Workplace Surveillance

Internet Use in the Workplace

The American Civil Liberties Union (ACLU) claims that many of our rights are poorly protected when we enter the workplace. In fact, the ACLU claims that privacy issues in the workplace are the number one complaint that they receive from people all around the country.

Size of the Problem

A study that polled over 500 companies around the US found that half of employers disciplined their employees at some point for inappropriate use of the internet.

Inappropriate use of the internet could include doling out threats to a superior at work, putting off work and chatting with friends online or watching explicit material (e.g., pornography) instead of working.

These kinds of illicit workplace activities are detected using proxy servers and standard web monitoring.

Is Workplace Surveillance Legal? 

So what does the law say with respect to workplace surveillance? Many employers understandably want to have a video recording of the workplace just in case a theft or outbreak occurs during work hours. Some bosses, however, predictably use these recordings to snoop on their employees and make sure they’re doing what’s expected of them. Is this legal?

As far as this kind of video recording goes, it should be legal. As long as the employer has a reasonable need to film (e.g., catch theft), and the area that’s being filmed is public and employees know that they’re being filmed, then the surveillance is likely within the bounds of the law.

Although state laws about video surveillance in the workplace vary, the courts usually weigh the need of the employer to conduct the surveillance against the employee’s privacy expectations. Having said that, employers are typically not allowed to film union meetings in any context.

Workplace Privacy and E-Mails 

Many employees want to know if their boss has the legal right to monitor their e-mails. If the e-mail is sent from work, then it’s typically legal for your boss to read it. The catch is that the employer must have a legitimate business rationale behind looking at his employee’s emails.

You actually have fewer genuine rights in the workplace than you do in your private life. The reasoning behind having fewer rights in the workplace works out like this in practice – the workplace is owned by the employer and the employee, therefore, does not have the expectation of privacy in these employer-owned areas.

Just as an employer can legally rifle through your work desk or locker, an employer can check up on the files that you’ve downloaded onto your hard drive at work or look at your work computer’s internet browsing history. The employer typically owns the computer, hardware and networking devices at the workplace, so it’s the employer’s legal right to search your work computer.

Electronic Communications Privacy Act 

Employers are understandably concerned with their employees’ productivity, bandwidth use or possible infringement of the company’s proprietary data.

Employers are also concerned with things like malware and viruses getting onto the work network. For all of these reasons, and the fact that your boss might share some liability if you make threats or engage in sexual harassment via email from a work computer, your boss probably monitors your search and download history.

The Electronic Communications Privacy Act says that a computer furnished by the employer, and used by employees in the workplace, remains the employer’s property. This means that employers are generally legally allowed to search your computer or internet usage whenever they want. Should you believe your privacy has been unfairly breached, you may wish to retain the services of an employment lawyer.

To date, only Delaware and Connecticut force employers to tell employees when their emails are being looked at by a superior.

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Unemployment

How Does California Determine Unemployment Eligibility

Unemployment benefits are paid by the state of California to unemployed persons fitting certain criteria. Two basic benchmarks for qualifying for unemployment benefits are that the person seeking these benefits is currently unemployed and that s/he seeks work in the near future.

These conditions are in place to ensure the right people get unemployment benefits and that unemployment benefits have a positive impact on society’s future without draining the state’s coffers or putting the public’s trust at stake.

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California’s Eligibility Requirements 

Before collecting unemployment benefits in California you need to demonstrate a few things. First, you need to be partly or completely unemployed and have high enough wages during a base period to successfully file a claim.

Physically Able to Work

You must be physically capable of work to collect unemployment benefits in the state of California. Furthermore, if you are currently unemployed, that unemployment must have come about through a job termination or through no personal fault of yours.

Actively Seeking Employment

In California you must also demonstrate some ambition and prove that you are actively seeking employment. In addition, before or while you are collecting unemployment benefits you must be willing to get back into the job market and accept work, if called upon by an employer to do so.

Approved for Training 

All of the above eligibility requirements must be fulfilled during weekly check-ups. If you are looking to receive training benefits, you must be approved for your training before the benefits kick in.

Unemployment Your Fault? 

Again, an overarching requirement that California makes those seeking unemployment benefits fulfill is this – the person seeking unemployment benefits must be out of work through no personal fault.

This condition is essential for collecting unemployment. In other words, you can’t quit every job offered to you because it doesn’t suit your disposition and then expect to collect unemployment benefits.

