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Health-Care Workers Also Entitled to Reap Benefits of Overtime Law

September 17, 2000

Q: I work as a dental assistant and have always been paid on an hourly basis. I thought that as of Jan. 1, I was entitled to overtime pay for any time worked beyond eight hours in a day.

However, the dentist whom I work with says I can work up to 10 hours a day without overtime because I am a health-care worker. Is this correct?

--C.M., Mission Hills

A: You are correct, not your dentist. Under the overtime law that went into effect Jan. 1, hourly employees are entitled to overtime pay for work beyond eight hours in a day.

There are two significant exceptions:

* Employees can vote to substitute an "alternative work schedule" of no more than 10 hours work per day (12 hours in the health-care industry), provided that the employees receive overtime pay if they work more hours in a day or more than 40 hours in a week. The new law requires that the alternative workweek arrangement be in writing, that the voting be by secret ballot and that the arrangement be approved by two-thirds of the employees who are eligible to vote.

* A health-care employee can work up to 10 hours a day without overtime if the employer and employee had such an arrangement on July 1, 1999, and if the employee voluntarily submitted a written request to continue the arrangement by July 1, 2000.

It does not appear that your employer conducted an alternative work schedule election. Nor does it appear that you agreed to work 10-hour days without overtime before July 1, 2000, and submitted a written request before July 1, 2000, that the arrangement continue.

Thus, you should be entitled to overtime premiums of time and one-half for your work over eight hours in a day, and double-time premiums for work over 12 hours, after Jan. 1, 2000.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

State Law Prohibits Hiring Agreements

Q: I have been working at a company that has service contracts with many of its larger customers, including government agencies.

The one-year contracts forbid the company's clients to hire its employees for a period of two years after the document is signed.

Doesn't California law limit such restrictions? The job market in our line of work is limited, so an employee seeking to leave the company and find employment is severely limited by these clauses. Trade secrets are not a big factor in this industry.

--A.M., Riverside

A: California law prohibits agreements by one company not to hire another company's employees (particularly if trade secrets are not an issue), although agreements not to solicit another company's employees are permissible.

Depending upon the language of the contracts you mention, if you wanted to work for one of your employer's clients you could apply for a job there and be hired. But that company might not be able to solicit you to leave your current job and go to work for them.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Employers Have Varied 401(k) Conditions

Q: I worked for a commercial real estate brokerage firm for about five years. For the last four, I was an employee and should have qualified for the 401(k) program. I asked about three times, and each time I was given a different reason why I couldn't participate.

It's been about a year since I left the company and I'm wondering if there is anything I can do about it now.

--J.M., Redondo Beach

A: Just because you were an employee does not mean that you were eligible to participate in your employer's 401(k) plan. A plan, for example, can limit eligibility to salaried employees.

You should request a copy of the Summary Plan Description, which will let you know if you satisfied the conditions for participation in the plan. This document also will tell you how to file a claim for benefits.

If you still feel that you should have been able to participate in the plan, you should follow the procedure for filing a claim.

If the employer does not respond to your claim in a timely manner, or you are dissatisfied with the employer's response, you can seek the assistance of the local office of the Department of Labor.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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

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