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Work-at-Home Plan OK if Firm Doesn't Discriminate

September 21, 1997

Q: A woman at our office is allowed to work at home two days a week, and other employees don't think it's fair. There is nothing in our handbooks regarding working at home. The person working at home had her first child in February. Her boss approved the arrangement and said it would be reviewed after 90 days. But then he left the company, and no one has been hired in his place. Is this discrimination?

--S.U., Irvine


A: Your company can allow certain employees to work at home if it so desires. It would only be unlawful discrimination if employees in the same job category were denied the opportunity to work at home because of an illegal factor such as sex or age.

A work-at-home arrangement might also be a reasonable accommodation that an employer is obligated to offer to a disabled employee under the Americans With Disabilities Act. So there may be a good reason why one employee is permitted to work at home while others are not.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Retirement Plan Can Exclude Workers

Q: I work for a wholly owned subsidiary of a large corporation. The subsidiary's retirement plan covers all employees who joined before 1987 and those employees who have transferred in from the corporation since 1994. The number of people covered by the retirement plan represents only 23% of the subsidiary's work force. Those not eligible for the plan are performing the same duties as those who are covered, except for specific senior level executives. Is this legal?

--H.G., Huntington Beach


A: Generally, it is permissible for a retirement plan to cover only a portion of the employer's work force. Thus, the plan could exclude employees in certain job classifications or those employed by different subsidiaries or divisions. The plan must not discriminate in favor of highly compensated employees--those who generally make more than $80,000 a year. But unless the percentage of highly compensated employees who are covered by the plan is disproportionately greater than the percentage of all other employees covered, it probably satisfies nondiscrimination requirements.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

No Legal Right to Employee Benefits

Q: I work at a talent agency in Los Angeles. I am classified as a part-time worker by my employer, but I work a full-time schedule of 40 to 50 hours per week. Because my employer classifies me as part-time, I am not eligible for health benefits or paid national holidays. Does this violate any labor laws?

--T.T., Santa Monica


A: As a general rule, employers in private industry are not legally required to provide health benefits, paid or unpaid holidays or vacation time unless their employees are covered by a union contract, an employment agreement or a company policy requiring these benefits. This is true for full-time as well as part-time workers.

--Joseph L. Paller Jr.

Union-employee attorney

Gilbert & Sackman

Worker's Rights Upon Termination

Q: Does a community college supported by taxpayer funds have the right to set its own regulations regarding labor law, employment standards and termination? I worked as a part-time employee at a community college for a year. I was terminated because of unsubstantiated accusations about my behavior. I am convinced the termination was punitive. I asked that the charges be given to me in writing, and I was told by the director and one of the vice presidents, who were the accusers, that because I was part-time, they did not have to give me anything in writing or even permit me to see the charges. I believe this deprives me of my civil right to see the accusations so that I can respond to them in writing and/or ask for proof of the charges.

--M.A., Upland


A: Even though you were a part-time employee, you still have substantial rights. Your termination would be improper, for example, if you were fired for a discriminatory reason or because you complained about certain illegal actions of other co-workers or your employer.

But without reviewing your contractual relationship with your employer, it is difficult to determine if you have a right to confront your accusers or to see the charges in writing. This agreement also would determine if you can be terminated only for good cause.

There is a good possibility, though it is not certain, that as a part-time employee you do not have these rights. Your employee handbook or other documents should help clarify the issue.

Indeed, full-time government employees usually have more contractual rights than part-time employees. To determine whether you have these rights, evaluate your collective bargaining agreement, if any. Your tenure and laws of the city or county might also affect your rights.

You might want to request in writing that you be given a reason for your termination. You might also want to back up your request with a letter from an attorney.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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