Employee Rights Attorney

Mission Viejo, California

Q: “I am employed as a service technician at a large apartment house project.

“After a tenant reported something missing, my employer insisted that I have my fingerprints taken.

“Can my employer legally require me to give up my ‘prints’ under these circumstances?”

A: “An employer can require a job applicant or employee to provide fingerprints and photographs. There are some businesses, such as armored car and security firms, that are even required to obtain employee fingerprints.

“In your line of work as a service technician, your employer is not required to obtain your fingerprints. If you are fingerprinted, the employer is prohibited by law from furnishing the prints (or photographs) to any other employer or a third party if they can be used to your detriment. If the employer does provide them to another party, the employer could be guilty of a criminal misdemeanor and be sued by you for treble damages.

“In your case, it appears there is a justifiable reason for your employer to ask for your fingerprints. If they determine that you are guilty of theft, they could file a complaint with the police department, which could obtain its own set of your fingerprints.”

Employee Rights Attorney

Mission Viejo, California

Faster, it seems, than a high-speed modem, the Internet and features such as electronic mail (“e-mail”) have become fixtures in millions of American homes and in many businesses. These innovations offer myriad benefits to business and workers, especially the increased efficiency in communications that is revolutionizing the way we use and share information.

Existing Law

As so frequently occurs with major technological advances, the technology of the Internet has outpaced the legislative response. “Cyber law” represents an entirely new, and wildly fluctuating, area of legal expertise where the rules are either nonexistent or developing so rapidly it is difficult to keep pace.

The most sweeping legislation dealing directly with the Internet is the Communications Decency Act of 1996, a federal law restricting dissemination to minors of “obscene,” “indecent,” or “patently offensive” material. The Supreme Court recently heard arguments in a case challenging the constitutionality of the CDA. A decision is expected later this year.

E-Mail Privacy

One major issue that is still unresolved involves the privacy of communications sent via e-mail. Employees should not assume the e-mail communications they send through the company’s system are private. While the law in this area is inconclusive as yet, it appears employers have broad authority to monitor messages sent over a company’s e-mail system.

Approximately one-fourth of employers responding to a survey conducted by MacWorld magazine acknowledged monitoring employee e-mail, voice mail, or computer files. Lawsuits by employees challenging the practice have focused on privacy rights; such suits have been generally unavailing. It appears unlikely the courts or legislatures will declare or recognize any broad right to privacy in workplace communications.

The “right to privacy” protected by the U.S. Constitution is implicated only when the government intrudes on an individual’s zone of privacy; it does not extend to private employers. Some states, including Washington and California, have privacy provisions in their state constitutions or strong statutory protection of individual privacy rights, which may apply to the private sector.

The federal Electronic Communications Privacy Act, which prohibits “wiretapping” and eavesdropping on electronic communications, exempts employers’ monitoring of their own internal e-mail systems for business purposes. This exemption leaves employees with scant expectation of privacy in their on-the-job communications.

At least one federal court has held that employers have the right to read employees’ e-mail with or without the employees’ knowledge. A prudent employer, however, will effectuate a policy as to the extent of privacy employees can expect when communicating via e-mail. Employees should be able to rely on such policies in determining how far removed from normal business communications their e-mail messages can be.

While an employer may frown on personal communications, gossip, or job complaints being disseminated via e-mail, certain employee activities are protected. For example, federal law protects employees from punishment for union organizing activities. An employer may be liable for unfair labor practices if it punishes employees for using e-mail to discuss legitimate labor relations issues.

In addition to its susceptibility to employer monitoring, e mail is notoriously easy to intercept, even after it has been deleted by the user who sends or receives it. Passwords can be discovered or altered by a network administrator or curious “hacker.” Companies or service providers can archive e-mail messages for months or years, making them traceable long after the user believes they are gone forever. Archived e-mail can be subpoenaed in a lawsuit and may come back to haunt the sender or receiver in a legal forum. Personal or humorous messages, when printed out and distributed, may appear more official than the sender ever intended.

The safest approach is to avoid using e-mail — whether provided by the employer or purchased individually — for any communication that is potentially embarrassing or incriminating. Don’t treat e-mail like a telephone call or spoken message that vanishes as soon as it is heard. E-mail may be forever.

Other Internet Issues

Both employers and employees should be aware of additional legal implications of Internet use or abuse.

Libel. The Internet, like any other medium, can serve as a vehicle for defamatory statements. Employers and employees alike may face liability for defamation — false statements tending to injure a person’s character or reputation — communicated over the Internet.

Trade Secrets. Every company has some confidential information that should be closely guarded. Trade secrets, financial forecasts, and information subject to securities laws need special protection from accidental or intentional dissemination over the Internet.

Copyright infringement. The Internet contains an overwhelming number of writings and images that can be downloaded by individual users. Regardless of their easy accessibility, many of these materials are protected by copyright or trademark and have simply been “bootlegged” onto the Internet by another user. Anyone downloading protected material may face liability for infringement. One should not assume that because a document is available for downloading on the Internet, it can be freely used and reproduced. Quite often the opposite is true.

