I Blew the Whistle and Got Demoted. What Can I Do? : Also, Can Retirement Credit Be Limited Based on Age?...Are Exempt Workers Entitled to Extra Pay for Overtime?

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Q: I was employed at a major drug chain as the pharmacist in charge. It soon became evident to me that controlled substances were being refilled with no regard to regulations.

After bringing this to the attention of the pharmacy district supervisor and refusing to continue the practice, I was berated, disciplined and demoted to relief vacation pharmacist. I also was reprimanded for refusing a customer’s demand for a two-day supply of a medication when no refill order existed.

I resigned rather than submit to harassment and abuse. I submitted the violations to the state pharmacy board, which substantiated my charges and found that the pharmacy violated regulations.

But I also would like to see the behavior and wrongdoing of the supervisor made part of his personnel file. This incident occurred four years ago, but the management has swept it under the rug, refusing to recognize the supervisor’s dereliction of duty.

--E.B., Anaheim

A: It is illegal for an employer to retaliate against an employee who in good faith complains about illegalities in the workplace, if those improprieties are of sufficient public concern and qualify under whistle-blower laws.

In this case it appears that the violations of your pharmacy did concern matters of sufficient importance to give you great protection. You could have filed a claim against your former employer because of the harassment and abuse that you tolerated. Your resignation could have been termed as a “constructive wrongful termination.”

The problem is that most legal deadlines have passed for filing a claim. Some cases place a deadline of one year for a whistle-blower retaliation claim. Others set it at three years. You could have a claim for breach of oral contract if made within two years or written contract if made within four years.

Even though you said the wrongdoing occurred four years ago, which would theoretically place you beyond most deadlines, you might fall within the filing period if the retaliation continued beyond the date of the first incident. If your employment contract was with an employer from another state, the deadline may be longer than four years, depending upon the state law.

Regarding your question about making your supervisor’s behavior a part of his personnel file, you could write a letter to the company asking it to make a note in his file. If your former employer simply does not want to recognize the supervisor’s wrongdoing, however, there is little you can do.

You had your chance when you potentially had power to sue the employer. This could have been negotiated through that process. Certainly, if you had filed a lawsuit, a public record of the supervisor’s wrongdoing would have been documented forever.

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

Credit Toward Vesting Should Begin at Age 18

Q: My daughter works for a major health-care organization locally. She will turn 21 in May. She has been employed by this organization since she was 17, which means she will have been with them more than four years when she turns 21. She assumed she would be vested in a retirement plan after five years of service.

During a conference with the human relations department last week about joining a 401(k) plan, she was told by the administrator that no contributions to a retirement plan would begin until she turns 21. I know most employers will not allow 401(k) contributions until an employee is 21, but I thought all employees were vested in a corporate retirement plan after five years by federal law.

I believe this to be a form of age discrimination. A young person is considered a legal adult at age 18 and should be eligible for all benefits given to other full-time employees. The benefits package given out upon hiring says, “You are eligible after reaching age 21 or achieving one year of service.” Are there any state or federal laws regulating this type of situation?

--D.F., Westminster

A: It’s not age discrimination because the laws against age discrimination only apply to people over 40 years of age. Depending on the terms of the 401(k) plan, however, your daughter is entitled to accrue a certain amount of credit toward vesting before age 21.

The federal Employee Retirement Income Security Act, which governs 401(k) plans, provides that such a plan may prevent an employee from beginning to accrue vesting credit until the age of 18. Vesting will only be so limited if the plan expressly states as much, however.

If the plan is silent, your daughter would begin accruing credit from her date of hire. You should review the terms of the plan document to determine whether it contains any restrictions on vesting. Under any circumstances, your daughter would at least begin accruing vesting credit starting on her 18th birthday.

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

Exempt Employees Not Entitled to Extra Pay

Q: I understand that an employer is not required to pay overtime or compensatory time off if an emergency situation arises that necessitates extra hours of work or even a full day’s work on a weekend.

But if an employer plans overtime work for salaried, exempt employees over a period of several weeks or even more than a month, would he be required to either pay the people or give them compensatory time off? If he is required to pay them, would they be paid their regular hourly rate or something else?

--A.B., Anaheim

A: There is no requirement under federal or state regulations for salaried, exempt employees to receive compensatory time off. Salaried, exempt employees are not entitled to overtime pay or time off for overtime work.

Arrangements with exempt personnel for compensatory time off are generally based on terms established by the employer’s policies and any agreement between the parties. There are some definite risks with such practices, and attorneys should review such policies before they are implemented. If compensatory-time plans exist, it is important to adopt sound record keeping to keep track of extra hours of work and accrued compensatory time. Employers also should consider placing a ceiling on the amount of compensatory time that can be accrued.

The compensatory time earned by salaried exempt employees would be equivalent to regular time.

--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.