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Unauthorized Tardiness Can Cut Into Your Vacation Time

March 30, 1997

Q: I work for a small sales company with five employees in one office. On one afternoon, I received a memo from our manager that tardiness will not be tolerated and if an employee arrives after 9 a.m. (when we are expected to be at the office ) and after 1 p.m. (when we are expected to return from our lunch break), a portion of their vacation time will be deducted.

Two weeks after receiving this memo, I received with my paycheck a summary of my accrued vacation time and sick time showing that the company had deducted 26.64 hours for 10 tardies. No dates were mentioned, nor did my management discuss this action with me.

Is it legal for a company to deduct a portion of an employee's accrued vacation time for "excessive" tardies? What legal action can a company take for dealing with employee tardiness?

--P.B., Newport Beach

A: If you are a nonexempt employee, your employer need only pay you for time you actually work. If you show up late in the morning or do not return promptly after lunch, your employer does not have to pay you for the time you were away from your job.

An employer has the right to enforce this rule in a number of ways. The employer could discipline or terminate an employee for excessive unexcused tardiness. The employer could deduct the time from the employee's paycheck or, as your employer has done, count that time as vacation use.

Of course, an employer must keep adequate records and must ensure that any deductions from pay or accrued vacation are justifiable based on actual work time missed.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

When Ownership Changes

Q: Is there any protection for an employee if a company is bought out and the new employer lets everyone go without any notice?

--D.T., Pasadena

A: Under the Federal Worker Adjustment and Retraining Act, an employer with 100 employees that plans to lay off at least a third of its employees at a work site must provide 60 days' notice, in writing, to those workers. Notice is not required for unforeseen business necessities or a natural disaster.

Failure to provide notice does not mean, however, that the employee can continue his or her job. Instead, the employee is entitled to back pay and benefits, and the employer may be subject to local fines.

Further, if the company making the acquisition has agreed to honor existing employment contracts, including the former employer's policies, the new employer must comply with any agreement regarding layoffs and severance.

--William H. Hackel III

Employment law attorney

San Clemente

Benefits When on Disability

Q: I suffered an on-the-job injury and have been receiving biweekly checks for the last six to seven months. However, I am ineligible for raises and promotions and my participation in the 401(k) plan is limited to a percentage of the workers' compensation benefit, therefore depriving me of the maximum company contribution.

The company's policy appears punitive, and I would appreciate another view. Also, can an employee use sick leave to offset the loss of money--combining workers' compensation benefits with sick leave benefits?

--B.G., Cambria

A: The Internal Revenue Code places limits on the maximum contributions--from a participant as well as a company--to a 401(k) plan. Virtually all plans limit the participant's maximum contribution to a percentage of compensation to help ensure compliance with applicable rules. However, these rules generally more stringently limit the contributions by highly compensated employees (as defined in the Internal Revenue Code) than contributions by other employees.

You could request that your employer amend its plan to permit larger contributions by employees who are not highly compensated employees.

Neither federal nor California law requires employers to provide sick leave benefits, so employers generally can provide them as they wish. Employers often do not allow employees to take sick leave benefits while receiving workers' compensation benefits because those employees could receive more pay than if they worked.

However, your employer cannot discriminate against you because you are receiving workers' compensation benefits. For example, your employer cannot limit your ability to use your sick leave benefits if other employees can use those benefits because of injuries that are not job-related, and are receiving other money (such as long-term disability benefits).

Similarly, your employer cannot preclude you from being eligible for raises and promotions if individuals on leaves of absences for reasons other than workers' compensation are eligible for raises and promotions.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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