Tardiness Can Result in Less Vacation Time

Q: I work for a small sales company with five employees in one office. On one afternoon, I received a memo from our manager that tardiness will not be tolerated and if an employee arrives after 9 a.m. (when we are expected to be at the office) and after 1 p.m. (when we are expected to return from our lunch break), a portion of their vacation time will be deducted.

Two weeks after receiving this memo, I received with my paycheck a summary of my accrued vacation time and sick time showing that the company had deducted 26.64 hours for 10 tardies. No dates were mentioned, nor did my management discuss this action with me.

Is it legal for a company to deduct a portion of an employee’s accrued vacation time for “excessive” tardies? What legal action can a company take for dealing with employee tardiness?

--P.B., Newport Beach

A: If you are a nonexempt employee, your employer need only pay you for time you actually work. If you show up late in the morning or do not return promptly after lunch, your employer does not have to pay you for the time that you were away from your job.

An employer has the right to enforce this rule in a number of ways. The employer could discipline or terminate an employee for excessive unexcused tardiness. The employer could deduct the time from the employee’s paycheck or, as your employer has done, could count that time as vacation use.

Of course, an employer must keep adequate time records and must ensure that any deductions from pay or accrued vacation are justifiable based on actual work time missed.

--Josephine Staton Tucker

employment law attorney

Morrison & Foerster

Layoff Rules Apply in Some Firm Buyouts

Q: Is there any protection for an employee if a company is bought out and the new employer lets everyone go without any notice?

--D.T., Pasadena

A: Under the Federal Worker Adjustment and Retraining Act, an employer with 100 employees that plans to lay off at least one-third of its employees at a work site must provide 60 days’ advance notice, in writing, to those workers. Notice is not required for unforeseen business necessities or a natural disaster.

Failure to provide notice does not mean, however, that the employee can continue his or her job. Instead, the employee is entitled to back pay and benefits, and the employer may be subject to local fines.

Further, if the company making the acquisition has agreed to honor existing employment contracts, including the former employer’s policies, the new employer must comply with any agreement regarding layoffs and severance.

--William H. Hackel III

employment law attorney

San Clemente

Side Effects Are Felt From Workers’ Comp

Q: I suffered an on-the-job injury and have been receiving biweekly checks for the past six to seven months. However, I am not eligible for raises, promotions and my participation in the 401(k) plan is limited to a percentage of the workers’ compensation benefit, therefore depriving me of the maximum company contribution.

The company’s policy appears punitive and I would appreciate another view. Also, can an employee use sick leave to offset the loss of money--combining workers’ compensation benefits with sick leave benefits?

--B.G., Cambria

A: The Internal Revenue Code places limits on the maximum contributions--from a participant as well as a company--to a 401(k) plan. Virtually all plans limit the participant’s maximum contribution to a percentage of compensation to help ensure compliance with applicable rules. However, these rules generally more stringently limit the contributions by highly compensated employees (as defined in the Internal Revenue Code) than contributions by other employees.

You could request that your employer amend its plan to permit larger contributions by employees who are not highly compensated employees.

Neither federal nor California law requires employers to provide sick leave benefits, so employers generally can provide them as they wish. Employers often do not allow employees to take sick leave benefits while receiving workers’ compensation benefits because, otherwise, those employees could receive more pay than if they worked.

However, your employer cannot discriminate against you because you are receiving workers’ compensation benefits. For example, your employer cannot limit your ability to use your sick leave benefits if other employees can use those benefits because of injuries that are not job-related, and are receiving other money (such as long-term disability benefits).

Similarly, your employer cannot preclude you from being eligible for raises and promotions if individuals on leaves of absences for reasons other than workers’ compensation are eligible for raises and promotions.

--Kirk F. Maldonado

employee benefits attorney

Riordan & McKinzie

Claim for Back Wages Stalls in State Agency

Q: In 1995, I filed a complaint with the Department of Labor Standards Enforcement, claiming my former employer owed me more than $60,000.

My former employer did not pay me back wages, overtime, vacation pay, expense money, profit sharing or bonuses going back to 1994. They even kept my 401(k) money.

The company is still in business, earning record profits, and even sent the labor standards department part of the money owed. But the department returned the money to the company without notifying me. Now the department has refused my phone calls and has not answered my letters.

Please let me know what I can do to get my case back on track.

--J.P., Brea

A: Even though the Department of Labor Standards Enforcement (the labor commissioner’s office) is underbudgeted and overworked, it makes no sense whatsoever for them to return money to the company and to refuse your calls. Since your case is relatively old, arising in 1995, we wonder if you failed to properly inform the department of your current address.

Consider asking to talk to the senior deputy at their office, or going to the office and asking to inspect your file over the counter. Determine whether your case is still open. You have three years to pursue your wage claims from the time they arose.

An attorney might be able to help you get action out the labor commissioner’s office. Your 401(k) money is yours, not the employer’s. Pursuing your claim through the Department of Labor Standards Enforcement is not your only option. You could always file a lawsuit against your employer.

--Don D. Sessions

employee rights attorney

Mission Viejo

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.

More on Overtime

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