Worker Terminated After Long Sickness

Q: My brother was recently terminated after 1 1/2 years on the job. He had an excellent work record, but had been unable to work for health reasons.

He sought medical help and obtained a note from his doctor stating that he couldn’t work until his medical evaluation was complete. A few days after his employer received the note, my brother received a termination notice.

When he sought legal help, lawyers said he needed at least five years of continuous employment for a legitimate claim. Is that correct?

--R.P., Lake Forest

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A: No. There are a number of different laws that might apply to your brother’s situation, but none has a five-year length of service requirement.

The family and medical leave laws would protect your brother as long he has worked for the employer for at least one year--and at least 1,250 hours in the year. Family leave laws would protect your brother if his employer has at least 50 employees and your brother has a “serious health condition.”

It is difficult to determine the applicable laws, however, with the limited facts you have outlined.

Other laws that might apply--the Americans With Disabilities Act, the California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964--also have no length of service requirement.

It’s possible that the attorneys meant that your brother had not been employed long enough to have damages significant enough to warrant their handling the matter.

Your brother could contact either the state or federal anti-discrimination agency--the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission--at the numbers listed in the phone book.

He should explain his entire story. They will assist him, without an attorney, in analyzing whether he has a legitimate complaint.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Employer Must Pay Vacation Accrual

Q: I was employed in a management position for seven years. My anniversary date was in September. Vacation days accrue throughout the year and become vested on the anniversary date.

At the beginning of June, I left my employment for personal reasons and asked to receive the vacation days that I had earned in the nine months since my last anniversary date.

I was told I would not be paid for them because they were unvested. Can my former employer do that?

--E.S., Laguna Niguel

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A: Not legally. Ordinarily, vacation benefits accrue throughout the year in California, and a pro-rata portion of the accrual must be paid upon termination of employment.

It appears that your employer owes you approximately 75% of your yearly vacation accrual--less any days you took before resigning.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Exempt Employees Rules

Q: My current employer seems to have two different groups of exempt employees. One is required to fill out daily time cards, showing all time away from the office as sick time if they have not accrued any comp time. The other group of exempt employees are in supervisory positions. They come and go as they wish and nothing is noted on their time cards regarding time away from work.

Are there different categories of exempt employees? What are the rules regarding tracking hours for exempt employees?

My understanding is that the term “exempt” means just that--exempt from the record-keeping requirements.

--J.R., Los Angeles

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A: In the situation you describe, the term “exempt” describes a salaried “white-collar” employee.

Exempt employees are not entitled to overtime premiums or minimum wages. Instead, they should receive a salary that does not change with the quantity or quality of their work or the number of hours spent on the job.

An employer is not required to keep records of hours worked by exempt employees, but it is not illegal for the employer to do so.

In the same way, your employer can have different timekeeping and payroll practices for different categories of exempt employees. While there have been few reported lawsuits, it is probably not unlawful for an employer to require exempt employees to charge partial day absences against accrued comp time or sick leave banks.

Without more information about the actual duties of the two groups of employees, it is impossible to tell whether your employer is complying with the exemption requirements.

To meet the white-collar exemption, the exempt employees should be spending more than 50% of their working hours engaged in executive, administrative or professional duties.

If they are spending less than half their time in exempt duties, they are probably entitled to recover overtime for all hours that they have worked in excess of 40 hours a week or 8 hours a day.

--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.