Q: Can an employer and employee voluntarily and without intimidation agree that although a job truly is nonexempt it serves both parties to make it a salaried job?
--E.J., Los Angeles
A: No. Federal and state wage and hour laws cannot be waived or modified in a private agreement.
The reason is that they were not enacted simply to ensure that employees were treated fairly. They were intended to benefit the economy generally by improving wages and working conditions for most employees.
For example, minimum-wage laws were passed to lift the bottom tier of employees above the poverty line. Overtime laws were passed to shorten the workweek and increase the number of full-time jobs.
As a result, most wage and hour laws are viewed as setting minimum labor standards that cannot be waived or modified by an employer and an employee, even if the waiver or modification is entirely voluntary.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
Churches Have Leeway on Religion Inquiries
Q: Is a church bound by the same equal opportunity guidelines as other businesses? When hiring office or custodial staff, can the church inquire about an applicant's religious beliefs?
Is it acceptable to prohibit employees from speaking another language on the premises?
--B.D., Seal Beach
A: Normally, an employer cannot inquire about applicants' religious backgrounds.
Even though state and federal laws differ slightly, they generally allow religious institutions to consider an applicant's religion, but only for jobs in which "the practice of and belief in the religion of the organization is a legitimate, job-related requirement."
If the office or custodial staff has contact with members of the church and church membership is an appropriate criterion for employment, the church can inquire about an applicant's religious beliefs and consider them in deciding whether to hire that applicant.
On the other hand, an office or custodial job might be considered so far removed from a legitimate need for religious compatibility that it would not be an exception.
Regarding your other question, it can be risky for an employer to prohibit employees from speaking other languages. To avoid a possible charge of discrimination, the employer would have to justify a language prohibition as something that is a legitimate need for the institution.
For example, an employer might not be justified in prohibiting custodians from speaking another language on the job at night. But it might be legitimate to impose such a prohibition on clerical workers who have contact with the public during the day.
--Don D. Sessions
Employee rights attorney
Employers Can Dock Pay for Extra Sick Days
Q: I am a salaried exempt employee. According to our employee manual, I am entitled to five days of sick pay. I am not entitled to overtime pay.
Can my employer legally deduct pay for exceeding the five days of sick pay?
--H.G., Los Angeles
A: The answer is yes. Deductions may be made from the pay of salaried employees for absences due to illness if the employer has a valid sick pay plan, and the employee has exhausted his or her entitlement to sick pay.
In these circumstances, the company can make the deductions without destroying the exempt status of the salaried employee.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Penalizing Injured Workers Is Illegal
Q: My employer has a policy of lowering the bonus and/or raise of an employee who suffers an "avoidable" injury. The vast majority of injuries are considered "avoidable," including strains and sprains, and thus negatively affect the safety category in the employee's review for the next three review periods.
If workers' comp is no-fault and the employer is supposed to pay all expenses, it doesn't seem right that they use this system to recoup costs, punish the employee and to use it as a deterrent to reporting legitimate injuries.
In essence, the employee is told to report all injuries but that he or she will be charged for doing so. Is this legal?
A: No. Section 132a of the California Labor Code prohibits employers from discriminating against employees who report work-related injuries. Such discrimination would include imposing financial penalties on employees who are injured at work.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
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