Give Notice Before or After Company’s Holiday Hiatus?

Q 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 it 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

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A 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 to 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 by the short notice, but by that time, there will be no doubt that you 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

Rights to Daily, Weekly Overtime

Q I am an hourly employee with my company. Before being hired, 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 specifies time-and-a-half if 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 state law? How should I proceed?

--A.G., Long Beach

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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 one-half after 40 hours in a work week. 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

Fighting Sexist Assumptions

Q I work in an escrow office that I share with three people. My workstation is closest to the office door. That and the fact that I am a woman seem to make people think that I should act as a receptionist for the others. I am pleasant by nature, but this really makes me mad. My position in the organization is no different from that of my office mates. I have explained this to my co-workers and suggested that we rotate desks, but they don’t want to move (they see the disadvantage, of course). I can’t afford to be rude to clients, even though they’re not all mine.

--J.J., Escondido

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A You appear to have three choices, which I’ll put in order of preference.

First, you can insist that your co-workers either rotate desks or take turns “playing receptionist� with clients. Second, the office could hire a receptionist if the volume of business would make that position cost-efficient. Third, you could put up a partition separating your workstation from the client reception area.

Whatever course you decide, you need to put your foot down and argue for equitable treatment from your co-workers.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

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.