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Employer Can't Silence Workers Who Criticize Management

July 29, 2001

Q: All members of my department received a new list of "professional standards," most of which involve common sense matters, such as noise level and punctuality.

One item, however, was rather troubling, advising that staff members "are not to share their opinions of . . . management or management practices with . . . [other] staff members."

Doesn't this violate the 1st Amendment? Can this restriction be legally required of employees?

--R.R., Santa Monica

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A: Assuming you do not work for a government agency, the 1st Amendment does not apply, as it prohibits only government abridgment of the right to free speech.

The National Labor Relations Act, however, protects the right of nonsupervisory employees of most private-sector employers to discuss among themselves matters relating to wages, hours and working conditions, which would include criticisms of management.

An employer may place reasonable restrictions on the time and manner in which such discussions may be held.

Your employer's blanket prohibition against such discussions seems to go beyond these permissible restrictions.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Employee Must Bear Cost if Uniform Not Required

Q: My wife is employed by a women's clothing chain as a sales clerk. Although she has nothing in writing, it is understood by all the sales personnel that they must wear clothes sold by her employer while at work.

She has plenty of other suitable clothing that she purchased elsewhere. Although she receives a discount for her purchases, the cost is substantial and reduces her net earnings.

Shouldn't the employer bear this cost?

--R.C., San Pedro

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A: A retail employer that requires its employees to wear uniforms must provide and maintain those uniforms.

The clothing your wife feels compelled to purchase probably is not a "uniform" in the traditional sense of the word. However, the payment requirement may apply here if your wife's employer truly requires her to wear clothing sold there.

You say there is nothing in writing, but "it is understood by all the sales personnel that they must wear clothes sold by her employer while at work." Does the employer truly "require" it, or do the sales personnel just think it does?

If there is no real requirement, the employer has no obligation to bear the cost.

--Deborah C. Saxe

Management attorney

Heller Ehrman White &

McAuliffe

Appeal May Be Necessary in Disability Dispute

Q: I recently underwent emergency surgery and am not working. After being on disability for seven days, a new contract negotiated by my union went into effect, providing an immediate wage increase.

I was informed that due to my disability, this increase would not be effective for me until I return to work. My union's stance is that although they disagree with the policy there is nothing they can do.

Can the company legally withhold this pay increase?

--J.D., Mission Viejo

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A: I assume from your question that your union has negotiated a disability plan entitling you to payments while you are temporarily disabled. If so, the disability plan would be able to withhold the pay increase if the plan rules provide that payments are based on wage rate in effect at the time an employee becomes disabled.

To find out whether you may be entitled to an increase in your disability payments, you should ask the administrator of the disability plan to send you a copy of the plan's explanation of benefits, and to highlight the section providing that benefits are paid at the rate in effect when a disability begins.

If the rule is not clear, you may want to file a written appeal with the disability plan.

--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. The Shop Talk column should not be construed as legal advice. Recent Shop Talk columns are available at http://www.latimes.com/shop talk.

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