Company Obligated to Uphold Holiday Policy

Question: I am leaving my company to start a new job on Jan. 5. The company shuts down from Dec. 25 to Jan. 1 for factory maintenance and these are designated company-paid holidays.

I want to give my two weeks’ notice before that, which means I would be off six out of 10 working days.

I realize this may not sit well with my current employer, but is there anything they can do about it? Can they force me to work on the company-paid holidays?

I am an exempt, salaried employee.

--B.W., Los Alamitos

Answer: By definition, exempt workers are to spend whatever time it takes to fulfill their job duties. But employers still need to abide by promises to employees.

In this case, the company policy specifies that you are entitled to holiday pay. Your employer certainly could require you to work if there is work that needs to be done, but the company would be obligated to pay you for your time, or give you compensatory time off, in addition to holiday pay.

It would be a good idea for you to review your employee handbook to determine whether it includes details of the company’s policy regarding holiday pay.

If you are concerned about retaliation, consider waiting until after the holidays to give notice of your departure. The employer may be upset at the short notice, but by that time, there is no doubt that you will have earned your holiday pay. And there is no law requiring employees to give advance notice of their departure.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Contract or No, Overtime Due

Q: I am an hourly employee. I received an offer letter with an hourly rate, but there was no reference to compensation for work over eight hours daily or 40 hours weekly.

I work with six other professionals doing identical work. The other six are contractors working through a placement company. Several of them have told me that their company’s contract includes time and a half when they work more than 40 hours in a week.

Our work involves five to 10 hours of overtime each week, but I am being paid only straight time for work in excess of 40 hours.

Is the company violating California law? How should I proceed?

--A.G., Long Beach

A: As an hourly employee, you are entitled to overtime premiums even though your employment contract provides for overtime pay at straight-time rates.

Your right to overtime pay is determined by federal and state law and cannot be changed by the terms of your offer letter. In fact, with the exception of certain union contracts, overtime rights can’t be reduced or eliminated by an employment agreement or a company policy.

In addition, you have a right to overtime pay even though you are a professional. Ordinarily, salaried professional employees (doctors, lawyers, some nurses, teachers, some engineers, architects, etc.) are not legally entitled to overtime pay. Since you are not salaried, however, your employer must pay you overtime premiums in accordance with federal and state law.

Depending on the industry in which you work, your overtime rights may soon be sharply reduced. Unless the courts stop new California regulations from going into effect Jan. 1, most employees will lose their right to overtime premiums when they work more than eight hours a day. Affected employees remain entitled to weekly overtime at time and a half after 40 hours in a workweek.

The new regulations are not retroactive. Thus, you should be able to file a lawsuit or a claim with the California labor commissioner for the daily overtime that you did not receive before 1998, plus interest and penalties.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Employer Has Right to Correct Overpayment

Q: Twenty months after being rehired by my former employer, an error was discovered in my length of service date. This error caused my vacation to build up much faster than it should have, and my time card was adjusted to show that vacation would accrue at a much lower rate.

I received no notification or documentation of this change. When I called the human relations department, I was told the change was effective immediately but would not be made retroactive to my rehire date.

But when profit-sharing checks were distributed to everyone in February, my employer completely surprised me by withholding nearly $2,000, claiming an adjustment for the vacation overpayment needed to be made, retroactive to my rehire date.

Since the error was not my fault, can the change in vacation accrual be made retroactive to my rehire date? Shouldn’t the employee receive some type of notification about the change?

--T.M., Redondo Beach

A: There is nothing legally wrong with what your employer has done.

You are not entitled to keep money paid to you by mistake, just as your employer would not have been entitled to deprive you of wages you were owed by shortchanging you in error.

Although there might have been a better way for your employer to notify you of what it intended to do, the bottom line is that you received money you shouldn’t have received and your employer may require you to pay it back.

--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 [email protected]. 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.