1. Your employer can terminate you at will, but only under certain conditionsIt would be illegal for an employer to terminate you if:• It violates the agreement contained in your employment contract with them.
   • If it is based on gender, race, color, nationality, religion, sexual orientation, age, disability or medical condition, language and marital status.
   • If it is as a result of reporting them to state law enforcement agencies.
   • If it because you filed a case against them.

   2. You have a right to be compensated for late wages

   The ‘waiting time’ penalties are awarded to you calculated on every single day of the delay for up to thirty days.

   3. You have a right of access to your personal file

   The law protects you from being denied accessing the contents of your personal file at any time you need it.

   4. Your former employer can only say ‘ true’ things about you as a referee

   Should your former employer be contacted for reference; it is illegal for them to give false information about you.

   5. You still have a right to unused vacation days after termination

   The law protects you from being denied compensation for vacation days you did not take. In the case you are terminated, you should receive payment for them.

   6. You are entitled to 12 weeks of unpaid leave annually

   These leave days allow you time to take care of ailing family members.

   7. You are entitled to health insurance benefits regardless of your job title

   Whether an employee or a contractor you have a right to health insurance.

   8. You have a right to pre-choose your worker’s compensation doctor

   You are allowed to choose the doctor you prefer to treat you under your employer’s group health plan. This is the doctor who would treat you in the case of injuries at the workplace.

   9. You have a right to refuse to work in poor and unsafe conditions

   The law protects you and even allows you to quit until the conditions are improved. You should ensure you inform of your intentions in writing for reference purposes.

   10. Whether or not you receive overtime pay depends on what you do

   You are exempt from overtime pay if:
   • You earn over $2340 a month
   • You are involved in managerial duties
   • You are in a profession such as teaching, accounting, music law, and if you are an editor.

   11. You are entitled to unemployment insurance even if you quit your job

   However, it is only if you quit job for a good reason. Good causes for quitting include:
   • Better job offers
   • Poor work conditions
   • Health concerns
   • Domestic matters, like having a violent spouse

   12. Your employer is not allowed to deduct your wages unreasonably

   It is illegal if the loss was not a result of negligence or gross misconduct on your part. It is only allowable if your employer can prove it was. It is also illegal for an employer to deduct the cost of tools and uniform from your pay.

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Keeping employee personnel files well has a lot of benefits. You need to document the action of each employee in your workplace. If there are promotions offered to certain employees, then you should have a well-documented evaluation process which made you provide such privileges to the employee. There are some employees who will let you down; they will be reluctant to work to your expectation. You will have to warn them from time to time. You will as well schedule disciplinary actions. If they will not improve, you may consider taking disciplinary actions such as laying them off. A well-kept employee personnel files will play a great role while trying to prove in court that a given employee deserves to be fired.
What is kept in Personnel Files
In the employee personnel files, you should keep record of when the employees started working in your organization and other related details. The following are details you can keep your employees’ personal files:
Job description for the position a given employee is holding
The application and resume for eh employee
Offer of the employment
IRS forms of the employee
Acknowledgment of employee handbook
Forms of employees benefit
Next of kin forms
Complaints from coworker or customers about the employee
Awards for outstanding performance
Records of completion of courses
Warning or any other disciplinary actions
Citations for excellent performance
Attendance of tardiness
Agreements with the employee and the organization
Document for departure from the company and reason why
Reviewing Personnel Files
You should set time aside and review each employee files. The files should be reviewed on an annual basis and ensure all details provided are up to date. Some of the questions you need to ask when reviewing the files include the following:
Check whether the file has all written evaluation of the employee
All promotions should be recorded
Remove all warnings after a given period if your policies state so
Update all details about the employee training
Have current information about the employee contract
What Not to Keep in a Personnel File
Medical records
You should not have medical records in your staff file. If the employee has some form of disability, then you will have to have a separate medical form which will be accessed by very few people in your organization. Even those who have no disability, you are required always to keep medical forms private.
Form I-9s
All employees in your firm should be legally legalized to work in the state. You should check the files and store them separate from your employees personal records. All unnecessary materials should not be kept in your employees personal files.

