No Apology Needed for Falsehoods in File

Q: After reviewing my personnel file from my previous employer, I noticed to my horror that management had explicitly written in a memo that I stole company property (computer files).

When I brought it to their attention, they simply removed the memo from my file without admitting any guilt or offering any apology.

Are there any legal ramifications for employers that behave in this manner, or does the law allow them to write total untruths about their employees without any consequences?

--S.A., Costa Mesa

*

A: It is difficult to give a definitive answer based on the amount of detail you provide.

An employer might be liable for defamation if it publishes false information about an employee. If information is just inserted into a personnel file and not disseminated inside or outside the company (such as to prospective future employers), it probably does not meet the “publication” requirement, however. Also, the information must be false to be defamatory.

If you took computer files you were not supposed to have, it would not necessarily be a false statement for the employer to say that you stole them, even if you did not intend to steal them at the time.

The law does not require that an employer offer an apology or “admit guilt” over this kind of thing.

Your former employer apparently removed the document before it caused any harm to you. Their removal of the document may not be proof that they were wrong; it may just be that there was a legitimate difference of opinion over the matter but that it was not worth further dispute.

In any event, you should probably just move on and put this experience behind you.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Company Handbook Has Overtime Loophole

Q: It is my understanding that the California law regarding daily overtime has changed, eliminating overtime for more than eight hours of work in a day.

Our company handbook, however, states that overtime will be paid when employees work more than eight hours in a day. Since it is in our handbook, do employees still have the right to be paid daily overtime even if daily overtime is not required by law?

--S.Q., Los Angeles

*

A: That depends both on the existing language of the employee handbook and the steps that your employer takes to amend the handbook provisions.

Most well-drafted employee handbooks expressly state that the terms may be changed or modified at any time. If your employer has reserved the right to change its policies, then exercises that right by modifying the overtime provisions to reflect the new wage orders that took effect Jan. 1, employees probably would not be able to claim overtime after the policy change takes effect.

On the other hand, if your employer did not reserve the right to modify the handbook or if your employer fails to change the language of the handbook to reflect the change in the law, the employees may claim they have a contractual right to keep receiving daily overtime pay.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

Hourly Employee Told Not to Take Second Job

Q: As an hourly paid employee, does my employer have exclusive right to my services? I am told that I cannot work for another company, but I am having financial difficulty and need to work a part-time job.

--J.K., Thousand Oaks

*

A: What you do on your own time should not be the concern of your employer. You should be able to work part time after your regular daily work hours. Working another job on the weekend should be even less objectionable.

A ban on part-time work would appear to violate common rights of fairness, especially if this is a new policy after you have worked at the company many years.

On the other hand, some employers might have a legal right to make this demand. An employer can restrict your outside employment if it is with a competing company, for example.

You also may be in a job that requires erratic hours from day to day, or be available on a beeper-call system on your off hours.

Your employer might have a legitimate right to demand that you keep your schedule free of other work commitments. But if your freedom to do what you want to do on your off hours is limited, your employer may have to pay you for being on call.

Your employer’s position is further justified if your work performance is affected because of other late-night work commitments.

Furthermore, your rights might depend on whether or not this requirement was imposed on you from the first day of your employment, or unilaterally later on. It doesn’t sound like it is a definite written policy, but simply one that has been mentioned to you informally.

If you consider discreetly working another job and not telling your employer about it, realize you might get fired for doing it.

--Don D. Sessions

Employee rights attorney

Mission Viejo

401(k) Plan Eligibility Builds From Start Date

Q: If a company starts a 401(k) plan, shouldn’t all employees who passed probation be included in the start date?

My son’s company began a 401(k) in January. He was told he needed to be employed one year. He started employment in June 1996 as a temporary worker and was hired full time in September.

--T.L., Anaheim

*

A: Section 401(k) plans are not required by law to cover all employees who have passed their probation period. Employees can be required to put in a minimum period of service of up to a year.

However, your son’s entire period of service with the employer--whether as a temporary or permanent employee--must be taken into account in determining whether he has worked there for a year.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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.

More on Overtime

* Times on Demand has prepared three pamphlets based on the Shop Talk column. They are answers to readers’ most-asked questions on overtime; unemployment insurance, terminations and medical leave; and job benefits. To order, call (800) 788-8804. Each pamphlet costs $5.41, plus 50 cents delivery. Please allow two to three weeks for mail delivery.