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ORANGE COUNTY SHOP TALK

Food-Break Policy Is Hard to Swallow

May 25, 1997

Q: I work in a publicly funded residential child-care facility. Besides never getting any breaks, including lunch or dinner breaks, we are instructed that we must eat the same food that is served to the children (which is not very good). We are not allowed to bring any food to work.

I am sure that this is illegal, but I don't know who to complain to and I'm afraid of losing my job. Some of my co-workers have been fired for much less.

--J.J., Fullerton

A: I cannot tell from the information you have provided whether your rights are being violated.

If you are being required to purchase the food from your employer, you may have a valid claim. If, on the other hand, the meals are free or are considered part of your salary, you may not have a valid point.

You are entitled to take breaks, however. You also may be entitled to a lunch break, or at least to be paid for your lunch period if you are not relieved of all duties during lunch.

If you believe that your rights are being violated, you may file a claim with the California Division of Labor Standards Enforcement. Your employer cannot retaliate against you for doing so.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Order to See Doctor Might Not Be Legal

Q: If an exempt employee leaves the workplace before the end of the workday, can the employer demand that the employee go see a doctor?

--G.F., Diamond Bar

A: Exempt employees are not required to work set hours. Rather, they are to work until the job is done. If the employee's work is done for the day, there should be nothing to prevent the employee from leaving work early.

It is illegal for an employer to require an employee to incur a cost or expense that is not reimbursed by the employer. Accordingly, the employer cannot demand that an employee see a doctor at his or her own expense.

An employer can, however, require an employee to get a doctor's certificate of good health if there is reasonable belief that the employee is in such poor health that he or she might endanger the health of other employees.

Even if the employer pays for medical treatment, however, you still might be able to argue that your privacy was compromised, especially if the employer asks improper questions about your medical condition or obtains confidential reports from your doctor.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Preexisting Condition Could Limit Insurance

Q: After being self-employed for several years, I have opted to work for a corporation in order to obtain life and disability insurance.

I have a preexisting health condition. As a new employee, would these benefits be honored?

--D.F., Laguna Hills

A: Most corporations provide a basic level of life and disability coverage, with employees having the option of purchasing additional coverage.

Although you will probably be able to obtain the basic coverage, your preexisting health condition generally prevents you from purchasing more life insurance. As to the disability insurance, you probably will be able to obtain both the basic and additional coverage. However, you probably will not be covered for a disability caused by your preexisting health condition for several months.

You should contact the corporation to learn the specific rules that apply to the benefits it offers. The corporation is required to provide you with a summary plan description that describes its benefit programs (including any limitations) in simple English.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

Worker Probably Not Entitled to Extra Pay

Q: I work for an upscale Los Angeles department store on a commission-only basis. The store is open from 10 a.m. to 6 p.m., but we are required to be there at 9 a.m. for stock work and training. Since I can't earn commission between 9 and 10 in the morning, shouldn't they be required to pay me for that hour?

--A.S., Beverly Hills

A: Probably not. You would be entitled to extra pay only if you work more than 40 hours a week or more than eight hours a day and you are a nonexempt employee--one who is covered by the overtime rules.

From your job description, I cannot tell if you work more than 40 hours each week or more than eight hours in a day. Even if you do, however, it is highly unlikely that you are nonexempt. Under both federal and state law, a commissioned employee who works in a retail establishment is exempt from overtime rules if more than half of the employee's compensation is generated by commissions on goods or services and the employee's regular rate of pay is more than 1 1/2 times the minimum wage.

You state that your entire compensation is based on commissions, and since you describe the store in which you work as "upscale," you probably earn more than 1 1/2 times the minimum wage. Under these circumstances, you would not be entitled to any extra pay.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

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