When Employer Bears Work Costs

Q. I have read several times in this column that companies must pay work-related expenses. I wonder if this applies to me.

As a fully commissioned company employee, I am required to pay all of my travel expenses--airfare, hotels, meals, gas and rental cars. I have a large territory, and the company mandates that I travel with no reimbursement.

--C.B., Placentia

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A. If you truly are an employee, your employer must reimburse you for travel and other work-related expenses. But if you are an independent sales representative or independent contractor, the company need not pay expenses.

The issue of whether you are an employee or contractor may be a bit complex. Generally, however, if you receive a W-2, have taxes taken from your paycheck, sell only for one company and are required to attend regular sales meetings and prepare various sales reports, you are probably an employee.

On the other hand, if you receive an IRS Form 1099 (miscellaneous income), do not have taxes taken from your paycheck, are free to sell for other companies and to make your own schedule, you may be a contractor.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Do Staff Surveys Give You the Scoop?

Q. The company I work for does an annual survey of employees. The survey is long and asks us to rate almost everything about our jobs, such as our supervisors, the working conditions and our feelings about the company.

The company president tells us that the survey shows we are a top-performing company. We always hear that everything is fine--that there are no problems.

But I and many of the people I work with think things are not all that fine, and there is a lot of grumbling going on that management doesn’t hear.

Are these surveys any good? It seems to me that the problems should come out in the survey, but that doesn’t seem to happen.

Y.R., Orange

A. Soliciting employee feedback through regular surveys is a good idea and a good way for employers to stay informed about what employees are thinking and feeling. But it is very important that employees receive feedback concerning the results of these surveys. Otherwise, workers will begin to feel that the surveys are a waste of time and won’t take them seriously.

Employee surveys can provide organizations with feedback on what they are doing right and what areas need improvement or attention.

Because an employee survey can measure only employees’ attitudes, feelings, beliefs and self-reported behaviors, it might be difficult to use these surveys to conclude that yours is a top-performing company.

However, if employees are given a standardized survey used by many other organizations, comparisons can be made. For example, a standardized survey may show that employees at your organization are more satisfied and have stronger feelings of company loyalty than employees at other organizations.

Perhaps you should express your concerns to management about the survey and employee feedback.

--Ron Riggio

Director, Kravis Leadership

Institute

Claremont McKenna College

Older Worker Pressured on Benefits

Q. My father has worked for a small company (more than 25 employees) for 13 years. He is still very fit and takes no sick days but is being pressured to retire.

Earlier this year, even though he remained on the payroll, he was asked to sign a paper saying he is terminated so that he could be removed from the health insurance carrier. Can the company do that legally? Now he is afraid to take a vacation because he might not be allowed to come back to work.

Isn’t this age discrimination?

--O.M., Los Angeles

A. Based on your description, the employer’s actions certainly seem suspect.

With very limited exceptions, mandatory retirement constitutes age discrimination.

Compulsory retirement is permitted if an employee is at least 65 years old, is in a bona fide executive or high policymaking position for the two-year period immediately before retirement, and is entitled to an immediate, annual retirement benefit that can’t be forfeited from a pension, profit-sharing savings or deferred-compensation plan, or any combination of such plans, that totals at least $44,000.

Other exceptions to the rule against mandatory retirement involve institutions of higher education and physicians, in certain situations.

Unless one of these exceptions applies to your father, he cannot be forced to retire. And unless the company has a nondiscriminatory reason for removing one of your father’s benefits of employment--his insurance--he may have an age-discrimination action based on that action alone. He would have to establish that he was forced to give up this benefit while younger workers were permitted to retain it.

Given the company’s actions, I recommend that your father contact the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission.

If he makes a claim under either state or federal law, his employer may not retaliate against him. If he is successful in making an age-discrimination claim, he may recover not only compensatory but also punitive damages from his employer.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker