No Law Requires Purging of Disciplinary Item
Q: I recently lost my position as a supervisor because of misconduct. The incident alone would not have warranted such extreme discipline, but my boss also referred to a 15-year-old incident in which I was disciplined.
Is there any labor rule or law that addresses how far back an employer can go when using past discipline to justify an increased penalty for current misconduct?
--S.G., Torrance
A: Not really. Unless your employer has a policy or a practice of purging disciplinary items from an employee’s record after a certain period of time, your employer was not obligated to disregard the earlier infraction just because of the passage of time.
On the other hand, your question implies that under your employer’s policies you could be terminated or disciplined only for cause rather than being disciplined at will, or without cause.
If this is the case, you might be able to argue that the discipline was too harsh or that your employer should not be allowed to consider the old incident because your performance was never criticized in the 15-year interval between infractions.
Depending on the type of misconduct involved, this argument might be compelling to a jury.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
Public Employees’ Privacy Rights
Q: I work as an auditor for a state agency. Usually I am in the field, but I do have an assigned cubicle in the office. A couple of months ago, an employee reported that a piece of equipment assigned to him was missing. The department head and office administrator decided to conduct a search and used master keys to open locked storage areas in individual cubicles.
Did management have the right to look into locked areas assigned to employees without permission? If not, how should I protest?
--E.W., Sierra Madre
A: Although employees of public agencies have a right to privacy in the workplace under the 4th Amendment to the U.S. Constitution, such a right is not absolute.
No warrant is required for searches by supervisory personnel, for example, in contrast to searches conducted by law enforcement authorities in which a warrant is required. Nor is “probable cause” required for workplace searches. Rather, the standard is “reasonableness under the circumstances.” This “reasonableness” test involves several issues, including whether employees were led to believe as a matter of policy or practice that they had an expectation of privacy in the areas searched, whether supervisors had any reason to believe that a missing article might be found in the areas searched, and whether the scope of the search was broader or more intrusive than necessary to accomplish its legitimate purpose.
In your situation, although the storage areas were locked, management retained a master key, indicating a diminished expectation of privacy. Any written policies advising employees whether or not storage areas would be secure also would be relevant.
The scope of management’s search would be an important factor as well. Did supervisors simply glance in the locked storage areas, or did they search through personal items there even after it was apparent that the missing article would not be found there?
If you are a union member, you could file a grievance with your union protesting the search. You could also file a lawsuit in federal court, although given the time and cost and uncertain outcome of such a suit, you should review the matter carefully with an attorney who is familiar with this area of the law before embarking on such a course.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Federal Exempt Status and Pay Requirements
Q: Does the federal government treat its exempt workers differently from the rest of the workers in California who are exempt?
The federal government requires all its employees, both exempt and nonexempt, to indicate all hours worked. If exempt workers do not list 40 hours on their weekly time sheets, their pay is reduced or the time off is deducted from their annual leave allotments.
If an exempt federal employee in California works over or under 40 hours a week, shouldn’t he receive the established salary regardless of the hours shown on a time sheet?
--R.L., Los Angeles
A: Even though federal workers are not subject to state overtime laws, they are subject to federal rules requiring exempt workers to be paid salaries. This means that exempt workers should be paid a predetermined amount whether they work over or under 40 hours a week.
That amount should not be reduced because of variations in the quality or quantity of work performed. There are some exceptions, but in general employees should receive their full salaries for any week in which they performed any work, regardless of the number of days or hours that they actually worked.
However, an employee would not need to be paid for a work week in which no work was performed.
Deductions should not be made for certain obligations such as jury duty or military leave.
There are situations in which the employer may dock an employee’s pay without affecting the employee’s salary status. For example, deductions can be made if an employee is absent from work for a full day or more for personal reasons other than sickness or an accident. An employee also may not be paid for an absence if he or she has exceeded the paid sick leave allotment.
If the employer fails to follow these rules, it may owe employees compensation that had been withheld. Employees might have grounds for a class-action case.
It also would be illegal for the employer to retaliate against an employee who complains about such a reduction in pay.
--Don D. Sessions
Employee rights attorney
Mission Viejo
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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, or e-mail them to shop
talk@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.
