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Blog 13 - pic 1Employers often will review   or eavesdrop on employee communications, especially if they suspect their employees are engaging in wrongdoing. Employees generally have minimal privacy rights in communications that take place at work or on work-issued computers and cellphones.

Below are five ways employers can legally (and illegally) spy on their employees.

TYPICAL METHODS FOR SPYING ON EMPLOYEES

1. Unauthorized Recordings

Under California law, illegal wiretapping involves the unauthorized recording of someone else in a private situation. The act is a felony and punishable by a $2,500 penalty and up to a year in jail, plus civil damages in the amount of $5,000 or three times the amount of actual damages (CA Penal Code 632 and 637.2).

Illegal wiretapping can easily happen in the workplace. For example, employers can carry a digital recorder into meetings to keep an accurate record of what someone said at the meeting (or, quite possibly, to record what is said when the employer steps out of the room). Employers can later write everything down and chalk it up to a good memory. If the recorder is not seen or found, no one will know that illegal wiretapping occurred.

2. Text Messages on Company Smartphones

Blog 13 - pic 2Employees often think of text messages as a private, trail-less means of digital messaging. Not so. Folks using company smart phones should never assume that their text messages are private. Most digital messages of any format go through a company server and can be intercepted by the employer at any time and without notice.

The issue of whether it is legal for an employer to intercept digital messages isn’t clear-cut.

      • California Penal Code section 632.6, for instance, states that it is a crime to eavesdrop on a cellphone conversation. Because that statute was written for voice communications, it is unclear if the statute extends to text or voice messages intercepted from a cellphone.
      • Some courts have held that the text messages are private while others have held that they are not private.
      • In an effort to clarify the issue, the federal Supreme Court held that California employers can look at text messages if they clearly disclose in their written policies that text messages are not private and subject to inspection.

To be safe, employees should always assume their digital messages are not private and will be reviewed by their employer.

3. Bathroom Chatter

Most people assume bathrooms are private places. Since bathrooms are relatively small spaces, it is easy for anyone to overhear conversations. It isn’t a crime to overhear a conversation and act upon information learned from that conversation. So it’s generally fair game for employers to use information discussed in public or company bathrooms.

4. Storing Personal Belonging in Company Furniture

Most employers provide a place for employees to lock their personal belongings.  Don’t assume this space is private — it’s company property! Although employees may be given a desk or locker key, employers almost always have a master key. No surprise, employers may inspect its furniture and contents inside its furniture when employees aren’t around.

Whether the employees’ personal belongings inside company furniture are private is not definitive. Some courts have held that employees cannot reasonably expect that the contents kept inside company furniture are private when their employer has a written policy that company furniture is fair game for searching. But if an employer searches an employee’s locked desk and has no written policy indicating that company desks are subject to searches, the employee could potentially sue the employer for invasion of privacy because the employee arguably had a reasonable expectation of privacy.

5. Spying Outside the Office

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A person in public is fair game for videotaping and  recording on camera. That liberty, however, ends when the person goes inside a private place, such as his or her own home. Employers sometimes cross that line when they believe employees are defrauding the company. This typically happens in workers compensation cases when employers believe their employee are faking an injury.

KEY POINT TO REMEMBER

Always assume that all communications via work place email, computer, or phone, or any conversations at work or in public, including in public bathrooms, are not private and that your employer may read or listen to your communications at anytime.

 

Blog Media pic 1 re Blog 12In today’s modern business world, interns are becoming the contemporary equivalent of yesterday’s entry-level employees. The primary difference between the two is that, unlike entry-level employees, interns are often not paid for their work. Employers will categorize workers as “interns” to avoid paying wages. This goes against many federal and state wage and hour laws. When employers fail to pay interns, they effectively curtail employment opportunities, promote class division, and sustain the unemployment rate.

GUIDANCE FROM THE UNITED STATES DEPARTMENT OF LABOR

Blog 12 Media - pic 2According to the United States Department of Labor, unpaid internships are only legal when they fall under the category of educational training programs.

This category refers to internships where interns do not perform productive work and employers do not benefit financially from the arrangement. In other words, if the interns did not perform their duties, would the employer need to hire additional employees or increase the existing staff’s workload to perform the interns’ duties? If “yes,” the interns are considered employees and should be paid for their work.

