Balancing Worker Privacy with an Employer’s Rights to Protect Safety

A worker intoxicated or under the influence of drugs on the job can not only be detrimental to productivity, but extremely dangerous to safety of the employee and those around him or her. Maintaining a comprehensive written drug and alcohol policy – covering testing, prevention, and the handling of suspected drug- or alcohol-abuse on the job – is of course very important.

Key elements include:

• Drug Testing – California employees have constitutional rights to privacy. There are detailed court decisions defining the line between an employer’s rights to test for drugs and alcohol and the workers’ rights to be left alone. A workplace policy must accurately reflect that balance. For example, only in very tightly defined circumstances are “random” drug tests ever permitted;
• Legal vs. Illegal Drugs – Written policies should include specific definitions that describe what drugs the company considers to be illegal versus legal. Also, while a business cannot discipline an employee for use of doctor-prescribed medications (including, in California, “medical marijuana”), the policy can and should also specify an employee’s duty to inform management of such drugs if their effects pose a significant safety risk in the workplace;
• Company Culture – Some businesses periodically hold employee functions where alcohol is served. If so, the policy should establish guidelines that address such alcohol use. See also, our blog Office Holiday Survival Guide, A Risky Cocktail: Alcohol and an Employee Party. A company can and should also supply a policy with other “Company Culture” guidelines, including rules and boundaries on entertaining clients; and
• Disciplinary Action – The drug and alcohol policy also should include the standards for disciplinary actions taken should an employee be found in violation. Employers should be aware of potential issues for employees who may have rights under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act , including individuals undergoing treatment for chemical dependency.

We have helped a wide range of businesses to create and update such drug and alcohol policies or to deal with suspected or confirmed substance abuse situations. We are a phone call or email away.

Resources

Institute for a Drug-Free Workplace

United States Department of Labor

California Protections Found in Non-Disclosure Agreements (NDAs)

Many states recognize a business’s ability to negotiate and enter contracts restricting a departing employee from taking a job with a competitor – or opening a competing business – within reasonable geographic limits and for a limited, reasonable time following the termination date. However, with very limited exceptions, such restraining agreements have been unlawful and unenforceable in California since 1872. This rule is found currently under the Business and Professions Code section 16600, which the California Supreme Court found to be “unambiguous” on this point in Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937.

On the other hand, California does recognize the right of businesses to protect their private information – including confidential customer and client listings — from public disclosure and unauthorized, competing uses. See, for example, California Civil Code sections 3426 – 3426.11. Employers can and should confirm such rights through written “non-disclosure agreements” (NDAs) with their employees.

Thus, while a company does not have the ability to limit a departing worker from immediately going to work for a competitor next door or down the street, that company can effectively limit that former employee’s ability, by court action as needed, to solicit the company’s customers for a switch to his/her new employer, as long as the business has properly protected and maintained its client list as confidential.

With the help of a qualified labor and employment attorney, a well-drafted NDA in California should strike that balance between a worker’s rights to seek new employment of his/her choosing and the company’s rights to protect its private business information from misappropriation.

More on Accommodating Employees’ Religious Beliefs

As our planet’s civilizations and cultures continue to combine and intertwine, the importance of workplace respect for diverse religious backgrounds also grows. For the increasing number of business owners and managers that seek to include or permit religious prayer sessions or other observances on the work premises, an understanding of an employer’s obligations to reasonably accommodate the practices of diverse religious backgrounds is vital.

We have recently covered an aspect of accommodating religion in the workplace. Accommodating Religion in the Workplace: Avoid the Employment Discrimination Gallows. Employer sponsored or permitted prayer sessions or observances can present other, similar issues. Among probable best practices are:

• Written policy or notices should be clear that attendance is optional. Participation or non-participation will have no impact on an employee’s status. Individual attendance at such events should not be noted;
• Policy should also provide any employee with an immediate, direct means for reporting in writing and for promptly resolving any instance where that worker perceives any sort of inappropriate imposition of religion against him or her in the workplace;
• If company communication systems are used to send out notices about a company-approved or permitted religious meeting (email, notice boards, etc), employees should be able to promote other, similar types of events via those same systems; and
• If the members of one religion can hold spiritual meetings or study sessions on company property, then policy and practice should permit the employee/adherents of other religions the same opportunity and under the same standards. It is common sense that such sessions should be outside working hours and that no such activity should be permitted to disrupt the company’s production or any worker’s ability and access to perform his/her work duties.

Religious practice in the workplace can be a complex, sensitive topic. Consult an experienced labor law attorney for assistance in implementing policies concerning the issues.

