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Shop Talk

Laid-Off Worker Owed Vacation Pay

July 08, 2001

Q: I was laid off in February and given three months' severance pay. I also had 40 to 50 hours of accrued vacation time that I have not received.

What do I do now?

--D.W., San Juan Capistrano

A: Generally, there is no law that requires an employer to pay severance pay. If an employee handbook or employment contract promises severance, however, the employer would have to honor that commitment.

If your employer gave you three months of severance pay without requiring you to sign some kind of release, you would be entitled to the accrued vacation time. Many employers will make severance pay conditional on your signing such a release, although you should not assume that all of these releases are legal.

A release is illegal, for example, if you are forced to sign it to receive something that the employer already owes.

Employers also must pay all accrued vacation time at the time of your termination.

And if you are fired, don't blindly believe the employer's computations of what you are owed. Figure it out for yourself, talk to the California Division of Labor Standards Enforcement or see an attorney.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Employee Should Know If She's Entitled to Overtime

Q: My daughter is a salaried employee of an insurance agency. She takes work home and has to travel to and from potential clients on her own time.

I estimate she devotes an additional 20 to 25 hours a week for which she is not compensated. Her assistant, who is an hourly employee, is paid for additional hours worked.

For nearly a year now, no one has offered my daughter comp time or overtime pay.

Do you have any suggestion as to how she can approach management on this issue without jeopardizing her job if she does have a right to additional compensation?

--L.P., Los Angeles

A: Whether your daughter is entitled to overtime compensation depends on whether she is exempt from the provisions of the California overtime laws.

I see several exemptions that may apply, including the administrative exemption, the executive exemption, the exemption for a commissioned sales person and the exemption for an outside sales person.

You have not provided sufficient information to enable me to determine whether any of these applies. However, the law does protect employees from retaliation for complaining about wage-hour violations or questioning their status under the wage-hour laws.

I would recommend that your daughter politely ask her manager whether the employer regards your daughter as exempt, and, if so, on what basis. She then can assess whether she should have been treated differently.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky

& Walker

Recovering Camera Cost May Not Be Worth Effort

Q: We recently found out that the office clerk once used a corporate credit card to buy a digital camera for personal use without authorization. As a result of this and other issues, we gave her a notice of termination.

Is it legal for the company to garnishee her wages to cover the cost of the camera?

--S.H., Chino

A: It is unclear whether you mean wages from her final paycheck from your company or wages from her new employer.

If you are referring to her final paycheck, you need not garnishee her wages. You can deduct from an employee's pay losses resulting from the employee's willful misconduct or gross negligence, although you cannot deduct losses resulting from mere negligence or for business expenses reasonably incurred by an employee.

It sounds as if her conduct might meet the standard of willful misconduct or gross negligence, although you should check to see if she might be able to argue that she bought the camera for some work-related purpose. If she did, she might not meet the misconduct standard and your payroll deduction would be illegal.

In order to garnishee her wages from her new employer, you first will need to file a lawsuit against her and obtain a judgment.

Only then can you file garnishment papers. Given the court costs and attorney fees likely to be incurred, this may not be worth pursuing, depending on the value of the camera.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Honesty Is Best Policy for Employers, Workers

Q: Before starting my current job, which I've held for more than a year, I neglected to mention my most recent former employer. I had worked there only six months and didn't think it was significant enough to mention on my application or in my interview. I listed the other employers, all of whom gave very good references.

Should I voluntarily reveal this error now and face possible termination for withholding information on my application, or leave it alone and deal with it if the company asks about it in the future?

--S.A., Woodland Hills

A: At this point, there seems no reason to voluntarily bring up this information. However, if you are asked about it, you should be straightforward and honest. In general, honesty is the best policy. This goes for both employees and employers.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

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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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