Worker May Have Case for Marital Status Bias Suit

Q: I was laid off after my employer lost a major account. I was the first person to be hired to work on this account, am in good standing with my employer and have been told I will be rehired at the first opportunity.

However, I am upset because two men who were hired long after I was have been retained to work on other accounts. I was told off the record by one of the managers that because I am married and my husband makes a good salary, management decided to lay me off and keep the two men.

Of course, I have no way of proving the manager stated this. Do I have any recourse?

--B.R., Manhattan Beach

A: Discrimination based on your marital status is illegal. Your challenge is to prove that you were terminated for this improper reason.

Call the manager who told you about the discrimination and arrange for a witness to listen in on your conversation. Try to get that manager to repeat what he said to you previously.

Compare your job status with the two men who were retained. How do your performance statistics compare with theirs? Do you have charts from the company comparing sales productivity, especially for the months before the layoff?

Examine the company handbook for layoff policies. Many employer handbooks give priority to longer-tenured employees.

Review your employee file--it’s your legal right--to see if it contains comments about why you were chosen for a layoff. You might arrive at the company unannounced and ask to review your file to reduce the chance that the company would “sanitize� the file.

Try to determine any differences in formal evaluations that you and the two men received. You might ask them how they were rated on their most recent reviews.

Your case would be strengthened greatly if you were rated higher than they, especially on recent performance reviews.

If you feel that you have a case for discrimination because the company retained the two men, consider filing a claim with the state Department of Fair Employment and Housing.

Be careful not to delay. The statute of limitations expires one year after the date of termination.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Recovering Back Pay for Breaks Q: I have been a waitress for 20 years with the same restaurant, and we have never been required to take a break. The understanding was that when we had down time, we would consider that our break.

Now, the company wants to enforce the 10-minute break for four hours of work. A relief server will come and give us a break. In return, we have to split our tips off those tables. Even if it’s $2 a day, that would cost me $500 a year.

I have brought this up with our management, and they said that’s the way it’s going to be. If this break is required by state law and hasn’t been enforced, would I be entitled to back pay for 10 minutes a day times five days a week for 20 years?

--J.M., Anaheim

A: Your restaurant is complying with the law.

California regulations require that hourly paid employees receive a paid rest period whenever they work 3 1/2 hours in a single day. The minimum rest period is 10 minutes for every four hours worked or “major fraction thereof.�

For example, employees who work seven hours in a day are entitled to two 10-minute breaks. Similarly, if an employee works 11 hours, the employee will be entitled to three 10-minute breaks.

The regulations also require that each 10-minute break be taken, if practicable, in the middle of a four-hour work period. In practice, many employers require or permit employees to combine their rest breaks so that, for example, they receive one 20-minute rest break in an eight-hour shift.

Employees who are paid hourly also are entitled to an unpaid 30-minute meal period whenever they work more than five hours. Unlike paid rest breaks, employees can waive their right to unpaid meal periods in limited circumstances.

If you were denied paid rest breaks, you should be able to file a wage claim with the State Labor Commissioner or a lawsuit.

In addition to recovering straight-time wages, you should be entitled to recover back pay at time and one-half your regular rate when you worked eight hours without two 10-minute rest periods. Under the state statute of limitations, however, your recovery will be limited to three years rather than the full 20 years of the violations.

As a practical matter, you might wish to talk to your managers about scheduling your break times in a more flexible manner. The restaurant can lawfully permit you to take your breaks when work slows down rather than at a fixed time every day, provided the rules outlined above are met.

--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 [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.