In Most Cases, Employers Can Require Weekend Shifts

Q. My company recently decided to add weekend work shifts. Upper management is seeking volunteers to work weekends, but if an insufficient number of people volunteer, people will be assigned weekend shifts.

I was hired with the understanding that I would be working Monday through Friday. There was no mention of weekend shifts.

Do we have a right to refuse to work weekends under this new policy?

--D.B., Aliso Viejo

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A Unless you have a written contract specifying that you would not have to work weekends, your employer may require you--as well as other employees--to work weekends.

Employers are permitted to make alterations in employees’ work schedules for valid business reasons. This right is not limited by the fact that weekend work was not mentioned when you were hired. Your “understanding” at the time you were hired is not a binding contract.

Your refusal to work weekends would probably be deemed insubordination and could lead to your termination.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Salaried Employees and Overtime

Q. My husband is a salaried employee. His supervisor made the statement that a company can demand up to 52 hours a week from salaried employees without compensation for overtime and that it is illegal to allow them to work less than 40 hours a week and receive 40 hours pay.

This sounds ludicrous. What are a salaried employee’s rights for overtime compensation? Can this matter be taken up with the labor commissioner?

--P.T., North Hills

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A. Your husband’s supervisor is wrong.

Ordinarily, salaried employees are never entitled to overtime compensation, even if they work 52 or more hours in a week. Under recent court decisions, however, your husband’s employer can legally maintain a policy of paying overtime to exempt employees provided that they are treated as salaried in all other respects. Thus, your husband would be entitled to overtime pay established under the employer’s policy.

Your husband’s supervisor is also wrong in saying that it is illegal to pay salaried employees for 40 hours if they work less than 40 hours. To be exempt from state and federal overtime requirements, salaried employees must be paid their regular salaries without regard to the number of hours they work. For example, if your husband takes half a day off to see his doctor, he is entitled to his full salary for the workweek even if he did not make up the lost work time.

Your husband’s employer will pay a high price if it regularly docks salaried employees’ pay when they fail to work a full 40 hours. Such a practice means that the employees are not truly salaried, which would entitle them to recover back overtime premiums, possible double damages and attorneys’ fees.

If the employer makes a practice of docking salaried employees, your husband should consult an employment lawyer or file a complaint with the California Labor Commissioner.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Test for Altering Retirement Benefits

Q. I retired more than 12 years ago from an insurance company and have been receiving free medical insurance as part of my retirement package.

Last year, the company was taken over by another insurance company. The new owner has notified me that, effective in January, I will have to pay for my major medical insurance at a rate that will almost wipe out the pension I receive from my former company.

Is it legal for the new owner to alter benefits given to me by the former company?

--L.C., Sunland

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A. Whether the entity reducing your benefits is your former company or another employer that purchased the business is not the deciding factor.

The test is whether you were promised benefits that could not be reduced, or whether the company reserved the right to change the level of benefits.

This will require an examination of the terms of the health plan document, the summary plan description of the health plan (which the company is obligated to provide to you at no charge), and other employee materials you received prior to your retirement.

The Labor Department has prepared a booklet to help you evaluate your situation. Its title is “Can the Retiree Health Benefits Provided by Your Employer Be Cut?” You can get a free copy by calling (800) 998-7542 or checking the department’s Web site at https://www.dol.gov/dol/pwba. You can also call the department for assistance at (202) 219-8776.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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.