Law Protects Worker Who Files Grievance

Q I am one of 30 employees in a health care organization. We are all treated as exempt, salaried employees--from the receptionist to the president.

The employees are required to punch a time clock, and are docked if they don’t work a full 40-hour week. Even though every employee usually works more than 40 hours, there is no comp time.

Is there an anonymous way of notifying the proper organization about this. I don’t want to jeopardize my job.

--C.R., Costa Mesa

A Employers often make mistakes in classifying employees as exempt or nonexempt.

Exempt status may be appropriate for a president, management or important administrative employees, but inappropriate for others, such as receptionists and secretaries.

Even employees who actually could be considered exempt lose that status if the employer does not keep them on a salary--paying them the same amount every pay period, regardless of how much they work. By docking employees if they don’t work a 40-hour week, the employer has lost the opportunity to classify them as exempt.

There are various ways to anonymously notify the employer about this problem. You could send a typed letter. However, if you have previously complained, the company might be able to determine that you were the author.

The California Labor Commissioner’s office accepts anonymous complaints. However, it is more likely to pursue a claim if it is able to use your name.

It might be to your advantage to let your employer know you have made the complaint. If they retaliate against you, you would have legal whistle-blower rights.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Boss Allowing Fraud Is Not OK for Employee Q For the last few years I have worked for a small division of a large company. Over the years, our boss was involved in misrepresentations and deceptive practices in selling our products.

This was reported recently to our parent corporation, and our boss has been removed.

I would like to know if I or any co-workers can also be held responsible for the fraud and misrepresentation, even though we were told by the former boss that we could lose our jobs if we did not “just make it up” or “get the numbers no matter what it takes.”

--M.T., Los Angeles

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A If you participated in the fraudulent practices, you, too, could be held responsible. It is not a defense that you believed you had to do it to keep your jobs. What you should have done was to complain to your boss’ boss rather than merely comply with his instructions.

There are laws that protect against terminating you for refusing to engage in illegal activity or for reporting it to others.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Bad Credit Can Hamper Employment Prospects Q I applied for part-time employment as a grocery store cashier and as part of the application, I was required to fill out the Fair Credit Reporting Act form. I filed for Chapter 7 in July.

Can I be denied employment, as stated in the form, due to my credit history?

--C.H., Los Angeles

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A Yes. Although federal bankruptcy law prohibits employers from firing employees who file for bankruptcy, it does not address employers that don’t hire applicants who have filed bankruptcy.

On Sept. 30, new requirements for using credit information in employment went into effect as part of the amended federal Fair Credit Reporting Act. Under the new rules, an employer must provide applicants with advance written notice that a consumer report check will be obtained as part of the screening process. The applicant has to give his or her written authorization for the employer to obtain a consumer report, which includes credit checks. It appears that the employer in your situation did this.

If the credit check reveals adverse information that the employer might take into account in denying employment or some employment benefit, the applicant must be provided with a copy of the consumer report and a “notice of rights.” The applicant must be given a “reasonable period” (the length is not specified) to challenge the accuracy of the adverse information.

If the employer decides not to offer employment or an employment benefit as a result of adverse credit information, the employer must provide the applicant with written notice again.

If these steps are followed, it would be lawful for the employer to deny an applicant a job because of a prior bankruptcy. There may be jobs where a requirement of good credit might be challenged as not being relevant, particularly if such a requirement has an impact on some minority or other protected group. But for any job involving the handling of money--such as a cashier’s job--a good credit rating is clearly relevant.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Be Assertive About Skills in Interview

Q I was laid off after 14 years with the company. My severance is running out, and I am about to start interviewing.

It has been a long time since I interviewed for a job. What’s the No. 1 interviewing mistake potential candidates make, and what can one do to avoid making it?

--J.B., Santa Ana

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A It’s hard to come up with a “No. 1” interviewing mistake, but research has shown that the most common general problem interviewees have is failure to provide enough information about their work-related skills and experience.

For example, a common opening in an interview is, “Tell me about yourself.” Use this as an opportunity to discuss how and why you are qualified for the job. Focus directly on your job-related experience, knowledge and skills and stay away from irrelevant information.

In interviews, always be professional in dress and behavior, realizing that first impressions are very important.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College