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Firm May Have Breached Contract With Temp Worker

June 15, 1997

Q: I have been working as a temporary employee at a company where I was asked to stay on and was told that I would be hired after the first of the year.

Now the head of personnel denies promising me the job. This happened after I blew the whistle on a co-worker for taking advantage of a time-card situation. Is this breach of an oral contract?

--C.L., Newport Beach


A: It may be. If either (a) you had announced your intention to leave when you were asked to stay on, or (b) you rejected other opportunities because of the promise, you may have an enforceable agreement to be kept on.

However, I do not think that your whistle blowing provides additional rights under the circumstances. Whistle-blowers do have protection, but only when they reveal alleged illegal conduct by their employers. One employee's complaints about another probably would not be sufficient.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Will Work Jeopardize Pension?

Q May a person 70 years old return to work and not jeopardize his pension?

--F.W., Huntington Beach


A If you are retired and receiving a pension from a plan sponsored by your former employer, your pension benefit can be forfeited each month during which you work at least 40 hours for your former employer.

Whether the plan actually provides for such a forfeiture should be specified in the summary plan description of the pension plan. The employer is required to provide a copy of this to you. If you do not have a copy, or the summary plan description does not answer all of your questions, you should contact your former employer.

If you go to work for a different employer, your pension benefit from the former employer would not be affected.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

Commuting Time vs. Work Time

Q I work for a service company and drive a company-owned service vehicle that I take home each day. We are required to call the dispatch office 30 minutes before the start of our eight-hour shifts to obtain the location of the first service call, then we are supposed to head out immediately after we have talked to the dispatcher.

At the end of the shift, we have to call in to clock out before heading home.

Is it legal for the company not to pay us for the time that we spend calling dispatch and traveling to our first service call?

--D.C., Covina


A By law, you are entitled to be paid for all the hours you work. You are not entitled, however, to be paid for time spent calling your employer to determine your schedule or to receive instructions about where to report for work.

Generally, commuting time is not considered work time. But if your employer requires you to report to a location that is different from your regular workplace, you are entitled to pay if it takes you longer to get to the new location than it ordinarily takes to get to work.

For example, if it would ordinarily take you 10 minutes to drive to work, you would be entitled to 35 minutes pay if you were dispatched to a location that is 45 minutes from your home. If you remained at the same work site all day, you would also be entitled to 35 minutes pay at the end of your shift. Depending on your job classification and the industry in which you work, you may also be entitled to overtime pay at 1 1/2 times your regular wage rate to the extent that your total workday exceeds eight hours.

The rules may be different if your work is covered by a union contract. To make a claim for back pay, contact California's Division of Labor Standards Enforcement or your labor union.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Safety Masks in the Workplace

Q: The subject of exposure to toxic chemicals and the use of protective gas masks, which was discussed in an April 13 Shop Talk column, is a complex matter.

You can't just go out and purchase a chemical safety mask. For instance, there are individually specified gas masks for specific chemical vapors and gases. If you don't use the specific type, you generally increase the hazard. Federal regulators approve the various types, based mostly on tests of how long they filter out the toxin at hazardous or objectionable levels.

--D.E., Orange


A: My previous answer on this question should be clarified. I had suggested that the employee ask the employer to provide appropriate gas masks. In the alternative, I suggested the employee evaluate the potential harm and acquire the mask directly if there is a risk of retaliation from the employer.

Acquiring one's own gas mask may not be so simple, however.

Jay William Preston, a safety engineer, points out that this equipment must fit and provide suitable protection.

"Partial face masks may allow a contaminant to enter the body through the eyes," Preston says. Workers also can get headaches if a mask is too tight, rather than from breathing the chemical itself, he adds.

"Workers should work within company safety programs to find solutions to exposures and whether a chemical really causes an illness. Employers are required to have Material Safety Data Sheets on file and teach workers about safety of every hazardous chemical present. Workers have Cal/OSHA, doctors, and bargaining units available for help."

Preston also encourages workers to keep a low profile when dealing with these issues, however.

"While workers do have the right to refuse work in unsafe environments, they frequently face retaliation," he says.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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