Reasons for Unemployment and Interviews 

To receive benefits from the state of California you must have been laid-off or otherwise unemployed through no personal fault. An investigation into the separation from an employer could occur if the employee suddenly quit or was terminated from steady employment.

Employment Development Department 

Separation issues are handled during an interview conducted by the Employment Development Department of California. Your previous employee was actually required by law to report your wages to the Employment Development Department.

The Employment Development Department of California looks at pay stubs over a one-year period and decides if your income warrants unemployment benefits. This is the base period upon which unemployment benefits are decided and meted out from.

Typically, the Employment Development Department looks at your pay from the previous year if you make an unemployment benefits claim at the beginning of the year. So, if you make a claim in June of 2014 for unemployment benefits, the Employment Development Department will look at your income across all of 2013 (the base period) to determine if and how much unemployment benefits are warranted in your case.

Maximum and Minimum Unemployment Benefit 

The smallest amount that the Employment Development Department can pay out each week is forty dollars; the most the department can pay out to each claimant is four hundred and fifty dollars weekly.

Interviews with Employers and Employees 

The Employment Development Department may contact you or your employer if you, the employee, were terminated or otherwise separated from the employer.

After conducting interviews and collecting documentation from each party, the Employment Development Department will decide, according to current California code, whether you qualify for weekly benefits.

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Employment

Wrongful Termination

wrongful-termination Everything you need to know about wrongful termination will take a few minutes to learn, and could be immensely helpful. If you are wrongfully terminated, you have certain rights, and a judgment in your favor will have one or more benefits depending on the laws of your state and the nature of the wrongful termination.

What is Wrongful Termination?

First, you need to establish that you were wrongfully terminated. You may believe that you have an inherent right to work for the company, but the truth is that most states adhere to what is referred to as an At-Will Clause. What this means is that employers and employees have the right to terminate employment at will, without providing for a due cause or allowing for severance or other post-termination factors. There are 9 states which do not have an At-will Clause:

  • Alabama
  • Florida (allows for only three exceptions)
  • Georgia
  • Illinois
  • Louisiana
  • Maine
  • Nebraska
  • New York
  • Rhode Island

If you are terminated for an illegal reason, you need to identify that cause. There are not many causes available, and it will be up to you to provide evidence that such an infraction occurred. With few exceptions, the causes are:

Breach of contract – If you have an employment contract, either verbal or written, or if the company has an employee handbook which states or infers that a contract exists, you can only be terminated under the provisions of the contract.

Discrimination – Under the regulations of the Equal Employment Opportunity Commission, EEOC, you cannot be discharged for race, creed, age, or gender bias.

Sexual harassment – Any form of sexual harassment in the workplace is prohibited. Performing such harassment is grounds for termination, reporting it or being victimized by it is not.

Violation of state or federal labor laws – This provision can take many forms, including firing an employee who is on leave for reasons allowed under the law, such as a medical emergency. Other labor laws are designed to protect those who work overtime.

Retaliatory firing – You cannot be fired for refusing to perform an illegal act, even when ordered to do so. Likewise, you cannot be terminated for reporting an employer who permits, requests, or encourages illegal activity, including violating OSHA regulations.

How to Respond to Wrongful Termination

If you are wrongfully terminated for any of these reasons, you need to document the infraction to the best of your ability. This includes acquiring copies of pay records, collecting witness accounts, or providing other proof. You may have as little as 90 days to get the complaint filed, so proceed accordingly.

Do not lose your temper with the employer, make threats, or perform unprofessional actions. If you have been terminated, get witness testimony outside of the workplace. Do not re-enter the workplace once you have been asked to leave.

Once you have collected the proof, file a complaint with the EEOC. The commission will examine the evidence provided and decide whether a wrongful termination case exists. If the EEOC rules in your favor, you may be eligible for lost wages, job reinstatement, and any job benefits that were denied.

If the EEOC rules in favor of the employer, you have the right to file a civil suit against the employer. In some cases, this suit can be filed in tandem with the EEOC investigation, but it should usually be reserved as a final attempt to secure justice. Filing a civil suit while an EEOC investigation is in progress could potentially damage both cases.

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Parental Leave

The Rules of Paternity Leave

the-rules-of-paternity-leaveAs a male worker, you may take time off work if the Family and Medical Leave Act (FMLA) covers your employer and if you are eligible for the time off. This kind of leave is sometimes referred to as “paternity leave.” According to a survey by Monster.com, about 60 percent of new fathers take advantage of the FMLA’s paternity leave benefit.  If you are eligible for paternity leave, then your employer must allow you take up to 12 weeks of leave within a 12-month period. Note that this is unpaid leave and must be taken within a year of your child’s birth. This also applies if you have adopted a child; you may take the same amount of time within one year of the child being placed with you. Any employer that offers maternity leave must make paternity leave available to their male employees as well or they will be liable for sex discrimination.

