Technology is changing rapidly. Most people have appreciated the use of emails to communicate with their friends and relatives. Emails are commonly used to pass messages in the workplace. It is important that you ensure that your email is safe. You can even consider changing the password of your email from time to time. An employee should never assume that the email that are sent and received are kept in complete privacy from their employers.

Under the Electronic Communications Privacy Act (ECPA), it provides for implied authorization to review employees’ emails. It also states that a company should state their policy of monitoring e-mails in the company handbook. Since new technologies are coming up, employers now have the options to monitor their employees when they use their phones, computer terminals, emails, voicemails and even when the employee is using the internet. Unless the employee’s company policy states otherwise, an employer can readily listen, watch and even read most of the communications conducted by an employee during the course of their work day.

You will realize that recent surveys actually show that majority of employers monitor their employee’s activity in the workplace. Employer monitor the websites their employee’s visit in order to prevent inappropriate surfing. The survey further shown that 65% pf employers use software to block connections to websites deemed off limits to employees.

You will realize that E-mail is not normally considered private if the email system is used at a company that is owned by the employee. He or she can review its content from time to time. In this case, you should not expect a lot privacy when it comes to email communications. Emails that are actually sent within the company are subject to monitoring. In addition, emails that are sent from the employee’s terminal to another company are subject to monitoring. These emails include those from Yahoo, Hotmail, AOL and so forth.

If this email is deleted, it normally retained in the memory. You will realize that emails are often backed up along with other important data from the computer system. If the employer’s email system has an option for the employee to mark their email messages as private in most cases, this does not always protect the emails. As an employee, you should read the employee handbook so that you can understand your employer’s email policy. If this handbook does not address this issue of email monitoring, the employee should speak with their employer about their policy for the emails and privacy.

It is worth noting that there is email monitoring in the workplace. You should be very careful when sending emails to your colleagues at the workplace. Your employer might review the content of your email from time to time.

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Studies have revealed that the lack of proper encryption, inadequate funding, and shortage of staff has degraded the system of comprehensive data protection. Most health care organizations are not sure of the exact location of patient data. Under such circumstances, it becomes imperative to learn about the medical privacy covered under laws and policies regarding medical privacy in California.

Laws and policies regarding medical privacy in California

1. Controlling Medical Information

The ability to control your medical information falls within the range of some control and no control. There are situations where you have the opportunity to object or give consent, and others where your consent is not required. Few cases may require your authorization. According to laws and policies regarding medical privacy in California, there is a clear distinction between authorization and consent. Authorization should be given out in a separate document specifying disclosure details.

2. When flow of medical information is beyond control

Such information is required by local, state or public health regulatory authorities. When a person is exposed to a communicable disease or the subject of a food and drug administration issue, there is no need for consent. Consent for accessing medical information is not required when the employer requires the information for conducting medical surveillance in the workplace or evaluating work-related injury or illness.

3. When your medical information may be used without consent

Consent for using your medical information is not required when it is used for treatment, health care operations or payment. Your consent is not necessary when the information is utilized by a business associate of your health care plan. Services provided by business associates may include financial, accounting, administrative, accreditation, management, consulting, data aggregation, actuarial and legal.

4. How to know the number of people that have accessed the medical information

Laws and policies regarding medical privacy in California strives to limit the number of areas in which people can access your medical information. However, there is no realistic way to ascertain the number of people that may have accessed your medical information. For example, when you are admitted to a hospital, hundreds of hospital employees have access to your medical information.

5. When is authorization required?

Laws and policies regarding medical privacy in California requires your specific authorization if the disclosure is required for psychotherapy or for marketing. An individual’s psychotherapy notes are protected, subject to exceptions such as defending a health plan or a doctor or undergoing staff training.

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California state laws try as much as possible to safeguard the privacy of an employee. You are protected against access to your personal information by an employer. An employer cannot force you to avail crucial information about your health status and personal information which you will not like other people to know about. But, when it comes to workplace computers, your privacy as an employee is limited. The emails and other types of information stored or send via workplace computers are assumed to be the property of your employer. The organization can easily monitor private information you receive over the place of work computers.

