Raise Date Negotiable for Employee on Leave
Q Several women in our office are pregnant and have requested personal disability leave for the entire 12 weeks.
While observing the law associated with pregnancies and that the women are entitled to all the benefits--promotion, seniority, same or comparable jobs upon return, etc.--nowhere can we find anything definitive on those employees who may be eligible for an annual raise while on leave.
Is an employer entitled to move the date for a raise to a date after an employee returns from leave, or must the anniversary date of hire be adhered to? Because vacation, sick time, etc. do not accrue while on personal disability leave, wouldn’t this also apply to raises, since it is the employer’s prerogative to grant vacations, holidays and the like?
Can you give me the area in the labor code that covers this questions?
--P.I., Laguna Hills
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A Under California law, an employee is entitled to accrue seniority during personal disability leave to the same extent and under the same conditions as employees granted leaves for reasons other than pregnancy. An employee returning from this leave will have no less seniority than when the leave began.
While the employee cannot lose seniority during a leave, however, there is no requirement that the employee be allowed to accumulate seniority during the leave, unless the employer allows similarly situated employees to do so when on leave for other reasons.
Accordingly, the employer can adjust the date for giving a raise, based on seniority, to an employee on leave. However, many employers do not adjust a person’s seniority date under these circumstances.
The relevant regulation is Title 2 of the California Code of Regulations, Division 4, Chapter 2, Subchapter 6A, Section 7291.11.
--Kirk F. Maldonado
Employee benefits attorney
Riordan & McKinzie
Employee Need Not Reimburse Boss’ Loss
Q I work as a waitress, and one of my customers recently left the restaurant without paying. I had been getting drinks together for another table (as a part of my job, it is required that I occasionally leave the customer area to prepare or pick up food).
The restaurant owner blamed the incident on my “inattention” and demanded that I cover the bill. Some of the servers said my employer’s action was illegal and advised me not to pay.
I haven’t found anything in the California legal code specifically prohibiting my employer’s action. What can I do?
--K.M., Covina
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A According to the California Labor Code, it is illegal for an employer to require an employee to pay for the employer’s losses, even if they are caused by employee negligence.
You can legally refuse to pay the bill. It also is illegal for the employer to retaliate by demoting or terminating you. I would suggest that you document your refusal to pay in a diplomatic letter to your employer, in case your refusal results in retaliation.
As a practical matter, you might want to consider whether your refusal is worth possibly antagonizing your employer.
If it is a minimal amount and this situation seldom arises, you might consider paying the bill, rather than insisting on your rights.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Time to Learn Job Not Required by Law
Q I took a sales representative position for a manufacturer. I work out of my home and have minimum telephone contact with my manager.
My training has been minimal. The company sent me to one trade show and one week of the company’s standard orientation available to all new employees.
The company expects me to set five appointments per day and of course sell, sell, sell right away. Without much training, can they hold me to such strict guidelines right away? Do they owe me a reasonable amount of time to learn on my own under such a situation? How should I handle this situation?
--S.T., Manhattan Beach
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A You should discuss this situation with your manager to clarify what is expected of you and, if necessary, to request additional training or guidance.
However, the company has no obligation to give you any amount of time to learn to perform the job.
--Deborah C. Saxe
Management attorney
Heller Ehrman White & McAuliffe
All Overtime Must Be Paid to Nonexempts
Q My employer is trying to limit overtime by deleting it from records and not paying, even though we have a time-clock system.
Can they delete overtime in this system? Wouldn’t an employee have to approve a move like that?
--L.H., San Dimas
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A Your employer cannot legally alter timekeeping records to delete hours that nonexempt, hourly employees have worked.
Under state and federal law, employers must keep accurate records of all hours worked by their employees for a three-year period. These records must show employee overtime premiums as well as regular, straight-time pay.
There are severe penalties if your employer has failed to keep accurate records or to pay you proper wages or overtime premiums. In addition, you are probably entitled to recover back pay, damages and attorney’s fees from your employer.
To file a complaint, contact the nearest office of the California labor commissioner or consult an attorney.
In answer to your second question, your employer must pay you time and one-half for work over 40 hours in a work week, even if you agree to waive it.
Hourly employees cannot give up their rights to overtime premiums after 40 hours or to be paid for every hour they have worked. Employees can be disciplined for working unauthorized overtime, buy they must be paid.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