Who is Eligible for Paternity Leave?
If you work for a company with fewer than 50 employees, you are automatically ineligible for paternity leave under federal law. Also ineligible are workers whose time at work totals under 1,250 hours or who have been employed for less than one year. Eligible workers include state, local and federal employees. If both you and your spouse work for the same employer, you should note that the mandated 12-week leave will be split between the two of you.

New Jersey, California and Washington state are the only states with laws that provide paid paternity leave. If you live in California, you may collect up to 55 percent of your salary for no longer than six weeks; in New Jersey you may collect 66 percent over six weeks and in Washington state, you get $250 for up to five weeks.

Why Some Men Avoid Taking Paternity Leave
Many of those who fail to take their paternity leave cite their fear of repercussions from their employer as the reason why. Some workplace cultures may attach a stigma to men who take time off to help care for a newborn; these men may be seen as being less than committed to their jobs. Another reason is that you may not get your old job when you get back from your FMLA leave. Yes, the law does mandate that employers provide you with work under the same conditions as your old job (meaning, the same salary and benefits) but they do not have to return you to the same position.

Some employers offer other benefits that go beyond the FMLA paternity leave, including paid paternity leave. Note that they are under no legal obligation to provide you with this paid time off. If your employer does not provide paid leave, you may be able to substitute vacation days for a part of your FMLA leave. For more detailed information on your paternity leave rights, consult the Department of Labor’s website or talk to a lawyer who specializes in FMLA law.

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Discrimination

Disability Discrimination

disability-discriminationEmployers have a legal mandate to treat you fairly, regardless of a disability — or history of disability — that you might have. You should not allow yourself, your friends or your family members to be discriminated against. As a prospective or current employee of an organization, it is important for you to understand how to protect yourself against disability discrimination.

Recognizing disability discrimination

In order to defend yourself against disability discrimination, you must first understand how to recognize it. Disability discrimination can come in many forms: If an employer decides not to hire you due to a disability or takes it into consideration (as a negative) during the hiring process, this constitutes disability discrimination. Likewise, if you are denied promotion, adequate and reasonable accommodation, equal pay, vacation or leave, fair benefits or anything else during your employment at a company for the reason of your disability, then you are being discriminated against. Being fired or harassed due to a disability also constitutes disability discrimination. If an employer retaliates against you due to a request for accommodation or recent discrimination claims, then this is yet another form of disability discrimination.

You should be aware that disability discrimination is not limited to your employer or those in leadership positions at your job. Any other employee, regardless of rank or position, can commit disability discrimination.

Disability discrimination can occur whether you have a current disability, history of disability, or you are perceived to have a disability, so even if you no longer have or have never had a disability, you should still look for signs of disability discrimination against you.

What to do if you are being discriminated against

If you feel as though you are being discriminated against in the workplace, you are protected under the Americans with Disabilities Act. You should file a discrimination claim with the Equal Employment Opportunity Commission (EEOC). They will guide you through the legal process of taking action against the allegedly discriminating party. You must file the discrimination claim within approximately six months (180 days) of the alleged instance of discrimination.

State and local laws regarding the EEOC claims process can vary, so you will want to contact a knowledgeable attorney to guide you through and expedite the disability discrimination claims process.

You must act now if you believe that you or someone that you know is being discriminated against

Discrimination in the workplace is a serious problem. If you believe that you are a victim of this, you must take action as soon as possible; this is the only way to protect yourself. An experienced employment and disability law attorney can help you properly establish your case, and the EEOC will protect you.

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Employment

What it Means to be an At-Will Employee

what-it-means-to-be-an-at-will-employee

Being an “at-will” employee means that your employer is able to terminate your employment whenever they decide to do so. The other side of this coin is that you are able to leave an at-will job without penalty, at any point that you desire unless you signed an employment contract. Even though at-will employment permits your employer to terminate you for almost any reason, this does not mean that you have no rights.

As an at-will employee, you do have rights that protect your employment to a certain extent. You can’t be terminated based on employer discrimination against your race, age (those over 40 are protected), sex, religion, disability or national origin. You also can’t be legally terminated due to whistle blowing about your employer’s illegal actions. So, if you blow the whistle about an employer performing illegal acts like treating employees in a discriminatory manner or tolerating workplace harassment then you can’t be legally terminated. If you have to take a family or medical leave, serve on a jury or perform military service then your employer can’t fire you even if your employment is at-will. If you have been unlawfully terminated, you should obtain an attorney and threaten your former employer with legal action.

