Employer Has No Sick Leave Policy
Q: I work for a small company that doesn’t have any particular sick leave policy. We are just told that we can take it when we need it, but if we abuse the privilege we can be disciplined or terminated.
I have a daughter who has been sick a lot lately, and I’ve taken time off to take care of her. I have heard through the grapevine that management is not happy with my absences and is going to do something about it.
Do I have any legal right to take time off when my daughter is sick?
--R.F., Mission Viejo
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A: The California Labor Code was recently amended to allow employees to use half of their annual accrued sick leave to care for an ill child, parent or spouse. An employer may not take adverse action against an employee who uses sick leave for this purpose.
The difficulty with your situation is that your employer does not allow you to accrue sick leave. As a result, there is no way to calculate how much sick leave, if any, you could take for the illness of your child.
Your employer might take the position that, because it does not allow employees to accrue any sick leave, half of nothing is nothing and its employees do not have the right to use any particular amount of sick leave to care for a child, parent or spouse. However, the labor commissioner or a court could determine that because your employer does provide sick leave-- even if there is no particular policy--it must allow its employees to use at least some amount of leave for the illness of a family member.
You would want to make sure that your use of sick leave is not disproportionately higher than that of other employees. Otherwise, your employer might have a good argument that it is not your particular use of sick leave that is of concern, but rather your high number of absences.
--Josephine Staton Tucker
Employment law attorney
Morrison & Foerster
Is Severance Pay Required by Law?
Q: What is the law on severance pay? I had worked for a firm for more than two years when I was let go. I received no advance notice and no severance pay.
Doesn’t the law require companies to provide two weeks’ severance pay plus something based on the amount of time you work for a company?
--A.R., Los Angeles
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A: Employers are not legally required to pay severance or provide advance notice of individual terminations that are not part of a plant closing or mass layoff.
Employers may establish policies of providing severance pay, which usually is computed using a formula based on length of service.
If your former employer had such a policy and failed to pay, you would have the basis for a lawsuit. Otherwise, you are not legally entitled to severance pay.
--James J. McDonald Jr.
Attorney, Fisher & Phillips LLP
Labor law instructor, UC Irvine
Employer Is Blocking Workers’ Transfers
Q: I work for a federal agency in which employees must have a supervisor’s recommendation when seeking a transfer to another division or a promotion.
Since our supervisor will never give his better employees a good recommendation, their applications are rejected. As a result, employees are locked into the current division.
What options do we have, other than quitting?
--H.B., Bakersfield
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A: Carefully review the rules for transfer or promotion to determine whether there are exceptions to requirement for a supervisor’s recommendation. Perhaps favorable annual reviews would be sufficient.
You might want to consider applying for another position as a “new hire” instead of as a transferring employee. The rules may be different.
Alternatively, you might have to threaten your supervisor about possibly quitting. Try to get a commitment for a recommendation for promotion or transfer at some time in the future and then confirm it in writing. Promises that must be fulfilled in the future are sometimes easier to make.
Threaten to go over the head of your supervisor to his supervisor unless you get reasonable cooperation.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Worker Showed Up, but Plant Was Shut
Q: Are workers entitled to be paid when they are assigned to shifts but can’t get into the building to work?
On a recent weekend, building management would not let tenants into their offices after a construction worker caused an electrical short that shut off power. I lost a day of work as a result.
--S.K., Los Angeles
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A: Under the circumstances that you describe, the answer is no, although that may change in the future.
Right now, under the laws that govern wages, hours, and working conditions in California, an employee who reports to work but can work less than half of a normal shift must be paid at least half of his scheduled work day for reporting--a minimum of two hours’ and a maximum of four hours’ pay.
However, the employee is not entitled to receive such reporting-time pay if the employer can’t provide work for the following reasons:
* Bomb threats or similar incidents.
* Failure of any public utilities, such as electricity or water.
* Other causes beyond the employer’s control.
Since your inability to work was not your employer’s fault, your employer had no obligation to pay you for not working. This may change, however, under revisions to California law that are pending.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
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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.
