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A 'Temp' Without Benefits Wants Permanent Status

September 06, 1998

Q: I have been working full time at the same company for 1 1/2 years through a temporary agency. I receive no benefits--vacation, sick leave or holidays.

The company intends to maintain my "temporary status" indefinitely, instead of making me a permanent employee with benefits. Is there a law stating that after a certain period of time, the company must hire the employee on a permanent basis?

--E.W., Laguna Hills

A: Companies often use employees from a third-party agency to avoid paying benefits and being subject to claims of wrongful termination.

In general, employees of an employee-leasing agency who work for another company do not have a right to benefits or permanent employment with that company, even after a period of time has elapsed. But there are exceptions.

The real issue here is the status of your relationship with the agency and the company where you work. You may have rights to both benefits and a permanent position if the company acts more like your employer than does your agency, making promises to you regarding the current and future status of your work.

Thus, it is critical to evaluate several aspects of your employment. Does your temporary agency only give you a paycheck and nothing else? Is your paycheck routed through the company where you work as well? Who controls your hours, your job evaluation and your workplace location?

If the company where you work handles most of these responsibilities, rather than the temporary agency, you might have a legal claim regarding permanent employment.

Since the concept of leased employees is still in the development stage, you might want to see an attorney to evaluate the specific facts of your case.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Double-Time Pay Is Not the Law

Q: I work for a large packaging company. During a particularly busy week, a colleague worked 69 hours, including 10 hours at time-and-a-half and 19 double-time hours.

But he was 17 minutes late one day that week, so all his double-time hours were reduced to time and a half. The policy is described in the employee handbook, which says that employees are expected to be at work on time and that failure to do so "cancels extended workweek overtime."

Is this legal under California law?

--U.C., La Canada

A: Assuming that this occurred after Jan. 1, 1998, it is legal to do what your employer did.

The overtime laws that cover most employees in California no longer require the payment of double time for work in excess of 12 hours daily, or otherwise.

The overtime laws only require payment of premium pay of 1 1/2 times an employee's regular pay for any hours worked in excess of 40 in a week.

Your employer is being more generous than it has to be by paying double time for extended work weeks. The company is therefore entitled to place whatever conditions it wants on its willingness to do so.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Collecting on the Expense Report

Q: I'm a sales manager for a biotech manufacturer based in Europe. Our sales administrative offices are in Massachusetts. Our business expenses right now are charged to my personal credit card, and I'm reimbursed through the office in Massachusetts.

Lately, the reimbursements have been very slow. At the moment, the company owes me about $8,000, including $6,000 that has been due for a couple of months. When I inquire, I'm told "the check is in the mail."

Do I have any legal recourse? After all, this is not a corporate card, and, since it's American Express, the balance is due two weeks after the bill is received. So I'm paying out of my own pocket.

--R.D., Temecula

A: The California Labor Code generally requires your employer to compensate you for amounts that you spend to carry out your job duties.

One solution may be to submit the interest expense from your credit card account on your next expense report, and explain why you believe the company should reimburse you. If you take this approach, you would want to make sure that you have submitted your expense reports on a timely basis after you have incurred the expenses. Otherwise, the company might claim that you were as responsible for the delay as it was.

Also, you should make sure that you are seeking reimbursement for the interest charges only for your business expenses, If you also use your credit card for personal expenses, you must prorate the interest expense.

You may want to request a corporate credit card. While most corporate credit cards require the employee to accept responsibility for payment, failure to pay on a timely basis usually does not affect your personal credit record.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

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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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