Some Workers Must be Paid for Waiting

Patience is a virtue, but it may also be a business cost. Depending on the circumstances, a company may be required to pay an hourly employee waiting for the call to come to work. California and federal law recognize the various distinct situations:

– On-Premises Standby: An employee required to remain on a business’s premises after-hours to protect against crime or potential emergencies must be paid for all such time. This is true even if the worker is idle. Where any working hours count as daily or weekly overtime, care must be taken to ensure the proper compensation rate such extra hours. There are sometimes complicated formulas that come into play here.

– Uncontrolled Standby: An on-call employee required to respond to an employer’s request return to work at any time, 24/7, but not restricted in any manner on off-work activities, response time, or location does not need to be paid as he or she is not considered under the control of the employer for those wide-open standby hours.

– Controlled Standby: On the other hand, if an employee’s activities or location are sufficiently restricted during the off-hours, the employer is considered to have control of the employee and, therefore, must pay for the waiting time. Such “controlled standby” restrictions include: (1) geographical restrictions on employee’s movements; (2) required response time; (3) required readiness standards (no degree of alcoholic consumption for instance); and (4) the extent the employer’s policy would otherwise impact on personal activities during the on-call time (for example, no travel to a zone where there is no cell phone coverage).

There are other factors once a worker is contacted for work during his or her off-hours. For instance, a business must compensate an hourly employee for all time spent responding to an off-hours question or emergency via phone, text, email, or other communication channel. In California, once an employee arrives to the business facility for work, “reporting time” requirements kick in and a minimum of 2 hours of pay is required.

These are just some of the basics. Seek a knowledgeable employment lawyer for more detailed question and answer.

When Does Legitimate “Need-to-Know” Cross the Line?

Businesses have valid interests in accessing potentially sensitive employee information as long as that access is reasonably necessary to maintain workplace safety and security. On the other hand, companies must respect worker privacy on matters that are irrelevant to administration and operations.

Clear, comprehensive written policy is essential to mark the line between legitimate company access and inappropriate intrusion into worker’s actions, communications, internet usage, data storage, and property possession and usage. For example, if a policy adequately defines the valid circumstances when management may require an employee to submit to a drug or alcohol detection process, then a worker does not have a reasonable expectation of privacy on such matters. Considerations in creating a proper employee privacy policy include:

1. Such a policy should begin with the company’s commitment to protecting employee identities and other private information except where other valid interests reasonably outweigh nondisclosure or non-inquiry. The policy should confirm the company takes employee privacy matters seriously;

2. Of course, it is essential to ensure the policy is consistent with applicable state and federal laws. For example, there are legal standards for the non-disclosure of employee social security numbers and medical information;

3. The policy should provide complaint procedures and disciplinary standards for alleged and confirmed privacy violations respectively;

4. Human resources personnel should ensure the secure storage of employees’ personal information, for example medical information;

5. The policy should specify that unauthorized persons cannot access stored personal employee information, including on any computer system;

6. The policy should include a “clean desk” provision requiring personnel to clear out or otherwise secure confidential personal information whenever they leave their work area; and

7. The privacy policy should include regular shredding of all documents and deletion of soft copy files containing personal employee data that are no longer needed and no longer within the legally required storage period. The policy should authorize human resources personnel to conduct this periodic process.

Experienced and capable labor and employment counsel can and should assist on developing an employee privacy policy that fits a particular business and its work force.

California’s Basic Requirements for Daily R&R

California hourly workers are entitled to certain rest and meal breaks depending on how many hours they work in a given day. The basic rules: employers must provide an unpaid off-duty meal period at least 30 minutes long for every 5 hours in a workday, and 10 minute paid breaks for every 4 hours worked. Among the others:

Meal Breaks

• While employees who work over 5 hours in a day must be provided – and must take advantage of — an unpaid meal break of at least 30 minutes, workers can waive their meal period as long as they do not work more than 6 hours in the workday. Under certain conditions, workers can also agree in writing to have their meal while on-duty but must be paid in full for that time;
• Employees who work for more than 10 hours in a day are entitled to a second unpaid off-duty meal break of at least 30 minutes. Employees can choose to forgo their second meal break as long as they do not work more than 12 hours and received the first meal period;
• Employees must be free to take their meal breaks off company premises if they so choose; and
• Employees cannot be required to work during any such required meal period.

Rest Breaks

• Employees who work at least 3.5 hours in a day are entitled to a rest break;
• Rest break must be for at least 10 consecutive minutes for each 4 hours worked;
• Whenever possible, rest breaks should in the middle of each work period;
• Rest breaks must be paid;
• Employees can be required to take their rest break on company premises;
• Employees cannot be required to work during any required rest break; and
• Employees can choose to skip their rest break provided as long as their supervisors or managers do not pressure them to do so.