Even those who are interning for academic credit do not necessarily have to forfeit wages. When a school provides oversight and credit, an unpaid internship may be legal if it provides an educational environment, rather than a profit generating one. But if an unpaid intern, for example, is primarily assisting customers and performing clerical work, such as filing or data entry, the arrangement may be illegal because the employer is receiving an immediate business advantage.

HOW DO I GET BACK PAY FOR INTERNSHIP WORK?

Fortunately, unpaid interns have several options for collecting back pay:

      • File a complaint with the Wage and Hour Division of the U.S. Department of Labor.
      • File a complaint through their state labor agency.
      • File a lawsuit in federal or state.

FILE A CLAIM THROUGH THE U.S. LABOR DEPARTMENT

Blog 12 Media - pic 3Interns may file a complaint with the Labor Department’s Wage and Hour Division. In most cases, the Labor Department will investigate the internship to determine whether violations occurred. They will examine the employer’s business, payroll and time records. They also will interview relevant employees, which may include managerial staff, general employees, former employees, and of course the intern who filed the complaint. In certain instances, the employer is not told that the investigation is underway, while in other instances they receive advance notice of the impending investigation. Those who are given advanced notice may settle with the intern to avoid dealing with the Labor Department.

If the investigator rules in favor of the intern, the Labor Department typically will tell the employer that the individual must be paid. This communication is often via a certified letter.

It is important to understand that an investigation may take a long time. So those who immediately need money should consider pursuing alternative income sources until the investigation is complete. Fortunately, the Labor Department frequently rules in interns’ favor.

Additionally, complaints are confidential. The Labor Department will not disclose the complaining interns’ identities, the nature of their complaints, or even the existence of the complaints. Of course this does not mean that the employer cannot figure out who complained to the Labor Department, particularly if there is only one unpaid intern at the company. But even if that happens, the law precludes employers from discriminating or retaliating against the interns for reporting wage and hour violations.

FILE A CLAIM THROUGH THE STATE LABOR AGENCY

Blog 12 Media - pic 4Numerous states have their own wage and labor agencies to resolve wage disputes. State wage and hour laws are typically similar to the Federal Fair Labor Standards Act; but certain jurisdictions, like California, offer stronger worker protections. Other states, like Georgia, Alabama, and Florida, do not have their own wage and labor agencies, in which case one must file a complaint through the Labor Department.

COLLECTING OWED BACK PAYFROM FEDERAL AND STATE AGENCIES

After a federal or state investigation is complete, most employers will pay any owed wages to interns to avoid further issues with the Labor Department or state agencies. These agencies, however, usually are not obligated to force payment from an employer. So if the employers refuse to pay the wages and the agencies choose not to intervene, interns must file a lawsuit to obtain their owed wages.

FILE AN INDEPENDENT LAWSUIT

Blog 12 Media - pic 5As previously mentioned, if other avenues of collecting money is futile, interns may sue for back wages under their state’s minimum wage laws or under the Fair Labor Standards Act. Because lawsuits can be time-consuming and expensive, it may not be the best option to pursue first. Plus, courts may take a much weaker stance than the Labor Department or state agencies on whether wages are owed.

If you feel that you are owed monetary compensation from an unpaid internship, you should pursue all available options.

California law restricts your employer from asking you to provide access to private information stored in your Facebook, Twitter, and other personal social media accounts.  The law generally makes it illegal for employers to request or require current employees (job applicants) to:

  • disclose their usernames or passwords in order to access their personal social media account;
  • log into  their personal social media accounts in front of the employers; or
  • divulge any personal social media information.

As such, your employer (or prospective employer) cannot fire, discharge, or retaliate against you for not complying with a request to access your social media accounts.

But there are two exceptions to the law.  First, your employer can require you to share personal social media information so that it can investigate allegations of misconduct or illegal activities.  In this situation, your social media account must be relevant to the investigation and any information obtain from your social media account cannot be used for any purpose other than for that investigation. Second, your employer can require you to provide your username, password, or other necessary information to access employer-issued electronic devices.

Keep in mind that the law does not restrict employers from accessing publically available information on your personal social media accounts. Although your employer may conduct online searches and view your public social media profiles, it is illegal for the employer to make discriminatory employment or hiring decisions based on information learned from these searches.  For instance, if your employer uncovers information about your race, religious creed, color, national origin, ancestry, citizenship, physical disability, mental disability, medical condition, marital status, gender, pregnancy, age, or sexual orientation, your employer cannot lawfully use that information to make any type of employment or hiring decisions.

Plus, as discussed in a previous post, it is illegal for a prospective employer to ask questions during a job interview that may lead to unlawful discrimination, such as: “Do you have children?” On that same note, it is illegal for a prospective employer to search for answers to these questions in publically available information on your social media accounts and then make a hiring decision on that basis.  For example, if a prospective employer views photos of your children on Facebook, it would be illegal for the employer to decide to not hire you because you have children.

This is only a brief discussion of employees’ rights to refuse an employer’s request to access personal social media information under California law.  If you feel your rights have been violated, you need to consult a lawyer. Please don’t hesitate to contact me.

As discussed in a previous post, California law prohibits employers from asking non-job related questions that may lead to discrimination as to race, religious creed, color, national origin, ancestry, citizenship, physical disability, mental disability, medical condition, marital status, gender, pregnancy, age, or sexual orientation. Employers should only ask questions about your ability to perform job-related functions or that have a business necessity.

If inappropriate questions are asked, you don’t have to answer them. The interviewer may not realize that he or she is asking an inappropriate question, or may be trying to tell you about the company’s benefits.  Rather than being defensive, you may want to respond with a generic statement.

EXAMPLE RESPONSES TO INAPPROPRIATE INTERVIEW QUESTIONS:

      •  I’m not sure how that question relates to this job.
      • This question does not affect my ability to perform the job.
      • I am confident that I will be able to handle the requirements of this position.
      • I don’t let my personal life affect my work.
      • I was planning to go over the benefits with someone from human resources.
      • In response to inappropriate questions regarding religion: My faith will not interfere with my ability to do the job.
      • In response to inappropriate questions regarding citizenship: If you mean to ask if I am legally authorized to work for you, the answer is yes.
      • In response to inappropriate question regarding disabilities: There is no task in your job description that I cannot perform; or I am fully capable of performing this job with no health reservations.
      • In response to inappropriate questions about pregnancy or family: I plan to pursue a career whether or not I decide to raise a family; or I am able to perform all the duties that the position entails.
      • In response to inappropriate questions regarding age: My age is not an issue for my performance in this job.
      • In response to inappropriate questions regarding past arrests: There is nothing in my past that affects my ability to perform this job’s duties.
      • In response to inappropriate questions regarding military discharge: There is nothing in my records that would impair my ability to succeed in the job.

This is only a brief discussion on illegal interview and application questions under California law.  If you feel your rights have been violated, you need to consult a lawyer. Please don’t hesitate to contact me.

California law prohibits employers from asking non-job related questions that may lead to discrimination as to race, religious creed, color, national origin, ancestry, citizenship, physical disability, mental disability, medical condition, marital status, gender, pregnancy, age, or sexual orientation.  Basically, employers should only ask questions about your ability to perform job-related functions or questions that have a business necessity.

EXAMPLES OF INAPPROPRIATE QUESTIONS

Name Related Questions

      • What is your maiden name?

Employers should not ask questions to determine your family’s origin.

Residence Related Questions

      • Do you own or rent your property?

Employers can ask for a home address.

Age Related Questions

      • How old are you?
      • What year did you graduate from high school?
      • When are you planning to retire?
      • Any question that tends to identify someone being over 40.

Employers can verify that applicants meet legal age requirement.

Citizenship Related Questions

      • Where were you born?
      • Are your parents and spouse U.S. citizens?

Employers can verify your legal right to work in the U.S.

National Origin Related Questions

      • Were you born in this country?
      • What language is spoken in your home?

If uses of non-English languages are relevant to the job, employer can ask about languages the applicant reads, speaks, or writes.

Race . Color . Sexual Orientation Related Questions

      • Do you straighten your hair?
      • Is that your natural hair color?
      • Do you have a boyfriend/girlfriend?
      • Where are you from?
      • You must tan easily?

Basically any questions regarding an applicant’s race, color, complexion, eye color, hair color, or sexual orientation is inappropriate.

Religion Related Questions

      • What is your religious affiliation?
      • What religious holidays do you observe?

Employer can disclose the regular days, hours, or shifts to be worked.

Marital Status . Family . Pregnancy Related Questions

      • Are you married?
      • What is your spouse’s name or address?
      • What does your spouse do for a living?
      • Do you live with anyone?
      • How will your spouse feel about you traveling for this job?
      • Do you have children?
      • Do you plan on having children?
      • Are you pregnant?
      • What is your spouse’s, relative’s, or children’s names or addresses?
      • What kind of childcare arrangements have you made for this job?

Employer can ask for name and address of parent or guardian if applicant is a minor.  Employer also can state company policy regarding work assignment of employees who are related.

Disability . Medical Condition Related Questions

      • Do you have any disabilities?
      • Have you ever had any serious medical conditions?

Questions about physical fitness are allowed if they are directly related to the job.

Criminal Record Related Questions

      • Have you ever been arrested?
      • Have you ever spent the night in jail?

Employer can ask job-related questions about convictions unless the convictions were sealed, expunged or statutorily eradicated.

Military Service Related Questions

      • What type of discharge did you receive from the military?
      • Can I see your discharge papers?
      • Did you serve in a foreign military?

Employers can ask about relevant skills acquired during U.S. military service.

This is only a brief discussion of illegal interview and application questions under California law.  If you feel your rights have been violated, you need to consult a lawyer. Please don’t hesitate to contact me.

California provides lactating mothers the right to pump breast milk at work under the California Lactation Accommodation law. This law requires most employers to give women a reasonable break from work to pump breast milk and to provide a private location that is: shielded from view; not a bathroom stall; and near or at the employee’s work area. Employers also have to provide a place for women to store their pump and an insulated storage container.

EXCEPTION TO THE LACTATION BREAK REQUIREMENT

Employers, however, can escape the obligation to provide lactation breaks if they can show that to do so would seriously disrupt their business operations. It isn’t an easy showing and requires actual proof. 

PAID vs. UNPAID LACTATION BREAK 

Employers must pay for lactation breaks if the breaks are taken concurrently with lawfully entitled rest breaks, which is generally 10 minutes for every four hours worked. If employees need longer or more frequent breaks, their employers aren’t required to pay for the additional break time. 

BREASTFEEDING DISCRIMINATION

The California Fair Employment and Housing Act prohibits employers from discriminating against employees who pump breast milk, breastfeed, or suffer any related medical conditions. Unfortunately, employers often ignore women’s breastfeeding rights and discriminate against those who try to enforce their rights.

For instance, in 2012, a California teacher sued her former school and school district for wrongful termination and discrimination. According to the teacher’s allegations, she asked her manager for a 15-minute break each morning to pump breast milk. Her manager responded by telling her to train her breasts not to produce milk during school hours so she wouldn’t have to pump. The teacher complained about her manager’s response to human resources. Although the human resource director indicated that everything was a misunderstanding, nothing was done to accommodate the teacher’s request. A few months later, the school district asked the teacher to resign from work due to poor job performance. Of course, the school and school district deny everything. But this is just one example of how a failure to accommodate breastfeeding women and discrimination can arise in the workplace.

This is only a brief discussion on women’s right to pump breast milk at work under California law. If your rights have been violated, consult an attorney. Should you have questions, please don’t hesitate to contact me.

JOB-PROTECTED MATERNITY LEAVE

Often a woman doesn’t want to take time off from work to care for herself or her child because she fears that she will lose her job while on leave.  But many women are entitled to job-protected maternity leave. California provides two types.

The first type falls under the California Pregnancy Disability Leave law (PDL) and requires employers with 5 or more employees to provide up to 4 months of leave to women who have a pregnancy disability.

The second type falls under the California Family Rights Act law (CFRA) and requires employers to provide up to 12 weeks of leave for women to bond with their baby, bond with an adopted child, or care for themselves or a close family member with a serious health condition. CFRA leave, however, is often not available to women because it applies only to larger employers with at least 50 employees and has other strict requirements.

RETURNING FROM MATERNITY LEAVE

If you take a PDL leave and return to work within the 4-month period, your job is protected. Likewise, if you take a CFRA leave and return within the 12-week period, your job is protected. Regardless if your employer likes your temporary replacement better or discovers that you had several job performance issues before going on leave, your employer must allow you to return to work.

Although your employer must allow you to return to work, you may not get your former position back. If your employer eliminated the position due to corporate restructuring, your employer must give you a “comparable” position in terms of pay, location, job content, and promotional opportunities. Your employer, however, doesn’t have to create a comparable position if one doesn’t already exist. If your employer can prove that a “comparable” position doesn’t exist, he or she can give you a lower paying, lower level, or less prestigious one.

For example, a woman works for a large vacation resort chain as a Sales Manager. She oversees 40 employees and earns $95,000 per year. While on leave, her company eliminates her position by moving the entire sales department to an out-of-state location. When the woman returns from leave, her employer gives her a non-management position in the catering department that pays only $65,000 a year even though a higher paying, management-level position was available in the reservations department. This woman’s leave rights were likely violated because she was not given the comparable position when one existed.

This is only a brief discussion on maternity leave rights under California law. If your rights have been violated, consult an attorney. Should you have questions, please don’t hesitate to contact me.

California law provides two kinds of maternity leave. The first is under the California Pregnancy Disability Leave law (PDL), and the second is under the California Family Rights Act (CFRA), often called “bonding” leave. Many employers confuse the two or treat them as the same.  Both types, however, provide different benefits and have different requirements.

1. PREGNANCY DISABILITY LEAVE

PDL requires employers with 5 or more employees to provide up to four months of disability leave to women who have a pregnancy disability.

If you work for a small employer with less than 5 employees, your employer does not have to provide pregnancy disability leave.

If your employer provides more than four months of leave for other disabilities, your employer needs to provide the same for a pregnancy disability.

A pregnancy disability means that you are actually disabled by your pregnancy, childbirth, or a related medical condition. This includes needing time off for:

      • prenatal care
      • severe morning sickness
      • doctor-ordered bed rest
      •  gestational diabetes
      • pregnancy-induced hypertension
      • preeclampsia
      • childbirth
      • recovery from childbirth or pregnancy loss
      • postpartum depression 
      • any other medical condition related to pregnancy or childbirth

You certainly don’t have to be confined to your bed. Your doctor just needs to determine that you are unable to perform at least one essential function of your job without undue risk to yourself, your pregnancy, or others.

If you’re pregnant, make sure your doctor understands what your work duties involve so that your doctor can determine whether it is safe for you to continue performing those duties.

2. CALIFORNIA FAMILY RIGHTS ACT LEAVE

Apart from PDL, you may be entitled to an additional 12 weeks of leave under CFRA to bond with the baby, to bond with an adopted child, or to care for yourself, a parent, a spouse or a child with a serious health condition.

CFRA has stricter requirements than pregnancy disability leave and usually doesn’t apply to small businesses.  To be entitled to CFRA leave, your employer must conduct business in California and have at least 50 employees within a 75-mile radius of your worksite.  You also must have worked for the employer at least one year and worked at least 1,250 hours in the 12 months before the first date of leave.

If you work for a small business or worked on average less than 25 hours a week during the past year, you likely aren’t entitled to CFRA leave.  You should nevertheless consult an attorney if your employer denies you CFRA leave because employers sometimes hide the true size of their business by, among other things, operating under a DBA name.

This is only a brief discussion on pregnancy disability and bonding leave under California law. If you have been denied leave or treated unfairly due to your pregnancy, consult an attorney. Should you have questions, please don’t hesitate to contact me.

In an earlier post, I discussed what employees should do if they are being sexually harassed. Among other things, employees should tell the harasser to stop, and if that doesn’t work, they should report the harassment to appropriate persons at work (i.e. human resource department, supervisor, or upper management).

Once reported, California law requires employers to investigate the harassment, stop the harassment, and take effective actions to prevent further harassment.

EMPLOYERS MUST INVESTIGATE SEXUAL HARASSMENT COMPLAINTS 

Employers must investigate all sexual harassment complaints. The investigation must be thorough and objective. As part of the investigation, employers should interview everyone with information regarding the harassment. Once the investigation is over, the employer should discuss the results with the employee who reported the harassment, the harasser, and all other appropriate persons.

EMPLOYERS MUST STOP THE HARASSMENT AND CORRECT ANY DAMAGES

If the investigation reveals that an employee was sexually harassed, the employer must stop the harassment. This may involve suspending, re-assigning, demoting, or terminating the harasser. Whatever actions are taken to stop the harassment, California law requires those actions to be effective.

      • If a harasser sexually harassed a co-worker by walking around the office holding a Sports Illustrated Swimsuit Edition magazine and commenting about how “hot” the models looked (e.g. “I bet you could fill out that bathing suit nicely”), it may be sufficient for the company to verbally reprimand the harasser.
      • But if the harasser also smacked an employee’s derrière and told the employee that she had a “swimsuit model’s butt,” then a verbal reprimand likely is not enough to ensure that the harassment will stop, particularly if the harasser has a history of engaging in similar conduct.

The employer also must tell the employee what actions were taken to stop the harassment and correct any damages from the harassment.

      • If your supervisor persistently tries to massage your shoulders and then demotes you for rejecting the massages, your employer must restore your position, compensate you for any lost wages and benefits flowing from the demotion, and basically fix any damages the harasser caused.

EMPLOYERS MUST PREVENT FURTHER HARASSMENT 

Employers must take steps to prevent sexual harassment. First, employers must have procedures for employees to report sexual harassment.  Second, employers must have policies that essentially condemn all forms of sexual harassment and disclose the consequences for engaging in sexual harassment.  The consequences should include termination.  And third, employers who do business in California and employ at least 50 or more employees mustprovide at least two hours of sexual harassment training every two years to each supervisory employee and to all new supervisory employees within six months from when they assumed their supervisory position.

This is only a brief discussion on sexual harassment laws and issues. If you think you are being sexually harassed, consult an attorney. Should you have questions, please don’t hesitate to contact me.

Sexual harassment is more than the typical “you’ll get ahead in this company if you sleep with me” statement.  It isn’t always so obvious and direct.  The following are just some of the many forms of sexual harassment under California law.

EXAMPLES OF VERBAL AND WRITTEN SEXUAL HARASSMENT 

      • Asking a person out for dates or drinks or to have sex
      • Asking intrusive and sexually explicit questions, including questions about orientation or history
      • Making jokes about sex
      • Making sexual comments or innuendos, including graphic comments about a person’s body
      • Using sexually degrading words to describe someone
      • Using derogatory comments, slurs, or nicknames, like sweet tart, sex kitten, sexy or cutie
      • Name-calling, like slut, bitch, or whore
      • Rating a person’s sexuality or appearance

EXAMPLES OF PHYSICAL SEXUAL HARASSMENT

      • Making sexual advances
      • Giving or asking for kisses, hugs, or massages
      • Touching, patting, punching, stroking, squeezing, tickling or brushing against a person
      • Leering or staring at body parts, such as a woman’s breast or man’s derriere
      • Making sexual gestures
      • Impeding or blocking a person’s movement
      • Attempting or physically/sexually assaulting a person

EXAMPLES OF VISUAL SEXUAL HARASSMENT

      • Sharing sexually inappropriate images or videos, including pornography, with co-workers
      • Displaying or discussing sexually suggestive materials, objects, pictures, calendars, cartoons, or posters

EXAMPLES OF INTIMIDATION TYPE SEXUAL HARASSMENT

      • Spreading rumors about a person’s sexuality or sexual activities
      • Offering employment benefits in exchange for sexual favors
      • Threatening or bribing a person to succumb to sexual activity
      • Retaliating against a person for rejecting sexual advances or objecting to harassing conduct
      • Stalking a person

Because this only provides some of the many forms of sexual harassment, if you think you are being sexually harassed, consult an attorney. Should you have questions, please don’t hesitate to contact me.