Personal Life Can Be in Work Reviews

Q: I am going through a divorce and have had to take some time off from work for court dates, averaging half a day every two months.

I either claimed the time I was away from work as vacation or made up the time after my regular work hours. I have not exceeded my earned vacation time and have always been able to give my employer at least two weeks' notice before the court dates.

However, my employer made comments in my annual review that I was not as available as in prior years and wrote in detail his perceptions about my divorce and personal life.

I am horrified since this is a document that is distributed to about a dozen people who make the final decision on raises. Is it legal for an employer to include comments about your personal life in an annual performance review?

--V.C., Claremont

A: Your availability is an appropriate subject for a performance review.

You are objecting to the fact that your supervisor also addressed what is apparently the reason for your relative lack of availability.

If you have told your supervisor or others at work about your divorce and personal life, the employer is not violating any law by referring to them in your performance review.

However, since it obviously bothers you, speak with your supervisor and ask for the review to be revised before it is distributed to others. If that is not successful, make the same request of human resources professionals.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Firing While Recovering From Job Injury Is Illegal

Q: After my brother was injured on the job, his employer sent him to the company doctor, who placed him on disability for 10 days and started the process for workers' compensation benefits.

My brother didn't believe that the company doctor was treating his injury correctly, so he went to his own doctor after 10 days. His doctor placed him on disability for two months.

A month later, my brother received a letter from the company informing him that he was terminated, effective the day after he was injured.

Since my brother continues on workers' compensation, receiving a check every two weeks, can his company terminate him? He is getting better and had planned to return to work.

--J.W., Hollywood

A: A variety of laws protect employees who are on medical leave, particularly those who have been injured on the job.

The California Labor Code prohibits employers from retaliating against employees for filing workers' compensation claims.

It is illegal to terminate your brother while he is recovering from injuries suffered while performing his duties, not to mention making the termination retroactive to the day after he was injured.

Whether or not an employee is injured at work, the Family and Medical Leave Act protects employees who take a leave for appropriate medical reasons for up to 12 weeks. It appears your brother was within that period.

However, there are many conditions for him to qualify, including being employed more than one year. The company also must have more than 50 employees.

Terminating your brother might also violate the company's own contractual policies. If he has an employment contract, or if there is an employment handbook, review those documents for medical-leave policies and short-term disability plans.

--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.

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