Seeking Reasons for a Failed Promotion

Q For 12 years, I’ve worked for a Fortune 500 company. I was promoted twice, from a clerical rating to my current associate position.

I recently applied for a management position within the company and felt my qualifications exceeded the requirements needed for the job.

One of the interviewers (not my immediate supervisor) notified me that I wasn’t in contention for the position, although I passed the interview with flying colors and answered all the questions in a professional manner.

When I asked why I wasn’t considered for the job, she was evasive. I then asked the manager of my group, and she also refused to give me an answer.

Should I go to a higher level to get a response? I don’t want to jeopardize my job.

--J.S., Stanton

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A You might make one last attempt to get some information from either your immediate supervisor or the group manager.

Emphasize that you are trying to get some constructive feedback about your interview performance to help you improve for future interviews.

If that does not work, it is probably best not to push the issue further.

Your company may have a policy of not providing feedback to candidates.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Job Guidelines for Apartment Managers

Q I manage a 39-unit apartment complex in Los Angeles. I receive free rent and a small salary.

I have never been given any guidelines as to when I have to be at the complex or what days I can have off.

I have asked for guidance but have been told just to do what is necessary. When I do want to leave for a day or an evening, I am made to feel guilty for not doing my job.

Are there any state employment guidelines as to what apartment managers are paid and the hours and days they are required to work?

--V.C., Los Angeles

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A Yes. Wage Order No. 5-98 of the California Industrial Welfare Commission governs wages, hours and working conditions in the public housekeeping industry, which includes apartment buildings.

Although that wage order does not establish a maximum number of hours an employee may be required to work, it does require that employees who work more than 40 hours per week be paid overtime at time and a half.

This requirement does not apply to exempt employees, such as those whose duties are “primarily” managerial (which generally means spending more than half of one’s time managing employees). Also, some flexibility is permitted to employers and resident apartment managers in determining hours worked to account for work that must be performed outside of a traditional 9-to-5 schedule.

The California Labor Code also provides that employees must be given at least one day off per week, although exceptions exist in emergency situations or where the employee’s duties require work on the seventh day, so long as overtime is paid.

Depending upon whether you would be considered exempt from overtime, you may have the right to insist on a more structured work schedule, although such a schedule likely would eliminate whatever flexibility you might have come to enjoy.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Was Termination Due to Whistle-Blowing?

Q I was incorrectly classified as an exempt employee from April to December 1997, and I worked unpaid overtime. I checked with the labor board and was told that my employment status is nonexempt because my job description involved secretarial work and I was not supervising others or making management decisions. The company agreed to pay me overtime this year but refused to pay for the overtime in 1997.

I also expressed concern that the office manager was making personnel decisions that were not consistent with the employee manual, such as docking nonexempt employees’ vacation time when they arrived late while not docking others in the same category.

After a cursory investigation, the employer reminded the office manager to follow the employee manual and told me there was no discrimination in the office. The employer then eliminated my position because of budgetary constraints.

I received an excellent performance review, and I can document that I was doing a great job. I think the timing was not a coincidence, and the employer eliminated my position in response to my request for overtime and my concerns about discrimination.

Do I have any legal recourse?

--C.S., Los Angeles

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A It is illegal for an employer to retaliate against a whistle-blower. It appears that your complaints are sufficiently based on statutes and are of sufficient importance to society at large for you to be protected as a whistle-blower.

On the other hand, employers have a right to eliminate positions to make a profit. If this was really your employer’s intent, you would not have a case.

To determine the reason for the change and motivation behind it, you need to determine who was assigned your job duties after your employment ended.

Try to determine if the company advertised for your position after you were let go. That would tend to show that the alleged reason for your termination--budgetary constraints--was simply a pretext.

Even if the company had a legitimate reason to eliminate your position, evaluate whether you were the person who should have been laid off. If you have seniority and performed better than your peers, you might have a good argument that the company was retaliating in selecting you for termination.

Another key is timing. If your termination occurred a long time after your complaints, the link between those events would not be as convincing as a short period of time.

Also, be sure that you can prove that you complained. Did you put your complaints in writing, for example? Or make them in front of a witness?

As with many cases, it’s not enough to know that you have rights. You have to prove that you qualify for those rights and that the employer has violated them.

--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.