Firms Not Required to Give Reference Letter
Question: I worked for a corporation for four years in a management position. The owner refuses to give me a written letter of reference confirming this fact.
What are my legal rights in this situation?
F.H., Redondo Beach
Answer: Employers are not legally obligated to provide you with a letter of reference, even to confirm simple facts about your employment.
While you may not be able to force your former employer to provide a reference, you may still be able to provide prospective employers with proof of your work history and salary.
Under California law, you are entitled to copies of any documents you signed relating to obtaining or holding employment with your former employer. That would include signed performance evaluations, if any exist.
Performance evaluations often include information such as your job title and the date that you were hired.
Of course, if your evaluation was not good, this may not be an option for you. But keep in mind that you also may have W-2s and payroll stubs reflecting your earnings.
Jo Tucker
Employment law attorney/arbitrator
Morrison & Foerster
Firing Employee on Maternity Leave
Q: I own a medical practice with three employees and would like to terminate an employee who is on maternity leave. She has worked a total of 11 months.
Is this legal?
J.B., Los Angeles
A: It depends on your reason for terminating her.
Since you have fewer than five employees, the pregnancy discrimination prohibition in the California Fair Employment and Housing Act would not apply.
You also would not be covered by the Family and Medical Leave Act, which applies to employers with more than 50 employees and to employees with more than one year of service.
At least one California appellate court has held, however, that firing an employee because of her pregnancy violates the prohibition against sex discrimination in the California Constitution, which applies even to small companies.
On the other hand, you are only prohibited from terminating a pregnant employee because of her pregnancy. If you were to eliminate the employee’s position, for example, this might constitute a valid defense against a pregnancy-discrimination claim.
The job actually would have to be eliminated, however. For example, you might hire an outside provider to perform the functions of the job. This might be feasible for something like billing, but not for a receptionist.
But if your only reason for terminating the employee is your desire not to keep her job open until she returns from maternity leave, you probably would be found liable for unlawful discrimination.
James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Worker May Be Entitled to Pay for Extra Hours
Q: My husband works five days a week for a private mortuary transport service. He is required by his boss to work 12-hour shifts for three days and be on call 24 hours the other two days. He is paid $14 per pickup.
Is it legal to work an employee that many hours a week without paying them overtime?
D.S., Duarte
A: Employers normally are required to pay overtime compensation to those employees who work more than eight hours in a day or 40 hours a week.
As with most laws, there are exceptions. Certain managers, administrators or executives may be exempt from these rules, although your husband does not appear to fall into these categories.
There are special rules for those who work on a piece-rate basis, but they still must be paid the minimum wage for all hours worked in a payroll period.
Your husband also is entitled to extra pay for his overtime hours. When working 12 hours a day, he would be entitled to four hours of overtime pay.
His hourly rate is calculated by adding up his total compensation for one week and dividing it by the total hours he worked. This would be his regular rate of pay, and he would then be entitled to 11/2 times that rate for overtime hours.
His on-call hours could be considered work time, depending on the nature of his duties. For example, any time he spends performing pickups or other work for the transport service would be work time.
The extent of the restrictions on his personal activities would determine whether the remaining on-call hours are considered work time.
For example, if he needs to respond within 15 minutes of a call and travel to other locations, he really can’t have a personal life. In that situation, the entire 24 hours could be considered work time and factored into these calculations.
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. Recent Shop Talk columns are available at https://www.latimes.com/shoptalk.
