Nonunion Worker’s Hours Subject to Overtime Laws

Q: I’m a nonexempt employee at a laboratory that employs nonexempt and union technicians. The union techs work a 12-hour rotating schedule--84 hours every two weeks, but 36 hours one week and 48 hours the next. The company adjusts the rate of pay so they receive an average of two hours overtime per week rather than the eight hours of overtime that they would receive for the 48-hour week.

I’d like to work a 12-hour rotating schedule similar to the one the union employees work, but our human resources department has said that that would not comply with California labor law. Is this true?

--M.C., Seal Beach

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A: Yes, it is true. The pay plan that the union technicians are currently on would not be lawful under California statutes if not for the union contract. If a nonunion nonexempt employee works such a schedule, the employer would be required to pay the larger amount of overtime.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Discrimination and Identification

Q: Having been self-employed for most of my life, I have had little problem with ageism. But now that I am semiretired at 80, employers are reluctant to hire me because of my age.

I look 20 years younger, have taught myself to use the computer, and am healthy and bright.

When I apply for temporary work, what should I do when asked to produce a photo ID, such as a driver’s license, that shows my date of birth? Can I cover it with tape? Or would that turn off an employer?

--J.D., Rancho Palos Verdes

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A: An employer is required by law to hire only those who can produce proof of identity and eligibility to work in the United States. However, because of discrimination laws, an employer may not ask an applicant for a photo ID or for information that would disclose an applicant’s age, race, sex, national origin, etc., until after making a decision to hire him or her.

To solve this problem, many employers make “contingent” hiring decisions. They make an offer to hire the individual so long as he or she can produce proof within three days after the hire date of identity and eligibility to work in the United States. An employer should not be asking you to produce a photo ID until after it has made a decision to hire you (subject, of course, to your providing proof within three days of identity and ability to work in the U.S.).

If you are asked to produce a photo ID before you have been given at least a contingent offer of employment, you could show the employer this column. You also could suggest that the employer contact the California Department of Fair Employment and Housing for information about the legality of that practice.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Employment Promise Broken

Q: I have been employed as a registered nurse for 19 years at a university medical center that is represented by a nurses’ union. We were told in February that a new management company would be taking over our department but that we would remain university employees. We were assured several times that our jobs were secure. Then we were all given layoff notices with 30 days’ pay.

Because we are in a specialized area, it has been difficult to find similar positions in the university that would not require a lot of retraining. Do we have any recourse? Is this a fair labor practice?

--J.M., Ventura

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A: Your relationship with your employer is governed by your union’s contract. Look at the contract to see what rights the employer has to unilaterally terminate your employment in this type of situation. See if oral assurances of continued employment are enforceable, or whether such promises are required to be in writing and signed by management personnel of a certain level.

Even though it may appear that your employer could be liable for breaching promises to you regarding continued employment, those promises may not be enforceable under the union contract.

What’s more, because this action affects all of the employees, it does not appear to be discriminatory or retaliatory in nature.

Consult with your union steward or attorney regarding your rights under the union contract.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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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.

More on Benefits

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