Aide May Have Recourse If Hiring Promises Were False : Also . . . Evaluating a Bias Claim . . . Matching Paychecks With Paydays. . . and Penalizing Workers’ Tardiness

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Q: I was hired by a school district as an instructional assistant in Vietnamese but was assigned to a special-education post that is not my proper field. After just two months, the district terminated my employment. The evaluation said my skills and experience “do not match this assignment.”

Could I complain about this termination and get compensation from the district?

--O.N.D., Westminster

A: Possibly. An employer has a right to reassign an employee to new duties if that is where the employer’s needs are, and to terminate an employee who fails to meet those needs.

However, an employer does not have a right to induce an employee to leave prior employment by making factual misrepresentations that it knows to be untrue, or by making promises that it does not intend to keep.

If you received some guarantee or assurance from your employer about your duties prior to being hired, and what you were told has proven to be untrue, you may have a claim.

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

Bias Claim Possibilities

Q: I am a 51-year-old professional design engineer who has taught at a California community college since 1989. I have been informed that the sections of my classes do not have sufficient enrollment and will be canceled.

This is the policy of the college and the condition of my employment. However, the lead instructor has told me that the remaining students will be transferred to another instructor who was hired recently. He has never taught at the college level. I’ve never seen him and I don’t know his age.

A labor attorney I spoke to said he didn’t think he could pursue a discrimination charge without more information. A person at the state Fair Employment and Housing Department said someone would call me in a couple of weeks for a telephone interview regarding my concerns about age discrimination.

Do I have to investigate to find out this other instructor’s age? If so, how would I do it without risking an invasion of privacy charge? Whose obligation is it to prove age discrimination?

--G.P., Irvine

A: “Burden of proof” is a legal term that establishes which side has the obligation to prove certain facts. If you desire to pursue an age discrimination claim against your employer, then you need to prove it. Ultimately, it is not sufficient that you simply show that you are over the minimum 40 years of age and that your employer has given preferential treatment to a younger employee. You must also prove that there is no legitimate reason for such a double standard, such as performance or education and other skills that you may not have.

You can learn much about another person without invading their privacy. Why not simply talk to some of your friends at the college and try to find out the age and skills of the other instructor? Look for other factors of his selection over you. Is he a friend of your supervisor? Has there been any hint of other bias toward you in the past? Your description of the facts does not tell us whether you are a man or a woman. Are they preferring to replace you because the other instructor is a man and you are a woman?

In evaluating your case, you need to consider other factors. Claims against public entities such as a community college may have special requirements. You may be required, for example, to file a notice of your claim within a short time period. It is not unusual for an instructor at colleges to have a year-to-year written contract. If this applies to you, you need to closely evaluate your rights as specified in that contract.

It is to your benefit to do an adequate investigation before filing a lawsuit against them. If you ultimately lose, your opponent could sue you for their attorney’s fees as well as damages from malicious prosecution and other claims.

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

Salary Checks Must Be Payable When Issued

Q: My pay periods are the 5th and 20th of the month. But because the company is out of Ohio, they have mailing dates and deposit dates that are usually two to three working days afterward. I was wondering if that was legal, because you should have access to the money on the 5th and 20th. It shouldn’t matter that the company is out of state because it is operating in California.

--Garden Grove

A: As a general rule, an employer is obligated to pay its employees two times during the month, on days designated by the employer. The employer must post a notice of its paydays. Further, a check given to the employee must be payable, on demand, at the time it is issued. The law does not require the employer to draw the check out of any California bank.

Your employer may be violating California law by delaying its payment pursuant to its posted notice. I recommend you contact the California labor commissioner. However, do not expect to get rich off of this violation.

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

Employers’ Response to Chronic Tardiness

Q: I am an employer in a small company with five employees, and some are always late. Am I obligated to pay employees for the hours they are late? Sometimes they come in an hour or two late.

--Tustin

A: It depends on whether the employees are exempt or nonexempt under the wage and hour laws.

You need not pay nonexempt employees for hours they do not work. It is important, moreover, that you keep an accurate written record of all hours worked by nonexempt employees. A time clock is the best option since it usually creates the most accurate record, but a time card written out by hand and signed by the employee is acceptable. Either way, you should implement a rule prohibiting employees from submitting falsified time records.

You may not deduct pay from exempt employees who are late without endangering their overtime exemption. The law treats such deductions as tantamount to treating the employee as a nonexempt hourly employee.

You may, of course, discipline or terminate employees for their tardiness, regardless of whether or not they are exempt under the wage and hour laws.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine

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