No Joke: Circulating Cartoon Not Protected

Q Periodically, someone anonymously circulates Dilbert cartoons at my company or posts them on the hallway bulletin board. The cartoons usually are right on the mark in a humorous way.

Apparently, management has taken offense to this harmless form of expression. Recently, every employee was told to sign an oath swearing that we would not post or circulate Dilbert cartoons.

Is this a violation of the 1st Amendment?

--K.L., Claremont.

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A No. The 1st Amendment applies only to government action. Nongovernmental employers have the right to regulate employee speech and conduct in the workplace as they see fit.

Policies against harassment of other employees are a good example of this. These policies prohibit employees from making statements about gender, race, national origin or religion that other employees might find offensive, even though such statements might be protected by the 1st Amendment if made in a public forum.

Similarly, many employers have policies prohibiting insubordination or disrespect toward supervisors or discourtesy toward customers. These policies are legal and usually necessary for the efficient operation of business.

While you might view the Dilbert cartoons as harmless forms of expression, your company’s management may be concerned that the cartoons may be distracting to employees or may cause a decline in morale. Your company has the right to prohibit this activity.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Holiday Shutdown Affects Vacation Pay

Q My company will be closing Dec. 24 and reopening Jan. 3. The employees receive two paid holidays, but employees must either take the rest of the time off without pay, or use their vacation time.

New employees don’t have any choice, of course. They have to take days off without pay if they haven’t accrued enough vacation time.

If the company chooses to close shouldn’t it pay for those days since employees can’t work even if they wanted to? Why must you use your vacation to pay for time that the company is closed?

Is there anything that can be done? --C.K., Valley Village

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A There are no laws that require employers to provide paid holidays or paid vacations.

However, companies must abide by their own internal rules or policies. For example, if your company led you to believe that it would not be closed for the holidays and you planned your finances and your vacation according to their promises, you might have a breach of contract claim.

Most companies don’t make those types of definite commitments. Even if they did, they still might be able to change their policy if they provide ample notice.

Unless there is a claim for breach of contract, which probably would be difficult to establish, the company has no obligation to pay employees for work that they could have performed during the closure.

It also appears the employer is not requiring you to use your paid vacation during the closure. You are being given that option if you need the pay.

If you complain too loudly, the employer may reevaluate its decision to provide any holiday or vacation pay, because it is not required by law.

On the other hand, it seldom hurts to ask. Let them know of the hardships that the company’s policy poses.

If you know the policy will continue, you can simply plan your vacation around the week that the employer’s office is closed.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Past Conviction Makes Job Search Difficult

Q I am an ex-felon who was convicted of a white-collar crime. I’m college educated, computer literate and have a great deal of experience, with excellent references. I’m also an African American male.

Prospective employers are impressed with my education, experience and accomplishments. I interview well, but I never seem to get the job. (I have always disclosed my past.)

I want desperately to make a difference in my life. I just need a chance. Community programs are unable to offer assistance to ex-felons with degrees. (Why is that?)

Any suggestion will help.

--R.T., Culver City

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A You sound like a highly qualified prospective employee, someone who would be a valuable asset to a company.

Unfortunately, many people are unable to overcome their biases and prejudices, and there is no doubt that the conviction is working against you. However, there are many employers out there who will give you an opportunity. You just need to keep trying.

As far as community programs only offering assistance to ex-felons without degrees, it is probably due to a lack of funding support, along with the fact that ex-felons without degrees are having a more difficult time finding suitable employment.

Be persistent. You will find an employer who will not hold mistakes you made in your past against you.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Company’s Slow Action Might Not Be Violation

Q I left my last employer several months ago, following a company downsizing. Because of financial problems, I had to request the money in my 401(k) plan rather than rolling it over.

To date my company has not sent me the check. I have called frequently only to be told that it takes time for the transaction. Recently, I was told that the company lost my paperwork and that I would have to start the process all over again. This is creating a serious financial hardship on my family.

Is the company under any legal time limit for returning the money? Do I have any reasonable recourse against the company for the hardship it is causing?

--H.S., Lomita

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A Under applicable law, your benefits need not be paid until you have reached retirement age, which is typically age 65. However, your plan may provide that your benefits are to be paid at a much earlier date, such as 120 days following termination of employment.

To determine your company’s rules regarding the timing of benefits payments, you should review your summary plan description. (If you don’t have a copy of the summary plan description, the plan is required to provide one to you, free of charge.)

If the period for paying your benefits has expired, you may want to contact the U.S. Department of Labor’s office in Pasadena at (626) 583-7862 to see if they would assist you in obtaining your benefit.

It is doubtful that you could recover any damages for the company’s failure to pay your benefits in a timely manner. Assuming that your funds are still invested in the plan, they are earning interest, so that, although you will receive your benefit later, it will be a larger amount.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie