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Theft Policy Is Legal, but Might Have Employer Steeling Against Lawsuits

July 01, 2001

Q. To discourage internal theft at my small company, I would like to institute a policy that terminates employees for theft and reveals in references to prospective employers the reason the employee was fired.

Would this policy be legal, particularly if I have employees, at the time they are hired, sign a form saying they understand these consequences for theft?

--C.R., San Dimas

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A. There is nothing illegal per se about this policy. You may be sued for defamation for giving such a reference on an employee, however.

Although truth is a defense to a defamation claim, you would have the burden of proving that the employee was guilty of theft. If you could not prove to a jury that the employee stole, you might be found liable for defamation even if the employee were probably guilty.

For this reason, most employers prefer not to provide references on former employees.

You can say that the employee is not eligible for rehire, however.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Hourly Employees Legally Deserve Break From Work

Q. My daughter works 12-hour shifts for a police department's 911 dispatch unit and doesn't get breaks or a lunch hour. When she raised the issue, she was told that a relief person would have to be hired and that there are no funds in the budget.

Is this legal in the emergency response area?

--L.B., Costa Mesa

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A. Hourly employees generally are entitled to overtime pay, rest breaks and lunch breaks, whereas employees such as managers, administrators or professionals are exempt from these rules.

For employees who are entitled to these items, it is irrelevant whether there are funds in the budget.

Normally a paid 10-minute rest break must be given to an employee for each four hours, or major fraction thereof, of work.

Additionally, a 30-minute unpaid lunch break must also be given if an employee works more than five hours. Overtime pay also is due if an employee works more than eight hours a day.

There is a provision in the law, however, for an employee to have a meal period while on duty. If the nature of the work prevents an employee from being relieved of all of his or her duties, the employee voluntarily can enter a written agreement with the employer for such an arrangement. The employee then would be paid for the time.

There also are some complex flexible scheduling laws that waive overtime when an employee works more than eight hours in a day but less than 40 in a week.

If your daughter is an exempt worker, she would not be entitled to overtime pay, a rest break or lunch.

If she is a nonexempt worker, she would be entitled to rest breaks and her lunch break, unless she qualifies for the on-duty exception.

--Don D. Sessions

Employee-rights attorney

Mission Viejo

Nonexempt Workers Are to Get 'Show-Up' Pay

Q. I showed up the first day of a 40-hour-week temporary assignment and was sent home because the job was postponed for one day. Should my employment agency have paid me for half of the scheduled workday?

--I.D., Los Angeles

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A. Under California law, nonexempt employees are entitled to "show-up" pay when they report to work on a scheduled workday but are not allowed to work at least half their scheduled shift.

The employer must pay the employee for half the scheduled workday, up to a maximum of four hours' pay, but never less than two hours' pay.

Under the regulations, hourly employees are not entitled to show-up pay if they learn in advance that they need not report to work or if the employer is unable to provide work because of circumstance beyond the employer's control, such as an electrical blackout.

It does not appear from your question that you were prevented from working because of circumstances beyond your employer's control. Thus, you should be entitled to four hours' pay for reporting for your eight-hour shift.

If the temporary agency refuses to pay, you can file a claim with the California labor commissioner.

--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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