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Smoking in Most California Workplaces Can Bring Fines

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Question: We have an employee who smokes inside our building. Despite numerous requests from fellow workers and weak warnings by management, he continues to smoke where he wants.

What agency do I call to report this?

--F.S., Garden Grove

Answer: California Labor Code Section 6404.5 prohibits smoking in virtually all workplaces. Violations are to be reported to local law enforcement authorities or the county health department.

The fine is $100 for a first violation, $200 for the second violation and $500 for the third and subsequent violations.

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After a third violation within a year, the state Occupational Safety and Health Administration may impose fines on an employer ranging from $7,000 to $70,000.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor,

UC Irvine

Company Can Choose

to End 401(k) Matching

Q: The travel-management company where I work notified us that it was suspending its matching contribution to the 401(k) plan because of the terrorist attacks in New York and on the Pentagon.

Can an employer suspend a company benefit like that?

--K.C., La Habra Heights

A: The wording of the 401(k) plan will determine whether the company must make matching contributions before announcing the change.

For example, if the plan required the company to make matching contributions unconditionally, it cannot unilaterally eliminate its obligation. On the other hand, if the company had the discretion whether to make them, the company can simply elect not to make any matching contributions.

But the company always can amend the plan to cease making matching contributions in the future.

Remember that the company is not required even to establish a Section 401(k) plan, much less make matching contributions.

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--Kirk F. Maldonado

Employee benefits attorney

Brobeck, Phleger & Harrison

Employee Could Lose Vacation Day When Ill

Q: My company’s sick-time policy requires us to use a vacation day for the first day we are sick. Is this legal? If not, to whom should I report this?

--R.O., Newbury Park

A: Vacation pay and sick leave are matters of contract between an employer and an employee. There are no rules prohibiting an employer from requiring that vacation pay be used during sick leave.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Firms Not Required to Give Severance Pay

Q: I was president of a small manufacturing firm that ran into trouble when the market we were in had a dramatic downturn.

After the firm’s owner announced in June that he was going to close the company and auction off its assets, I resigned to start my own company. I receive no salary.

I have since learned from a colleague that the owner has not closed up shop and in fact has pumped money into the company to keep it going. I know that others in the firm who were laid off got their unused vacation pay and are receiving unemployment benefits.

Am I entitled to severance and my unused vacation pay? Do I qualify for unemployment benefits?

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--T.D., Rancho Cucamonga

A: Unless you have a contract with your employer to provide severance in these circumstances, it is unlikely that you would be entitled to it.

A company has no legal obligation to pay severance to departing employees. Even when there is a contractual commitment for severance, it usually applies when the firm lays off workers, rather than when they resign voluntarily, as you did.

You are entitled to be reimbursed for unused vacation time. In fact, if the employer failed to pay you for your unused vacation time when you resigned, it might be subject to penalties equal to as much as 30 work days of your compensation.

It does not appear that you would qualify for unemployment benefits because you resigned. Even if you were laid off, it is doubtful you would qualify for these payments because you have chosen to start your own business rather than seek a paying job.

--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 www .latimes.com/shoptalk.

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