Smile Rule Shouldn’t Be Part of the Dress Code Ensemble

Q Recently my employer implemented an updated dress code. One requirement of the dress code was “to wear a smile.” The code states that if an employee does not wear a smile, they could be written up.

Is this common or appropriate to require smiles as part of the dress code?

--C.J. Anaheim

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A Your employer’s intentions are admirable but confusing and a bit off the mark.

Since a smile is a behavior and not a type of dress, it is inappropriate to consider it part of a dress code. Your employer, however, can create some “code of behavior” or policy for appropriate customer service, and this can include being pleasant to customers (and smiling). I’m sure that this was what your employer was after when requiring employees to smile. Moreover, this customer service code can be used in evaluating employees’ work-related behavior and could then be considered in personnel actions, such as raises and promotions.

Your employer should revise both the dress policy and the customer service policy to make the two distinct and clear.

--Ron Riggio

Director

Kravis Leadership Institute

Claremont McKenna College

Payment Must Be Timely Q I am a nonunion, part-time instructor at a community college. I taught a summer semester course that ran from June 3 through July 11. On July 30, the school cut a check for less than half the amount I earned. The balance was paid Aug. 30.

My husband read that employees are required to be paid in a timely fashion for the work they perform. Is it legal for the college to pay me this late?

--M.H., Seal Beach

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A Employers are required to pay compensation on a timely basis. The rules, however, are different for private and government employers. The penalties may also be different.

According to the Fair Labor Standards Act, your employer should have paid you on a timely basis as promised. It is not proper for the employer to delay payment for an additional month.

The problem concerns your remedies. Even if you took action against your employer or complained, your employer will argue that all you lost was perhaps 30 days’ worth of interest. Many of the penalties that might otherwise apply to private employers do not apply to this government employer.

Even though you are in the right and they are in the wrong, it is probably not worthwhile to complain about it. Not only are your damages minimal, but it also may harm prospects for employment in the future.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Getting Paid After Firm Shuts Down Q I worked for an agency that was raided by the Federal Trade Commission. I am owed some money and the company has gone out of business. I don’t know how to reach them. What course of action do you advise?

--D.H., Stanton

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A Even though your former employer has gone out of business, there may be steps you can take to collect your wages.

My advice would be to file a claim with the state labor commissioner’s office for the back wages. That will not cost you anything, and you can determine from their efforts whether there is any address at which the employer is still receiving mail. That effort alone may get you your paycheck.

In addition, if you know how to reach the shareholders, owners or chief executive of your former employer, you might contact them to determine how to get paid.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

State and Federal Laws on Overtime Q I work for a small company that recently changed its policy for overtime pay. In the past, hourly workers were paid 1 1/2 times the hourly rate for more than eight hours worked per day and double the rate for more than 12 hours. Now we are paid overtime only if we work more than 40 hours a week or more than 12 hours a day.

What are the state and federal laws regarding pay for overtime?

--L.I., Alta Loma

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A The basic federal law governing overtime requires that employees be paid time and a half for all hours worked over 40 in a given workweek. California law in general also requires that overtime be paid for all hours worked over eight in one day or if the workweek exceeds 40 hours, i.e., you work seven hours a day for six days.

There are two exceptions to this that might apply in your situation, however.

First, the California wage and hour law does not apply to all industries (such as construction), or where a collective bargaining agreement is in effect that provides for an overtime premium. A union and an employer may agree that an overtime premium will apply only after 12 hours.

Second, California law permits employers to implement alternative workweek arrangements under which employees may work up to 10 or 12 hours a day before payment of an overtime premium is required. Strict requirements must be followed before implementing an alternative workweek arrangement. These include full disclosure of the arrangement and a majority vote by secret ballot among affected employees.

Depending upon your specific circumstances, your new employer’s arrangement may or may not be unlawful.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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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, or 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.

More on Overtime

* Times on Demand has prepared three pamphlets based on the Shop Talk column. They offer answers to readers’ most-asked questions on overtime; unemployment insurance, terminations and medical leave; and job benefits. To order, call (800) 440-3441. Order Item 2826 for overtime; Item 2827 for unemployment insurance, terminations and medical leave; and Item 2828 for job benefits. Each pamphlet costs $5.41, plus 50 cents postage. Please allow two to three weeks for mail delivery.