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Worker Could Sue for Bias if Fired Because of Cancer

November 01, 1998

Q My son had worked for 11 months at an auto repair company with about 10 employees when he learned he had cancer. He needed time off for treatment and then surgery. He had one surgery Tuesday and another Thursday and was released from the hospital Saturday. He went back to work Monday. He was never paid for the time off and shortly after returning to work was laid off. Does my son have any rights? It's difficult to apply for a new job when being treated for cancer.--J.V., Fullerton

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A An employer cannot legally discriminate against disabled employees or job applicants. This protection extends to persons who, though not actually disabled, are regarded as having a disability or who have a history of medical treatment for a disabling condition. The law recognizes that myths, fears and stereotypes about cancer, HIV and other diseases can limit employment opportunities as much or more than the disease itself.

If your son was discharged because of his cancer, he can file a complaint alleging disability discrimination in violation of California law. The same California discrimination law entitles your son to time off from work for cancer treatments unless his intermittent absences from work created undue hardships for his employer. Your son is not entitled to paid time off for his medical treatment, however, unless the auto repair shop provides paid leave for employees taking leaves of absence in other circumstances.

Your son also will be protected from discrimination because of his cancer treatment when he applies for a new job. Note, however, that the federal Americans With Disabilities Act does not apply because your son's employer has fewer than 15 employees, and the federal and state family and medical leave laws do not apply because your son was not employed one full year.

For more information about his legal rights, your son should contact the California Department of Fair Employment and Housing or consult an employment lawyer.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

No Pay for Voluntary Meetings

Q The company I work for recently changed 401(k) funds and had a meeting for all current plan participants to familiarize us with the new funds. Our company held its meeting at 4 p.m. The majority of the attendees are nonexempt hourly workers whose scheduled shifts end between 3:30 p.m. and 4:30 p.m. The meeting lasted until about 5:15 p.m.

When I received my paycheck, I noticed I was not paid for the time past my normally scheduled shift, which ends at 4:30. A company executive told me that it was not going to pay employees to attend a meeting that was not compulsory. Is our company within the law to deny pay to employees for attending a meeting such as this?--D.D., Thousand Oaks

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A Yes. The general rule is that employers do not have to pay employees for attending meetings when (a) attendance occurs outside the employee's normally scheduled work day; (b) the employee's attendance at the meeting is voluntary; (c) the meeting does not provide information directly related to the employee's performance of his or her duties; and (d) the employee does no productive work for the employer during the unpaid portion of the meeting.

In your case, unless you were led to believe before the meeting that you were obliged to attend, it would appear that all of the conditions were met.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Payment for Home-Office Expenses

Q. I have been advised by my employer, a nonprofit organization, that I am to move to my home to do my part-time job. To work at home, I would have to convert one of the rooms in my house. I was never asked whether I could make such an accommodation. It appears to me that my employer is asking me to donate office space, gas and electricity, desk and chair and things such as computer, printer, fax, etc., that it now provides. Can this be mandated as a condition of employment?--P.J., Los Angeles

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A. California law provides that an employer reimburse an employee for all necessary expenses incurred in performing the job. What is "necessary" is the key. For example, if you are required by your employer to use a computer, printer and fax machine in your work, your employer should provide them for you to use at home. If these are items of convenience and are not necessary, your employer is not obligated to reimburse you for them. The same goes for office equipment.

Unless your employer specifically requires you to set up an office in your home, it will have to be done at your expense if you choose to do it. Your employer likely would argue that you could just as easily perform your part-time job duties from your kitchen or dining room and that converting a room into an office is unnecessary. On the other hand, your employer will be obligated to reimburse you for out-of-pocket costs that you incur in the course of your employment such as of long-distance telephone calls, postage and mileage.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it at (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.

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