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Most Have Right to Get Overtime Pay

October 08, 2000

Q: I was employed as a clerk in an accounting firm before being laid off. On most days, I worked nine hours. During the busy tax season, I worked 10 or more hours each day and four hours on Saturdays.

I was not paid overtime but have reason to believe that other employees were paid overtime. In 1999, my boss took out a medical insurance policy covering all employees except me.

After a few weeks, I asked the boss why I was excluded and he replied it was because I was receiving Medicare benefits. I informed him that I was paying for supplementary medical insurance to have myself fully covered. Then he started paying me an insurance allowance of $100 a month.

Did the company discriminate against me when it didn't pay overtime or medical insurance?

--C.U., Orange


A: Most employees have a right to be paid additional compensation for overtime work. This does not apply to exempt employees--generally defined as those who work in an executive, management or administrative capacity.

Before January, employees qualified for overtime if they worked more than 40 hours in a week. After that, an employee who worked more than 40 hours a week or eight hours a day would have a right to overtime compensation.

As a clerk for an accounting firm, it certainly appears that you would qualify for overtime compensation. And it does seem strange that only you would be excluded from overtime compensation and the insurance policy.

It is improper to exclude one particular person from a general insurance policy, even if you are receiving Medicare benefits. Because there is a minimum age to qualify for those benefits, it's possible that you were discriminated against because of your age.

So it appears that you have a valid claim for overtime compensation and the value of medical insurance you did not receive.

If you believe that you were targeted for a layoff because you raised concerns about these two issues, you might also have a claim for illegal retaliation.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Former Employer Need Not Provide References

Q: Is a former employer required to provide dates of employment to prospective employers?

I worked for my previous employer for more than three years. When a prospective employer contacts my previous employer, it will neither confirm nor deny that I was employed there. This is creating difficulties for me when seeking employment.

--C.S., Redlands


A: You are feeling the effects of extreme employer cautiousness resulting from often frivolous lawsuits by former employees claiming that their former employer defamed them by giving a less-than-stellar reference.

In an era when terminated employees look for any possible reason to sue their employers--when even detective agencies pose as prospective employers to try to entrap a former employer into saying things that could support a defamation lawsuit--most employers would prefer to say nothing--even about a good employee--than risk getting sued.

You might consider writing to your former employer to authorize them to provide information about you to prospective employers. It might help if you include a release of all potential claims relating to the employer's providing such information.

But your former employer would be within its rights in refusing to do so.

No law requires that an employer provide references. An employer is not even required to confirm dates of employment or that a particular employee was employed at all.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

When a Layoff Precedes Stock Option Vesting Date

Q: I was laid off a few weeks before my employee stock option vesting date, so I was denied the stock option. However, I had accumulated a few weeks of vacation at the time of the layoff. If these vacation days are taken into account, my final day would be after the stock option vesting date.

Do I have a valid legal claim to the stock option? If so, how should I proceed?

--A.T., Los Angeles


A: You need to review the terms of the stock option plan document and your stock option (they are different documents). Those documents will tell you if you have a valid claim. However, I have never seen a stock option plan that provides that accrued but unused vacation time be taken into account for this purpose.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie


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 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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