Employer Can Assign Duty With Hazards

Q: I work for a company that uses chemicals. They’ve recently established a team to handle spills and assigned me to be a member without my consent. When I expressed my concerns to management, they informed me that I could be terminated if I did not participate.

When I was hired, there was no mention of a spill team. Do I have any recourse? Am I entitled to additional compensation?

Some of the chemicals are quite dangerous, and the spill team has to be on call 24 hours a day.

- J.G., Huntington Beach

A: Your employer can require you to work on the spill team and is not required to provide you additional compensation simply for performing such work. Unless there is a union contract, an employer has the right to assign work to employees as it sees fit.

Whether you are entitled to be paid for time spent “on call” depends upon whether you are required to stay on the employer’s premises or are otherwise prevented from using the “on-call” time for your own purpose. If so, you are entitled to be paid.

If, however, you are merely required to carry a pager or leave word of your whereabouts, you are not entitled to extra pay for being on call. Of course, you are entitled to be paid for time worked if you are actually called into work to handle a spill during your off-duty hours.

Also, your employer is required to abide by all occupational safety and health laws in the course of cleaning up toxic spills. This would include providing adequate protective gear for the employees involved, as well as making available information (known as “material safety data sheets”) on the hazards of the chemicals involved.

If your employer failed to follow these rules, you would have a right to refuse to perform toxic cleanup work. Otherwise, you must accept the assignment to the spill team or risk loss of your job.

- James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law Instructor, UC Irvine

Mileage Required for Use of Car in Business

Q: I work for a major department store, and part of my job includes traveling between 10 different territories in Southern California. I drive at least 500 miles per week.

Am I entitled to be paid mileage for this service?

-S.G., Beverly Hills

A: I am assuming that you drive your own vehicle, not a company-owned one, for this purpose, and that you receive no car allowance from your employer.

If those assumptions are correct, you are entitled to be paid mileage for the use of your vehicle on company business.

California law requires an employer to reimburse its employees for all expenditures in the course of performing services for the employer. That would include reasonable mileage expenses.

- Michael A. Nood

Employment law attorney

Paul, Hastings, Janefsky & Walker

Payment Not Mandated for Accrued Sick Leave

Q: The company I work for allows us six sick days a year. I have been with this company for more than 16 years. l rarely call in sick, even if I am ill. I now have accumulated 247 sick hours.

I would like to retire next year, and have been told that I will lose all of those hours. If I take more than nine sick days a year, I will be put on corrective action, in which case I would not be eligible for a raise.

Is it right that I lose these hours and pay by being a conscientious employee?

- S.S., Moorpark

A: To begin with, there is no requirement that an employer provide paid sick leave. And if paid sick leave is provided, there is no law that you have a right to accrue it from year to year or have it payable upon termination or retirement.

An employer’s promises regarding these matters can be enforced, however.

Apparently, your employer has allowed you to keep accruing sick hours. If the only risk of taking more than nine sick days in a year is that you will not get a raise, you may want to consider taking the sick time after getting your raise. Make sure, however, that taking a great deal of sick leave won’t cause your premature termination.

Evaluate whether the leave must actually be for sickness. Some employers actually require a doctor’s excuse and a definite medical justification for such leave. Other employers are not so demanding.

Evaluate how other employees have been treated in regard to their sick leave. Has the employer been consistent with you? If there is a double standard, determine why.

Rather than incur the wrath of the employer by taking excessive sick pay, consider using the accrued benefit as a bargaining chip for a more favorable retirement and severance package. If the employer knows that you could theoretically disrupt the work flow at work by taking substantial leave until the date of your retirement, they might appreciate your honesty and reward you.

In the end, it might be better for your employer to speed up your retirement and bring in someone else who will be a consistent and steady worker.

- Don D. Sessions

Employee rights attorney

Mission Viejo

Employer Must Provide Retirement Documents

Q: My retirement program is based on years of service. After finding discrepancies of as much as four years in the employer’s annual retirement statement, I requested either a copy of their records, or an appointment to review the records with them.

After my third request, I received a phone call stating that I could not see the records because they were on microfiche, which is certainly available to download.

How best do I proceed?

- E.U., Los Angeles

A: You should point out to your employer that under the Employee Retirement Income Security Act of 1974 (“ERISA”), you are entitled to receive copies of documents relating to the retirement plan within 30 days following your request. The summary description of your retirement plan must include a statement of your rights.

If you don’t receive the documents within that time period, you may file a lawsuit in federal court, and the court may impose a penalty of $100 per day on the employer for failing to deliver those materials to you in a timely manner. Be sure that you submit a written request to your employer for the materials.

- Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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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