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Salary-History Query Hinges on New Hire's Representations

March 25, 2001

Q My new employer gave me a substantial jump in pay (about $25,000) to leave my former company.

About two weeks after I started, my boss said he found out exactly what my last employer paid, and that I did not warrant an increase of $25,000. Now he is requiring me to provide my last two years of tax information if I want to keep my position.

Does he have the right to do all of this--check my past salary and ask for past tax returns?

He has told me several times that I am already performing at and above his expectations in my new position.

--C.C., Lake Forest

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A The answer depends on what representations you made to your current employer to receive the salary you are now enjoying.

If you told your current employer that your former employer was paying more than it in fact was paying you in order to get a higher salary--and your current employer based your salary on that misinformation--your current employer is entitled to request records of your prior earnings.

If, however, you made no representations about your past salary, your employer's request for tax information seems unreasonable and violates your right to privacy.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Restroom Time Can't Affect Minimum Break

Q At work they deduct two minutes from our breaks every time we use the restroom. Is this legal?

--B.A., Carlsbad

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A Your right to break periods is governed by the state wage order applicable to the industry in which you work. That wage order should be posted at your work site.

Most of these regulations require employers to provide each nonexempt employee a 10-minute rest period toward the middle of every four hours that the employee works. Some employers provide rest periods longer than 10 minutes.

If your workplace provides rest periods of exactly 10 minutes, it may not deduct two minutes from your 10-minute rest period for each visit to the restroom.

However, if your employer provides rest periods that are longer than 10 minutes, it may deduct two minutes from your rest period for each visit to the restroom so long as you never get a rest period of less than 10 minutes.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Formal Review Unneeded Before Employee Is Fired

Q I worked for a law firm for less than six months, handling clerical tasks for several attorneys who did not directly supervise my work. During that time, I was never given a formal review of my performance.

Recently, I was summarily dismissed by my office manager, who said the group I was working for gave me a poor evaluation.

Wouldn't it have been more ethical for there to have been a written review of my performance with the results given to me?

--A.A., Long Beach

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A Under California law, everyone is employed on an "at-will" basis unless he or she has a contract to the contrary.

An employer can dismiss an at-will employee at any time for any reason--or for no reason--and without advance notice.

There are no legal or ethical rules requiring an employer to provide a written performance review and/or to share the results with the employee before terminating the employment relationship.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

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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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