Refusal to Work Overtime Could Result in Firing
Q. My daughter works at a grocery store, and although she is through with the probationary 60-day period, she has not yet joined the union.
Her boss assures her that he can keep her at work at least an hour after the end of any regularly scheduled shift if they need extra help.
Can she be fired for refusing to work time beyond her scheduled hours? She is over 18.
--S.A., Lake Forest
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A. Unless your daughter’s labor contract permits her to refuse to work overtime, she can be required to work beyond her scheduled hours, provided she is paid for her work.
A refusal to work unscheduled overtime may constitute insubordination and could subject her to discipline, including possible discharge.
Even though your daughter has not yet joined, the union has a legal obligation to represent her if she has a legitimate grievance.
Your daughter should ask her union representative whether she has a contractual right to refuse overtime assignments. She also should ask whether the union contract requires that overtime be offered to employees in order of their seniority.
Depending on the answers to these questions, your daughter might wish to file a grievance with her union over her boss’ overtime demands.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
Oral Promise to Pay Employee Not Binding
Q. At a recent preliminary conference at the labor board, my employer was found liable for a large sales commission.
The company, in the presence of the deputy labor commissioner, agreed to pay the full amount. But two days later, the company called the deputy commissioner’s office and contended it was liable for only 10% of the commission.
I thought the Labor Code states that once a company agrees to pay a portion of the outstanding wages, it must pay the employee immediately, pending the outcome of the formal Labor Board hearing. Is this correct?
How can my former employer be forced to adhere to this provision?
--J.W., Studio City
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A. You are incorrect. A pre-hearing conference before the labor commissioner is just that--a conference to determine whether or not the employer is willing to pay what the employee is claiming, or wishes the matter to be heard before a deputy labor commissioner.
Unless your former employer signed a formal, written settlement document agreeing to pay you, an oral promise to pay at the hearing was not binding.
Your only recourse is to proceed with a formal hearing.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Paycheck Errors Must Be Corrected Promptly
Q. Recently, several exempt employees in my company received paychecks that were short by eight to 40 hours in an 80-hour pay period. The mistakes occurred because of key-punch errors by the people who enter our time, not because of how we filled out our time cards.
The company refuses to issue checks for the missing hours and says we must wait for our next regular paycheck or possibly the one after that. Is this policy legal?
--H.D., Los Angeles
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A. California law requires that wages be paid when they are due, and a “waiting time penalty” can apply if an employer intentionally fails to comply.
Although the shortages you describe would not probably be deemed “intentional,” your employer is obligated to correct the error as soon as reasonably possible. Delaying the correction beyond the next regular paycheck would appear unlawful and increase the likelihood that the labor commissioner would assess a waiting time penalty if a claim were filed.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
‘Call-Back’ Provisions Vary According to Job
Q. What does the law say if a nonexempt employee already has worked an eight-hour shift for the day, goes home, then is called back a few hours later to perform a task that may require only one to two hours of work?
We have instances where a mechanic is called in to fix a specific problem or a shipping employee to unload or load a late-arriving truck.
--J.S., Palm Desert
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A. There are overlapping federal and state wage and hour laws on this issue, as well as variations among industries.
A “call-back” occurs when an employee works a full eight-hour shift, then is required to return to work on the same day to perform additional tasks. In most instances, the employer is required to pay for the additional hours worked in excess of eight hours at the overtime rate of 1 1/2 times the regular rate of pay.
Generally, state law requires an employer to pay a minimum of two hours, even though the work required may take less time. Some federal laws suggest that an employer also must pay for travel time back to the employer’s place of business, but this issue has not been definitively decided.
Wage and hour laws vary by industry and occupation. Further, there are different state and federal laws that make interpretation complicated and risky for employers, who may be subjected to penalties for improper wage payments.
Specific state law requirements are contained in “wage orders” produced by the Industrial Welfare Commission and are applicable to specific industry groups. You may consult with the Division of Labor Standards Enforcement for additional information regarding your particular industry.
--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. Recent Shop Talk columns are available at https://www.latimes.com/shoptalk.
Survival Tactics: The kind of tactics used by the winner of television’s “Survivor” series might have backfired if used in the workplace. See story at https://www.latimes.com/calendarlive/tvent/lat_manipulate000825.htm.