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If an employer chooses to do a background check there are many different things he or she is able to investigate. Here are some of the things employers can get access to:

1. Credit Reports—Employers have access to an applicant or employee’s credit information. Negative credit information appears on credit reports for seven years, and bankruptcies appear for ten years. Credit reports are available to the public, however, employers are prohibited from using an employee’s credit information to discriminate against him or her.
2. Criminal Records & Arrest Records—There are certain requirements employers must meet in order to investigate criminal and arrest records. Employers are prohibited to consider criminal convictions only if it is relevant to the job. Employers are only allowed to review an employee’s arrest record if the arrest or arrests resulted in conviction or if the applicant is out of jail, but pending trial. Juvenile criminal records are off limits to employers and so are marijuana convictions that are more than two years old.
3. Worker Compensation Records—The only way that employers are able to access this information upon hiring an applicant is only after making the job applicant an offer, and an employer is prohibited from rescinding the offer based off of their findings unless an injury may interfere with his or her ability to perform certain job functions that are required. In order to access this information, employers must submit a “Request for Public Records” with the California Workers’ Compensation Appeals Board and include a reason as to why they need it.
4. Medical Records—There are strict requirements an employer must meet in order to have access to an applicant’s medical records. The Federal Health Information Portability and Accountability Act, and the California Confidentiality of Medical Information Act protect a person’s medical information from being viewed by others, even employers. Employers can only access and view an applicant’s medical records to inquire about his or her ability to perform certain job functions that are required.
5. References—Employers have full accessibility when it comes to speaking to an applicant’s references, including past employers, friends, neighbors, co-workers, etc.

If you, or someone you know, are facing legal issues in the workplace United Employees Law Group has the answers. Call Today for your free and confidential case review. Please feel free to CONTACT US with any questions about this blog or your exact situation.

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Network. Network. Network. That is the advice given by many job placement and career development organizations; therefore, the rise in popularity of networking websites is not surprising. The problem is that as networking has become high-tech, the line between an individual’s personal and professional life has become blurred. Traditional means of networking consisted of targeted letters and telephone calls and participation in appropriate trade organizations. There was no question that the information exchanged between the parties was professional and to be used for employment purposes. Today, more and more individuals are taking advantage of services provided by social networking websites includingFacebook , Twitter, MySpace, and YouTube. Although designed for personal and social use, there are few legal safeguards against an employer accessing information on these sites when making employment decisions.

Employers will often screen job applicants by reviewing their profiles for information that may be damaging to the company’s reputation or subject it to future liability.  Some employees will also routinely monitor their current employees’ online activity for not only these reasons, but also for evidence of co-worker harassment or extent of online use during working hours. Despite the availability of privacy controls, information posted on social networking sites is designed to be shared and, therefore, individuals may not have a “reasonable expectation of privacy.”  This is especially true with respect to information created or accessed on a company computer. In general, there is no expectation of privacy on company property, because an employer has a right to view the contents of information contained on its computers. Furthermore, according to intellectual property lawyer, Catrin Turner, “If a social networking site is used to hold any information which relates to your employment, if that information is prepared in the course of your employment, you are dealing with company property.” 

While employers may be able to access personal information, there are some restrictions on the manner in which they obtain and use it in employment decisions. George Lenard has identified the following possible legal violations committed by employers:

1. Anti-Discrimination Laws

Employers are prohibited from making employment decisions on the basis of race, color, religion, sex, or national origin (Title VII of the Civil Rights Act), disability (Americans with Disabilities Act), or age (Age Discrimination in Employment Act). By accessing social networking sites, employers gain suspect classification information not normally obtained via an interview or resume. Thus, if an individual brings a discrimination claim, the employer cannot plead ignorance.

