Gas Mask Isn’t Doing Job on Plant’s Fumes

Q: My department at work uses various chemicals in our manufacturing process. To get rid of the fumes, the company uses two old vacuum-like systems that do the job. However, when these old systems break down, management insists that production continue while the systems are being repaired, which can take one or two days.

Although we are given masks to wear at these times, they are not enough to protect us from the fumes when the systems are down. In turn, I get strong headaches and sometimes feel dizzy because of this.

I have told management of this problem a few times, but they just ignore me. I don’t know who else to tell.

--R.D., Fullerton

A: Employers have a duty to ensure the safety of their employees. It is illegal for them to retaliate against anyone who complains about safety issues.

Consider documenting your complaint in writing and keeping a copy of it. If your employer demotes or terminates you later, your letter will show that you have complained about the problem.

As a practical consideration, however, your main goal probably is solving the problem rather than becoming a whistle-blower or finding yourself the subject of retaliation. You could complain to OSHA, the state and federal government agencies that regulate and enforce workplace safety issues. They accept anonymous complaints as well. If you have been one of the few who have complained about the issue, however, your employer will probably know that you have complained.

Even though the employer should be providing a safe workplace instead of merely providing gas masks, consider buying yourself a better mask if the cost is nominal. That might be a good alternative if it solves the problem and minimizes your agitation of management. Also consider simply calling in sick on those days the fumes are too strong. Enlist the support of other employees who are suffering from the same problem. Consider sending a joint letter on behalf of all of them to management.

The solution to your problem may vary based upon the frequency of the problem. If your system breaks down only once a year, my advice would be different than if it is a constant weekly problem.

--Don D. Sessions

employee rights attorney

Mission Viejo

New Owner’s Rights and Obligations Vary

Q: The company I work for was just sold. Is the new owner under any legal obligation to settle with the old union or hire any of the old employees?

--D.R., Corona

A: The answer to your question depends on a number of variables.

The first is the form of the sale. In a stock sale, the new owner inherits all of the obligations of the seller, including union contracts and collective bargaining obligations. In an asset sale, the new owner does not inherit the seller’s union contracts, but may be obligated to bargain with the union over wages, hours and working conditions if it hired a majority of the seller’s employees.

In an asset sale, the new owner is not automatically obligated to hire the seller’s employees. On the other hand, the new owner cannot use unlawful criteria in deciding whether to hire any of the seller’s employees. The new owner could not, for example, refuse to hire the seller’s employees based on their union activities, age, race, or other protected criteria. The new owner may, however, establish legitimate, objective criteria that may have the effect of screening out many of the seller’s employees. Such criteria include a lower wage scale than was previously in place, work rule changes, or mandatory drug testing of applicants for employment.

Obviously, the labor market plays a role as well. If the seller’s employees are highly skilled and difficult to replace, the buyer may be compelled by the marketplace--even if not by law--to retain them.

Finally, if the seller’s employees are to be terminated as a result of the sale, the seller has an obligation to negotiate with the union over the effects of the sale on employees. This would include the potential for severance pay, continuation of health coverage and possibly the right to transfer to open jobs in other facilities owned by the seller.

--James J. McDonald Jr.

attorney, Fisher & Phillips

labor law instructor, UC Irvine

Jobless Can Qualify for Disability Benefits

Q: Is it possible to apply for disability when you’re unemployed? If so, how is it calculated?

--M.S., Irvine

A: I assume that you are referring to State Disability Insurance (SDI) maintained by the state rather than the disability benefits provided by a private employer. If you are currently receiving unemployment benefits, you cannot receive SDI benefits.

On the other hand, if you are not currently receiving unemployment benefits, you many be eligible to receive SDI benefits. Those benefits are determined by your highest quarterly earnings in a 12-month period before the date of your claim for benefits. (The exact 12-month period depends on when your claim begins.) For more detailed information regarding SDI benefits, you can write to Employment Development Department, Disability Insurance, P.O. Box 13140, Sacramento, CA 95813-4140, or call (916) 227-0220.

--Kirk F. Maldonado

employee benefits attorney

Riordan & McKinzie

Volunteer Decides She Now Wants Extra Pay

Q: I work for a family-run manufacturing company with about 100 employees and no personnel department. My husband and I produce an archeology club newsletter, so I offered to produce an employee newsletter for my company.

Editing the newsletter is outside my job description--I am an accounts assistant, and I do all of the computer work at home. Management and co-workers appreciate the publication, but after almost one year, no one has offered to reimburse me for time or expense.

The subtle message I get from the owner is, “How nice [for us] that you offered to do this in your spare time.”

I did not realize what a big job this would be, and now I think that it is only fair for them to compensate me. How do I approach management?

--E.H., Santa Monica

A: Since it does not sound like you asked for compensation when you began the newsletter, it is understandable that management believes that you “volunteered” to do this work. On the other hand, it is unfair that you have to continue to invest time (and especially expenses) for something that benefits the company.

You need to discuss your concerns with management immediately. Hopefully, management will recognize the value of the newsletter and make some arrangement to compensate you and/or expand your job description. However, you should not be surprised if your boss is unwilling to compensate you for all of the time you spend on the newsletter.

The company may feel that a newsletter with a paid editor is a luxury it can’t afford.

--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 shoptalk@latimes.com. 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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