ALSO: Should Bras Be Required? : Can Benefits Differ in a Firm? : Changing Overtime Rules

Q I own a large company and I am getting more and more concerned about the increase in violent employees in the workplace. I was thinking about hiring a psychologist or psychiatrist to give some mental health tests to applicants to screen out those who might be violent or have other serious problems that could disrupt work or even harm others.

Is this a good idea? What sorts of tests are best for this purpose?

--J.G., Long Beach

A There are a couple of problems with your plan. First, under Equal Employment Opportunity Commission guidelines, a psychological test designed to indicate mental illness, such as the type of tests you are contemplating, can be construed as a medical examination. Under the Americans with Disabilities Act of 1990, medical examinations cannot be used for pre-employment screening. Such an exam can only be used when a conditional offer of employment is made.

A second problem concerns the ability of psychological tests to predict violent behavior in the workplace. There has been very little good, relevant research on using such tests to predict violence. Moreover, the actual incidence of people who become violent at work is likely so small (in relation to the nonviolent majority) that such a testing program would not be cost-effective.

A better strategy would be to invest your time and money in a testing program that focuses on the positive, work-related behaviors that you want to encourage in your work force. These kinds of testing programs have proved much more successful in selecting good employees than programs that focus solely on trying to weed out potentially violent or dangerous applicants.

--Ron Riggio

Director, Kravis

Leadership Institute

Claremont McKenna College

Should Bras Be Part of Work Dress Code?

Q I am trying to help a co-worker. She dresses decently and professionally, but never wears a bra to work. The employee handbook does not mention a bra or any undergarment.

Can a supervisor take an employee to task for not wearing a bra? Is there any labor law that would apply? The employee in question is a very good, honest and loyal employee and is also very productive.

--C.D., Los Angeles

A There is no labor or employment law that directly addresses the issue of wearing (or not wearing) bras or undergarments.

The issue usually arises in the opposite context. For example, an employer who demands that female employees wear provocative clothing to work may be violating antidiscrimination laws. Also, although employers are allowed to implement reasonable, nondiscriminatory dress codes, you acknowledge that this employee dresses in a professional manner and otherwise conducts herself properly.

I would not recommend that you approach her about her lack of a bra. Particularly if you are a man, any comments regarding her undergarments--regardless of good intentions--may be perceived as harassment.

--Josephine Staton Tucker

employment law attorney

Morrison & Foerster

Vacation Benefits Can Differ Within a Firm

Q Say a worker gets two weeks’ vacation a year until he works enough years to qualify for more. If the employee changes divisions in the company, can the new division’s policies override the terms under which he was hired?

In other words, can you lose a week’s vacation because you have been transferred or promoted to another division that has a different vacation schedule?

--R.M., Irvine

A The response to your question depends on whether you are working for a new employer. Transferring to a new division could mean you work for a new employer. If that’s the case with your your transfer, your vacation would be determined by the rules of the new division. If you had accrued any vacation or sick leave at the old division, you would be entitled to receive that money.

But if the new division is not separate from the old division, then your vacation would be determined under the existing rules.

--William H. Hackel III

employment law attorney Spray, Gould & Bowers

Hospital Can Change Its Overtime Rules

Q The hospital where I work once followed state law for employee compensation. Thus, any hours worked in excess of eight a day were overtime unless a specific 12-hour agreement forgoing overtime was signed by the employee.

Last year, the hospital announced that all employees would now be paid under federal wage law, which pays overtime only for hours in excess of 40 in a week. The hospital says it can do this because it is a special district hospital.

Some days, employees may have to work 12 hours and then be sent home another day with only five hours of work. Careful records are kept so that no one works over 40 hours. Is it legal for the employer to change from state law to federal law like this?

--B.K., Lancaster

A If the hospital is owned and operated by a state or local governmental agency, it is exempt from California law requiring the payment of daily overtime, and needs to comply only with federal overtime law.

In addition, daily overtime can be avoided through a policy that provides employees with compensatory time off equal to the amount of overtime they would have received. It appears from your description that your employer is doing this.

Therefore, it would appear that your employer has legitimately changed its practices in accordance with California law.

--Michael A. Hood

employment law attorney

Paul, Hastings, Janofsky & Walker

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626 ; dictate it to (714) 966-7873; or, e-mail it to shoptalk@latimes.com Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.