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Critical Comments May Be Privileged

April 08, 2001

Q About a year ago, I left my job with a government agency in Orange County for a better position outside the area. The parting was amicable and I have remained in close contact with many employees.

I have learned that one of my former supervisors has been critical of the way I used to do my job. I'm not surprised since she always spoke disparagingly about almost everyone who left and even about those who still worked for her.

What recourse do I have, if any? Some of her comments have been slanderous. I'm not seeking financial gain but I do want the comments to stop.

--O.S., Orange

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A Whether you have any recourse depends on what your former supervisor said and to whom she said it. There is a "qualified privilege" that protects statements made without malice by supervisors--even statements critical of job performance--under numerous circumstances.

If the comments were made to other managers for a valid business reason such as determining your eligibility for being rehired, they would be protected.

Comments made in response to a request for a reference or to the state Employment Development Department in opposition to a claim for unemployment benefits similarly are covered by the qualified privilege.

The privilege would apply in these instances unless you could prove that her disparaging comments were made with malice.

Even if disparaging comments are not privileged, they still are not slanderous unless they are untrue. Although you may disagree with your supervisor's appraisal of your work, unless her statements are objectively false they are not slanderous within the law.

Gratuitous disparaging and untrue comments made to nonsupervisory employees or to other supervisors in the absence of a valid business purpose are not privileged and may be the basis for a slander lawsuit.

Such a lawsuit might not be worth the effort, especially if you have moved out of the area and the comments have not harmed you in any tangible way.

You might write to the former supervisor, notify her that you have heard that she has been making false and disparaging comments about you, and demand that she stop.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Create Disincentives for Lack of Teamwork

Q I work in a team-based environment, where we try to pull together and help one another out. But there is one worker who is a terrible team player, and it's causing resentment in other workers.

This guy only focuses on his own work and refuses to do anything extra.

Do you think a team-building session would help us get this fellow to start to work with us?

People are starting to resent the fact that he gets out of doing his share of the work.

--M.C., Riverside

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A Although a team-building session might help, it also might not have any effect.

Since some workers have trouble adapting to team-based work, there simply may be a misfit between this individual's work style and that of the team.

In all likelihood, however, this member has been getting away with not doing his fair share because there have been no "disincentives" for his lack of teamwork.

Someone in a supervisory position needs to evaluate this situation and take action, particularly since his behavior is causing resentment in other members.

The organization also might want to review how it evaluates performance of team members to ensure that workers are being recognized for good team performance as well as being told when they are not performing up to expectations.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Many Teachers Considered Exempt Employees

Q I teach at a private school. Once a week at lunch, I am required to supervise children. Another day each week, I am required to attend a meeting during lunch because I am a department head.

It is my understanding that I am entitled to a 30-minute uninterrupted, duty-free lunch. Also, when we have parent conferences we are sometimes at work for more than eight hours. Aren't we entitled to time and a half?

--L.Z., Sepulveda

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A If you are nonexempt, you would be entitled to the 30-minute lunch. Also, if you work more than eight hours a day, you would be entitled to overtime.

The issue is whether you are in an exempt or nonexempt position.

Many teachers are considered exempt, especially those with extended education and a license. To teach in public schools, teachers are normally licensed and would be considered "professional" and exempt from these rules.

However, teachers at private schools often are not licensed and may not qualify for this exemption. Accordingly, there is a good chance that you are nonexempt and would be entitled to the 30-minute lunch and overtime.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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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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