Company’s Way of Achieving Flexible Hours May Be Illegal

Q This is a small business where many of the tasks are not time-critical and many of the employees are part-time or full-time students. At times, we get into the position where people want to work 60-plus hours per week but only a 20-hour week before finals. Each week the employees get together to make sure the critical tasks are covered and then draw up a work schedule.

This extreme flexibility is advantageous when someone needs three hours to handle a DMV problem or five days for a family problem, but it doesn’t appear to be fully legal. Everyone is instructed to average 40 hours per week, but sometimes they are above or below that average.

The effect is similar to the very flexible shift trading that makes things legal for the employer but a complicated IOU system for the employees. How can we maintain this flexibility and be legal?

--D.W., Huntington Beach

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A Under current law, an employer has little flexibility to implement “comp time” arrangements. Although several pieces of legislation have been considered at the state and federal levels that would give employers and employees more flexibility in this regard, none has been enacted.

Although California law permits a limited amount of “comp time,” provided numerous strict prerequisites are met, federal law does not permit use of comp time outside a particular pay period. Thus, under most circumstances, if an employee works 60 hours in a week, he or she will be entitled to the applicable overtime premium. In weeks when employees work only 20 hours, however, they need only be paid for the number of hours worked. They need not be paid for 40 hours that week.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Dealing With HIV Discrimination Q One of my co-workers is HIV-positive and encounters a lot of discrimination from the other workers in the company. What should be done to deal with this?

--H.B., Riverside

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A California and federal laws prohibit discrimination in the workplace. AIDS or HIV-positive status is a protected disability under these laws.

Since the first goal should be to try to stop the harassment and continue on the job, the victim should consider confronting those doing the harassing. Sometimes a private person-to-person request accomplishes a lot more than threats or going over someone’s head. The victim could share his or her feelings about the harassment. I realize this has nothing to do with law, but it might be the best approach to solve the problem. If that doesn’t work, a more formal request can be made in writing to the offending worker.

Another alternative would be to talk to management (documented by a follow-up letter) or to send a written complaint to the company. If a supervisor is harassing the worker, the company is liable whether or not it knows about the incidents. If the worker is being harassed by a peer, the company is only liable if it learns about the wrongful treatment and then fails to make a reasonable effort to do something about it.

Try to document the wrongful actions taken. Keep a diary of the history of the problem. Obtain home addresses of relevant witnesses and enlist their cooperation. Review company policy regarding discrimination.

A claim can be filed with the Department of Fair Employment and Housing within a year of the discriminatory act. If there is discrimination because of sexual orientation, a claim can be made to the labor commissioner’s office within 30 days of the discriminatory act. A civil lawsuit could also be filed within one year.

--Don D. Sessions

Employee rights attorney

Universal City

Privacy Rights in Comp Claim Q I have a workers’ compensation case. The insurance carrier asked for my personnel file, which I refused to send. It then contacted my employer, who instructed the human resources department to send it. Is this legal?

--J.M., Pasadena

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A By filing a workers’ compensation claim, you have waived some of your privacy rights. Generally, information regarding your employment, duties, hours of work, leaves of absence and medical history will be relevant in your claim. Only performance appraisals and discipline reports might not be relevant.

By asserting a work-related injury, it is now up to the workers’ compensation system to determine not only whether you were injured on the job, but also whether you are able to return to work at your old job or need to be rehabilitated for a new function. Thus your employment background must be analyzed.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

Perimeters of Non-Compete Clauses Q I have a service-oriented business with about 15 employees that caters to children. When my business was young, I didn’t feel the need to impose contracts with non-competition clauses. My business has since grown and I have experienced a negative situation regarding this topic.

Can I ask current employees to sign a non-compete statement even though I didn’t ask for it upfront when they were hired? If I can, would it be a good idea or would it cause more harm than good?

--C.S., Newport Beach.

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A As a general rule, agreements in which current employees promise not to work with a competing business when they are terminated are not enforceable in California. These agreements are considered to be unreasonable restraints on trade.

However, California law, including the Uniform Trade Secrets Act, does prohibit former employees from using certain confidential information if they leave and join a competitor. This can include customer lists, pricing information, expansion plans, vendor information and any other information not generally known to the public that has economic value to the employer.

In your case, it would he a good idea to send out a memorandum reminding employees that they may not disclose confidential information to others and may not use it to compete with you when their employment ends. You also may want to include an agreement that your employees will not solicit other workers to go to work for them if they leave. You should seek legal advice on how to draft such a memorandum.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker