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Company Must Pay Worker for Promotional Giveaways

May 12, 1996

Q: My husband is employed at an automobile dealership as a technician in the service department. Each job is assigned an hourly value. Occasionally, the dealership will offer mechanical work to a customer on a complimentary basis, for public relations or something along those lines. When that happens, my husband is required to do the work without pay.

We feel he should receive the regular pay, since it was not his decision to comp the work. Is what they're doing legal?

--F.Z., Huntington Beach

A: No. An employer is required to pay an employee for all time worked on behalf of the employer. Simply because the employer does not charge the customer for services does not excuse the employer from paying the employee for all hours worked.

I suggest your husband write down all unpaid hours he worked and present it to the employer. Your husband may also be entitled to overtime if he was not paid for hours he worked in excess of eight hours in a day or 40 hours per week.

If the employer refuses to pay, your husband should file a claim with the California labor commissioner for back wages. Further, the employer may also have to pay a penalty for failing to pay wages due your husband. Also, it is illegal for your husband's employer to terminate him because he has made a claim for unpaid wages.

--William H. Hackel III

Employment law attorney

Spray, Gould & Bowers

No Tax Break for Unpaid Hours

Q: I work for a defense company. It is my understanding that my company gets paid for every hour I put in on my time card, whether I get compensated or not.

It has come to my attention that I can claim "loss of income" on my tax return for the overtime that I didn't get paid for and the company did, as long as I keep a record of everything. Is this true?

--K.W., Anaheim

A: I do not believe so. I cannot see where you have been deprived of any income at all. Apparently, you are a salaried exempt employee who receives a salary for all hours worked each week, regardless of how many. Thus, you are receiving pay for the hours for which your employer is also being compensated. You have not, as I understand the facts, had your salary reduced merely because your employer receives compensation for all hours that you work but you receive no overtime.

On the other hand, if you are not an exempt employee, you should receive additional pay for hours worked beyond 40 weekly or eight daily. Even then, however, you would not be eligible for a tax deduction merely because you had not properly been paid overtime.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Weekend Work Is Legitimate

Q: I work for a company that has a workweek schedule from Monday to Sunday. After 40 hours, the company pays overtime.

But recently, some employees were called and told to stay home Thursday and Friday and come to work on Saturday and Sunday with regular pay. Can the new management do this? It never happened before. If people do not go to work on the weekend, can they be punished?

--M.Q., Fountain Valley

A: Yes. Unless there is a written employment contract specifying days of work, an employer has the right to assign a new work schedule to employees.

There is no law prohibiting employers from requiring employees to work on weekends. Moreover, employers have the right to schedule employees as needed to meet production or customer service needs.

If an employee who is scheduled to work on a weekend refuses to do so, he or she can be disciplined or terminated.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Jobless Benefits Apply If Hours Cut

Q: My job requires me to operate a machine that has since been broken. My employer cannot afford to have it repaired and is awaiting word on a loan. Meanwhile, I am not working my normal full-time hours. Am I eligible for unemployment or other compensation?

--E.N., Irvine

A: Unemployment benefits are paid to workers who are "out of work" through no fault of their own. "Out of work" has been interpreted to mean both totally unemployed or working less than full time.

If a person is working reduced hours, he or she has the right to file a claim for benefits. However, people in this situation must report their gross earnings for each week they claim benefits. The state reduces their weekly unemployment award by 75% of their gross earnings for that week and issues them a check for the remainder. The maximum unemployment benefit is $230 per week. If a person's adjusted wages still are higher than the weekly unemployment award, no benefits are paid.

Since your employer reduced your hours, you will be considered out of work "through no fault of your own," the second criteria for eligibility. Had you reduced your own hours, you would be denied benefits.

--Elizabeth Winfree-Lydon

Senior staff consultant

Employers Group

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