There are some exceptions to these laws for particular California industries, including healthcare, motion picture, and manufacturing.

Employer penalty for non-compliance is an extra hour of regular pay for each violation.

For answers to particular situations, contact a California employment law expert. See also: “How to Avoid Costly Penalties for Missed Meal Breaks.”

When Katharyn Felicia was told that she and other cocktail waitresses at Resorts Casino Hotel were to pose for photos in skimpy new flapper costumes, she thought it was to evaluate the sexy black outfits to make sure they fit and looked right.

What the women didn’t know, she said, was that the photo shoot would determine which of them would still have jobs when the 10-minute encounter was over.

Felicia, who had been with Resorts since the day it opened in 1978 and was twice named employee of the month, was one of 15 cocktail waitresses fired last month from Resorts.

The stated reason, they say, was for “violating uniform standards.” The real reason, they suspect, is that management wanted to get rid of older women who were judged not sexy enough to fit in with the new image the casino is trying to project.

Seven of the fired waitresses are suing Resorts, claiming age and sex discrimination. The others, including Felicia, are considering legal action.

“It was very degrading to women,” said Felicia, 53. “I feel they never gave me a chance. We had no idea that photo shoot was fighting for our jobs.”

Resorts said it gave each employee a fair evaluation and said the costumes are an integral part of its rebranding effort. The casino has adopted a roaring ’20s theme after the popularity of the hit HBO series “Boardwalk Empire,” based on Prohibition-era Atlantic City’s reputation as the vice capital of the East Coast.

“A critical aspect of theming is the new costumes front-line employees will be wearing, including the new cocktail server costume,” Resorts spokeswoman Courtney Birmingham said. “This particular cocktail server costume was chosen as part of the larger plan to unveil the new Resorts Casino Hotel as a destination for fun, excitement and a one-of-a-kind experience.”

The costumes include short, skin-revealing black dresses with deep open backs. Waitresses also wear fishnet stockings and ornate jazz era hats.

“All cocktail servers were given individual consideration and the selection process was conducted in a fair and objective manner,” Birmingham said. “We empathize with the cocktail servers who lost their jobs and gave them hiring preference in other open positions at Resorts. Some took advantage of this offer and some did not.”

Attorney Kevin Costello, who represents seven of the laid-off servers, said the casino’s action was “just more of the same age and gender stereotype discrimination.”

“Apparently, a modeling agency panel of some sort has decided that the servers didn’t have the right look to continue in their jobs despite having the skills to do so,” he said.

In 2008, two former cocktail servers at Atlantic City’s Borgata Hotel Casino & Spa settled a multimillion-dollar sex discrimination lawsuit they brought against the casino. They claimed the casino humiliated costumed waitresses — known as “Borgata Babes” — by imposing weight limits, encouraging breast augmentation surgery and emphasizing looks over job performance.

Felicia told of a late February photo shoot that was so stressful it made her break out in hives as she struggled to put on a costume that fit properly. She said each of the women who had to be photographed was made to enter a small changing room with the only light coming from a small window above. It was so dark that a small mirror was nearly useless.

Costumes were strewn about the floor, and she and others had to kneel or crawl around to try to find a costume to wear.

“I was forced to get undressed in front of six co-workers, one of them being my manager,” she said. “I had no top on because you can’t wear a bra with the uniform. I had stockings on, but that’s it. It was the most embarrassing thing I’ve ever had to do.”

The costumes’ sizes were not marked. The first one she tried on was too big, she said. The second one, which she eventually wore, gave no support to her bosom.

“I did not feel I looked very good in it,” Felicia said. “I was very nervous. I broke out in hives as I was walking out onto the floor. I was losing it, I was stressing so much.”

The photographer told her she was not allowed to pose. Rather, he took pictures from three angles: with her facing forward, backward, and from the side. The photos were shot from the neck-down, with Felicia holding a sign with a number on it that would identify her once the photos were evaluated.

Although it did not happen to her, she said some co-workers were told to spread their legs a bit, or turn their rear ends toward the camera.

“It’s hard to believe that in this day and age women are still put through this,” she said. “I’m a good employee. I did my job well; many managers have told me that. I just don’t understand this. I’m still in shock.

“I understand that cocktail-serving projects sex appeal, you have to be pleasant and radiate a party atmosphere,” Felicia said. “I get that. I’ve done it for nearly 33 years. If it’s all about what men want, well, men like all different kinds of shapes and sizes.”

Copyright © 2011 The Associated Press. All rights reserved.

How Old is Legally “Old”?

