager should let the supervisor know that any retaliation, subtle or otherwise, is against the law and will not be tolerated. She should also invite you to contact her if you have reason to believe that you are experiencing retaliation.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

Laid-Off Worker Is Entitled to Vacation Pay

Q: I’m having a problem collecting vacation pay after being laid off. Are there state or federal laws covering that?

--G.H.

A: Yes, there is a section of the California Labor Code that covers vacation pay. It provides that a terminated employee must be paid all accrued, unused vacation pay at the time of his or her termination. An employer that fails to comply may be subject to penalties of up to 30 days of the employee’s salary in a proceeding with the Labor Commissioner’s office.

In your particular case, if you were permanently laid off by your employer, you may have a claim. If, however, your layoff was intended to be temporary, you may not.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Paid Time for Sickness Not Required by Law

Q: My employer has an unwritten policy that he does not pay salaried exempt people for absenteeism, including sickness. Is that legal?

--B.J.

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A: No law requires that employers provide paid time off for sickness or any other reason. Exempt employees may be “docked” pay for absences in no less than half-day increments without losing their exemption from overtime. For example, if you are absent a full day you can be docked a full day’s pay. If you are absent more than four hours, you can be docked half a day’s pay. But if you are an hour late you cannot be docked an hour’s pay.

Note that even though your employer cannot dock your pay for absences of less than half a day, you may still be subject to discipline for such absences, depending upon the reason. Although employers are required by the family and medical leave laws to excuse absences due to a “serious health condition” of the employee or the employee’s immediate family member, absences due to ordinary nonserious illnesses, such as colds or the flu, are not protected and may result in discipline if the absences become excessive.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Workers Can’t ‘Waive’ Guaranteed Rights

Q: My supervisor will not allow me to work varying shifts, saying that this would involve “double-back” overtime. For example, if I come in at 10 a.m. Monday morning and then at 8 a.m. Tuesday morning, I would get two hours of overtime, according to my supervisor.

I have told her that I am willing to waive the overtime, but she says this is against the labor laws. Is this true?

--D.D.

A: Yes, this is true. An employee cannot contractually waive any right or remedy to which an employee is entitled under state law. Most employers in this state are obligated to pay nonexempt employees overtime for working more than eight hours in one workday or over 40 hours in a workweek.

Your employer may wish to look at some alternatives. Many employers have established flexible work schedules to meet employee/business needs. This arrangement permits an employee to work less than five days a week but longer days without receiving overtime. Employers must follow strict guidelines when using this schedule.

Employers can also establish different workdays and workweeks for various groups of employees, as long as the change is intended to be permanent and is not designed to evade the employer’s overtime obligations.

--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.