Liability for Shop Damage Hinges on Negligence Test
Q: My boyfriend is a mechanic for a small auto repair shop.
Because of a momentary memory lapse, a car that he was working on and a worker’s toolbox were damaged. The shop paid for the damage to the car but indicated that my boyfriend needed to replace the toolbox.
He is an employee and I was surprised that the shop’s insurance didn’t cover the toolbox. It cost more than $2,000 to replace, more than a month’s take-home pay.
Is the shop responsible?
--G.N., Huntington Beach
A: It depends on whether your boyfriend’s momentary memory lapse constitutes simple negligence, gross negligence or intentional misconduct.
If he was simply negligent, the employer may not deduct the cost of the toolbox, even if your boyfriend agreed to such a deduction in writing. Such losses are considered by California law to be one of the costs of doing business that an employer must bear.
On the other hand, the California wage orders permit an employer to make a deduction from an employee’s wages for breakage or loss of equipment if the employer can show that the loss was caused by a dishonest or willful act, or by the gross negligence of the employee.
The burden is on the employer to prove these facts. If your boyfriend truly feels he was only negligent, he can file a claim with the California labor commissioner. He does not need an attorney to do so.
If he is successful, he can recover the $2,000 and potential “waiting time” penalties of up to a month’s salary if there was an improper deduction of wages. Before he files such a claim, I recommend that he attempt to speak with an appropriate member of management and resolve the issue informally after providing the employer with this answer to your question.
If the employer is not convinced, your boyfriend might suggest that the employer call the labor commissioner’s office and ask this question.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
Rules Vary for ‘Casual’ Employees
Q: I have been working for five years at a major public university. Each year I am required to take a one-day unpaid “break in service,” in which I am fired and rehired so that I will maintain my status as a “casual” employee with reduced rights and reduced benefits.
The thing that bothers me most is that I am not eligible for pension benefits and I don’t get Social Security. My own money is deducted and put into a savings plan in lieu of a real retirement plan.
Can this be legal?
--R.L., Los Angeles
A: Employers often classify employees as temporary or permanent. Temporary, or “casual,” employees often are not given the same benefits that permanent employees enjoy.
It also is not unusual for educational institutions to require its employees to sign new written contracts every year.
In ordering a “break in service,” it appears that your employer is trying to follow technical requirements to maintain your status as a casual employee.
There have been court decisions in recent years that have given temporary workers the benefits of permanent employment in private businesses that treated temporary workers like permanent employees.
But a public university may have a collective bargaining agreement that establishes a “casual employee” job classification and benefits. In such cases, your employer probably has more rights to continue placing you and others in these classifications and to deprive you of benefits that you feel that you deserve.
I suggest you examine any written information at the university regarding a casual employee. Is the job classification detailed in the employee handbook or collective bargaining agreement? Is there a policy that gives you an opportunity to apply for a different classification?
You might want to contact an attorney to help evaluate the issue further.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Training Could Help Manager Learn to Listen
Q: I work in an office with a supervisor who is a very good manager but a terrible listener. He’s a very nice person and makes good decisions, but he just seems insensitive to others.
We have a pretty good employee development program, and he’s pretty open to suggestions, so I imagine that he might go to some sort of training program to improve.
Do you have any suggestions?
--D.C., Pasadena
A: This is a fairly common pattern with some leaders. Because they frequently are doing the speaking--giving directions, making presentations, serving as spokesperson for the group--they often don’t spend an equivalent amount of time attending to what others are saying or picking up nonverbal signals that indicate how others are feeling.
Therefore, many leaders and managers need to be aware of this oversight and to work on developing their listening skills and interpersonal sensitivity.
Many communication skill training programs give special attention to effective listening. You might suggest that your supervisor consider one of these development programs.
--Ron Riggio, director
Kravis Leadership Institute
Claremont McKenna College
*
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.
