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Worker Fears That Firing Is Imminent, but How to Find Out?

October 01, 2000

Q: Two months ago I was hired as a marketing manager for a small computer company. I felt my performance was above average and, until recent events, thought my boss felt the same.

A friend of mine, who is seeking a marketing position as well, was going through the classifieds and noticed an ad that appeared to be for my position with this company.

She was absolutely right. One of my co-workers said that is the procedure the company usually uses when replacing someone. I had never been warned or even reprimanded for my performance.

Should I confront my boss? Do I quit and risk the opportunity to collect unemployment? Do I not say a thing, but look for another job in the meantime?

I believe this is a lousy thing for the company to do, but is it illegal?

--K.K., Anaheim Hills

A: An attempt to replace you without notice is not necessarily illegal. Your employer may say you were an "at-will" employee who could be terminated with or without cause at any time.

Because you have worked there for only two months, you might be a "probationary" employee, giving your employer additional justification for terminating you.

On the other hand, it could be illegal if your employer fires you for a discriminatory reason or one that violates general public policy, such as if you are a whistle-blower.

You should tell your boss that you saw the ad and ask about your employer's intentions. It's possible that the company is on a "fishing expedition," evaluating possible candidates for work or moving to add an additional position instead of seeking to replace you.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Overtime Laws Don't Apply to Contractors

Q: I believe the overtime law that took effect this year states that software professionals must be paid time-and-a-half after eight hours a day or 40 hours a week.

But I am an independent contractor, and the company that I have a contract with says it does not have to follow this rule because I am not an employee. Is that correct?

--J.B., Burbank

A: Before Sept. 19, when the law was changed, most computer software professionals were entitled to overtime pay for work over 40 hours a week or eight hours a day. Now, highly skilled software professionals are exempt from overtime compensation if they spend more than half their time engaged in work that is intellectual or creative and if their hourly wage rate is $41 or more. (This wage rate is to be adjusted every Oct. 1, beginning in 2001.)

There are a number of exceptions under the new law. For example, the new exemption does not apply to trainees, computer hardware (rather than software) workers, engineers and others engaged in computer-aided design, technical writers and other content providers, or employees involved in computer imaging in the entertainment industry.

The most important factors in determining whether a worker is an independent contractor are whether the company has control or the right to control the worker and the manner in which the work is performed. If the company exercises significant control, the worker is likely to be an employee rather than an independent contractor.

If you suspect that you might be an employee rather than an independent contractor, you should file an overtime claim with the California Labor Commissioner or consult an employment attorney.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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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. Recent Shop Talk columns are available at http://www.latimes.com/shoptalk.

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