Workers’ Comp Claim Might Not Save Job

Q: I was injured at work in July 1995 and required knee surgery. After the surgery, my doctor told me there was so much damage to my cartilage that I would require a complete knee replacement sometime in the future. My knee is still causing me a lot of pain and it looks as if I will need surgery sooner rather than later.

Can I be laid off while I am recovering from surgery?

--S.R., Lake Forest

A: An employer can’t retaliate against an employee for filing a workers’ compensation claim for a work injury. A company might be able to claim that you would have been laid off even had you not been injured, attributing the layoff to an economic business decision.

However, it could be argued that it would be premature for a company to lay you off while you are on leave. It’s possible, for example, that your job might reopen by the time you are ready to return to work. Rather than laying off someone who is on such a leave, most smart employers will until the return date and evaluate jobs and openings at that time.

Employers with more than 50 employees may be subject to the Family and Medical Leave Act, which requires that the company return a worker to his or her former position within 12 weeks of beginning such a leave. Even though more than 12 weeks may have elapsed for you, the employer may have failed to comply with precise notices that are required before the 12-week period can start.

You should also look at the employee handbook or benefits guide to determine if there is an internal policy regarding work injury or medical leave. It’s possible that policies in the handbook may prevent the employer from laying you off.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Without a Contract, Pay Can Be Lowered

Q: Last July, I came back from vacation and found out I had lost my job as a supervisor for a small water district. Two departments were combined and they promoted another man to head the department.

The district offered me another job, which I accepted, at the same pay. Can the district lower my pay in the new fiscal year because I am working at a level way below my qualifications?

--M.M., Huntington Beach

A: I assume your new job is a lower-level position than your former supervisor’s job. I also assume that when you refer to your qualifications, you mean that you are overqualified for the position you currently hold.

You did not mention if you have a written contract guaranteeing a rate of pay for a specific period. Without such an agreement, the district can lower your rate of pay after it gives you notice. Once you receive that notice, your options are generally limited to accepting the lower wage or seeking new employment.

Employers generally compensate an employee based on the value of the position, not the employee’s qualifications. In determining the value of a position, an employer will consider such factors as its value to the company and the standard rate of pay for that position within the community.

--William H. Hackel III

Employment law attorney

Matching-Fund Rules Are Up to Employer

Q: In our company retirement program, my employer matches our contributions 100%, up to 8% of our salaries. When investing our own contributions, we can select among several types of funds, including company stock.

I have done well with my fund options and have averaged a 16% return. However, the company’s matching contributions are in its stock, which has stabilized recently after spectacular growth. The rules say that I can’t roll over the company’s matching portion until age 59 1/2, or until I terminate my employment.

Is quitting the company the only option I have in order to get these funds out of company stock other than waiting until I’m 59 1/2 years old? I would feel more comfortable if such a large portion of my retirement weren’t tied up in one stock.

--P.G., Diamond Bar

A: Your ability to receive a distribution before termination of employment is strictly determined by the terms of the plan. Most plans prohibit distributions of company contributions prior to termination of employment.

Many employers prefer that their employees own shares of company stock so that they have a financial interest in making the company successful. Allowing current employees to sell the company stock in their accounts would defeat that purpose.

You should remember that the company does not have to provide any matching contributions, and it can attach whatever conditions it wants regarding the way that matching contributions are invested and distributed.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

Worker Usually Not Liable for Lost Items

Q: I have issued laptop computers to several employees in my firm. Is it legal to have them sign an agreement that places the responsibility on them if the computers are lost or stolen? Would this also apply to other pieces of equipment, such as car phones and pagers?

--J.D., Santa Monica

A: Under California law, an employer may only hold an employee responsible for losing equipment through the employee’s “gross negligence” or dishonest or willful act. Mere negligence or the fact that the items may have been stolen while in the care of the employee are not sufficient to charge the employee for the loss.

An employer may lawfully charge an employee for all items not returned when the employee resigns or is fired, however. Before being issued any such equipment, therefore, employees should be required to sign an acknowledgment that they are promptly to report the loss or theft of the item (including the circumstances of the loss or theft).

The document should also note that if the item is not reported as lost or stolen prior to the employee’s resignation or termination and is not returned at that time, the value of the item will be deducted from the employee’s final paycheck.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine