Worker Senses Bias by Management Since Missing Morning Prayer Sessions

Q. I work for a nonprofit organization, and my new boss has instituted a daily morning prayer in her office. It’s not mandatory, and some of us quit attending after a few weeks.

Now those employees who don’t attend the morning prayer are finding themselves in work-related conflicts with the boss, whereas those who do attend are receiving increased attention and responsibilities.

Of course, we can’t prove the boss is discriminating against those who are not attending the prayer sessions. But it is causing great distress among the staff. Is there a way to handle this without making the boss think we are being difficult?

--L.C., Los Angeles

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A. Showing favoritism toward those who attend a morning prayer session is poor management, divisive to the work team and is just plain wrong.

You need to talk with your boss as soon as possible and express your concerns. Perhaps you should suggest that a brief morning team meeting be held in place of the prayer session. If workers want to continue to have a prayer meeting, this could be done before working hours. At the team meeting, news announcements could be made and other work-related business could be discussed.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Supervisor Digs Up Gossip

Q. My supervisor prides herself in knowing every bit of gossip. She recently vacationed in the area where I grew up and searched out people I knew. Now she has confronted me in the office with personal information.

Do I have any protection against this?

--A.A., Paso Robles

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A. Although not necessarily illegal, your supervisor’s conduct is clearly inappropriate and would seem to amount to an invasion of your privacy. You should tell your supervisor that you consider the information she has obtained to be personal and ask that she not disclose it to anyone else. If you are not comfortable confronting your supervisor, you should speak with Human Resources or another member of management.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Holding Position for Absentee

Q. We own a small business, with three employees total. One of them has been on disability since Dec. 19. She keeps bringing notes from the doctor that she is completely incapacitated, although she is able to drive to the shop to drop them off.

Originally, this employee was hired for a second shift that was then eliminated because of a lack of business. We offered her a daytime job because she was a valued employee. Since then, she has been on disability.

We do need a full-time person during the daytime for her position, but have had to use temporary employees so that we can hold her position open. If she is not able to work, we really need to hire a permanent employee.

What are our legal rights in this situation?

--S.H., Upland

A. There are several federal and state statutes that govern an employer’s obligation to hold a job open for an employee on disability. The only such statute potentially applicable to you is the state workers’ compensation statute, which permits an employer to replace an employee who is on leave because of a work-related illness or injury only if replacing him or her is “necessary” and “directly linked to business realities.” That is, you can replace her only if you can demonstrate that you cannot continue to use temporary help.

Because you have fewer than five employees, if the employee’s absence is not caused by a work-related illness or injury, you never had a statutory obligation to hold her job open for any period of time.

State and federal family and medical leave laws require some employers to permit some employees to take up to 12 weeks of leave in a 12-month period for various reasons, including the employee’s own serious health condition. However, those statutes apply only to employers with 50 or more employees.

It does not appear from your question that the employee has a “disability,” as defined in the Americans With Disabilities Act and the California Fair Employment and Housing Act, so it is worth noting that those statutes also do not apply to you. The ADA applies to employers with 15 or more employees, and the physical and mental disability provisions of the FEHA apply to employers with five and 15 employees, respectively.

Your employees also have no rights under the state law protecting employees disabled by pregnancy, childbirth or related medical conditions. That law applies only to employers with five or more employees.

If your company has adopted a policy permitting employees to be on leave indefinitely (or for a specified maximum period of time) and to hold their jobs open for so long as they continue to bring in notes from health-care providers, you must honor your own policy.

You also must honor any contract with this employee permitting her to remain on leave indefinitely (or for a specified maximum period of time) so long as she brings in notes from her health-care provider.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

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. Shop Talk is designed to answer questions of general interest. It should not be construed as legal advice.