Did Firm Discriminate Against Clerk

Employee Rights Attorney

Mission Viejo, California

Q: “I was employed as a clerk in an accounting firm before being laid off. On most days I worked nine hours. During the busy tax season I worked 10 or more hours each day and four hours on Saturdays.

“I was not paid overtime and have reason to believe that other employees were paid overtime. In 1999, my boss took out a medical insurance policy covering all the employees except me.

“After a few weeks, I asked the boss why I was excluded and he replied it was because I was receiving Medicare benefits. I informed him that I was paying for supplementary medical insurance to have myself fully covered. Then he started paying me an insurance allowance of $100 a month.

“Did the company discriminate against me when it didn’t pay overtime or medical insurance?

A: “Most employees have rights to be paid additional compensation for overtime work. This does not apply to ‘exempt’ employees-generally defined as those who work in an executive, management or administrative capacity.

“Before January, employees qualified for overtime if they worked more than 40 hours in a week. After that, an employee who worked more than 40 hours a week or eight hours a day would have a right to overtime compensation.

“It certainly appears that a clerk for an accounting firm would qualify for overtime compensation. And it does seem strange that only you would be excluded from overtime compensation and the insurance policy.

“It is improper to exclude one particular person from a general insurance policy, even if you were already receiving Medicare benefits. Since you had to have been a certain minimum age to qualify for those benefits, it’s possible that you were discriminated against because of your age.

“Accordingly, it appears that you have a valid claim for overtime compensation and the value of medical insurance that you did not receive.

“If you believe that you were targeted for a layoff because you raised concerns about these two issues, you might also have a claim for illegal retaliation.”