Monitoring Employee Computer Activity

The law in California assumes the employee is acting in good will by monitoring your workplace computer. Remember, you can steal work place information and share with other people who will misuse it. The law allows your employee to keep watch of information which you are sending over workplace computers so that he will know whether you are sending out information which can sabotage the operation of your work place computer. The law is very complex; hence you need assistance from a lawyer if you feel like your rights have been infringed. The employer can as well monitor the information you send over the internet on your workplace to know whether you are doing the work you were employed to do or you are wasting the resources of the company in your personal communication.

Using Your Computer at Work Employee Rights

Different companies have policies regarding office computer use. You are not supposed to use your office computer for personal needs. The employer can monitor the activities on your work computer and even initiate disciplinary actions if you will be discovered to be misusing your work time and computer resources on personal needs.

Email and Privacy

The work computer is the property of your employer, if you send or receive emails via the office computer, then you are risking your privacy because the company can easily read them. Most companies keep on monitoring the email send via the office computers to know whether the employee is working or just conspiring with competitors to bring down the business. Try to limit your use of office computer if you will like to stay safe from personal information infringement.

Internet Usage at Work

Employee internet usage at work is subject to scrutiny. Your employer will like to know what you are doing with work place resources. He can track websites you visited and restrict some sites such as social sites for you to concentrate on doing what you were employed to do in his premises.

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Erin Egan, Facebook’s chief privacy officer and former Covington and Burling attorney, issued a statement urging both public and private employers not to participate in these practices. She offers her legal reasoning as follows:

“We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.” “It also potentially exposes the employer who seeks this access to unanticipated legal liability.”
“Employers also may not have the proper policies and training for reviewers to handle private information. If they don’t—and actually, even if they do–the employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime).”

Granted, Egan might not be a California employment attorney and therefore not the most qualified to give advice to employers on what they should and shouldn’t do. She is correct to state that participating in this practice is definitely subject to be challenged. Egan’s statement was directed nationally so she did not address California’s Constitution’s Privacy Protections.

California’s Constitution’s Privacy Protections, Article I, Section I of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

The California Supreme Court has held that to determine whether an individual’s constitutional right of privacy has been violated, the court must balance the compelling need for the information against the reasonable expectation of privacy the person has in the information. It will be difficult for most employers (other than perhaps those hiring for national security or other related positions where they are exposed to extremely sensitive information), or any college, to demonstrate a compelling or strong need for this information. Employers have been hiring employees without detailed personal information for hundreds of years. In most cases, it will be extremely difficult for an employer to demonstrate a new and sudden compelling need to get behind an applicant’s Facebook password to be able to evaluate that individual.

Basically, Egan’s statement that requiring this information may leave the employer vulnerable to a lawsuit is quite accurate and increasingly risky if you are a California employee.

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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Traditionally, employers have been allowed to play the role of private investigator when it comes to monitoring employees’ electronic communications over company provided devices. The rational is that the employer owns the equipment and, therefore, should be allowed to review its contents. Review of employee emails and text messages allows the employer to monitor efficiency, business disclosures, and proper use of company equipment. According to a 2005 survey conducted by the American Management Association, over half of employers review and retain employee emails and 84% have company email policies.  These statistics reflect the fact that employee monitoring is generally accepted and only minimally regulated.

The right to personal privacy is generally considered a liberty protected against government interference by the Constitution’s due process clause. The federal Electronic Communication Privacy Act of 1986 was designed to specifically protect personal electronic communications from interception by government entities without a warrant. Protection of electronic communications from interception by non-government entities is left to the states. Thus, the best protection of an employee’s right to privacy is found in tort law. California is the only state that recognizes a state Constitutional right to privacy. Invasion of privacy occurs when one intentionally intrudes upon the private activities of another, and the invasion would be highly offensive to a reasonable person. Additionally, there must be a reasonable expectation of privacy. 

As technology has advanced, the number of lawsuits involving the wrongful interception of employees’ personal electronic communications has increased. In these cases, the courts will weigh the employee’s reasonable expectation of privacy against the employer’s legitimate business interests. In the past, courts almost always ruled in favor of the employer, but recent decisions have begun to shift this trend.

In the case of Stengart v. Loving Care Agency, Inc., et al, No. A-3506-08T1 (S.C.N.J. June 26, 2009), the employer intercepted an email from an employee to her attorney via a personal, password-protected Yahoo account. The Court rejected the notion that the employer could intercept private communications simply because it owned the computer used to make such communications. It stated that “property rights are no less offended when an employer examines documents stored in a computer as when an employer rifles through a folder containing an employee’s private papers.”  The Court further noted that the principles underlying the attorney-client privilege outweighed the employer’s interest in imposing a unilateral regulation.

Following in the footsteps of Stengart, Convertino v. US Department of Justice, No. 2004-CV-0236 (RCL) (D.D.C. Dec. 10, 2009) held that the Department of Justice (DOJ) could not intercept emails sent by an employee to his personal attorney because it violated the attorney-client privilege. The Court, citing In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005), stated that “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” The employee in Convertino had a reasonable expectation of privacy because the DOJ policy did not ban personal use of email and employees were unaware that the DOJ regularly accessed and saved personal emails.

In the recent case of City of Ontario v. Quon, the 9th Circuit Court of Appeals considered an employee’s right to privacy when sending text messages. In this case, a police officer complained when the department intercepted text messages sent on a government-provided device. The official policy of the department contained no guarantee of employee privacy to text messages,  however, the informal policy indicated that text messages would not be reviewed as long as employees paid for charges over the government allowance. The Court ruled that the informal policy gave the police officer a “reasonable expectation of privacy” and the department violated the officer’s fourth amendment rights. Unlike email that is paid for and stored on company equipment, the text messages were paid for by the employee and stored by the telephone company; therefore, the employee had a right to privacy.  On December 14, 2009, the US Supreme Court agreed to hear the case on appeal. The decision will have a great impact on employees’ privacy rights regarding electronic communications.

Until employee privacy rights become more defined, employees should exercise a high level of discretion when using electronic equipment provided by their employers.

Strategy:

1. Obtain a copy of your employer’s electronic communications policy. Generally, company policies are legally binding and must be adhered to by employees.

2. Do not assume a right to privacy while at work. To the extent possible, use company equipment for work purposes only.

3. If you have discovered that your personal emails, text messages, or other private communications have been reviewed or retained by your employer, contact an experienced San Francisco law attorney to discuss your rights.

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Discrimination cases are typically contained to protected classes, outlined in title VII as: age, race, religion, gender, sexual orientation, disability, and as of 2014, Nationality/immigration status.

Getting a second chance!
Criminal back ground is not included in these protected classes however, the courts have found that employment decisions based on criminal backgrounds should have some guidelines.

The Equal Employment Opportunity Commission (EEOC) has published guidelines for the use of criminal records in employment related decisions. The EEOC recommends that all employment decisions based on criminal convictions “should establish that the exclusion of an applicant or employee due to a criminal conviction was job-related and consistent with business necessity”, taking into account the following factors:

1. the nature and gravity of the offense or conduct
2. the time period elapsed since the offense was committed and/or completion of the sentence
3. the nature of the job held or sought.

Obviously a criminal background will have more bearing if you are looking at a job around children than on a construction site. These guidelines help to define that.
The EEOC publication embraces this recognized standard, but also provides further guidance and recommendations designed to help employers comply with Title VII:

