Holidays Don’t Benefit Retail Chain Manager : ALSO: Applicant Tests May Violate Law; Varied Pay for Same Work Legal; Job Description Changes Natural

Q I work for a large retail chain as a salaried manager. The employee handbook lists eight paid holidays for salaried employees, but our stores remain open and I am required to work on most of these holidays.

My boss often refuses to allow me to take another day off in place of the holiday because the needs of the business will not allow me to take off during the busy period.

I feel like I am being denied a benefit that other salaried employees of the company are allowed. What recourse do I have?

--C.G. Costa Mesa

A It is unclear whether an employee hand book constitutes a “contract” that is enforceable by law. Usually this depends on specific language in the document. If the handbook were to constitute a contract, you might have a claim that could be pursued in court.

Taking into account the amount of money involved and the fact that such a lawsuit likely would poison your working relationship with your boss, however, this might not be the best approach.

A better strategy might be to ask your boss to pay you extra for working holidays, or to give you paid time off during a less busy tine of the year. If a compromise cannot be reached and the issue is sufficiently important to you, you might consider seeking employment at another company.

--James J. McDonald Jr.

attorney, Fisher & Phillips

labor law instructor, UC Irvine

Job Tests Could Violate Privacy and Bias Laws

Q After having a job interview, I was asked to come back for a test. The interviewer did not say what the test would be. It turned out to be a battery of psychological tests and what I believe was an IQ test.

I was never offered a job, and am now bothered that this company has highly personal information about me. It also bothers me that they did not gain my informed consent to take these tests.

Do I have a right to the originals of these tests? How should I approach the company?

--L.D., San Diego

A A psychological or intelligence test may violate privacy and discrimination laws. These tests sometimes ask very subtle questions to gain information about religious, political or sexual beliefs of the applicant. Such motives may not be readily apparent on the surface. It would he certainly easier to evaluate the legality of such a test if you could obtain a copy of it.

Although you may have an argument that the company violated your rights of privacy, this must be balanced against the interests of the employer to obtain certain information on a reasonable basis. You have to consider the type of job for which you were applying. Jobs requiring certain physical or mental skills might justify questions that would otherwise constitute an invasion of privacy.

Even though you objected to these tests, it may be difficult to prove a connection between the results of the tests and the fact that you did not get the job. If possible, compare your qualifications with those of the person who eventually got the job.

You have a right to inspect these tests and to get a copy, although the company is entitled to keep the original. You can certainly ask the company to give you the original and all the copies of the test since you did not get the job. If they refuse, demand that they keep the results strictly confidential.

--Don D. Sessions

employee rights attorney

Mission Viejo

Nothing Illegal About Varying Salary Scales

Q I work for a fairly large company created by a corporate merger. Both companies were similar, but had different pay structures. The companies merged three years ago, but nothing has been done regarding salary discrepancies.

To complicate matters, the company has recently consolidated some offices so that people are working side by side, with the same education and experience, doing the same work, yet getting pay that varies as much as 20%.

When the issue initially was raised, the company said salaries are confidential. Now, the company is “looking” into the discrepancies. Staff morale has hit an all-time low and employees are considering drastic measures such as a class-action lawsuit. Is there anything that can be done about this?

--W.R., Long Beach

A As long as the company is complying with the minimum wage and overtime laws, and is not paying employees differently based on discriminatory factors such as race, sex, religion or disability, the company can pay different rates to employees doing the same job.

An employer does not have to raise wages simply because it has merged with another company paying higher wages. In fact, an employer could reduce wages unless there is a contract prohibiting such a move.

You have been paid a certain wage for your work. Unless you can prove discrimination or a breach of contract, your lawsuit will have no merit. Filing a lawsuit would be a waste of money, unless you feel that it would compel the employer to review the salary discrepancy issue.

It would be better to request a meeting with the employer to discuss the issue. Although the employer would not be compelled to attend the meeting, it would be beneficial for the employer to meet with the employees to discuss the difference in pay for the same work. You should be prepared to show that the employees are doing the same work, however.

--William H. Hackel III

employment law attorney

Spray, Gould & Bowers

Job Descriptions Likely to Change With Time

Q As my small company has grown, many employees have wider job descriptions than when they were hired. Is it OK to change people’s job descriptions as the work and the company change and grow?

--C.S., Fullerton

A It is perfectly reasonable for companies to change or expand jobs with time. Indeed, the content and character of most jobs will change due to such factors as technological advancements, changes in organizational objectives and the introduction of new products and/or services.

Job descriptions should be updated to reflect these changes, but it is important that persons currently holding the jobs be involved. Dramatic increases in levels of responsibility or wholesale changes in the nature of specific jobs should be carefully negotiated with current workers, and should be accompanied by commensurate increases in compensation when appropriate.

--Ron Riggio

director, Kravis Leadership Institute

Claremont McKenna College

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.

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