Hours Worked Can’t Be ‘Shifted’ to Another Day

Q: I recently received a “written counseling” from my supervisor regarding inaccurate reporting on my time cards. When I take a vacation day or two during the workweek, I only record enough hours in addition to the hours I worked to total a 40-hour week. For example, if I took Friday off for vacation, I would only list four hours off if I had already worked 36 hours Monday through Thursday. I did the same thing when logging my sick time. I was told that this is a falsification of time cards. Is this true? The employee handbook does not address this issue.

-C.M., Whittier

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A: State and federal laws require employers to ensure that all nonexempt employees maintain accurate records of their hours worked. The practice you describe does amount to falsification of time records. You should keep an accurate record of hours worked every day. If you are a nonexempt employee and you work more than 40 hours in a week, you are entitled to be paid overtime. However, you are not permitted to “transfer” those hours to another day in which you worked less or took vacation.

If you are an exempt employee, you must take your vacation and sick time in full-day increments. For days when you are not on vacation or sick leave, you are entitled to be paid your full salary whether you work more or fewer than eight hours in a given workday.

Either way, your employer would appear to be justified in imposing further discipline if you do not record your time accurately.

--James J. McDonald Jr., Attorney, Fisher & Phillips Labor law instructor, UC Irvine

Age-Discrimination Suit a Longshot

Q: A friend recently got laid off from a company where he was creative director of the advertising department. This company had hired him from another company just nine months earlier. My friend helped expand his most recent employer’s creative department by recruiting people who had worked for him before. The company kept all the people he recruited--employees who are younger and make less money. He is 55. Does he have grounds for a suit?

--W.S., Sherman Oaks

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A: Your friend probably does not have grounds for an age-discrimination claim. There is no indication that he was replaced by a younger person and your question presents no facts from which one could infer that he was discharged because of his age.

Furthermore, even if there were such facts, the company would prevail in an age-discrimination claim by your friend if it had a reason unrelated to age for terminating his employment. It would be difficult for your friend to prove that his age was the real reason for his discharge since he was hired nine months ago, when he was not much younger.

Your friend also probably does not have grounds to sue for breach of employment contract, unless he was guaranteed in writing or orally that he would be discharged only for cause. Without such an agreement, employment in California is presumed to be “at will,” which means an employer can terminate any employee at any time, with or without advance notice and with or without cause.

The at-will presumption can be overcome if an employee proves there was an “implied” contract guaranteeing he would be discharged only for cause. However, an implied contract usually is found only if the employee worked for the employer for a long time.

Even if your friend had received a written or oral contract, he would prevail in court only if he could prove the employer did not have cause to terminate his employment. “Cause” could include, among other things, the company’s good-faith belief that the employee had engaged in misconduct, was performing poorly or was not providing the desired level of leadership, or the company had decided to eliminate the position for economic reasons.

--Deborah C. Saxe, Management attorney, Heller Ehrman White & McAuliffe

Get Experience Before Career Shift

Q: What tactics would you recommend to someone in the early 40s who wants to make a career transition after working the last 15 years in the same type of job in an industry that has little growth potential? I have sent out resumes but have generated little interest except from those employers in my field. I have always believed that where there’s a will there’s a way, but with faxed resume submissions being the first step in the door, I’m being dropped at the threshold. By the way, I should mention that I have been self-employed for the last nine years.

--J.S., Beverly Hills

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A: It is usually difficult to transition to a new career if you do not have some significant experience in the new field, even though the skills from your old career may transfer well to the new area.

If this is the case, you need to get some relevant experience, even if it is part-time, or even as a volunteer, while you stay in your current job.

Another problem might be the faxed resumes. Depending on the position you are seeking, you might get more attention by mailing a more professional-looking package--an attractive resume with a cover letter. Also, find out about ways to network with people in the new career field.

--Ron Riggio, director, Kravis Leadership Institute, Claremont McKenna College

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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 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.