Firm Needn’t Pay for Time at Doctor’s

Q: I am thinking about filing a claim to get treatment for work-related stress.

I would not be going out on full disability but would want to schedule the appointments during my work hours.

Does California law permit employees to make physician visits on company time? Is the company responsible for providing transportation?

--C.B., Costa Mesa

A: California law would not necessarily permit you to schedule all doctors’ appointments during working hours, and would not require your employer to pay you for attending appointments that caused you to miss work.

There is no requirement that your employer provide you with transportation to your doctor’s visits.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Boss Shouldn’t Take 401(k) Match From Pay

Q: A curious situation has arisen regarding my wife’s 401(k). Her employer recently granted a discretionary contribution to her 401(k) account consisting of two parts, a “profit share” and an employer match.

The strange part is that the contribution came not from the employer, but was deducted from my wife’s gross pay. To top it off, even the employer match portion of the 401(k) contribution came out of my wife’s salary.

Is this a common way for employers to make discretionary contributions to employees’ 401(k) accounts?

--S.M., Camarillo

A: Some employers reduce the discretionary bonuses that they pay to employees by the amount that employers contributed to the Section 401(k) on the employees’ behalf (whether those are characterized as “profit sharing” or as “matching” contributions).

The employers’ rationale is that because they have the discretion on whether to pay the bonus, they can also decide whether the bonus will be paid in the form of cash or to the employee’s account in the Section 401(k) plan.

This is probably legal, because the employee does not have an absolute right to a discretionary bonus.

However, an employer is not allowed to make contributions to the Section 401(k) plan by reducing the employee’s salary, which workers are unconditionally entitled to receive.

If the “employer” contributions to the Section 401(k) plan are linked to a reduction in your wife’s salary, she should raise an objection with her employer. If the employer does not correct this situation to her satisfaction, she might want to contact the local office of the U.S. Department of Labor.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

Offensive Language Is a Form of Harassment

Q: I am a female technician working in the same area with 10 to 15 male technicians in the entertainment industry. I have worked with the company for seven years.

I am offended by the vulgar language that a few of my co-workers use. I hear the “F” word up to 30 times a day. Other obscene words are also frequently used.

I spoke with the manager, who told me that I’m “working in a man’s world” and I “just have to get used to it.”

I reported all the incidents to Human Resources, and the vulgarities stopped for a week, but everything is back to the usual. And the supervisor is treating me as if he knows I complained, even though Human Resources said everything was confidential and that the perpetrators would never know.

What are my rights? And is there anything I can do?

--M.W., Rancho Palos Verdes

A: The facts you have presented constitute a type of sexual harassment known as a “hostile work environment.”

I suggest that you go back to Human Resources, explain that the vulgarities have returned to the workplace and that you now feel as if you are suffering retaliation because of your complaint. Any retaliation against you would be illegal under both state and federal law.

If this does not work, you may file a sexual harassment claim with either the state Department of Fair Employment and Housing or the federal Equal Employment Opportunity Commission. These agencies will investigate your claim and determine whether harassment exists.

Based on the facts you have presented, it’s very likely that the agencies would find that you were the victim of a hostile work environment. You would then be able to file a civil action against the employer, if you wish.

If you are successful, you could recover out-of-pocket costs as well as potential punitive damages for your employer’s failure to address adequately the sexually harassing behavior.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

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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.