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 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.

California is one of a minority of states that requires higher pay for daily overtime, after eight hours of labor. This could discourage companies from permitting employees to make up time taken for important engagements by adding hours onto another day’s work. However, following certain guidelines will permit a worker to work past the eight hour threshold to make up time without requiring the business to pay the higher overtime compensation rate:

• The makeup time cannot be for more than 11 hours on any workday or for more than 40 hours in a workweek;

• The makeup time must be in the same workweek as the day in which the employee took the time off;

• Normally an employee must provide the employer with a signed, written request for each occasion that he or she desires to make up time. However, if an employee knows that he or she will be requesting makeup time over several weeks on a recurring basis, the employee can ask to make up the missed work time for up to four weeks in advance;

• A business is free to inform employees of the makeup time option, but cannot encourage or otherwise solicit workers to do so; and

• The employer may not make the makeup time a condition of the employee’s request for time off.

It is of course vital that the parties keep accurate time records that clearly designate extra hours that are makeup time paid at the employee’s normal rate and those that are paid at the overtime rate.

For assistance implementing a workable makeup time system in California, contact a attorney specializing in that state’s labor law.

In our richly diverse society, it is perhaps no surprise that national origin workplace discrimination claims have been increasing steadily across the country since 2001.

It is unlawful for business to make a significant employment decision – e.g. hiring, advancing, demoting, or firing – based on a worker’s country of origin, culture, accent, ethnicity or assumed ethnicity. For example, an employer is prohibited from only hiring applicants born in the United States.

Other instances of unlawful workplace actions prohibited by U.S. Civil Rights Act of 1964 (as known as the “Title VII” law) as interpreted by the courts:

• Discrimination based on citizenship: Unless required by law, it is unlawful to hire only U.S. citizens or lawful permanent residents.
• Harassment: Supervisors, co-workers, company clients and customers may not create a hostile, oppressive environment for an employee based on his/her national origin, ethnicity, or accent.
• Language requirements: While employers may require “English-only” communication if that is necessary for the contact of business, a company may not impose that requirement for employee breaks or other off-periods. Also, an employer may not make employment decisions based on a person’s accent unless that accent significantly interferes with the function of a job.

Prevention is the best cure for any bad management habits. An experienced employment law attorney can advise on and help implement appropriate policy changes.

Photo: Ellis Island Photography Collection, New York Public Library

Soldiers returning from active duty to civilian life are protected by a number of federal and state laws. This includes reservists and National Guard members.

Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), it is unlawful for an employer to deny initial employment, reemployment, promotion, or any employment benefit because of the person’s obligation to perform military service.

According to the USERRA, returning service members are “required to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status, and pay, as well as other rights and benefits determined by seniority.” This is known as the “escalator principle” because the employer is obligated to keep the person in the seniority progression even though that individual is away on active military duty. USERRA also requires an employer to make significant efforts to train or retrain returning veterans to refresh or upgrade their skills.

Under the federal Americans with Disabilities Act, employers must seek to make reasonable accommodation for returning employees who have become disabled during their service. If the employer is unable to make reasonable accommodation for the person’s former position, the business is obligated to place him or her in another in another position for which the person is qualified or could become qualified. A disabled veteran also retains rehiring and placement rights for two years after his or her service ends.

These are just a few of the rules at play. State law may provide even more stringent requirements. An experienced employer rights attorney can help when management is confronting military leave issues.

A hospital lab technician and army reservist sued his employer claiming two of his supervisors openly discriminated against him because of his military status and duties. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to treat military veterans fairly, prohibiting terminations and other major employment decisions motivated by a worker’s military status.

The reservist asserted his supervisors had voiced their displeasure with his military status with one of them intentionally scheduling him for work on his training weekends. He also claimed his supervisors issued groundless disciplinary warnings which ultimately and unfairly caused his termination by HR.

Although HR was not motivated by hostility regarding his reservist duties, he asserted the personnel manager (and thus the company) was the “Cat’s Paw” for the two supervisors. As the fable goes – sometimes wrongly attributed to Aesop — a monkey persuades a cat to grab roasting chestnuts from a fire which the monkey then eats (or steals), leaving the cat nothing except a burnt paw. Thus, the supervisor (monkey) purportedly asked the HR manager (cat) to issue the termination (chestnuts). HR and the company, unaware of the supervisor’s underlying discriminatory motives, get “burnt” when the HR manager approves the decision.

In Staub v. Proctor Hospital (2011) 131 Supreme Court 1186, the U.S. Supreme Court ruled that an employer can be liable under the “Cat’s Paw” theory if:

• A supervisor performs an act motivated by unlawful bias (in this case anti-military bias);
• The act is intended to cause an adverse employment action (in this case termination); and
• The act is a legal cause of that adverse employment action.

The Supreme Court decision expands the protections against workplace discrimination. Under these circumstances, HR’s lack of knowledge of the discrimination or a HR manager’s mistaken basis for a termination may no longer be relevant or controlling.

What should employers do now?

• Be on the alert for potential biases in supervisors;
• Institute and enforce formal complaint procedures directing employees to promptly report any supervisor’s wrongful conduct;
• Allow the employee being terminated a fair chance to present his or her side of the story;
• Before implementing a requested adverse employment decision, HR should confirm by objective evidence a supervisor’s asserted basis for the decision;
• Thus, avoid automatically signing off on a supervisor’s recommended adverse action, especially where such decisions are based on subjective criteria; and
• Train supervisors and managers on anti-discrimination and retaliation laws as well as how to properly communicate disciplinary action and job expectations.

It is of course also a good idea to seek knowledgeable labor and employment legal counsel to help management navigate potentially troublesome terminations.

The heat is on as “Cal/OSHA” (California Division on Occupational Safety and Health [DOSH]) announced last week that it will step up illness prevention measures through the summer months.

Marking the first day of summer, Cal/OSHA Chief Ellen Widess’s press release cautioned that the agency “will be out there across the state, ensuring that all employers are complying with the heat standard. These basic requirements—adequate water, shade, rest breaks, training and emergency procedures—can mean the difference between life and death to protect the most vulnerable employees working outdoors.”

Last year, Cal/OSHA ramped-up heat illness prevention requirements for days over 95 deg. F. for five specific industries including agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery services dealing heavy equipment and material. These include sufficient supplies of water, time for rest and close supervision by managers.

The agency plans to enforce these rules using “statewide traveling heat sweeps [and] local district actions when temperatures soar and workers are at greatest risk.”

For more information, including training materials, visit the Cal/OSHA website at www.dir.ca.gov/DOSH/HeatIllnessInfo.html or the Water. Rest. Shade. campaign site at www.99calor.org/campaign/.

For legal assistance in ensuring Cal/OSHA compliance for your business, contact an attorney specializing in California employment law.

The food industry is prone to violations of some very unforgiving minimum wage and overtime compensation rules. For example, some restaurant owners and managers mistakenly presume they can pay employees less than the hourly minimum wage ($8.00/hour in California; $7.25 federal law) if workers can make up the rest in tips. While many states recognize such “tip credit,” California does not.

California Labor Code Section 1194 empowers employees to sue for company failure to pay minimum wage and overtime. No agreement to work for less is valid.

“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”

Correction and prevention are obviously preferred to dealing with a lawsuit. If you are California employer with potential minimum wage or overtime issues, contact an experienced employment attorney for help.