Salaried Worker Can Argue for Comp Time

Q: My husband is a salaried employee who works several hundred hours of overtime per year. The company does not pay overtime, but employees do get comp time at time and a half.

The problem is that he has to work so many hours that he is not able to make use of his comp time. And if he doesn’t use it by the end of the year he loses it all.

Is this legal?

--M.L., San Juan Capistrano

A: Compensatory time off policies permit employees to receive paid time off instead of an immediate cash payment for overtime work.

For nonsalaried employees, comp time policies are infrequent in the private sector because the time off must be taken in the same or the next payroll period. (In contrast, government employees can bank their comp time for later use).

These restrictions on banking comp time do not apply to salaried, exempt employees like your husband. Thus, a private sector employer can lawfully establish a policy permitting comp time for salaried employees and also can limit or cap the number of hours that can be banked.

California law does not address whether private employers can lawfully maintain a use-it-or-lose-it policy under which an exempt employee’s comp time can be forfeited if it is not used by a specified date. Similar use-it-or-lose-it policies for vacation and sick pay benefits have been found unlawful.

Since this is an unsettled area, your husband should consult an employment attorney or file a claim with the California Labor Commissioner.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

To Worker, TV Policy Doesn’t Play Fair

Q: When there is a big game on TV, such as the World Series or NBA playoffs, the management believes it is acceptable for those who are interested to sit in the employees’ break room and watch the game. Of course, 90% of the employees who do this are men.

Everyone is allowed time off, but those of us who aren’t interested are expected to be at our desks working. Some of us have asked that we be compensated in some way, allowed to go home early with pay or take a long lunch. The management’s response is that we should just come watch the game. Our human resources person is the daughter of the owner, so there’s no help there.

We don’t want to rock the boat and make this a legal discrimination case. I think if we came up with a creative idea, management would listen. Got any ideas?

--H.M., Anaheim

A: You need to get management’s attention. It is clearly unfair to expect some people to work while others are given an extended break.

Ask your boss about the policy regarding this issue. Be aware, however, that this is going to be a divisive issue and that you might take some heat from other employees if management decides to stop the “sports breaks.”

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Can Bad Credit Affect Job Applications?

Q: I have been unemployed for some time and my credit record has gotten some negative ratings.

I have applied through several headhunters and some of them indicate on their applications that a credit check will be done to determine the applicant’s character.

Is it legal to decline someone’s application based on his credit?

--A.G., Anaheim

A: An employer may consider an applicant’s credit history if there is a legitimate business reason for doing so, such as the type of position involved. For example, a financial institution such as a bank or credit union that is seeking an individual to handle money probably would be justified in seeking a credit report on an applicant.

However, any employer who refuses to hire an applicant because of his or her credit report must follow three steps:

* Provide written notice of the decision to the applicant.

* Provide the applicant with the name, address and telephone number of the consumer credit reporting agency that furnished the report.

* Provide a statement that the employer’s decision not to hire the applicant was based, in whole or in part, on information contained in the consumer credit report and provide the applicant with a written notice of the rights of the consumer to receive a free copy of the report and to dispute the accuracy and completeness of the report.

If you believe you have been improperly denied employment, you may wish to consult with an employment attorney who is familiar with these types of issues.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Pizza Worker Wants Bigger Slice of Pie

Q: My stepson works at a pizza place that was paying him $6.50 an hour. Then he was “promoted” to manager and put on a salary. He is working 55 hours, six days per week, but the owners are not paying him any overtime.

What is the difference between exempt and nonexempt status for employees? I believe the owners owe my stepson a lot of overtime.

--J.C., Laguna Beach

A: There is much confusion about the payment of overtime in the workplace. Simply promoting an employee to “manager” does not necessarily make him or her exempt from overtime laws.

The general rule is an employee can claim overtime compensation unless the employer can show the employee is exempt from such rules because he or she is an executive, a manager (performing such duties more than half the time), or an administrator who is performing important work that involves discretion and independent judgment.

If your stepson is simply the equivalent of a “lead foreman”--mostly performing the same work as those he supervises--he may have a claim for overtime compensation.

Consider talking to an attorney or filing a claim with the California Labor Commissioner’s Office.

Your stepson might be wise to closely evaluate his exempt or nonexempt status before complaining to his employer. But if he does raise the issue, it would be illegal for the company to retaliate against him.

--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.

More on Benefits

* Times on Demand has prepared two pamphlets based on the Shop Talk column. They provide answers to readers’ most-asked questions on unemployment insurance, terminations and medical leave; and on job benefits. To order, call (800) 788-8804. Each pamphlet costs $5.41, plus 50 cents delivery. Please allow two to three weeks for mail delivery.