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Lies in Personnel Files? How Much Is the Truth Worth? : Also . . . Figuring Hours on an Oil Rig . . . What's the Best Way to Offer Tuition Reimbursement?

February 26, 1996

Do 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; call (714) 966-7873 and leave a voice-mail message; or send e-mail to shoptalk@latimes.com. Include your initials and hometown.

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Q: My employer keeps a personnel file on each employee. The policy is not to show it unless an individual asks to see it.

I had never asked to see it in my 13 years at the company and when I did it was full of innuendoes, misrepresentations and outright lies. I feel I can prove them to be lies.

Should I take it to upper management or go outside the company to handle this situation? I am a union member.

--J.T., Fullerton

A: There is no doubt that misrepresentation in your personnel file can drastically affect your future with your employer. You should decide if you should correct the problem before you decide how to do it. It appears interesting that you are even still there after 13 years if these comments about you are so harmful.

Evaluate your own job security. Would complaining make the situation worse? if you are six months away from retirement, for example, you may want to do nothing.

Evaluate the harm of these lies to you and whether action will change anything. If there is very little management personnel over you, and if you will remain under the same manager after complaining about this, would it really do any good? Sure, you might get it removed from your file. But it may never really change the attitude of the person who put it there. In fact, it may even cause your relations to worsen.

It is illegal to defame another person. In the last few years, however, there have been several cases that have limited certain types of defamation claims in the workplace by calling it "privileged communication" between members of management. Some cases have limited defamation rights even when a personnel file is involved.

You are certainly justified in reviewing all of your options, however, and acting on them when your good character has been tarnished.

You may have many rights under the company's own policy or your union contract. You should review them both. Despite some limitations, you may have rights to have lies about you removed from your personnel file, or prevent them from happening in the future.

You should follow any grievance procedure established by your company or union contract. You could send a rebuttal letter to management and ask them to place it in your file for future reference. A letter from an attorney informing the company of the law of defamation might accomplish much.

You should also consider the reason why such information was placed in your file. If a supervisor's motive was based in any way upon discrimination or retaliation against you for being a whistle-blower, then your rights might expand to include other important charges besides the defamation.

--Don D. Sessions, Employee rights attorney, Mission Viejo

Figuring Oil Rig Pay Can Be Tricky Matter

Q: As a salaried employee on an oil drilling rig about half a mile offshore, I am expected to work seven continuous 24-hour days. The following seven days I am off, etc.

During the week on the rig, I often work 10 to 12 hours continuously, sometimes more. My job title is oil drilling engineer, under supervision of a manager as well as an oil recovery vice president, both of whom are on the rig. I cannot leave my post or work site during the workweek, or leave the rig itself. All activity, including meals and sleeping, occurs on the rig.

For those hours not operational, I am expected to be a backup should the need arise. I am at the direction of my employer 24 hours per day, every day during the week that I am on the rig.

Am I entitled to overtime pay for all hours worked at the rate of time-and-one-half for working more than eight hours each day and less than 12 hours? For working in excess of 12 hours in a given day, am I to be given overtime at the double-time rate?

And for the hours each day that I must remain on the rig for the convenience of my employer--whether it be for sustenance, rest or whatever--am I also entitled to overtime wages?

--S.S., Laguna Niguel

A: It is difficult from the information you have provided to determine whether you may be classified as an exempt employee for overtime purposes. If so, you would not be entitled to overtime pay.

If you are not exempt, you would he entitled under California law to premium pay for time worked in excess of eight hours a day or 40 hours a week. The premium pay would be 1 1/2 times your regular rate of pay for working between 8 and 12 hours in one day, and double time for hours worked in excess of 12 hours. You also would receive double time for work in excess of eight hours on the seventh day worked.

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