Contract obligations. Because of new electronic capabilities, laws governing contracts may be amended in the near future. For example, the Illinois Attorney General is drafting legislation known as the Digital Signature Act, which will give certain electronic documents the legal status of a hard copy contract. The “fun and games” atmosphere sometimes associated with the Internet may tempt business people to transmit or respond to documents without the serious consideration that should accompany potentially legally binding instruments.

Sexual harassment. The availability of a wide variety of words and pictures through the Internet, and the First Amendment protection afforded to most such material, make it imperative that employers set their own guidelines for what is acceptable in the workplace. Some large U.S. companies already have faced sexual harassment lawsuits as a result of employees’ transmission of graphic e-mail messages or pictures over the Internet. Employers can purchase software to block employees’ access to objectionable material on the Internet; company policy also should make clear which Internet sites are “off limits” and the types of e-mail communication the employer considers unacceptable.

Discrimination. To protect themselves from discrimination claims, companies may prohibit communication of racial or sexual slurs or epithets over internal e-mail systems. (Again, the First Amendment right to free speech applies to government restraints on expression, not private restrictions.)

CDA compliance. The CDA prohibits certain “indecent” or “offensive” material being communicated to minors. Violation of the statute carries criminal penalties. Internet users should be wary of “chat rooms” where the identity of users is kept anonymous, so that communications with minors does not inadvertently occur. Employers should discourage on the job participation in chat rooms, both for this reason and because of the time consuming nature of chat room communication.

Time management. Access to the Internet brings with it the temptation to spend long periods of time “browsing” or “surfing” the ever increasing amount of information available. Downloading and printing documents additionally use a company’s computer time and printing supplies. Employers can now purchase software that monitors and reports employees’ on-line activities, so that long periods of “surfing” can be detected and addressed appropriately.

Striking a Balance

The Internet is a valuable tool with unlimited potential for changing global communications. Businesses now face the challenge of learning to make full yet efficient use of this new resource while avoiding possible abuses and legal entanglements. At the same time, courts and legislatures need to carefully craft applicable law to address the issues raised by use of the Internet, without trammeling individual rights.

Employee Rights Attorney

Mission Viejo, California

Q: “A friend of mine was recently hired by a company that is not based in the United States. One of the items on the employment agreement says that while employed by the company, you will not, except with the written consent of the company, devote any of your time to any other business or profession.

“I can understand where they would not want you to be in a competing business, but if you have some other part-time venture that does not infringe on the company’s interests, how could that item be enforceable?”

A: “A company cannot unreasonably invade the privacy of its employees. Companies not based in the United States must also comply with U.S. law in this regard.

“The courts have held that companies can prohibit employees from engaging in outside employment that is in competition with its own business. If the outside employment is not in competition with the company’s business then there must be some other legitimate reason for the restriction for it to be legally enforceable. If an employee is a part-time employee, it would be very difficult to justify any restriction on outside non-competitive employment.

“The key is whether or not the outside employment unreasonably affects the work performance or other relevant factors within the company. Some of the factors that would have to be evaluated on a case-by-case basis include the following: effect on employee absenteeism, harm to the company’s reputation (especially if the outside employment is disreputable or illegal), and the extent to which other employees fear or refuse to work with the employee because of outside employment or activities.

“Unfortunately, employers sometimes put provisions in employment agreements or employee handbooks that have the legal effect of an unenforceable suggestion. Your friend may have a legal claim against his employer if he is fired or suffers retaliation because of his refusal to submit to unreasonable intrusions into his private life.

“On the other hand, rather than complaining about an unjust policy and possibly suffering retaliation or fighting a battle over the problem, he might be better off by simply keeping his outside employment quiet and dealing with the improper policy if the employer discovers his violation of it.”

Employee Rights Attorney

Mission Viejo, California

Q: “On an application for a local teaching position, the back page included an unlined box instructing applicants to “state your educational philosophy in your own handwriting.”

“I suspect the employer is using graphology as a screening tool.

“Is this legal? I hate to think an otherwise excellent application might be affected because of the way my penmanship might be interpreted.”

A: “It is probably proper for an employer to ask a prospective employee for a handwriting sample.

“There might be a good reason for such a requirement. You are applying for a teaching position in which the clarity of handwriting could be important. For example, students might have difficulty reading your handwriting on the board or your comments on their papers.

“Even if handwriting is not particularly important in your job, an employer still may consider it relevant. It is generally accepted that various aspects of personalities are revealed through one’s handwriting, just as we evaluate others by the way they dress, groom themselves, or how they speak.

“However, if an employer can determine your ethnic background, sex, religion, age or medical condition through a handwriting analysis and deny you a job for those reasons, it would be illegal.

“This would be comparable to psychological questionnaires for employment candidates that delve into illegal areas and can result in discriminatory hiring practices.

“Thus, your prospective employer probably is within its rights to request a handwriting sample. But the employer also opens itself up to possible claims of impropriety.”

Employee Rights Attorney

Mission Viejo, California

Q: “After a job interview, I was asked to come back for a test. The interviewer did not say what the test would be. It turned out to be a battery of psychological tests and what I believe was an IQ test.

“I was never offered a job, and I’m now bothered that this company has highly personal information about me. It also bothers me that they did not gain my informed consent to take these tests.

