Employer’s Refusal to Honor Paycheck Is Illegal
Q: My employer paid me by check, then closed the account at the bank. Subsequently I was terminated, and the employer refuses to issue a new check. Is there some government agency that can help me recover this money?
--B.W. Newport Beach
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A: The State Labor Commissioner can assist you in getting paid. The labor commissioner has an office in Santa Ana as well as in most other major California cities.
It is illegal for an employer to refuse to honor a paycheck. You can recover not just the value of the check but as much as 30 days’ additional pay as a penalty.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Notifying Retirees of Medical Benefit Changes
Q: Is a major company required to keep its retirees informed of their current medical benefits and any key changes, such as the name of the health insurance carrier or the group number? If so, is there a state or federal agency that we should contact to report violations?
--J.P., Silver Lake
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A: If there is a “material reduction in benefits” in a medical plan, such as an increase in deductibles or co-payments, employees must be notified no later than 60 days after the plan has been changed. However, a change in the health insurance company need not be disclosed to employees until 210 days after the end of the plan’s fiscal period in which the change occurred. The fiscal period for the plan typically is the same as the year for the insurance company’s contract.
The Labor Department is responsible for enforcing these disclosure obligations. However, given the agency’s heavy workload, which includes some criminal matters, it is virtually inconceivable that the department would take action against an employer who simply fails to provide timely notification of a change in the insurance company that funds the benefits under an employer’s health plan.
--Kirk F. Maldonado
Employee benefits attorney
Riordan & McKinzie
Firm’s ‘Use-It-or-Lose-It’ Sick Policy Is Legal
Q: The company I work for allows five sick days prorated over the year. Sick days can’t be carried over from one year to the next, and are not granted in advance.
That means in January, you are allowed about half a sick day, 1.25 sick days by March, etc. When I was sick for two days last February, I was allowed to claim one sick day. The other day was counted as vacation.
At the end of the year, I had four unused sick days, but the company refused to let me have the vacation day back.
To make matters worse, the company allowed everyone to use two sick days in January last year as a special gesture because of a flu epidemic. Since I was sick in February, I was not able to benefit from this “generosity.”
Is the policy legal?
--R.W., Los Angeles
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A: The policy is legal but probably not the most sensible.
Sick leave, unlike vacation pay, can be granted on a “use-it-or-lose-it” basis to employees. That means employers can have policies that don’t allow employees to carry over sick leave from one year to the next and don’t allow employees to cash out their unused sick leave when their employment terminates.
Because employers can require employees to forfeit unused sick leave upon termination or at the end of a year, many employers grant a year’s worth of sick leave upfront as a block of available time.
They understand that it doesn’t make sense for those who are sick at the end of the year to fare better than those who are sick in January. Moreover, when employers have inflexible sick leave policies, employees often try to end-run the system, using sick leave to take a “mental health” day when a vacation day would be more appropriate.
--Josephine Staton Tucker
Employment law attorney
Morrison & Foerster
Getting Information for Employee Handbook
Q: We are in the arduous process of overhauling our employee handbook and have many questions regarding employee rights, in particular exempt versus nonexempt employees.
Could you steer us to a good resource that defines exempt vs. nonexempt status of employees? It is a confusing issue and everyone seems to have a different opinion on this.
--R.W. South Gate
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A: Exempt/nonexempt status can be very confusing. An employer who fails to understand the difference could be subjected to substantial liability if it fails to observe state and federal rules on the issue.
Employees who earn salaries and are executives, managers or administrators generally are considered exempt. Most others are considered nonexempt.
For a longer answer and detailed advice on how to set up policies in your employee handbook, you should consult an attorney specializing in employee rights. The California Chamber of Commerce, the Employers Group and other employee advisory groups also could provide helpful advice.
You might want to ask your own lawyer to give you the California State Bar Assn.’s inexpensive booklet on employee handbooks.
Other publications include the “Employer Guide to Employee Handbooks and Personnel Policy Manuals” by the law firm of Morrison & Foerster (published by Matthew Bender), and “Employee Handbook and Personnel Policies Manual” by Los Angeles attorney Richard J. Simmons (published by Castle Publications Limited).
--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, 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.