• Employers may consider convictions but not arrests. Employers should never consider arrests because an arrest is not evidence that criminal conduct has occurred. However, while an employer cannot make a decision based on the mere fact that an arrest occurred, they certainly can (and should) investigate whether the conduct underlying the arrest justifies an adverse action. The EEOC guidance emphasizes that the underlying conduct, and not the arrest itself, is potentially relevant for employment purposes, i.e. if you were arrested for DUI twice but never convicted, they should carefully consider whether a driving job is a sound choice.
  • Employers should develop a “targeted screen” or more specific questionnaire. Targeted screens – i.e., those that consider the nature of the crime, the time elapsed, and the nature of the job – are more likely to meet the “job-related and consistent with business necessity” test, whereas blanket inquiries (e.g., “have you ever been convicted of a crime?”) are more likely to be problematic.
  • Employers should not ask about criminal convictions on job applications. Instead, employers should inquire into criminal records only after the employer is knowledgeable about the applicant’s qualifications and experience. If employers do ask about convictions on job applications, the inquiries should be limited to convictions that are job-related and consistent with business necessity.
  • Employers should perform an “individualized assessment.” An individualized assessment would consist of notice to the individual that he or she has been screened out because of a criminal conviction, providing the individual an opportunity to explain and present information to show why he or she should not be excluded, and consideration by the employer of the explanation and information presented by the individual. Evidence that may be considered by employer as part of this assessment includes: the circumstances surrounding the offense, the number of offenses for which the individual was convicted, the age of the individual at the time of conviction or release, evidence that the individual performed the same type of work for the same or another employer without incident, the length and consistency of employment history before and after the offense, rehabilitation efforts, employment or character references and whether the individual is bonded under a government bonding program.

Labor law is always complex, and when dealing with matters such as criminal record it can be even less cut and dry. Let my team at UELG help you sort it out with a free review of your case, call now.

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A current or former employee or representative should receive a copy of their records by writing a request to the employer. This should not take more than 3o calendar days and should not cost more than reproduction cost.

Inspection Rules

To make inspection possible, employers should:

(1) Keep an employee’s records for a minimum of three years after termination of working relationship.

(2) Have current records of an employee for inspection purposes and upon request by a representative or the employee, he or she must provide a copy of the records to the employees’ place of work otherwise to a location agreeable to the requester or the employee

(3) Have former employees records available for inspection purposes and provide a copy if requested by an employee or representative where they store records or at an agreeable location by both parties in writing.

Employer Compliance with Personnel Files

An employer is to comply only once a year with a previous employees’ request to receive or inspect a copy of their personnel records. A copy of the records can be availed to the employee by mail if they agree to reimburse actual postage charges incurred by the employer. An employer should not comply with more than 50 requests by previous employees to avail copies of their personnel records in a single calendar month.

The employer may take reasonable measure to ascertain the identity of the employer (current or former) or the representative. Before handing over the records for inspection, the employer can obscure the name of non-supervisory employee(s)

Termination and Personnel Files

In case a former employee was terminated because they violated employment relate policy that involved workplace violence or harassment, the employer can comply with their request to inspect personal records by:

(1) Availing the records to the former employee at a place other than the workplace that is reasonably accessible by driving from the employees’ place of residence.

(2) Mail a copy of the personal records to the employee.

If the employer does not allow a current or former employee or a representative to have a copy or inspect the personnel records within the mutually agreed or specified times, the current or former employee or the labor commissioner can recover $750 from the employer as a penalty.

Rights to inspect personal files do not relate to reports, records, crime investigations, letter of reference and ratings that:

(1) Were obtained before the employee’s employment.

(2) Were obtained I regard to a promotional exam.

(3) Were prepared by examination committee members who can be identified.

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Is Workplace Privacy Protected Under The Labor Law of California?
Through technological advances, employers are able to monitor almost every move that an employee makes; especially on computer terminals, telephones, voice mails, emails and even when they are online. In fact, every single thing that employees do in their office gets recorded and can be checked by the employers anytime they want. But, the only problem here is that monitoring the virtual movements of anyone is unregulated until and unless specified under the policies of the company. Simply put, as long as your company tells you they are monitoring your actions they free reign.
This means that if you are being monitored at your workplace, and the same is not mentioned in the work policies governing the company, then this is a violation of the Fair Employment and Housing Department of California. There are many privacy acts that support this, such as Electronic Communications Privacy Act and Employee Workplace Privacy Act. These acts have specified certain guidelines for protecting the privacy of any employee who is part of a company or organization in California.

Listening To Telephone Calls and Computer Monitoring
The first question that would arise in any employee’s mind is “Does the employer have a right to listen to my telephone calls or monitor my online movements?” In certain cases, the answer is “yes” they do have a right but there are limitations or specific guiding principles that they should abide with. For instance, in the California state law it is strictly mentioned that the employer should disclose that their conversation is being recorded and the same is denoted with a beep tone, as better stated by California Public Utilities General Order 107-B.