2. Invasion of Privacy

An employee may bring a tort claim for violation of privacy, but this is likely to be a weak claim. As previously mentioned, given the public nature of the sites it will be difficult to prove a “reasonable expectation of privacy.” The claim may be stronger if the employer actually hacked into or otherwise bypassed a user’s privacy controls. Facebook’s Terms of Service specify that users must agree to“not solicit login information or access an account belonging to someone else.”  Furthermore, an employer who accesses information on a computer without authorization may be liable under the Federal Computer Fraud and Abuse Act (18 U.S.C. Section 1030). 

3. Fair Credit Reporting Act

In addition to causes of action against the employer, third parties may also become liable for improperly accessing information on social networking sites. For instance, an employer could hire a third party to gain access to a potential employee’s account and then use that information to make an employment decision. If the employee had a “reasonable expectation of employment” and was not hired, the third party could be liable for tortuous interference of business expectancy. The third party could also be found in violation of the Federal Fair Credit Reporting Act (FCRA) (15 U.S.C. 1831 et.seq. The FCRA requires credit check agencies to disclose that information it obtained was provided to an employer to be used in an employment decision. Lerner suggests that a similar law is needed to specifically cover information gained from networking sites. Facebook has taken some steps to limit the collection of information from its site by amending its Terms of Service to include the following statement: “If you collect information from users, you will: obtain their consent….and post a privacy policy explaining what information you collect and how you will use it.”

The existing laws offer some privacy protection, but if you are working or looking for work, you should take steps to insure that Facebook is your friend and not your foe.

Strategy:

1. Review your privacy settings

If you allow friends or networks access to your profile, you essentially waive all privacy rights as to those individuals. Be particularly wary of accepting your current supervisors and co-workers as “friends” as this will certainly bring your personal activities into the workplace.

2. Be judicious in your postings

Assume that all information you post on Facebook can and will be accessed by employers.Consequently, your goal should be to portray yourself in the best possible light. You can highlight your interest in or knowledge of a particular field by posting information on current issues; but, take care to avoid discriminatory or inflammatory comments.

3. Review your employer’s computer use policy

An increasing number of employers are drafting company policies regarding use of social networking sites. Provisions may include (1) restricted or prohibited access to networking sites on company computers, (2) an employer’s right to access sites, if it suspects activity that interferes with work performance, such as harassment of co-workers, and (3) prohibition of posting disparaging information about the employer.  Remember that company policies are considered legally binding contracts and may provide stiff penalties for violations, even termination.

4. Contact a California labor law attorney

If you suspect that you have been denied employment or wrongfully terminated on the basis of personal information, contact a knowledgeable California labor law attorney to discuss your rights.

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California Governor Jerry Brown has been very busy signing in new laws, most of which have been employment related. Earlier in the year he expanded on many discrimination issues. He covered gender identity and gender expression and added them to part of the protected classes under FLSA. He also gave greater clout to religion as a protected class by including religious attire and religious personal grooming practices. The governor is at it again; he has now signed in a new social media law prohibiting employers from violating the employee’s privacy on their social media accounts.

Effective January 1st 2013 AB 1844 will prohibit employers from requesting or requiring employees to give up their social media passwords to the company for review. Furthermore the company cannot ask for any information surrounding their social media accounts unless the employer reasonably believes such disclosure is relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws or regulations. The only loop hole is that an employer may ask for the username and password solely for the purpose of accessing a company issued electronic device.

It’s interesting to note that this new law allows the employees to sue the company in violation within the court system but will not entertain this law at the labor commissioner’s office. In fact the law specifically forbids the labor board from getting involved.
Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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It is not an uncommon practice that employers use video cameras to prevent infringements like internal theft or for security purposes. In general, this is permitted by law, but employers must beforehand notify their workers about such surveillance. On the other hand, there are legally regulated instances where surveillance is not allowed. These instances are:

– It is not legal to use surveillance to monitor union activity;

– In some states there are legal limitations on how and where employees may be monitored;

– Federal wiretap law makes it illegal to record oral communication: that is why many surveillance cameras do not have audio recording capabilities

Instance when video surveillance is lawful

When employers want to use video cameras to monitor employees, they must present a legitimate security or business reason. State privacy laws usually regulate what the extent at which video is monitoring can be considered legitimate, i.e. lawful (your state labor agency should provide you with more details). In most instances, these laws limit video camera use in the workplace and that includes restrooms, break rooms, and other areas in which employees should have a reasonable expectation of privacy. For example, California law prohibits the use of two-way mirrors in restrooms, locker rooms, as well as similar locations. Check http://www.california-labor-law-attorney.com/ for more useful information on this and other aspects of legality of video surveillance.

Usually, employers in business establishments like banks, retail stores, restaurants and other places where there is direct interaction with the public use video surveillance in locations where it is important for security reasons or preventing theft. But, on the other hand, while it is fair to say that for example a jewelry store has to be equipped with surveillance cameras which includes surveillance of its employees, employees who work in standard office cubicles probably should expect some privacy. It also be very difficult for employers to prove that employees contacting other employees face to face at the workplace need to be monitored.

As mentioned, any cameras used to record sounds along with images will be in contradiction of federal wiretapping laws, with or without an otherwise legitimate reason.

In any instance, whatever the reason for the use of surveillance cameras, employers must inform them that cameras are operating in the workplace.

Surveillance of Union Activity

The National Labor Relations Act (NLRB) prohibits employers’ use of video cameras to monitor employees’ union activities. This includes union meetings and conversations involving union matters. The employers also must bargain with union employees before using video surveillance. According to the same legal regulations, employers may not use video surveillance in any way that represents an attempt to intimidate current or prospective union members.

There is a number of reasons for which employers want to use video cameras to monitor employees. But to do this, they must follow the law. If you have any further question or doubts, it is advisable that you speak with a labor lawyer in your area.

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Can an employer legally monitor an employee’s internet activity during on-duty hours? Yes, generally, employers have the right to monitor their employees’ use of the Internet on computers owned by the employer, during employees’ on-duty hours. Employers concerned about lost productivity, viral invasions, dissemination of proprietary information and their liability for sexual and other forms of harassment, believe that monitoring is an important deterrent to inappropriate Internet and computer usage. Employers can monitor an employee’s internet use, software downloads, documents stored on their computer, emails, social networking sites, instant messaging, etc.

According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. Therefore, employers that provide you with a computer system and Internet access are free to monitor almost everything that you do with the computer and Internet access with which you have been provided. This is especially true when an employer gives you a written policy regarding the monitoring of your computer use. Courts have generally agreed that an employee does not have a reasonable expectation of privacy when using a device owned and issued by the employer. However, some union contracts or state laws (such as those in California), may limit an employer’s ability to monitor your computer activity. With that being said, employers concerned about their liability or loss of productivity caused by an employee’s Internet surfing during work hours, can legally fire an employee for his or her Internet use.

As it is highly possible that your online activity is being monitored, be sure you know what your employer’s monitoring policy is before engaging in activity during work time that is not work-related. You should not visit any websites that you would not want your employer to see or that your co-workers might find offensive. While most employers do not mind if your personal internet use is occasional and doesn’t interfere with your work, some employers do mind, and expect you to confine your personal Internet usage to non-work hours.

If you, or someone you know, are facing legal issues in the workplace United Employees Law Group has answers, Call Today for your free and confidential case review. Please feel free to CONTACT US with any questions about this blog or your exact situation.

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Title VII of the Civil Rights Act and Americans with Disabilities Act (ADA) also protects victims of domestic violence, sexual assault, and stalking. Recently the Equal Employment Opportunity Commission has released a fact sheet that will help answer questions about how your job can be protected should you fall victim to these situations.

The EEOC acknowledges that no federal employment statute specifically prohibits discrimination based on these categories, but provides examples of situations in which it believes employer actions stemming from the employee’s experience with sexual/domestic violence or stalking can give rise to Title VII or ADA violations.

