Policy Unclear for Employee Jury Duty

Q: This is a quote from my new employee handbook: “Any employee wishing to serve on jury duty may do so. Time off to serve on jury duty will be without pay. Employees must complete a formal request to obtain authorization for a leave of absence to serve on jury duty.”

I questioned a representative from human resources about this policy, stating that I thought that no one really wished to serve but considered it a civic duty. I was told that there are always ways to get out of it. If you don’t get out of it, then you are choosing to serve and must apply for a formal leave of absence.

Is this legal? Would it be legal for my place of employment to deny a later request for leave of absence if the need arose?

It just feels like people who obey the law and perform their civic duty are being punished.

--L.S., Anaheim

A: The phrasing of the employee handbook provision is a bit odd in two respects.

First, it is rather inaccurate to describe an employee who has been called for jury service as someone “wishing to serve on jury duty.” The law requires a citizen to appear when called for jury duty.

Second, the requirement that an employee “obtain authorization” for a leave of absence could imply that the employer can deny the leave. However, an employer does not have that discretion.

Nonetheless, the policy itself is legal. An employer has the right to require its employees to give reasonable notice of an obligation to appear for jury duty. Your employer’s “formal request” requirement may be its way of ensuring that it receives adequate notice of an employee’s obligation to serve.

If the employer later denies another request for a leave of absence because the employee had taken time off for jury duty, that may be considered illegal discrimination under the California Labor Code.

On the other hand, an employer could legitimately deny a later leave request for reasons unrelated to the employee’s jury service.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

Company May Require English-Only Policy

Q: I am a manager in a small business office employing 12 people. Most of the time English is spoken, but occasionally during business hours, some of the employees converse in their native language about business activities.

Other employees have objected to this on the grounds that it is rude and implies mistrust.

May I legally require employees to speak only English during working hours or be subject to termination or other disciplinary action?

--R.R., La Canada

A: Yes. An employer may require its employees to converse about business matters in English.

Although the law in this area is still developing, courts recognize the interest of employers in requiring employees to speak English on the job to avoid possible misunderstandings, enhance efficiency and to avoid harassment claims by employees who may perceive that other employees are making inappropriate remarks in another language.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Salaried Manager Pays for Personal Day Off

Q: I am a salaried manager who is required to accept calls at all hours of the night and weekends, in addition to putting in 40 hours of work each week.

After more than three years with the company, I recently took a personal day off for the first time, and listed it on a monthly report of employee absences. When I received my paycheck, the personal day was deducted from it.

It seems like the company is trying to have it both ways--paying me a fixed salary no matter how many hours I work, but deducting pay when I take a personal day off.

It seems like I should be paid a set amount, no matter how much I work or don’t work, or get paid for all the time that I work, including night and weekend hours. Are my assumptions correct?

--A.L., El Segundo

A: I do not believe your assumptions are correct.

If you are a salaried manager, as your title suggests, you are probably exempt from the requirement that you be paid overtime under applicable law. Therefore, you are not entitled to be compensated for any “extra hours” that you work. Your salary would cover all hours worked, not just the normal 40-hour work week.

Moreover, the fact that you are salaried does not mean that you can take a day off whenever you feel like it and expect your employer to pay you for it. There are regulations that govern the deductions an employer may make from the salary of an exempt employee without destroying the employee’s exempt status. Those regulations permit an employer to dock an employee’s pay for absences of one day or longer due to personal reasons.

Perhaps next time you should consult with your employer in advance about taking a personal day off if you expect to be paid for it.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Will His Background Hurt Job Prospects?

Q: My son has been unemployed for 10 months. He was last employed as a computer programmer with a large company, making an excellent salary. But he was let go, I suspect, because he went on a drinking binge and did not report for work.

He is intelligent and a quick learner, but has had problems in the past with alcohol. Currently, he does not have a driver’s license.

When considering whether to hire an employee, can a company check on this type of information?

--E.B., Ventura

A: While it is customary for companies to investigate the background of prospective employees, it is illegal for employers to base hiring decisions on discriminatory reasons. That is why it is not advisable for an employer to ask employees questions that even hint of discrimination.

If your son’s problem with alcohol is so severe that it amounts to a disease or disability, it may be inappropriate for the employer to base an employment decision on questions related to it.

Employers ask previous employers about the background of prospective employees. Most employers will not reveal the exact reasons for termination, restricting their response to job title and duration of employment. You might want to have one of your son’s friends call his previous employer to see what they are saying about him. If it is anything inappropriate, you can warn the former employer to stop such misrepresentations or face possible legal liability.

The employer may also check certain public records, such as with the Department of Motor Vehicles, or local district attorneys’ offices to evaluate an applicant’s driving record. An employer also can ask a prospective employee if he or she has been convicted of a crime.

In the end, it is very difficult to determine how an employer makes its decision to hire an employee. An applicant should simply strive to prevent the use of inappropriate or misleading information in the evaluation process.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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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.

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