Rights Under ‘Agency’ Setup

Question: What rights would I have, if any, as an employee who chooses not to become a union member in an “agency shop” situation.

Can I file a grievance? Does the union represent me just as it does union members? Do I have the right to vote on the contract proposal at a ratification meeting?

--L.L., Riverside

Answer: Unions are financed by the dues and fees of the employees they represent.

“Agency shop” arrangements are commonly used to finance unions representing employees of school districts and state and local governments. In an agency shop, employees are required to pay fees for the services provided by their union, even if they are not union members. The service fee cannot exceed the dues charged to regular union members.

Under most agency shop arrangements, failure to pay required service fees can result in an employee’s termination.

In return for their payments, agency fee payers are entitled to union representation. They can file grievances, and the union must represent them to the same extent that it would regular union members. Thus, a public sector union cannot charge a special arbitration fee for nonmembers.

By definition, however, agency fee payers have chosen not to be union members. As such, they are not entitled to full membership rights.

For example, agency fee payers can be excluded from membership meetings, barred from running for union office, denied special member benefits (inexpensive life insurance and amusement park discounts, for example), and prevented from voting on contract proposals at ratification meetings.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

*

Penalty Could Be Due for Delaying Vacation Pay

Q: Several months ago I was “furloughed” from my job. I did not receive any vacation pay that was due me, the company explained, because I would be rehired within a short time. Nothing was put in writing.

So far I have not been rehired and it doesn’t look like I will be in the near future.

At what point am I considered terminated? How do I get my vacation pay?

--B.B., Sherman Oaks

A: You are entitled to all of your accrued vacation pay upon termination of employment. It is unclear what your employer intended by “furloughing” you, but it sounds as if you have been terminated.

You should contact your former employer and ask that your accrued vacation be paid without further delay.

If it is not paid, you may file a claim with the state labor commissioner. If you are successful you could be awarded a “waiting time penalty” of 30 days’ additional pay.

You should remind your former employer of the possibility of this penalty if payment is not forthcoming.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

*

Defamation Claim Tough to Prove, Expensive

Q: Due to three job-related injuries, I have been relegated to “light duty” at my company and have been performing a management-level job.

Though my work has been flawless, I was told that during a management-only meeting, a supervisor made numerous slanderous comments about me. These comments were extremely personal and insulting.

How can I deal with this on a legal basis?

--T.A., Culver City

A: I suggest that you speak to the supervisor who allegedly made the comments and question him or her about what was actually said. Often misunderstandings can be alleviated simply by talking things out rather than relying on secondhand reports by others who may have their own bias or agenda.

If you are uncomfortable with this approach, you may want to ask the head of personnel to assist you in resolving the issue.

If you wish to pursue legal action, you should know that defamation claims often are difficult to prove and expensive to bring.

In order to sustain a viable claim of defamation, you will be required to prove that a false statement of fact was made about you to others. If the speaker simply was giving an opinion, it will not support a defamation claim.

Depending on what was said, you also may have to prove that the speaker made the statement with malice. You also might have to prove economic losses, such as out-of-pocket expenses, medical bills or time lost from work resulting from the statement.

If this management-only meeting is considered comparable to an employee performance evaluation, you would be subjected to an even tougher standard. Courts have held that evaluations of employee performance aren’t defamatory unless the employee is falsely accused of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior.

If you do wish to pursue legal action, I recommend that you consult a labor attorney who represents employees. The attorney will be better able to advise you whether the statements made rise to the level of defamation.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

*

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.