Once You’ve Joined a Union, Contract Determines Benefits

Q: I work for a company that had a policy of offering employees two weeks’ pay for each year of service, up to 52 weeks maximum, if their jobs are no longer needed and if they cannot be placed within the company. I was offered this in 1989 but I accepted another job within the company.

Now it has happened again. But this time there is a union contract and I am being offered only one week of pay for each year of service, maximum 35. The non-contract people would still get two weeks for each year of service.

Can the company discriminate against us because we are covered by a contract? What can we do about it?

--C.S., Orange

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A: It is not a question of discriminating.

When you and your co-workers decided on union representation, you turned over to the union the right to negotiate on your behalf with your employer for wages, hours and working conditions. The union had the option of bargaining away some benefits you had in exchange for concessions from your employer in other areas.

Once the union and your employer signed a contract, the contract terms determined what wages and benefits you receive.

There is nothing that can be done other than to suggest to the union that it should seek a different severance pay plan in future negotiations or, at the appropriate time, take away the union’s rights to negotiate on your behalf.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Drop-Kicked From Health Plan?

Q: Recently I was notified by my employer, who has less than 20 employees, that I am no longer covered under the group medical health plan. I was involved in a serious accident and was undergoing intensive treatment to regain the use of my arm. Now I can’t obtain medical treatment necessary for my recovery.

I have been unable to work during this time and will not be able to perform my usual duties. What are my options to obtain the medical treatment needed for my recovery?

--P.B., Covina

A: Loss of medical coverage is a serious matter. Don’t take your employer’s word that you are no longer covered under the group plan. Review the plan yourself. Call the health carrier to determine their position. Determine why you have been dropped from the plan.

There are many reasons why an employee can be dropped, including failure to continue employment. Evaluate the promises of your employer. Does your employer have a written policy providing for continued coverage in the event of medical leave? Did the employer ever tell you orally about such a policy?

If your employer treated you improperly in the workplace on other occasions, this may provide additional leverage to negotiate for continued health coverage.

If your disability was caused by a workplace accident, you might qualify for workers’ compensation benefits that include payment for medical bills. There are many government programs, such as Medicare or Medi-Cal, that provide for medical treatment, depending upon your age.

Employers with more than 20 workers usually must notify employees that they have “COBRA rights,” which allow employees to pay for continuation of coverage for up to 18 months. Since your employer has fewer than 20 employees, this probably does not apply.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Sick Leave Can Vary Within Firm

Q: At my place of employment, nonexempt personnel accrue six sick days per year at the rate of half a day per month. They are allowed to carry the unused sick days into subsequent years or receive cash for unused sick days on their anniversary dates.

Exempt personnel accrue sick days at the same rate, but lose any accrued and unused hours at the end of the year and receive no payment. The company makes an exception for one exempt person who has been with the company for many years and receives a cash payment for unused sick hours. That was the policy when this individual was originally hired.

Please advise if it is permissible to have different policies between exempt and nonexempt personnel. Can there be an individual exception to this policy?

--C.H., Long Beach

A: Since neither federal nor California law requires that an employer provide sick leave benefits, the employer is generally free to design sick leave policy as it sees fit. Thus, different treatment between exempt and nonexempt employees is permissible.

“Grandfathering” the treatment of employees who were hired before a change in the rules is also permissible, as long as the employer’s policy expressly provides for such treatment. If you want to verify that the employer’s sick leave rules are consistent with what you have been told, you should ask for a copy of the policy.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie