Protecting References

I applied for a new job and my nurse manager said in her reference for me that I was a good nurse, but that under stress I respond negatively to my co-workers and that I have been formally counseled for this. I know this was said because I almost lost the job, and I am under scrutiny now.

Does my manager have the right to say things that undermine my character?
~R.F.
Dallas

A previous employer has the right to tell the truth--nothing more, nothing less. This type of communication is known as a "qualified privilege."

The issue gets complicated, however, when two people disagree about what constitutes the "truth." A wise employer will divulge nothing about you without, at a minimum, a faxed release signed by you when you applied for the new job. Many times, prospective employees are not even aware that they have signed this release, as it is frequently disguised in small print.

Laid off
I am a nurse practitioner who was laid off from a local clinic. They said they would not need employees for at least six months. I did collect unemployment and have not located another job. Now, it is five months later and they are advertising my position in the local newspaper without calling me back. Do I have any recourse?

Where do I find the laws that apply to layoffs in California?
~K.K.
Los Angeles

California is an "employment at will" state, which means that absent an employment contract, an employer can fire you just because they want to; they do not need a reason. What a California employer cannot legally do is fire you because of race, religion, color, ancestry, national origin, gender, age over 40, marital status, pregnancy, or because of a physical or mental disability.

California courts have additionally carved out a list of situations where termination of an employee would violate "public policy." Examples might be where an employee reported unsafe working conditions to OSHA, served on a jury, filed a workers compensation claim, refused to take a polygraph test and the list goes on.

If you feel that any of this would apply to you, you need to consult a California licensed attorney for advice.

Absent the foregoing or an employment or union contract, the employer is free to lay off and rehire-or not rehire-"at will."

Overtime on call
My employer frequently requires nurses (especially labor and delivery) to be placed "on call" because of low census. This is in lieu of outright cancellation, in case the census increases again, which it frequently does. They pay $5 an hour when a nurse is placed on call.

When a nurse is on call, he/she has to be able to report to work within 30 minutes of being called.

Obviously, one has to be available for the full period of time that one is on call (12 hours) and one cannot, for example, have an alcoholic beverage, leave the vicinity of work, etc., in case one is called back, which happens frequently.

Should this period of time that one is on call count as hours worked for purposes of calculating overtime?

~D.D., RNGlendale, Calif.

You did a good job of stating the argument. Unfortunately, I have made this same argument to the local office of the U.S. Department of Labor and lost.

You must be a regularly scheduled 40-hours-per-week employee, not 36 hours, to have the federal overtime rules apply.

The time-and-a-half rule applies to hours actually worked, not hours on call. I was told that if you are on call and cannot do anything else while on call, you should be paid your regular working wage for so-called on call time. If, however, you have a beeper and can do other things, even if it is just to feed your dog, then you are not working and the hours are not paid hours, nor do they count toward your 40 hours worked for purposes of overtime.
If anyone out there knows of a state labor law that is more generous to employees, I'd like to hear from you.

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