Employer Has No Right to Ignore Vermin Infestation

Q: Our small office has a vermin infestation. The owner of the company refuses to pay for traps or any service to clear the problem, following the idea of feng shui. Do we have any recourse? Isn’t this a health code violation?--I.S., Costa Mesa

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A: Several statutes require the owner of a building to eliminate a vermin infestation. The fact that the company wants to maintain the “natural environment” under the ancient Chinese practice of feng shui would not be regarded as a religious right and would not override its legal obligation to provide a healthful workplace environment.

I suggest you complain in writing to your employer. You might want to take photos of some of the evidence. You could also complain about the problem to the county health department, which would conduct an inquiry and require your employer to correct the problem. By the way, it would be illegal for your employer to demote or fire you for reporting it.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Restrictions on Sick Pay ‘Banking’

Q: My employer has instituted a rule whereby “banked” sick days--unused sick days that carry over from year to year--cannot be used unless an employee is on disability or there are “special circumstances” (which remain undefined).--R.M., Los Angeles

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A: Under California law, an employer may place whatever conditions it desires on sick leave benefits, and may change its policy to provide that sick leave may only be used when employees are on disability or there are other special circumstances.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

When Tardiness Is Misconduct

Q: One of our employees was excessively tardy. After receiving written warnings, he was discharged. He got unemployment benefits because he showed “no misconduct.” I appealed and lost. Now another employee has an even worse record for being late, but I am hesitant to let him go because he would be entitled to unemployment benefits. If this is the case, what more can I do to win this battle?--S.P., Gardena

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A: The Employment Development Department and the Unemployment Compensation Appeals Boarddo not have a standard policy on whether tardiness constitutes misconduct that would disqualify a terminated employee from unemployment benefits.

If the tardiness is only occasional or is tolerated among other employees or is the result of a legitimate illness or medical condition, a finding of misconduct is unlikely. A misconduct finding is more likely, however, if the tardiness is frequent, if it is particularly disruptive, if the employee received prior warnings about it or if the employee has no valid excuse.

If you have warned this employee in writing in the past about his tardiness, and if you do not tolerate such tardiness on the part of other employees, you should go ahead and discharge him. If he applies for unemployment and it is granted, take all of your documentation to the appeals board hearing to show that the tardiness was a serious enough problem to constitute misconduct.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

An Incentive Must Be Motivating

Q: I have worked for a few years for a family-owned retail chain. Although the owner is always talking about how he “rewards” people for performance, our raises each year are very small, and everyone gets about the same raise.

A few years back, the raises were good, but lately the raises have been getting smaller and smaller.

The problem is that people who have been with the company for a long time make much more than we newcomers do. I think this is completely unfair because I know I am one of the best salespeople, but I get the same raise as the poorest salesman. What do you think of this?--B.N., Alta Loma

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A: It sounds as if the owner of your company is torn between a desire to treat people fairly and a desire to motivate people to high levels of performance. For pay raises to be an effective motivator, your boss needs to follow certain guidelines:

* Workers’ performance must be measured accurately. This involves conducting regular performance evaluations and using valid indicators of performance such as sales figures and indicators of good customer service for salespeople.

* Raises need to be consistent with performance, with the best performers receiving the highest raises.

* Raises must be seen as “substantial” or “worth the effort” if they are to be effective incentives. A recent study suggests that a raise needs to be greater than 7% annually to be considered an effective incentive.

If such a performance-based program is put into practice, odds are that most workers would begin to view the system as “fair.”

As far as your current situation, you must decide if you are being adequately rewarded for the level of work you are performing. If not, you need to discuss the situation with your boss and perhaps consider other alternatives that are available to you.

--Ron Riggio

Director, Kravis Leadership Institute

Claremont McKenna College

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Mail questions about on-the-job situations to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate them to (714) 966-7873; or e-mail them 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.