Don’t Let Costs Halt Discrimination Suit

Q: I was the only female on a team of highly specialized technical professionals hired by a large corporation to solve a specific problem. When it became clear that the corporation was no longer interested in solving the problem, I tried to start new projects or work on existing projects that were valuable to the company.

This apparently irritated my boss because some of my work benefited a rival department. I was isolated. I received no communication and was excluded from meetings. I also became the target of unfounded criticism.

I started performing all the little tasks my boss wanted me to do, while asking to do more in areas that are useful to the company. I was ignored, while similar requests from my male counterparts were approved.

I then requested a transfer, which was approved orally. But before the paperwork was executed, the company downsized and I was the only one on my team to be terminated.

Given the similar background my team members and I have, I believe I was the victim of retaliation, which corporate policy specifically prohibits. I documented my efforts to work in new areas and my requests to expand my skills.

What are my legal rights in this case? Is it difficult to find a lawyer willing to stand up to a large corporation? Would I be justified in pursuing this issue through potentially costly legal efforts?

--N.L., Irvine

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A: From the description of your situation, you seem to feel that you have been treated differently and were terminated because you are a woman. If this is the case, you may have sufficient evidence to make a sex discrimination claim.

If you wish to do so, you must first file an administrative claim of discrimination with either the state or federal antidiscrimination agency. The state agency is the Department of Fair Employment and Housing, and the federal agency is the Equal Employment Opportunity Commission. The phone numbers and addresses of these agencies are in the telephone book.

If you have evidence of sex discrimination, you should not find it difficult to find a competent lawyer to represent you. Many attorneys who represent employees take cases on a contingency basis, which usually means that you will not be responsible for paying attorneys’ fees unless the attorney is successful in getting a settlement for you. The type of fee arrangement the attorney will make with you will vary from attorney to attorney.

If you choose an attorney who will not accept the case on a contingency, this type of litigation can be very expensive to pursue. However, if you believe you have been discriminated against, the fact that your former employer is a large corporation should not deter you. In fact, many attorneys who represent employees prefer to litigate against big corporations because there is a greater potential for a larger monetary recovery, and these corporations usually understand the risks that a jury trial poses to an employer.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Employee Must Repay Disallowed Expenses

Q: The company I work for recently decided to audit the expense accounts of those of us who travel. I turn my reports in monthly and they are checked and signed by my superiors and then sent to accounting.

I have always included gas and mileage on my reports, as I was instructed to do by my supervisor. She had always been paid gas and mileage by her boss and thought she should do the same for me.

This was apparently not company policy and now after three years, accounting discovered this mistake. They expect me to pay the gas amount back and have withheld this from my current expenses.

Since we use our own credit cards to pay for our travel and then get reimbursed, this has created quite a hardship.

My expense reports have always been sent through the proper channels and checked and signed by my supervisors and accounting. Is it reasonable, after three years, for them to make this demand?

--J.L., Alta Loma

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A: I see nothing inherently unreasonable in your employer’s actions. Just as you would expect the employer to reimburse you if you suddenly discovered that you had been paid the wrong salary for three years, your employer is justified in getting money back from you that it paid over the last three years while believing that your supervisor was properly approving your expenses in accordance with company policy.

Nonetheless, if the reimbursement creates a hardship for you, you might want to approach your management about working out a different repayment arrangement that would not impact you so harshly.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

All But Apprentices Get Prevailing Wage

Q: My son has rejoined an electrical contractor after being away almost a year because of conflict with his school schedule. He had worked with the company eight to nine months before departing the first time.

Several of the projects he has worked on require employees to be paid prevailing wages, but his employer has informed him that he is not eligible for prevailing wages because he is on a 90-day probation period. His hourly rate would double if he was paid the prevailing wage rate.

Is there a “loophole” in the laws governing prevailing wage? On one of the projects, he was the only one from his company on the job for an entire week, so I don’t think “trainee” would be an acceptable reason.

--D.F., Diamond Bar

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A: The federal Davis-Bacon Act and related state laws require that contractors on public works jobs pay the employees no less than the prevailing wages paid for similar work in the locality.

One exception is that a contractor can pay less than prevailing wages to apprentices who are enrolled in a apprenticeship program registered with the federal Department of Labor or the state Department of Industrial Relations. The apprenticeship exception does not apply to trainees who are not enrolled in a recognized program, even if the employer calls the trainees “apprentices.”

It is unclear from your question whether your son was enrolled in a certified apprenticeship program. If not, he can file a complaint to recover full prevailing wages and penalties with the Wage and Hour Division of the U.S. Department of Labor (for federal jobs) or the California labor commissioner (for state public works).

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Worker Who Quits Can Get COBRA Insurance

Q: If I leave my job voluntarily, would I still be eligible for COBRA insurance? A friend said you could only qualify for COBRA if you are laid off or terminated by your employer.

--J.G., Huntington Beach

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A: In general, COBRA (the federal Consolidated Omnibus Benefits Reconciliation Act) allows you to buy coverage through your old employer’s group health plan following your departure, regardless of whether you quit, were laid off or were fired.

The only exception is that COBRA is not available if you are terminated for “gross misconduct.”

--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.

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