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ORANGE COUNTY SHOP TALK

Can My Employer Credit Free Golf Against Pay?

November 26, 2000

Q: I am retired but work part time one day per week as a course marshal at a golf course. I was being paid minimum wage plus free golf.

Management then told all the marshals that they would no longer be paid. They could volunteer their time and would continue to have free golf.

Can they legally do this? If so, would I still be covered under workers' compensation if I should be injured while working?

--B.T., Laguna Niguel

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A: Your employer may not credit free golf against its minimum wage obligations to its employees.

The only time that an employer may credit services or other goods in kind against minimum wage is when the employee has voluntarily agreed to accept meals and lodging against his employer's minimum wage obligations.

In any event, you would be covered by workers' compensation if injured while performing services for your employer.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Antinepotism Policy Not Much Help Here

Q: My firm recently promoted one of my previous staff members to my old position and reassigned me to a newly created position. This employee is in a committed relationship with her supervisor, in direct violation of written company policy.

Because neither of these women has "come out," the firm is afraid to enforce this policy. If I fail in this new position, do I have recourse?

--B.D., Redlands

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A: Your question implies that you believe your reassignment was part of a ruse to move the supervisor's partner into your old position.

If that is not the case and your new position is a "real" one, you would have no recourse if you fail.

Even if you were moved to accommodate the supervisor's partner, it would be difficult to determine what recourse you might have. For example, it is unlikely that the antinepotism policy is drafted in such a way as to provide you with any contractual right to have it enforced on your behalf.

The best step may be to contact an appropriate person in your firm, perhaps someone in human resources, and explain the circumstances.

If your employer understands the unfairness involved and believes that you are a valuable employee, it should want to find an appropriate position for you or return you to your old one.

--Jo Tucker

Employment law attorney

Morrison & Foerster

How Long Must I Keep Job Open for Worker?

Q: I have an employee who has been with me for 14 years. She was injured in an auto accident a year ago. She was off work for three to four months and then came back part time for six months. She is now off work again and it has been five months.

What are my obligations regarding keeping her position open for her? Do I have to take her back when she calls to come back to work?

--M.M., Malibu

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A: There are no leave laws requiring an employer to hold open a position for an employee who is absent for as long as five months because of an off-duty auto accident.

You do not say if the auto accident was work-related. If it was and the employee is on workers' compensation leave, you are required to reinstate her when she is ready to return to work unless you have had to replace her because it would have been an undue hardship to keep the job open--if business necessity required you to replace her permanently.

Whether it was an off-duty accident or a work-related accident, the federal Americans With Disabilities Act and the state equivalent, the Fair Employment and Housing Act, may require you to grant a leave of absence as a reasonable accommodation and to reinstate the employee at the expiration of the leave.

You are subject to the federal act if you have 15 or more employees, and you are subject to the state law if you have five or more employees. If you are subject to the ADA or FEHA, you are required to reasonably accommodate any "qualified individual with a disability" who can perform the essential functions of his or her job.

If the employee's injury was not work-related and the federal or state laws do not require you to provide a leave of absence as a reasonable accommodation, you have a duty to reinstate this employee when she is ready to return to work only if you have made a promise to do that.

If you have a policy that requires you to reinstate employees who take medical leaves of absence for this long, you will need to honor your policy.

You also should honor any oral commitment you have made to reinstate this employee.

--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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