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Employers May Be Required to Pay Unapproved Overtime

April 22, 2001

Q: If an employer says "overtime is not allowed unless authorized by a manager, or unless it is pre-approved," can the employer refuse to pay for overtime that was not authorized?

--J.D., Los Angeles

A: No. If the employer knew or should have known that the employee was working overtime, the employer must pay it. It does not matter that the employer did not authorize, require or otherwise request that the employee work overtime.

That does not mean that a policy requiring authorization of overtime is useless. An employee who violates that policy can be disciplined or terminated for failing to follow it.

--Jo Tucker

Employment law attorney

Morrison & Foerster

Age-Bias Suit Can Be Filed Despite Lying at Hiring

Q: Can an employer be sued for age discrimination even though the employee lied about his or her age at the time of employment?

Let's say that when the employee was hired, he or she listed an age of 45 instead of the correct age of 55. Now, that employee is alleging age discrimination because of being passed over for promotions that went to younger employees.

--B.C., La Puente

A: Yes. State and federal age-discrimination laws prohibit an employer from asking an applicant's age or making other inquiries that would indicate the applicant's age, such as the year the applicant graduated from high school.

After joining a company, an employee may be required to provide a birth date, if that information is necessary for business purposes such as providing insurance. Even if the employee lied about his or her age, the employee may be able to successfully bring an age-discrimination claim against the employer if it can be proved that the employer was motivated by age discrimination in making promotion decisions.

However, under a doctrine known as the after-acquired evidence rule, the employee's ability to recover damages may be limited.

Limited remedies usually occur when a terminated employee has made a claim against the employer. Evidence of wrongdoing, such as lying on a resume or application, is then found during discovery.

In these situations, a terminated employee might not win reinstatement to the job. Remedies probably would be limited in promotion discrimination cases as well when employee wrongdoing is discovered.

To achieve a limit on remedies, an employer must show that the wrongdoing was so severe that the employee would have been terminated on those grounds alone if the impropriety was known at the time of hiring.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Employees Are Entitled to Mileage Compensation

Q: My employer has required that I teach classes at a location away from my office. The temporary training facility is a 120-mile round-trip from my house, but my regular office is a 30-mile round-trip. My boss is refusing to pay me mileage for the difference. His reasoning is that the training class is four hours and he is not getting a full day's work from me.

Shouldn't I be entitled to reimbursement for mileage expenses?

--R.C., El Segundo

A: Employers have an obligation to reimburse employees for any expenses they reasonably incur in performing duties for their employer, and that includes paying mileage to employees when they use their vehicles for company business. You should be paid mileage for traveling to an assignment that is away from your employer's normal place of business.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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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