Can Boss Require Her to Do Janitorial Work? It Depends

Q A friend went to work two months ago for a firm in San Juan Capistrano. Recently, this company canceled the janitorial service to save money, then asked my friend and two others to help out after work by emptying the trash, cleaning the cafeteria, etc. I find this absolutely ridiculous!

I have seen my friend’s job description and, of course, this is not part of it. Does she have any recourse if she approaches the employer regarding this and is told she must continue to do it?

--P.G., Costa Mesa

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A Generally, unless there is a contractual agreement to the contrary, an employer has the right to add to an employee’s responsibilities.

However, if the employer is asking your friend to take out the trash because it is viewed as “women’s work” or because your friend is a minority, it would be discriminatory. Also, if janitorial work is extremely inconsistent with your friend’s position--if your friend is a vice president at the company, for example--she might be able to claim that she has been effectively discharged.

This type of discharge occurs when an employer makes the conditions of employment so intolerable that a reasonable person would have no choice but to quit. But even this type of discharge is not improper unless there is also some other wrong, such as discrimination or breach of contract.

Without knowing other facts, such as your friend’s position or if her employer’s request is in violation of an agreement or could be considered discriminatory, it is difficult to provide a definitive answer.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

Timely Payments for Freelancers

Q I am currently freelancing for a large company, where more than half the work force is made up of freelancers. Work is done 100% on the premises. Payment takes longer than 45 days and the company pays the smaller invoices first.

Do you have any recommendations to get more timely payments?

--A.G., Burbank

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A If you are a true independent contractor, and did not write anything into your agreement with the company about when you would be paid, there appears to be little you could do to force faster payments other than terminating your relationship and trying to negotiate a new arrangement.

However, many employers treat some individuals as independent contractors when, in fact, they should be regarded as employees. If you are really an employee, not an independent contractor, you should be paid at least twice monthly, and receive compensation for the work performed during the most recent pay period. If that is the case, you could contact the California Division of Labor Standards of Enforcement to advise it that your payments are not being made on a timely basis.

Whether or not you are truly an independent contractor or employee depends on a number of factors. You should consult an attorney if you have a question regarding your status.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Deducting Sales Commissions

Q While working for a company in a marketing and sales capacity, I had a sales agreement stipulating that I would receive a commission for products sold. The contract did not refer to situations when a customer might refuse or delay payment, and it made no reference to products returned by a customer.

But when the company isn’t paid, it has taken back my commissions from those sales, deducting the amounts from later earnings.

Am I responsible for the company’s collection problems in these cases? Can it legally deduct my commissions from future paychecks?

--J.P., Thousand Oaks

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A It depends upon the exact language of your agreement. Many sales commission agreements specify when a product is sold.

A product could be considered sold when the order is written, the product is delivered or the payment is received. It is legal for an employer to recoup commissions paid for products the employee sold that are returned or not paid for, provided that this is spelled out in the commission agreement. Such an agreement must state that the commission is not considered to be “earned” until full payment is received by the employer.

In the absence of such specific language, an employer ordinarily may not make deductions from future commissions to cover collection problems relating to commissions previously paid.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Releasing Funds to Direct Deposit

Q I’m signed up for direct deposit with my employer. Payday is Tuesday, but they claim they cannot release the funds until 12:01 a.m. Wednesday. Are they obligated to make my pay available on payday?

--C.P., Los Angeles

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A Employers must pay wages within 10 days of the payroll period. The employer’s policy may be improper if there is a gap of more than 10 days between the payday and the end of the payroll period.

However, the employer will no doubt argue that direct deposit is an accommodation for you. And if you ask to be paid with a check that you deposit at your own bank, you might not be able to get the funds released until it clears your bank the next day.

If this is an important issue to you, terminate the direct deposit method and cash your payroll check at the employer’s bank on payday.

--Don D. Sessions

Employee rights attorney

Mission Viejo