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Late Schedule Changes to Avoid Overtime Are Legal : More on Benefits Times on Demand has prepared two pamphlets based on the Shop Talk column. They provide answers to readers' most-asked questions on unemployment insurance, terminations and medical leave, and on job benefits. To order, call (800) 788-8804. Each pamphlet costs $5.41 plus 50 cents for delivery. Please allow two to three weeks for mail delivery.

October 18, 1998

Q. I work for a large company that is looking for ways to cut costs. We are hourly workers whose jobs sometimes call for working late or on weekends. When we have to work late--after 5 p.m.--the company will ask us to start later in the day to avoid overtime. When we have to work weekends, the company will ask us to take a day off during the week. Is this legal?

--W.T., Costa Mesa

*

A Unless you are covered by a union contract establishing regular work schedules, your employer has an absolute right to change hours and days of work to prevent employees' working more than 40 hours a week.

Our overtime laws were enacted to discourage long workdays and workweeks by making employers pay higher wages when employees work more than 40 hours in a week. They do not regulate when a workday or workweek begins or ends or when an employee is given days off.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Retreat Activities as 'Hours Worked'

Q. I work for a religious university.

I am a nonunion hourly employee. Every year our department has a retreat for three days and two nights. These retreats are held at hotels or dude ranches, etc. All department employees, both hourly and salaried, must attend.

Although I have to spend 72 hours at these retreats, I am only paid for 24 hours. These retreats deal with work issues, not religion. As an hourly employee, shouldn't I be paid for the entire time I am required to attend these retreats? If yes, shouldn't I be paid for overtime over 40 hours?

--K.M., Los Angeles

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A. Employers are required to compensate employees for all hours worked.

In your case, you have to evaluate how you spent your time at these retreats. Obviously, hours spent for formal training and other instruction should be counted as work hours. Other hours, during which you were engaged in activities not directly related to work but were nonetheless "required" by the employer for furthering camaraderie among employees, also should be counted as work. These would include even recreational activities.

Sleeping hours and other optional time normally would not be counted toward your working hours. Employers would argue that this is no different from sending you to a convention in another city and providing overnight accommodations. You would not be compensated other than for hours actually worked.

I can appreciate the problem of being "stuck" at an isolated ranch or hotel in another city, which really doesn't allow you the option of doing what you want to do on your own time. If you aren't at home, you can't pursue your own activities. But hours when you are on your "own time"--even though you are not completely free to use it as you would if you were home--do not count toward work time.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Who Decides on a Benefit Class

Q. I am a part-time employee for a nonunion company. After I violated a company policy, the company said I could not become a full-time employee for 18 months. However, I have been working an average of at least 40 hours a week for the last eight months. Is there a state or federal law that would require an employer to promote an employee to full-time if the employee works a certain number of hours a week?

--D.H., Granada Hills

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A. No. State and federal law only provide that if you work more than 40 hours a week and you do not fall into one of the overtime exemptions, you must be paid overtime. It does not govern the classification of employees as full- or part-time.

Full-time status usually just means that an employee is eligible for benefits such as health insurance, sick leave, vacation, etc. An employer is not obligated to provide those benefits to all employees, or to any employees.

So long as employees are not excluded from benefits for an unlawful reason such as race, age or gender, an employer is free to determine eligibility criteria for benefits.

Your company's decision to exclude you from benefits because of your violation of a company policy would appear to be lawful.

--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 to (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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