Splitting Hairs Over Split Week, Overtime

Q: I am a classified employee for a school district, and have been working a split schedule the last three years.

Now, the district’s personnel department says that my schedule violated the Education Code because I was off Wednesdays and Sundays rather than two consecutive days. The department also implied that I was violating overtime rules.

The union and I were willing to sign an agreement that would free the district from any overtime liability if I could work my split five-day schedule. But district personnel declined the offer.

Does my split schedule violate the laws? Does the new state overtime law affect this situation?

--E.F., Anaheim

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A: You imply from your question that the overtime problem is a result of splitting your days off, rather than working more than 40 hours a week.

Ordinarily, with a private employer, such a split schedule would not violate overtime rules, as long as you do not work more than 40 hours in a week. Even the law that was in effect prior to this year would not impose overtime for a split-schedule basis as long as you worked fewer than eight hours in a day.

Although state rules on overtime do not apply to government entities such as your district, I can’t find any link between a split schedule and overtime in the Education Code.

It is possible that your split-schedule problems with overtime originate with the union’s collective-bargaining agreement with the school district. If the agreement requires payment of overtime in your situation, the district must pay it unless the contract is amended by mutual agreement. Even if you and the union might be willing to amend the agreement, the district is not obligated to do so as well.

Try to find out why the district alleges there is overtime liability. It is important to know whether the district’s position is based on statutes, or on a written agreement with the union. As with any workplace situation, it is unwise to initiate fights over issues until you have done as much investigation as possible to fully understand the various positions and the motivations behind them.

--Don D. Sessions

Employee rights attorney

Mission Viejo

New Responsibilities --Ahead of Schedule

Q: I have been selected as the new manager of a department of workers. This is a rotating position, with 3-year terms being taken by senior department members.

My term begins in about four months, but the current manager seems to be resentful that he was not selected for a second term. He has just abandoned his responsibilities.

As a result, my colleagues turn to me for leadership, but I have not yet been released from my old job duties so that I may take on the manager’s tasks.

I get no compensation for taking over the lead responsibilities early, nor is any of my normal workload decreased until his term officially ends.

How should I manage the extra responsibility?

--B.T., Glendora

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A: You need to inform your superiors about the change in circumstances and the new duties you have had to take on ahead of schedule. You need to be alleviated of some of your normal workload if you are to continue performing the department head’s duties.

If this is not possible, you should enlist the aid of your department members and consider sharing the duties of the department manager with them. Alternatively, you can discuss the situation with the current department manager and try to persuade him or her to fulfill his or her responsibilities.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

False Accusations Complicate Job

Q: I’m a manager for a state agency. One year ago I issued a disciplinary letter to an employee who threatened a co-worker. Since that time, this employee has filed union grievances and workers’ compensation claims asserting that I am harassing her.

She claims I made a racially offensive comment at an office party that I did not attend. In fact, the party occurred three months before I was hired.

If her claims are believed, I could lose my job.

The head of the agency has told me to ignore the accusations, that they will be proven false in court. He also told me the employee has the right to file grievances.

I understand the right to file grievances, but do I have a protections against false allegations?

--D.A., San Bernardino

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A: You do. As a state employee, you have the right not to be terminated based on false allegations. It appears, moreover, that your superiors recognize that this employee’s allegations are groundless, so your job is probably not in immediate danger.

Unfortunately, it is not uncommon for employees to respond to legitimate disciplinary action with charges of harassment.

In the future, you should use care in your interactions with this employee. Your communications with her should be strictly limited to work issues.

Any discipline of her should be in writing, with the reasons for the discipline fully explained, and another supervisor or management official should be present when discipline is discussed.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Earring Policy Can Be Gender Specific

Q: I have been a waiter for seven years. About three or four years ago, the restaurant decided that men were not allowed to wear earrings. Can they make a change like that midstream and can it be gender-specific?

--D.D., Los Angeles

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A: As a general rule, the type of personal appearance restriction you have asked about is permissible.

In at least one case in California, the courts have given employers the right to set such no-earring rules, even if they are applied differently to men and women.

A change in midstream would only be improper if you had an agreement with your employer that permitted you to wear earrings and the employer unilaterally changed that agreement.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

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.

More on Overtime

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