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Temp Agency Must Pay Worker for Partial Week

October 25, 1998

Q: I was taking temporary assignments through an agency. I was supposed to work the full week at one company, but I couldn't do that because I am actively seeking permanent work.

The agency got angry and said it wouldn't place me again. But it also has refused to pay me for the time that I worked that week. Aren't they required to pay me regardless of whether I worked the entire week?

--B.H., Stanton

A: Yes. Even though the agency is within its rights to refuse to place you again, you are entitled to be paid for the time you worked. If the agency continues to refuse to pay, you could file a claim with the state Labor Commissioner to recover the wages owed.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Check 'Retention Bonus' Conditions

Q: Early this year, the company I have been working for since 1995 was acquired by another. The new company has offered salaried workers in certain departments a bonus and severance, to be paid when the positions are scheduled to be eliminated next summer.

The contract states that those who resign voluntarily or are terminated for performance reasons, violations of policy or any other reason besides losing their jobs because of the merger are not eligible for this pay.

Although this offer sounds attractive, I feel uncomfortable knowing that I was hired by the old company as an "at will" employee--meaning that I may be terminated any time for any reason, or no reason at all. Is there anything I can do to protect my interest?

--J.S., Chino Hills

A: It is common for companies that are closing or selling a facility to offer a "retention bonus" to those faithful employees who continue their employment to the final date of the change.

Obviously, your employer is concerned that once word of the change gets out, many employees will start looking for other jobs and leave. That might cause severe financial harm to the company or even prevent the transfer of ownership from occurring.

It appears that you would like to stay until the change of ownership in order to get the bonus but are concerned that the company might fire you as an at-will employee before that date has arrived.

Apparently, the contract it is providing specifies the conditions that would make an employee ineligible for the pay. None of those conditions include an at-will termination by the employer.

It appears that if the company unilaterally fired you without justifiable reasons related to your performance, you would still deserve the bonus compensation.

If you're worried about the exact language of the contract, it might be worthwhile to have a lawyer examine it. Make sure that the contract applies to you and that you either sign it or inform your employer in writing that you are staying because of the contract.

Regardless of the offer, it would be wise to continue looking for another job but to postpone starting a new job until your services are no longer needed by your current employer.

--Don D. Sessions

Employee rights attorney

Mission Viejo

No Worker Protections for Smokers

Q: A friend was recently offered a position at a multimillion-dollar corporation in another state.

But he was required to sign a statement acknowledging that he does not use tobacco products of any kind and will not do so as long as he is employed there.

Under this policy, any violation will result in discipline that could include being discharged. Is this policy legal?

--J.W., Los Angeles

A: Yes. Neither California nor federal discrimination laws protect smokers. To the contrary, it is nonsmokers who have the right to work in a smoke-free environment.

In addition, there are no laws that give smokers the right to be employed, even if they smoke only when they are not working. Because there are no laws protecting smokers, the practice you describe is legal.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Overtime Law Excludes Time Off

Q: My company has changed its overtime policies to bring them in line with the new law that provides for overtime payments after working 40 hours in a week. However, we also were advised that if an employee took a single vacation day or a sick day, it would not count toward our 40 hours for the week. Is this legal? It's as if you're being punished for using time you've earned.

--Z.G., Ontario

A: Yes. An employer is required to compensate a nonexempt employee at 1 1/2 times the regular rate of pay for all hours worked over 40 in a work week. Because vacation or sick time hours are not hours "worked," an employer need not count them as hours worked when calculating overtime pay.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

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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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