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SHOP TALK

Employer Not Obligated to Hold Job Open Indefinitely

October 02, 1995

Q. I am a network systems manager for a large corporation but have been out of work on short-term disability for almost six months. Essentially, I cannot use a mouse or keyboard without excruciating pain and anguish. I have lost major use of my hands and arms and live with neck and shoulder pain that will not go away. I have been in pain for almost three years.

What complicates this is that it is a workers' compensation claim. I could not work anymore in March, 1995. On May 15, the workers' compensation doctor verbally released me to work. I went back to work in June, 1995, but the pain took over. I only worked three weeks before leaving a second time on disability.

When the doctor's report came out recently, it stated that my disability was 25% overall, was caused by my job and that I was not going to get any better. I have been diagnosed as having bipolar upper extremity pain syndrome and repetitive-use syndrome.

My employer has stated that, consistent with their policy, my job will be held for about another month. I am concerned about losing my job and at the same time I am not getting better.

If I cannot do my current job, can the company let my position go? Can they have me do a low-paying job even though I was making close to $65,000 total compensation a year? Can the company fire me or lay me off? What are some of my rights?

--J.B., Laguna Beach

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A. Your company is not obligated to keep your job open indefinitely if you are not able to perform it, and an employer has no obligation to continue an employee's prior rate of compensation if that employee transfers to a lighter-duty position.

The California Labor Code prohibits an employer from retaliating against (for example, firing or demoting) an employee for filing a workers' compensation claim.

This anti-retaliation law has some definite limits, however. For example, if it becomes apparent that an injured employee will never again be able to perform his prior job duties, the employer may hire someone else to do the job. Even before such a determination, an employer may replace an injured worker if it can show a legitimate business need to do so--that the job is essential to the employer's operation (most jobs are) and the employer cannot do without the employee for a substantial period of time.

While an employer may offer lighter-duty work to an injured employee who is permanently or temporarily disabled from performing his previous job duties, the employer need only pay the employee at the compensation level appropriate for that job. The employer has no obligation to "pay protect" the employee by continuing the former level of compensation for the new job duties.

--James J. McDonald Jr., Attorney, Fisher & Phillips Labor law instructor, UC Irvine

Employers Required to Offer Safe Workplace

Q. I am a postal service employee and am being ordered to work in a dangerous situation. I would like some information and advice.

--L.S., Lakewood

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A. Employers are required to provide a safe and healthy workplace for their employees.

Your employer should have a well-established policy and procedure for employees to register complaints of potential dangerous situations. Report your concerns and complaints to the appropriate officials at your company.

As an employee, you also have the responsibility to advise management of unsafe working conditions immediately. Give the employer adequate information to ensure that your employer can develop the proper intervention policies, procedures, and/or necessary training techniques that will result in prompt corrective action and provide workplace safety.

--Elizabeth Winfree-Lydon, Senior staff consultant The Employers Group

Plain Talk Could Fix Dress Code Quibble

Q. I work for a restaurant where the owner does not require employees to wear a uniform. Yet the manager tells me at least three times a day that I should buy a whole new wardrobe to wear at work. I told her that I can't afford it, but she continues to harass me about it. The owner could not care less what I wear. This is generating more stress at work than necessary. Is there anything I can do to get my manager to stop bothering me about buying new clothes?

--D.W., Santa Ana

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A. A good starting point would be to find out if your restaurant has any policy about employee dress. If such a policy exists, employees need to be made aware of it. If no dress policy exists, the restaurant should establish one, even if it is a policy of "anything goes."

The real problem here is one of communication. It sounds as if your manager has one set of expectations regarding appropriate employee dress, and the owner (and you) have another. You need to be explicit and approach either your manager or the owner immediately to get some clarification about this issue.

--Ron Riggio, Professor of industrial psychology Cal State Fullerton

D o you have a question about an on-the-job situation? If so, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626. Or call (714) 966-7873 and leave a voice-mail message with your name and where you live. Questions of general interest will be answered in this column on Mondays.

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