Smoking in the Workplace Generally Not Permitted

Q: My employer allows smoking in the workplace, which has more than 100 employees. A “No Smoking” sign is posted, but this is just to mislead visitors, clients and prospective employees. Cigarette butts are scattered everywhere. Employees smoke in the open because the owners are the No. 1 violators.

When I asked for a manual on health and employment laws after I was hired, I was told the company doesn’t have one because policy manuals would “educate” employees.

This environment has seriously affected my health, but I am afraid to speak out. Another employee who complained about the smoke was fired the same day. What can I do without getting fired?

R.G., Santa Ana

A: Under California law, most employers with more than five workers may not knowingly or intentionally permit smoking in any enclosed place of employment. An employer must also take reasonable steps to prevent smoking by nonemployees. These include posting signs prohibiting smoking and requesting a nonemployee to refrain from smoking in the workplace.

Some rooms for employee breaks may be designated for smoking if the following conditions are met:

* An exhaust fan must move air from the smoking room directly to the outside.

* The smoking room must be situated in a non-work area that workers are not required to enter as part of their job responsibilities.

* The employer must provide sufficient break rooms to accommodate nonsmokers.

Any employer that requires an employee to work in a smoking area or uses coercion to persuade an employee to consent to smoking by other employees will be subject to civil penalties of up to $7,000 per violation, or up to $70,000 for repeated willful violations.

I suggest that you speak to the person in charge of personnel about your concerns. If you are dismissed for raising this issue, you may have a claim for wrongful termination. If your claim is successful, you will be entitled to lost wages and perhaps to punitive damages as well. If you have more questions, I suggest you contact either your local health department or the Occupational Safety and Health Administration at the number provided in your local phone book.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Liability for Pro Rata Vacation Pay

Q: I was hired by a company that provides vacation pay after an employee has been on the job for one year. When I was hired, I was told that there was a 90-day probationary period before I would be considered a permanent employee. There was no mention of vacation pay at that time.

I was terminated after 80 days because the employer stated that I was unable to do the job. Am I entitled to pro rata vacation pay at my termination? Would I also be entitled to penalties for the employer’s failure to pay the vacation pay when I was let go?

E.L., Riverside

A: In most cases, an employee who is terminated should receive a pro rata amount of vacation pay that he or she has accrued, even though the date for taking the vacation has not arrived.

The fact that you were on probation has nothing to do with your rights to a portion of your vacation pay.

To avoid problems with computations, many companies tell employees what their vacation accrual is on an ongoing basis. Other employers avoid this liability for pro rata vacation pay by clearly stating that the accrual doesn’t start until one year has passed.

If the employer is silent about when vacation begins to accrue, it is presumed to begin on the date an employee starts work.

The employer should have paid you for all accrued vacation due on the date you were let go. Employers that intentionally fail to pay could be required to pay wages for another 30 work days, or additional wages up to the date that the vacation payment was made if that occurred before the 30 days elapsed.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Retirement Plans Must Cover All

Q: I work for a small corporation that is run and owned by family members and their spouses. The company doesn’t offer a 401(k) or profit-sharing plan to any of the employees. Through the grapevine, however, I heard that family members have these plans. Is this legal? If not, how do I find out if they do, and how can I get them to offer the plans to all employees without fear of reprisal?

F.O., Stanton

A: In general, the plans you describe cannot cover just the owners of a business and their spouses. If the plan only covers those individuals, its tax status would be revoked if the plan were audited by the Internal Revenue Service.

However, the IRS is not very receptive to complaints from individuals who are not covered by plans, presumably because it does not want to get involved in disputes between employees and employers.

Your best approach would probably be to contact the company and request that the plans be extended to all employees.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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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.