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Overtime Should Be Paid in Next Payroll Period

November 12, 2000

Q. I work for a state government agency. After being shorted four hours of paid overtime, I notified my office's timekeeper.

I was told that my supervisor turned in a form late and that the missing hours should appear in my next check. Three checks later, I have yet to be paid. Does my employer face any penalty for the delay?

--M.B., Rancho Santa Margarita

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A. Most non-government employers must pay wages in a timely manner, usually two times a month, according to the California Labor Code.

Overtime, however, is technically due on the paycheck covering the next payroll period instead of the current one. The payments are supposed to be accurate. An employer certainly would not be complying with the law if a paycheck is paid but is intentionally incorrect.

State, county and city employers are not subject to these rules, but they must comply with the federal Fair Labor Standards Act, which regulates overtime rules and implies that there be periodic paydays. Unlike state law, the act does not impose penalties for late payments.

In addition to wage laws, employers are required under contract law to fulfill any promises regarding payment of wages. Examine your employee handbook for details of any promises by your agency. In any case, you should do more than bring the unpaid overtime to the attention of the timekeeper.

Document your request for the overtime so there is no dispute that you requested it. Follow up your initial request with another letter.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Accrued Time Off Must Be Paid at Termination

Q. My employer has told terminated employees that they are not eligible to be paid for accrued time off. I was under the impression this was your time and any remaining balance must be paid to you at the time of termination.

--Y.C., El Segundo

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A. An employee's accrued vacation or paid time off is considered part of the employee's wages under California law. The accrued balance must be paid to the employee at termination.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Employer Not Privvy to Medical Records by Law

Q. My husband, who works for a public entity, was sent to its doctor for a medical examination required by the Department of Motor Vehicles. The doctor detected a heart murmur and refused to sign the DMV forms.

My husband saw our doctor, who could not detect the murmur. The company's doctor, after being informed of this, signed the DMV forms. My husband's employer requested a copy of the forms, which contain personal medical information (syphilis, gonorrhea, asthma, psychiatric disorder) that could be used against my husband.

Is he required to provide a copy? Can the doctor provide a copy of the form to the employer without my husband's consent?

--T.M., Long Beach

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A. Generally no, particularly if your husband was determined to be medically fit to operate a motor vehicle.

Both the Americans With Disabilities Act and state privacy laws restrict how much information a doctor may reveal to an employer concerning an employee's medical condition and history. These laws provide that a doctor may only certify to an employer whether or not an employee is medically fit for duty.

If an employee is determined not to be fit, the physician may reveal enough information to the employer to indicate what restrictions exist on the employee's returning to work, but ordinarily a physician would not be justified in releasing an employee's unrelated medical history.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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Mail your question 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. This column is designed to answer questions of general interest. It should not be construed as legal advice.

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