No Minimum Is Needed to Challenge Termination

Q: My brother was recently terminated after 1 1/2 years on the job. He had an excellent work record, but had been unable to work for health reasons.

He sought medical help and obtained a note from his doctor stating that he couldn’t work until his medical evaluation was complete. A few days after his employer received the note, my brother received a termination notice.

When he sought legal help, lawyers said he needed at least five years of continuous employment for a legitimate claim. Is that correct?

--R.P., Lake Forest

A: No. There are a number of different laws that might apply to your brother’s situation, but none have a five-year length of service requirement.

The family and medical leave laws would protect your brother as long as he has worked for the employer for at least one year--and at least 1,250 hours in the year. Family leave laws would protect your brother if his employer has at least 50 employees and your brother has a “serious health condition.”

Other laws that might apply--the Americans With Disabilities Act, the California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964--also have no length of service requirement.

It’s possible that the attorneys meant that your brother had not been employed long enough to have damages significant enough to warrant their handling the matter.

Your brother could contact either the state or federal anti-discrimination agency--the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission.

He should explain his entire story. They will assist him, without an attorney, in analyzing whether he has a legitimate complaint.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

There Can Be Varying Practices for the Exempt

Q: My current employer seems to have two different groups of exempt employees. In one group, the employees are required to fill out daily time cards, showing all time away from the office as sick time if they have not accrued any comp time. In the other group, the exempt employees are in supervisory positions. They come and go as they wish and nothing is noted on their time cards regarding time away from work.

Are there different categories of exempt employees? What are the rules regarding tracking hours for exempt employees?

--J.R., Los Angeles

A: In the situation you describe, the term “exempt” describes a salaried “white-collar” employee.

Exempt employees are not entitled to overtime premiums or minimum wages. Instead, they should receive a salary that does not change with the quantity or quality of their work or the number of hours spent on the job.

An employer is not required to keep records of hours worked by exempt employees, but it is not illegal for the employer to do so.

In the same way, your employer can have different timekeeping and payroll practices for different categories of exempt employees. Although there have been few reported lawsuits, it is probably not unlawful for an employer to require exempt employees to charge partial day absences against accrued comp time or sick leave banks.

It is impossible to tell whether your employer is complying with the exemption requirements. To meet the white-collar exemption, the exempt employees should be spending more than 50% of their working hours engaged in executive, administrative or professional duties.

If they are spending less than half their time in exempt duties, they are probably entitled to recover overtime for all hours that they have worked in excess of 40 hours a week or eight hours a day.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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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.