Vague Sick Leave Rule Puts Parent of Ill Child in a Bind

Q I work for a small company that doesn’t have a 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 care for 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 a legal right to take time off when my daughter is sick?

--R.F., Mission Viejo

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A The California Labor Code recently was amended to allow employees to use half 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 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 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 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 use of sick leave that is of concern, but rather your high number of absences.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

Severance Pay, Warning Not a Given in Firings

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

Labor law instructor, UC Irvine

When Boss Blocks Your Promotion, Get Creative

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 the 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 than those at the present.

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

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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.