Silence Is Golden if Talk Turns Imtimate

Q In my work setting, there are a number of rather young male and female workers. Often, the conversations turn to detailed, sometimes intimate discussions of dating.

I worry that joining in these conversations may subject me to accusations of sexual harassment.

What should I do?

--D.J. Santa Ana

A Although it may be unlikely that anyone would construe discussions among co-workers about their dating activities to be a form of sexual harassment, you might want to be prudent and steer clear of these discussions.

Socializing and bonding with co-workers can be important, but you are obviously concerned about the tone some of these discussions take.

The safest strategy would be to keep a low profile when the discussions turn intimate.

You are wise to consider how your behavior in the workplace might be interpreted by others.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Suspect Harassment? Proceed With Caution Q I have been a support-staff employee at the same law firm for the better part of 20 years and, given my maximum pension-vesting and vacation days, have reason to suspect that management has been instructed to induce me to resign or to terminate my employment.

In recent months, I have been assigned several projects at a time--all with similar deadlines. I can meet most--but not all--of the deadlines. I am invariably reprimanded for failing to meet all deadlines, yet management will not authorize overtime for me or hire temporary help.

Inasmuch as I am over 40, I am highly unlikely to be hired by other law firms. I have written to the California labor commissioner, only to be told that its personnel can be of no assistance. Can any other government agency be of assistance? Should I hire a lawyer?

--J.S., Mar Vista


A Unfortunately, employers sometimes resort to harassment to try to force employees to quit.

Although the California labor commissioner apparently was unable to assist you, it should not be implied that the office was avoiding you. The labor commissioner is not set up to assist on discrimination claims unless they are based on the whistle-blowing or a similar type of activity by the employee. If the harassment arises out of discrimination, the appropriate state agency is the Department of Fair Employment and Housing.

A lawyer can certainly help you understand your rights in the workplace while you are still employed. In fact, lawyers like to get involved in a case before a termination or resignation occurs. Much more evidence of the employer's wrongdoing can be obtained if the employee is still working there than if employment has ended.

The real challenge is what to do about the problem while you are still there. You indicate that you would like to retain the job but solve the problem. You need to be very diplomatic.

Put your claims and concerns in writing to your supervisor. If the firm gives you too many assignments and you can't meet all of your deadlines, ask for a clarification of priorities. Document any differences between the way the firm treats you and others. Try to determine the reason you are being harassed. That might make a big difference in how you respond.

If you are being harassed by one particular supervisor, consider approaching that person privately about the problem. You might "win more points" that than you would by going over his or her head. However, if you need to, go up the ladder of authority to discuss your problem.

Review the employee handbook for employer rules regarding this type of treatment. It there is an internal grievance procedure, consider using it.

An attorney's letter to management can accomplish a lot, but can also ruin your future with the employer. Employers will seldom forget an employee who has threatened a lawsuit or who appears to have a lawyer ready to make a claim at the slightest mistake.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Commission Deduction for Lost Business Illegal Q I work for a medical equipment manufacturer that employs direct field sales representatives. Most of the representatives have very large geographical territories.

The company has instituted a policy that penalizes representatives when the company learns, during a telemarketing call, that a representative's account had switched to a competitor. When this happens, a significant dollar amount is deducted from the representative's commission.

Can a company take commission dollars away from representatives for lost business in this manner?

--W.H., Ventura


AWhen an employee is paid on a commission basis, the employer must pay the employee the commission earned under terms of their agreement. An employer can not penalize an employee for a loss of a customer.

But when a customer has switched business, the employee is only entitled to commissions on the business received up to the switch. After that, the employee is not entitled to additional commissions.

--William H. Hackel III

Employment law attorney

San Clemente

Personnel Files Are Property of Employer Q Do I have the right to require a former employer to mail a copy of my personnel file to my home? I was told I could come in and view it.

--A.B., Los Angeles


A No. Although you refer to the file as yours, it is not. It was a file that your employer maintained concerning your employment, and it belongs to your employer.

All that the law requires an employer to do is to allow current or former employees to review their personnel files upon reasonable request and notice. What your former employer told you was correct.

--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 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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