Employee Must Be Paid for All Business Mileage
Q: I am a sales rep for a small company. They reimburse me for mileage but require that I deduct 40 miles a day from my total, even though I work from home. They say this is because most people drive 20 miles each way to work each day. Are they just cheap, or is this unethical?
--K.R., Tustin
A: If you are an employee of the company and your home is your base of operations and you drive on business, California law requires that the company reimburse you for all of your business mileage. The distance “most people” may drive to work is irrelevant.
You do not say if you are an employee or an independent sales representative. If you are the latter, the company is not obligated to reimburse you for your mileage unless there is a specific written agreement to do so.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Recourse for Director’s Statements
Q: A company’s personnel director is routinely contacted by businesses wishing to confirm job history for prospective employees. In addition to providing basic information, such as date, title and salary for the former employees, the director is adding personal comments about employees she didn’t like. Her negative comments are contrary to the good performance evaluations in the employees’ personnel files.
The director has kept several former employees whom she didn’t like from getting jobs. Is the personnel director’s vendetta against the law? What recourse do former employees have?
--L.H., West Covina
A: Whether the employees have any recourse depends on if the personnel director’s statements about them are true and do not constitute purely private information about them.
If the statements are true and reasonably related to their employability, the employees have no recourse. If the comments are not true, the employees may have a claim against the personnel director and the company for libel and/or slander, violating their right to privacy or violating the California Labor Code, which allows triple damages. All these things allow employees to sue former employers who spread untruths that cause them to miss employment opportunities.
In addition, if the information involved private matters not related to employment, the employees may have a claim against the personnel director and the company for violating their right to privacy, even if the information about the former employee is true.
These situations are why most prudent employers prohibit releasing any information about prior employees other than dates of employment and position held. Someone in your company should alert the personnel director’s boss. The director could be exposing the company to considerable potential liability.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Sometimes Silence Is More Profitable
Q: The company I work for has both hourly and salaried employees. We all work 8 1/2 hours per day, but because we receive a paid hour for lunch, we have been told that we are not entitled to any breaks. Is this legal?
--B.J., Canyon Country
A: Nonexempt employees are entitled to a paid break of 10 minutes in the first and second halves of an eight-hour shift. The breaks should fall in the middle of those periods. In addition, the employer is required to give the employee an unpaid break of at least half an hour in the middle of the workday for lunch.
In your situation, it does not necessarily matter if you are paid hourly or earn a salary. Many people make the mistake of thinking that if they are salaried, they do not deserve the protection of these laws.
Receiving a salary is only one of many requirements to be exempt from these rules. You also must be a manager, a professional or an administrator, and perform these duties for more than half your work time.
If you believe the breaks are important, you should insist on them. However, it appears that it might be more profitable for you to remain silent. You have been given an hour lunch period, when the legal requirement is only half an hour. In addition, your employer is paying you for the hour break, which also is not required.
You are making more money for the hour break than you would for the two 10-minute breaks in the morning and afternoon.
--Don D. Sessions
Employee rights attorney
Mission Viejo
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Most-Asked Questions
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