Salaried Staffer Gets Docked for Jury Duty

Q: I am an exempt, salaried employee at a company that does not pay for jury duty. I was not excused from service and reported for one day of jury selection. I was not seated and returned to work the next day.

In order to make up for my eight hours away from the office, I worked nine- or 10-hour days during the week and four hours on Saturday. Even with the day spent at the courthouse, my actual hours worked exceeded 40. I was informed that salaried associates do not receive “comp time” and in order to receive my normal salary I would have to use eight hours of sick pay.

Hourly associates are permitted to “make up” hours throughout the week and on weekends for time missed during their normally scheduled shifts.

Can the company require salaried employees to use sick/vacation pay to receive normal compensation just because they worked hours that weren’t regularly scheduled?

--S.C., Huntington Beach

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A: No. With certain exceptions not applicable to your situation, an employer must pay an exempt employee his or her full salary for any week in which the employee performs any work for the employer, and may not dock the employee’s salary due to the employee’s absence performing jury service of less than a workweek in duration.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Penalty Sounds Proper if Vacation Not OKd

Q: A few months ago I requested vacation, but it was neither approved nor denied by my supervisor.

When I returned from vacation, I was told that I had violated company policy by not receiving approval for the vacation. I was put on probation for three months and my pay was cut 25%. During the probation, I was not allowed to accumulate vacation or sick time.

The employee handbook does not say that disciplinary action can include such measures. And when I was hired, I signed a contract that specified my salary.

Does an employer have the right to impose whatever disciplinary action it chooses, including reducing an employee’s salary, in this matter?

Do I have any legal recourse, or should I just look for another job?--L.C., Torrance

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A: Generally, an employer can institute a pay cut as a disciplinary measure. For example, unless you have some agreement with your employer to the contrary, your employer could have terminated your employment because you took a vacation without approval. Instead of doing so, it took the less drastic step of putting you on probation and cutting your salary.

You indicate that you signed a contract that specified your salary. Without knowing whether the contract also described your employment as “at will,” or whether the contract gave your employer the right to change the terms of your employment, I do not know whether you could assert a breach of contract claim because of your pay cut.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

When Leaving, Take Only What You Own

Q: I work as a hospital programmer, and I refer to quite a few technical manuals at my desk while programming. If I were to leave, would those manuals become my property?

--A.P., Los Angeles

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A: Not unless you brought them with you when you started the job or you purchased them with your own funds while you have been employed there.

Manuals and other tools provided by an employer to assist employees in performing their jobs remain the property of the employer and must be left behind when the employee leaves.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Third-Party Litmus Test Figures in Harassment

Q: What do the courts in California, and more specifically Los Angeles County, define as a hostile work environment?

--A.H, Los Angeles

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A: The rules in Los Angeles County are the same as those throughout the rest of the state.

In general, California law prohibits harassment on the basis of an employee’s race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex or age over 40. The courts define a hostile work environment as any in which the conduct of an employer or one of the employees creates a workplace so filled with discrimination that it interferes unreasonably with an individual’s performance or creates an intimidating, hostile or offensive atmosphere.

In California, most harassment cases involve sexual harassment. The courts have adopted a subjective test for sexual harassment that analyzes the harassment from the standpoint of a reasonable person who is of the same sex as the complaining employee. This same test should be applied to other types of harassment claims.

The courts have stated that conduct that is merely annoying may not be sufficient to create a hostile work environment. However, they also have stated that well-intentioned compliments by co-workers or supervisors can form the basis of a claim for sexual harassment if a reasonable person of the same sex as the complaining employee would consider the comments so severe or pervasive that they would interfere with the employee’s work performance or create a hostile, intimidating or offensive work environment.

The courts will look at all of the circumstances presented and will attempt to determine whether the plaintiff was actually offended by the conduct, whether the conduct was sufficiently severe and pervasive and whether a reasonable person of the same sex, national origin, race, etc. would also be offended.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

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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