Workers’ Comp Leave Does Not Affect Job Protections

Q I was terminated by my employer while on workers’ compensation leave. Is this legal? I would like to know what my rights are.

--Y.L., Los Angeles

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A You have no better or worse rights to keep your job while on workers’ compensation leave than you have when actively employed.

For example, if there is a companywide layoff and your employer can show that you were “the next in line,” your termination may be justified while you are on workers’ comp leave.

But there are many ways in which the termination of someone on workers’ comp or medical leave could be illegal or appear to be illegal.

It is illegal, for example, to terminate injured employees because they file or threaten to file a workers’ comp claim.

It also is illegal to terminate employees because of a serious disability if an employer has granted sick leave to other employees who don’t have these disabilities.

Under the Family Medical Leave Act and its California counterpart, employees can take as many as 12 weeks of medical leave and are guaranteed their previous jobs unless they would be subject to termination even had they not been on leave.

Even if the employer’s reasons for termination are legitimate, firing someone who is injured or on medical leave looks very suspicious. It often appears to the employee and to his or her legal representatives that the decision to terminate someone was based on an illegal reason.

Because of this, most employers give employees in these situations more consideration in the termination process than is legally required.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Year-End Forfeiture of Personal Days

Q You once stated that personal days given in addition to vacation days can be forfeited at the end of the year if unused.

From my reading of the California Labor Digest, it appears that is not the case. The digest states that personal days given to employees cannot be forfeited and are akin to vacation days. However, the digest does state that sick days can be forfeited if not used by the end of the year.

I would appreciate it if you could clarify the status of personal days. My company gives us four personal days a year and, beginning last year, rescinded the forfeiture policy based on a review of the Labor Digest.

--T.V., Rancho Santa Margarita

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A If an employer provides personal days that are combined with vacation and sick leave into a single category of “paid time off,” unused personal days can’t be forfeited at the end of the year.

Similarly, if employees are given a specific number of personal days, in addition to vacation, that they can use for whatever purpose they want, these days are considered the equivalent of vacation and can’t be forfeited.

However, some employers give personal days off for such events as the employee’s birthday or employment anniversary date or “floating holidays” that may be taken as needed for religious holidays and the like.

If personal days are tied to a specific event or purpose, they can be forfeited.

Even if personal days can’t be forfeited, the employer can impose a cap on the number of days that may be accrued. Your employer could, for example, impose a rule that until you use your four days for a given year you will not receive any new days in the next year.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Deductions From Sales Staff’s Pay

Q I work as a sales representative for a company that pays us a commission on the gross profit from a sale. Recently, the company has started two practices that the sales force is questioning.

The first concerns customers who do not pay invoices or go bankrupt. When that happens, 33% of the unpaid amount is deducted from our checks. On a debt of $1,000, for example, we would lose $333.

The second policy involves inventory not sold within 18 months. The company writes off that unsold inventory, deducting the actual cost of the inventory from commissions due.

Is either of these practices legal?

--B.B., Northridge

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A Your suspicions are correct. Your employer’s policies violate a California law that prohibits employers from making deductions from wages or commissions to cover cash shortages, breakage, loss of equipment or other business losses, except in limited circumstances.

The California courts have interpreted this law as prohibiting employers from recovering business losses through deductions from an employee’s wages or commissions, even if the loss resulted from the employee’s simple negligence or the misconduct of other employees.

The courts also have ruled that improper deductions of this kind are unfair business practices, which can expose an employer to severe civil liabilities.

You may wish to suggest that your employer seek legal advice regarding its new policy. If the policy is not rescinded, you should consult an experienced employment lawyer.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

More on Benefits

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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.