New Employer Needs Some Tips on Time Off
Q: I’m a new employer with three full-time hourly workers. Having started my machine shop business from scratch in Southern California just two years ago, I don’t know the rules concerning paid vacations and daily break periods.
Am I obligated to make paid vacation time available to my employees? How much “break” time must I make available to my hourly employees during a normal eight-hour day, including lunch and coffee breaks? Am I required to pay my hourly employees during their break times? --M.O., Mission Viejo
A: You are not obligated to provide your employees with paid vacation. While California law prohibits an employer from taking away vacation that has been earned under an existing vacation policy, no law requires that an employer offer paid vacations.
California law requires that employees who work an eight-hour day be given an unpaid meal period of at least half an hour, plus two paid 10-minute breaks, one in each half of the workday.
An employer may require employees to restrict personal phone calls, refreshment breaks and other personal activities to these two breaks. An employer may also prohibit employees from using their break times for tardy arrivals, long lunches or leaving early.
--James J. McDonald Jr.
attorney, Fisher & Phillips
labor law instructor, UC Irvine
Relationship Started Before Firm Banned It
Q: I have been employed with my firm for 12 years and am currently in a managerial position. I am dating a manager at the same firm.
When we first started dating a year ago, we attended a few company functions together without receiving any feedback. Now, the company has decided to enact a new policy prohibiting employees from fraternizing among themselves.
Should I go directly to my supervisor and discuss this openly with him, keep our relationship to ourselves or end the relationship? I am really wondering what the company’s actual rights are in this situation and what mine are.
--K.F., West Covina
A: I suggest you go with your first option. Set up a meeting with your supervisor and get everything out in the open. Because your relationship is over a year old, and predates any new company policy, it seems unfair that the policy should apply to you.
Although it is understandable that a company might want to discourage dating among employees, this kind of policy infringes on the personal rights of employees and presumes to tell them how to run their personal lives. In my opinion, this type of strict company policy is asking for trouble.
I hope the company might rethink the implications of such a policy. Perhaps your situation will cause them to.
--Ron Riggio, director
Kravis Leadership Institute
Claremont McKenna College
Someone’s Mistaken About Comp Time Law
Q: The salaried employees in my department put in between 80 and 110 days of overtime on out-of-town projects, including weekends. There is no extra compensation for this.
When we want to take some comp time, we’re told to use vacation time. Is this legal?
--R.S., Norwalk
A: It appears that you or your employer are confusing several technical terms.
Are the employees classified as exempt or nonexempt employees? Simply being paid on a salary basis does not mean the position is exempt from overtime pay. If the positions are nonexempt, then the employees would be entitled to overtime for hours worked in excess of eight hours per day and 40 hours per week.
Have you and your employer agreed to use comp time in lieu of being paid for overtime? There are very strict rules covering the availability of comp time. For instance, there must have been a vote by the affected employees that they wanted to use comp time in lieu of overtime. Further, the employer must agree to provide for comp time. Too often employees and employers misunderstand what comp time is all about.
You or your employer may be incorrectly confusing comp time and vacation time. Comp time entitles the employee to take time off with pay for each hour of overtime worked. Vacation time is time off with or without pay. If you want a day off, you should be able to use the vacation time you are entitled to use. If you are entitled to comp time, your employer cannot force you to use vacation time.
You need to get your facts together and visit the local office of the California labor commissioner.
--William H. Hackel III
employment law attorney
San Clemente
Psychological Tests Must Be Kept Private
Q: My employer put me on leave and required me to take a psychological examination after I had a heated confrontation with my supervisor while grieving a reprimand. After the exam, I was told the results were normal and that I could report back to work. About two weeks later, I found out that my employer had received a written report of the psychological/fitness exam and that it contained personal information about me and my immediate family.
Now I’m concerned about how my employer might use this information. Did the company violate my right to privacy? Can I force my employer to remove the report from its internal files? Are there any restrictions on how the company can use this information?
--R.S., Los Angeles
A: Under certain circumstances, employers may require employees to take a psychological examination. Certainly they have a duty to prevent violence in the workplace. If the employer has reasonable cause to believe that you might be a threat to others, it can be legally required to pursue such an evaluation in good faith. The employer would have stronger justification if it has required such examinations of other employees as well.
Evaluate the need for the examination in the first place. Did your employer have reasonable justification based upon your actions? Or was it simply a harassment technique based on discrimination against you for another reason? Harassment or retaliation against you for a discriminatory reason is illegal.
Your employer also must ensure the privacy of the results. Otherwise, you may have a claim for invasion of privacy. Medical and psychological information should be kept strictly confidential.
You did not say, however, that your company has misused this information. Apparently, it simply received the information from the physician. Your doctor/patient privacy rights may have been violated, but your claim might be more for medical malpractice rather than against your employer. Evaluate how the report got into the hands of your employer. Did your employer request it, or did the doctor unilaterally send it?
You certainly have a right to ask management to remove the report from your file. It is illegal for them to rely upon this information to your detriment. Unfortunately, if you make too big of an issue of removing the report from your file, management may remember the information much longer than otherwise.
--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.
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