Unfortunately, being an at-will employee allows an employer to pick almost any reason or no reason at all to terminate you. If the employer requires you to sign a waiver of liability and you refuse, you can still be terminated but you might be eligible for unemployment benefits. At-will employment permits the employer to fire you without good cause. Every state except Montana allows employers to employ people on an at-will basis. Montana has protections for employees who finish a probationary period that require the employer to fire them with good cause.

In most instances, your employment is considered at-will unless the employer expressly communicates that it is not at-will. It is difficult to prove that you are not an at-will employee unless you can produce written evidence or oral proof that indicates otherwise. If your employer has ever orally stated that you will only be fired for good cause by saying something like “You’ll always be able to work here as long as you need a job” or “We’ll only let you go if you can’t perform up to our standards” then the employer may not be able to successfully fire you at will. If you’ve been terminated and your employer has made such statements that are contrary to at-will employment, contact an attorney and threaten the employer with legal action. This may spur them to financially compensate you or cause them to consent to your request for unemployment benefits.

Employers tend to make it very clear in applications, employee manuals, job evaluations and formal written policies that you are employed on an at-will basis. Look through the documents that you have signed to initiate and maintain your employment and comb through them for the terms of employment. It is likely that you will find concrete evidence of your employment being on an at-will basis. However, some employers do have formal policies stating that a good cause must be provided to terminate an employee. These employers often provide a detailed, written document that communicates good cause reasons for termination.

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Harassment

What to Do if You’ve Been Sexually Harassed

If you’ve been sexually harassed at work you should carefully consider your next steps.  You are not alone.  Both men and women suffer sexual harassment in the workplace on a daily basis.  There are experts available to help you.  Let’s take a closer look at the proper steps that you should take in order to prevent the behavior from happening again while maintaining your employment.

what-to-do-if-you've-been-sexually-harassed

The first step might seem obvious, but it is worth mentioning: Don’t quit.  You’ll be emotionally overwhelmed and psychologically distraught after experiencing sexual harassment in an environment that you once considered to be your professional home. You’ll feel afraid and embarrassed, but these are not good enough reasons to quit.  In order to receive financial compensation for your suffering, you’ll have to prove that the employer repeatedly sexually harassed you.  This will not be possible if you quit right off the bat.

The next step is to find your workplace’s sexual harassment policy.  Look at your employee manual or contact the human resources department.  Inform the head of the human resources department about the sexual harassment that has taken place.  Tell him/her that you want the situation to be remedied and that you don’t want it to ever happen again.  You must give the employer the opportunity to correct the situation and prevent it from happening again or you will likely lose your sexual harassment lawsuit.  If you are supposed to report such harassment to someone beneath the head of the human resources department, then report it to that designated person.  If the first person that you report the transgression to does nothing to fix it, immediately present your complaint to the next human resources employee in line to hear this style of complaint.

Remember, the employer bears the burden of preventing sexual harassment. Employers are required by law to take steps to prevent the harassment.  At this point you should seriously consider obtaining an attorney.  If the employer does not take any actions to prevent future harassment or if the sexual harassment re-occurs then you should consider a lawsuit.  You’ll need a properly trained attorney to handle the lawsuit.  It is important to note that the employer is liable for any harassment that occurs, even if unaware of the behavior taking place, when it has not exhausted all possible steps to prevent the harassment.

When you report the transgression, you should communicate it both verbally and in writing.  By reporting it in writing you have an insurance policy to back up your verbal complaint.  Sign and date your written report and make several copies.  This way, human resources can’t argue that you didn’t provide them notice of the sexual harassment taking place.  Be sure to detail every single instance of the sexual harassment including inappropriate jokes, glimpses of pornography, sexual advances, sexual comments or instances where women (or men) were treated differently.

The final step is to begin your new job search process.  Search for a new, more professional environment that will be healthy for your mind, spirit and body.  The average job search can take between six months and a year so don’t wait to begin the hunt.  You deserve a comfortable, professional and mature work environment.  Keep in mind that you likely won’t be able to sue the employer for sexual harassment after quitting unless you are able to justify quitting by proving that no reasonable person would tolerate the behavior that you feel qualifies as sexual harassment.  If you have any intentions of filing a lawsuit then you should likely remain on the job until the matter is resolved.

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