While many might recognize that business cannot use “age” as a criterion for employment decisions, including hiring, promotion, discipline or termination, the federal and California protections actually only apply to persons “of a certain age.” Workers under 40, the relatively “young,” do not have such rights. Employees aged 40 or over, considered legally “old,” are protected.

Federal age discrimination protections – including the Age Discrimination in Employment Act of 1967 (ADEA) — also only apply to companies with 20 or more on payroll. This is different than most other federal workplace anti-discrimination laws (race, gender, religion, etc.) which apply to businesses with 15 or more employees. See, e.g., Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

All California’s workplace anti-discrimination law – the Fair Employment and Housing Act (FEHA) — applies to employers with five or more on payroll.

According to the federal Equal Employment Opportunity Commission (EEOC), ADEA protections include:

– Apprenticeship Programs – Employers with apprenticeship/internship programs should not restrict qualified applicants over age 39 from participation. Only in rare circumstances when age is shown to be a “bona fide occupational qualification” (BFOQ) may an age limit be included. For example, a bar serving alcohol can legitimately restrict under-age apprentices or interns;

– Job Notices and Advertisements – It is generally unlawful to include age preferences, limitations or specifications in job notices or advertisements. For example, it is generally not a good idea to promote that “youth” or any particular age-range is a condition for hiring. Again, only in those uncommon settings were age is a valid BFOQ may an age limit be included;

– Pre-Employment Inquiries – Similarly, except where a certain age range or age limit is a legitimate BFOQ, an employer should not request age information from job applicants. Asking for a person’s age could be seen as evidence of an employer’s intent to discriminate. However, a company can obtain such information after hiring as long as the data gathering is not selective and is needed for a lawful purpose, for example insurance coverage.

– Benefits – The federal Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. However, as the cost of providing certain benefits to “older” workers (40 or over) is sometimes greater, Congress did include an exception. Employers may reduce benefits available to older workers as long as the cost is no less than the cost of benefits available to younger workers;

– Special Waiver Requirements – A company can offer a departing worker extra “severance pay” in exchange for that worker’s written promise never to bring a legal claim against that business or its management (a “release and waiver”). However, such a waiver must comply with specific requirements in order to validly release ADEA claims. The waiver must:

▪ be in writing and be understandable;

▪ specifically refer to ADEA rights or claims;

▪ not waive rights or claims that may arise in the future;

▪ be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled;

▪ advise the individual in writing to consult an attorney before signing the waiver; and

▪ provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

This article is only a general overview of federal and California workplace age discrimination laws. A knowledgeable employment law attorney should be able to guide personnel management through the perils and pitfalls of this sometimes very sensitive area.

A strong policy prohibiting harassment and discrimination is worth little if an investigation over a complaint is badly handled. Among the important rules:

Don’t Delay – Failing to start or complete an investigation promptly creates a potential claim that the company condoned the alleged misconduct, thus increasing the risk of a legal claim;

Ensure no retaliation – Employees have the right to complain over perceived wrongful or unfair workplace conditions and should not be criticized, marginalized or disciplined for doing so. Retaliating against a complaining worker is a separate basis for a lawsuit, even if the employee had no basis for speaking up. Of course, falsifying information in a complaint is a disciplinary offense;

Investigator’s Only Agenda is a Competent, Fair Process and Result – The person responsible for handling the investigation should have no personal stake in the parties or the outcome. Obviously, assigning the alleged harasser’s closest friend in the workplace as investigator is a disaster by definition. The investigation must include the opportunity for the accused to fully address all assertions made as well as the accuser to respond to potentially relevant information obtained from the accused and others;

Document, document, document – The investigatory and management should compile and maintain a thorough investigatory file on the matter. It should include: (1) a copy of the original complaint; (2) detailed notes of each interview; (3) the name of each witness, whether that person was interviewed, and if not, why not; (4) any notes or documents provided by any participant in the investigation; (5) a final report summarizing findings and conclusions; and (6) planned follow-up monitoring;

Make a determination and communicate the results – The investigation should result in a clear written determination of the validity of claims based on the credible facts obtained. An investigator has the ability and obligation to judge such credibility as objectively as reasonably possible. Management should monitor and confirm the fairness of the process prior to release of the results. Key elements of an investigative report include:

• The time of, and information regarding, the initial complaint;

• A summary of the allegations of the case;

• A summary of the interviews conducted and documents compiled and reviewed, including credibility assessments;

• A summary of the investigator’s factual findings; and

• A statement of the recommended remedial action, if any.

Follow Up – Check in periodically with the complaining employee to ensure there has been no further harassment or discrimination and that there has been no retaliation and obtain that person’s written confirmation of the information supplied.

It is also sound practice for company management to include capable legal guidance through the entire process.