In the first section of the Q&As, the EEOC provides examples of situations in which it believes an employer’s actions based on an employee’s experience with domestic violence may constitute sex-based stereotyping in violation of Title VII. For instance, an employer could be held accountable under Title VII if it fires or refuses to hire a woman who experienced domestic violence out of fear that battered women bring unnecessary drama to the workplace. In another example, the EEOC takes the position that failure to select a male applicant who obtained a restraining order against a male domestic partner because the hiring manager believed that only women can be victims of domestic violence may violate Title VII.

The fact sheet also provides examples, consistent with current law, of instances in which an employee’s or supervisor’s behavior rises to the level of actionable harassment under Title VII and re-emphasizes that an employee who reports sexual harassment is protected from retaliation.

The EEOC provides examples of situations in which an employee might also be able to assert a claim under the ADA for actual or perceived impairments resulting from domestic or dating violence, sexual assault or stalking. The EEOC explains, for instance, that an employer cannot fire or refuse to hire a rape victim who received treatment for depression on the grounds that the individual might need to take leave to treat ongoing or future bouts of depression. In another example, the EEOC explains that an employer is responsible for taking steps to stop abusive comments about an employee’s scars resulting from domestic violence. As such, comments/questions could amount to a violation of the ADA’s prohibition of harassment based on an actual or perceived impairment.

Finally, the fact sheet describes certain instances in which an employer might be required to provide a reasonable accommodation under the ADA for victims of sexual assault, domestic violence, or stalking. Such accommodations might include providing leave to allow the employee to obtain treatment for depression or anxiety resulting from an assault, even if the employee has no accrued sick leave and the employer is not covered by the Family and Medical Leave Act (FMLA). If the employee works at the same location as her abuser, the employee may be able to request a transfer to an alternate work site as an accommodation, even when the employer has a “no transfer” policy.

Although EEOC guidance does not have the force of a statute or regulation, it provides insight into how the agency interprets its laws. Therefore, it would behoove employers to carefully review the document.

Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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On June 17, 2010, the United States Supreme Court issued a unanimous ruling in the case of City of Ontario v. Quon  holding that a California Ontario police department did not violate the Fourth Amendment when it searched an officer’s text messages made on a department-issued pager. The case arose when respondent, Jeff Quon, a police officer with the City of Ontario’s SWAT Team, exceeded his monthly messaging limit on a city-issued pager thereby causing the city to incur overage charges. After at least two other officers exceeded their monthly character allotment, the department audited two months worth of text messages to determine whether the department’s monthly plan was adequate. During the course of the audit, it was discovered that many of the messages sent by Quon were not work-related and some were of a sexual nature. Quon filed suit against the City of Ontario alleging violation of the Fourth Amendment and the Stored Communications Act (SCA). 

The case presented the Court with an opportunity to address the issue of whether employees have a reasonable expectation of privacy in electronic communications made on employer-issued devices. However, the Court refused to make such a broad ruling stating that “the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” It assumed that the principles governing the search of an employee’s physical office space also apply to the search of electronic communications. As such, a search conducted for a non-investigatory, work-related purpose is reasonable where the search is “justified at its inception” and “not excessively intrusive.” The Court concluded that the city’s search in Quon was reasonable, because the city had legitimate work-related purposes for the search (i.e., to determine whether the monthly messaging limit was sufficient and whether the department was paying for excessive personal messaging). Moreover, the scope of the search was not excessively intrusive, because it was restricted to two months worth of work-hour messages.

Although Quon only applies in a public employment context, there are lessons to be learned for employees in both the public and private sector. Here are a few precautions all employees should consider:

• Request a copy of your employer’s electronic communications policy and become familiar with its terms
• Assume that electronic communications on an employer-issued device are not private and may be reviewed
• Restrict your electronic communications to work-related activities

If you do fall subject to a search, remember that your employer must have a work-related purpose and the search must be limited in scope. Should you have any questions regarding the legality of a search, do not hesitate to contact our experienced San Diego Labor Law Attorneys for an unbiased evaluation of your situation.

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