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Comments Made During Probe May Be Protected

April 25, 1999

Q: During a workers' compensation investigation of an employee, an investigator for the employer made inquiries about the employee. A manager's remarks about the employee were to be kept confidential, but the employee gained access to the comments through the Freedom of Information Act.

Is the manager liable for comments that were included in the investigator's report? The employee eventually lost the case.

--M.M., Dana Point

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A: Probably not. I assume you're concerned that the manager made negative comments about the employee during the course of the workers' compensation investigation and therefore might be liable for defaming the employee.

Under California law, a qualified privilege exists when communicating parties have a common interest and the communication is reasonably believed to further that interest. The privilege only exists, however, when a statement is made without malice.

As long as the manager's comments were made for the purpose of assisting the workers' compensation investigation and were not motivated by malice, the manager should be protected by this privilege.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Envelopes Not Required for Paychecks

Q: Are employers in California required to put employees' paychecks in envelopes? We have 80 employees where I work.

--V.A., Victorville

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A: Although most employers put paychecks in envelopes to ensure that employee wages are not disclosed to others, there is no legal requirement that they do so.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Job Description Aids Worker, Firm

Q: I have worked for the same company for 2 1/2 years but have never seen my job description. I was hired for an accounting position, but I have been moved around and worked as the controller, in data entry and in other positions. I'm getting confused about what I am supposed to be doing. I'm not happy in this situation and would like to know what my job description really is. What should I do?

--L.H. Riverside

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A: Discuss this with your supervisor, emphasizing that you would like this information so that you can perform your job better.

Ask to review the job description for your position if one exists. If it does not, you should suggest developing a job description for your current position.

Let your supervisor know that you are willing to help analyze your current job. It would benefit you, your supervisor and your company to know what your job entails.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Employer Can 'Double Bill' a Leave

Q: I'm a nonunion employee requiring surgery for a work-related injury. I have filed a workers' compensation claim, but my employer is insisting that I fill out a Family Medical Leave Act form.

I thought these were two unrelated items. Can you explain the need to fill out a Family Medical Leave Act form for a workers' compensation claim?

--O.G., Burbank

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A: Your employer wants you to fill out a Family Medical Leave Act form in addition to a workers' compensation claim so you use up absences you are entitled to under both programs at the same time.

Although the programs vary in several aspects, they both focus on absences from employment.

The Family Medical Leave Act requires an employer to provide an employee with up to 12 workweeks of unpaid leave in a 12-month period under certain circumstances such as a serious health condition caused by a serious accident on or off the job. The act also requires an employer to reinstate an employee to the same or equivalent position.

State workers' compensation programs allow an employee to receive compensation for a job-related injury and to be reinstated if there is work available that the employee can perform safely.

An absence due to a work-related injury can count against an employee's Family Medical Leave Act leave if it is properly designated at the beginning of the absence. This is true even if the employee has filed a workers' compensation claim.

Although it might seem unfair that your employer can "double bill" your leave, you might take some consolation in the fact that you are, in effect, "doubly insured" of a job when you return.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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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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