However, those organizations who fail to satisfy this law are liable under the labor law of California and thus they can be penalized by the employee. Other than that, such employers are even found guilty under the federal law of the state, where justice is given to the employees for their privacy.
Don’t assume you are safe on your own phone, and don’t assume they have the right; get professional help NOW.

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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Before You were Hired, You Were Googled!

It shouldn’t come as a surprise that a prospective employer will search your name on the Internet before hiring you.  After all, the only thing a company may know about you is from your resume, and that only includes your work history and maybe a hobby or two.
To get a better sense of what type of potential liability you may be, to other employees or the public, a look into your tweets, Facebook posts, and pictures may reveal more about you than you know.

The main reason for the online investigation is because an employer who hires someone, is essentially taking responsibility for that employee and their actions while on the clock. If that person may injure another person or cause damages while on the clock, they are putting the employer at risk of a lawsuit.

If an employer does not do its due diligence in the hiring process, the employer could wind up in court fighting a negligent hiring lawsuit, because if an employer fails to properly investigate a potential employee, the employer may be responsible for the harm its negligently hired employee causes to any third party.

As a rule of thumb, think before you post! Everything you put online could help or hurt your chances at the job, career and life you want. So before you boast online about smoking marijuana or post photos of you drinking copious amounts of alcohol, remember that it sends a clear message to the company you want to work for: I am reckless and I want the world to know it.

If you have questions about this or any of our blogs PLEASE CALL OUR OFFICES AT (415) 200-0012 

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No More Background Checks For Applicants?

California tends to add protections for its residents on top of the national standard set by the federal Fair Credit Reporting Act (FCRA). However, it’s important to note that the FCRA only applies when an employer has hired an outside agency to conduct the background check.
FCRA requires the following:
1) Obtain your permission.
2) Give you notice on a separate document that a report may be required.
3) That you are given the opportunity to consent
4) That you are notified if information in the report is used to make an “adverse” decision about you
5) Get your specific permission if medical information is requested.
6) Give a specific notice if your neighbors, friends, or associates will be interviewed about your “character, general reputation, personal characteristics, or mode of living.” This is called an “investigative consumer report” under the FCRA.

Keep in mind the information obtained in the background check usually can only go back 7 years. There are a few exceptions to this; up to 10 years for issues such as bankruptcy, or insurance policies over a certain dollar amount. Lastly, the FCRA states that there is no limit to the number of years your criminal convictions can be reported.

If the employer has decided not to hire you or promote you based on the information obtained in the background check, they must issue a “pre-adverse action notice” along with a copy of the background report, before an adverse action is taken.
California law has stated, the employer must provide the web address and telephone number of the third party that conducted the report. If the company does not have a website, you may request that a copy of the privacy policy be mailed to you. Also, should you request a copy of the report, the company must produce it within 3 days of your request. California law also requires that the report’s cover page include:
• A notice in at least 12-point boldface type stating that the report does not guarantee the  accuracy or truthfulness of the information, but only that the information was copied from public records.
• A warning that negative information could be the result of identity theft.
• Gives notice of your rights in English and Spanish.

Interestingly enough, California has also decided that credit reports can only be obtained for people applying for specific job titles or functions. (CA Civil Code §1785 et seq.) Again, the employer must give notice that a credit check will be obtained, along with an explanation of why the check is allowed.
If the Employer chooses to conduct its own investigation and forgo a third party firm, the FCRA and all of its provisions do not apply. However, California law does impose a few regulations on the employer. (CA Civil Code §1785.53) For instance, the employment application should contain a box to be checked indicating that the applicant wishes to receive a copy of all public records obtained during the internal investigation. In addition, as of 2014, you can not be asked to submit to a background or credit check until after you have gone through initial stages of interviewing, and it is determined that you are qualified to move forward. This could help you get a foot in the door and avoid previous discrimination for a past record.

Labor law is complex; if you have any questions regarding your employment it is recommended that you contact United Employees Law Group.  We can help you understand your rights and it is always a free call.  We take all cases on contingency. That means we only get paid if we collect for you, so you have nothing to lose and everything to gain.  CALL TODAY.

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