“Do I have a right to the originals of these tests? How should I approach the company?”

A: “A psychological or intelligence test may violate privacy and discrimination laws. These tests sometimes ask very subtle questions to gain information about religious, political or sexual beliefs of the applicant. Such motives may not be readily apparent on the surface. It would certainly be easier to evaluate the legality of such a test if you could obtain a copy of it.

“Although you may have an argument that the company violated your privacy rights, this must be balanced against the interests of the employer to obtain certain information on a reasonable basis. You have to consider the type of job for which you were applying. Jobs requiring skills might justify questions that would otherwise constitute an invasion of privacy.

“Even if you object to these tests, it may be difficult to prove a connection between the results of the tests and the fact that you did not get the job. If possible, compare your qualifications with those of the person who eventually got the job.

“You have a right to inspect these tests and to get a copy, although the company is entitled to keep the original. You can certainly ask the company to give you the original and all the copies of the test since you did not get the job. If it refuses, demand that the results are kept strictly confidential.”

Employee Rights Attorney

Mission Viejo, California

Q: “If a vendor or collection agency contacts a company searching for an employee who no longer works at the company, can the personnel department release the last known address of the employee or does that violate some privacy law?”

A: “Certain employee documents such as medical records are confidential under the law. But I know of no statute prohibiting a company from disclosing the last known address of an employee.

“It’s possible, however, that the company has made certain promises not to reveal information in personnel files or other private details about employees. You should review the company’s employee handbook or other policy statements on the subject.

“If management promised that such information would only be released to the employee, then provided it to a third party, the employee might have a claim against the employer for breach of contract.

“Regardless of whether an employer’s actions violate a specific law, employers sometimes simply decide against certain actions because of what is ‘perceived’ to be the law, or rights of the employee.

“Disclosing a former employee’s address to an unknown third party might cause extreme financial or even physical damage to the employee. The employer has to understand that such carelessness and disregard for the welfare of a former worker may result in a lawsuit and possibly liability.

“A better approach for the employer would be to tell the inquiring party that it will pass along word of the inquiry to the former employee, leaving the decision to him or her whether to respond.”

Employee Rights Attorney

Mission Viejo, California

Q: “I have been employed by a large corporation for seven years. Recently, while having an annual physical, I was browsing through my medical records. I noticed that there were HIV test results from the date of hire. The report says the results were positive, but no one has told me. Also, I did not consent to the test.

“What legal course should I take?”

A: “Depending on the nature of employment, it is not unusual for a company to require employees to submit to an annual physical, especially if the job includes physical requirements, such as driving a truck. In fact, the company may have a duty to ensure the safety of its employees and the public.

“Apparently you consented to the physical exam but were not aware they were testing you for other conditions as well, such as for the antibodies to the human immuno deficiency virus. If you can prove it was not reasonably related to your job or you were misled about the scope of the test, you could have a claim for invasion of privacy. You might be prevented from pursuing your rights, however, because the violation occurred so long ago.

“You might have a stronger claim over the company’s failure to inform you of the results of the test. After all, the company’s inaction prevented you from seeking appropriate medical remedies to halt the spread of a disease whose effects are potentially fatal.

“You have valid legal arguments that the corporation, as your fiduciary, may have a duty to disclose this information. The company also may have had an implied contractual obligation to reasonably share the details of the test with you.

“Evaluate the company handbook. Does it discuss physical exams? Did the company give you a commitment to provide the results of the test?

“In addition, you may have a claim against any physician who supervised the laboratory that performed the testing. Regardless of who paid the doctor’s bill, you were the patient.

“The company would probably argue that you knew or should have known that the test was for the employer’s private purposes only. It also might contend that some people might not want to know about certain private information and that to disclose it to them without a request might cause them undue emotional distress.

“Aside from legal responsibilities, you could argue that the company has a moral obligation to disclose information that might save a person’s life.”

Employee Rights Attorney

Mission Viejo, California

Q: “As an hourly employee, does my employer have exclusive right to my services? I am told that I cannot work for another company, but I am having financial difficulty and need to work a part-time job.”

A: “What you do on your own time should not be the concern of your employer. You should be able to work part time after your regular daily work hours. Working another job on the weekend should be even less objectionable.

“A ban on part-time work would appear to violate common rights of fairness, especially if this is a new policy after you have worked at the company many years.

“On the other hand, some employers might have a legal right to make this demand. An employer can restrict your outside employment if it is with a competing company, for example.

“You also may be in a job that requires erratic hours from day to day, or requires you to be available on a beeper-call system on your off hours.

“Your employer might have a legitimate right to demand that you keep your schedule free of other work commitments. But if your freedom to do what you want to do on your off hours is limited, your employer may have to pay you for being on call.

“Your employer’s position is further justified if your work performance is affected because of other late-night work commitments.

“Furthermore, your rights might depend on whether or not this requirement was imposed on you from the first day of your employment, or unilaterally later on. It doesn’t sound like it is a definite written policy, but simply one that has been mentioned to you informally.

“If you consider discreetly working another job and not telling your employer about it, realize you might get fired for doing it.”