Employer Can’t Retroactively Change Pay Policy When Worker Is Fired

Q: I was recently let go from a sales position that included hourly pay plus commissions. Under the company’s written policy, the sales force received $100 a day for accrued vacation time.

When we were let go, however, the company would pay only a lower hourly rate for vacation time that was accrued. The company said it was a business decision and it was within its rights.

Is this legal?

--N.C., Huntington Beach

A: Employers are not required by law to offer paid vacations. But if a company has a policy spelling out some type of compensation for vacations, it cannot retroactively change that policy when it terminates an employee.

It is appropriate for your employer to establish compensation of $100 a day for accrued vacation time. However, the company does not have the right to change that amount for employees who have been terminated.

Employers are required by law to pay employees all accrued vacation time on the date they are terminated. If the company fails to do so, employee wages continue, as a penalty, for 30 work days or whenever the benefit is paid, whichever comes first.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Union May Settle Case Even if Member Objects

Q: After telling me for more than three years that I had a good case concerning a grievance against my employer, my union abruptly settled the case before the arbitration hearing without consulting me and without explanation.

The result was very negative toward me. I believe that my union acted in bad faith and sold me out in return for some compensation from management.

Is there anything I can do against the union or any agency that I can turn to? Do I have any recourse to overturn the settlement?

--C.L. Covina

A: Unions can legally settle grievances over their members’ objections, even on the eve of arbitration, if they determine that arbitration is not in the best interests of the union or that the union might lose the arbitration.

If the settlement of your grievance was arbitrary, discriminatory or in bad faith, you can file an unfair labor practice charge with the National Labor Relations Board or a lawsuit claiming that your union breached its duty of fair representation. Although it is unlikely that the settlement will be overturned, in some circumstances you may be able to recover damages from your union and employer.

These claims are usually difficult to prove. A union is not required to arbitrate every grievance or to “cure” every contract violation. Your union will be legally protected if it made an honest, reasoned decision when settling your grievance, even if the settlement harmed you or was based on a misunderstanding of the labor contract or the facts of your case.

To prove unfair representation, you must show that your union settled your case in bad faith or irrationally, or based its decision on an unlawful distinction such as race, sex, age or religion. It would be bad faith (as well as a criminal violation) if, as you suspect, union officials took bribes from your employer in return for settling your case cheaply.

Before taking legal action, ask your union representative to explain why the case was settled. You are legally entitled to know. If the explanation indicates that the union made a reasoned, good-faith decision, and you cannot show that it threw your case in exchange for a bribe, you will have no legal recourse.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Repairing Reputation as New CEO Arrives

Q: My company has a new chief executive who seems to be trying to raise the standards. I have no problem with that, because I felt that under the last CEO’s leadership, I was restricted from doing a better job because his views were so narrow.

I want to be a valuable member of the new CEO’s team, but I have a reputation for being ineffective and lacking in vision. The new CEO has asked for a job description and a long-term plan for improving my output.

Is this the time to tell her how I feel about my reputation? I want to save my future (and my job).

--C.K., Los Angeles

A: I would use the opportunity to start fresh. Think seriously about how to define your job and work plan for the future.

The best way to combat a poor reputation is through positive performance. Rather than trying to persuade the chief executive that you have gotten a “bad rap,” show your initiative and willingness to work by setting ambitious but obtainable personal work goals.

The CEO will probably make up her mind about you based on how you perform in the coming months.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Employer Decides How Time at Work Is Used

Q: I am one of two word processors in an office with 10 secretaries. I am a nonexempt, at-will employee. I have been here more than 10 years and have received excellent reviews.

Last summer, a powerful partner brought in eight tapes of interviews for a friend’s book, to be transcribed “when you have free time.” The tapes were of poor quality, and we spent 100 hours on this project.

Now he has 12 more tapes and wants them done soon. No secretaries are required to work on this. The office manager told us to do them. The partner wants to see our daily work logs to determine if we have free time. It’s a stressful situation. If I refuse to do this personal work, can it be reflected in my review or endanger my job?

--S.S., Los Angeles

A: Yes. You can be fired for insubordination if you refuse this assignment.

If you are being paid for the hours you work, your firm is within its rights to direct you to perform specific assignments even though you find those assignments disagreeable.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

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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.