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Warning Doesn't Expire, but Can Be Voided

March 26, 2000

Q Recently my employer intended to write me up for a work-related incident. By the time the issue was brought to my attention I was well into my next shift.

A few days later, the employer tried to bring the incident to my attention again.

My understanding is that an employer must bring these concerns to the employee's attention before he or she starts the next scheduled shift.

If the employer doesn't do this, is the written reprimand void? What steps do I need to take to invalidate the write-up?

--P.M., Lake Forest

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A Your understanding is incorrect. In nonunion employment, an employer is ordinarily free to issue a written warning at any time, and there is no requirement that the employer speak to you first about the incident.

Though a company could adopt a different policy, I do not know of a company that has a rule invalidating a warning if the employee is not verbally counseled before the end of his or her shift.

The rule is only slightly different under union contracts. A unionized employer is required to give an employee a chance to tell his or her side of the story as part of the employer's duty to investigate both sides of a case. In fact, labor arbitrators often will overturn a company's decision to discharge or suspend an employee, or reduce the penalty, if the employee was not given a chance to be heard before the final discipline was imposed. But, as in nonunion employment, there is no requirement that counseling be given on the day of an incident that results in disciplinary action.

To invalidate a write-up in nonunion employment, you should give your view of the incident to your company's human resources representative and find out whether there are any procedures for contesting the warning.

If you are employed under a union contract, you should file a grievance with your shop steward or union representative. After that, the union will represent you throughout the grievance procedure, including all meetings with your employer.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Interpretations of Auto Insurance Rules Vary

Q My employer requires me to use my own vehicle to pick up documents, etc. I receive 31 cents per mile.

If I have an accident during this time, is the damage covered by my own insurance or the company's policy? Also, if there is a liability issue, which policy is responsible?

--H.B., Los Angeles

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A An employer is required by law to pay all expenses an employee incurs in carrying out his duties.

The Internal Revenue Service currently recognizes 32.5 cents a mile as a reasonable rate for deduction purposes. The California Division of Labor Standards Enforcement also considers the IRS mileage rate as reasonable reimbursement for such operating expenses as gas, maintenance and damages, or loss due to accident or theft (unless the loss or damage was the direct result of the negligence of the employer).

In providing mileage reimbursement, an employer can insist that an employee pay for insurance to cover all or a portion of the cost of any loss or damage.

Even if an employer reimburses employees at the IRS rate, however, it is not necessarily free from liability. The employee could argue that a set mileage reimbursement may not adequately cover all expenses incurred on behalf of the employer.

This is a complex issue and subject to different interpretations. If the employer did not tell you that your insurance is primarily responsible and the cost is to be included in the mileage reimbursement amount, you might have a claim that the employer's insurance policy should be primarily responsible. There is no definite law on how to determine the employer's portion of employee expenses on a personal automobile that is occasionally used for business purposes.

Indeed, a third party in an accident could sue both the employee and the employer at the same time and have a valid claim against both.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Personal Calls Via Cell Phone at Work

Q Our company has a policy regarding personal telephone calls, but has not addressed the problem of employees with cell phones who are receiving many personal calls during business hours. The calls are disturbing to me and disrupt employees' working hours.

Short of asking the employee to turn off the phone, what is the best way to deal with this subject?

--E.V., Santa Ana

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A You don't say what the policy is regarding personal telephone calls, but it seems obvious that if personal calls are considered an unwanted disruption of work, the policy should apply to both company phones and cellular phones.

It is time for the company to review the existing policy and revise it to take into account personal calls on cell phones.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

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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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