How Can Employers Avoid Liability for Monitoring Their Employees’ E-mails and Internet Usage?

The (digital) age-old question: Does an employee have a right to privacy in his/her electronic communications when using an employer’s computer or e-mail systems?

Generally speaking, Orange County employees do not have a legal right to privacy when using an employer’s electronic equipment and systems.  However, as with most employment-related issues, there are exceptions to this rule. Therefore, employers need to tread carefully in order to protect themselves from invasion of privacy claims.

What must an employee show to succeed on an invasion of privacy claim?

There is no fine line to determine if an employee’s privacy has been violated. For an employee to succeed on an invasion of privacy claim, the employee must generally show that he/she had a reasonable expectation of privacy in his/her electronic communications and Internet usage and that this privacy interest outweighs the employer’s articulated legitimate business interest in monitoring or accessing the information.

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Failure to Reimburse Employment Class Action

In California, where it seems that we are always on the road, there has been an increase in class action litigation against employers for the alleged failure to reimburse employees for business expenses, particularly mileage reimbursement.

For example, in a recent case involving prominent retailers, employees alleged that they were not reimbursed for mileage and other work-related travel expenses for:

  •     Daily bank deposits,
  •     Purchasing supplies for store events;
  •     Required travel between stores to attend meetings;
  •     Required travel between stores to provide staffing support; or
  •     Required travel to transfer inventory.

Are you reimbursing your employees for work-related travel?

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Non-Competes in California and Protecting Your Business’s Intellectual Property

Generally speaking, employee non-compete agreements are unenforceable in California. As we have discussed, there are certain exceptions to this rule; including the seller of a business’s goodwill or a membership interest in an LLC, and where the non-compete is necessary to protect an employer’s trade secret information. In our digital age, it is all too important for a business owner to strategically protect the business’s intellectual property portfolio.

Is your business’s non-compete valid?

A recent decision from a federal district court in Northern California shows what a fine line it is between valid and invalid non-competes.  In this case, a company sought a preliminary injunction against a former employee who had joined a competing company.  In addition to alleging a claim for trade secret misappropriation, the company accused the ex-employee of breaching his employment agreement which contained a non-compete/non-solicitation provision.  The provision at issue was an agreement by the employee that he would not solicit any customer “who purchased or leased products or services from [the Company] at any time during the 12 calendar months immediately preceding the termination of this agreement for any reason and for or with whom employee had contact, responsibility or access to confidential information related to” the customer. For more information on when customer lists become trade secrets, click here.

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EEOC and Religious Discrimination in the Workplace

What is Religious Discrimination?

Religious discrimination in the workplace involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs and/or treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group. California and federal law protects anyone who has sincerely held religious, ethical or moral beliefs. Additionally, the law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and fringe benefits.

Most employers are aware that they cannot discriminate against employees and applicants based on their religion. Where many employers are not so clear is their requirement to provide a reasonable accommodation to an employee’s or applicant’s “sincerely held” religious beliefs, unless doing so would cause more than a minimal burden on the business’s operations. Common religious accommodations in the workplace include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Workplace Policies that Could Discriminate

An employer must also examine their dress code policies to ensure that they are not infringing on employer’s religious beliefs. For example, if your business has a ‘no facial hair’ policy’ and you request that a job applicant who is a member of the Sikh faith shave his beard and refuse to hire him if he does not, you could have a potential claim for religious discrimination on your hands.

Another policy to examine relates to holy days, such as the Sabbath. If a key tenet of your employee’s faith is to observe Sabbath by refraining from secular work from sundown Friday to sundown Saturday, as the employer, you must make reasonable accommodations for the person’s religious practices. Discuss how this might look with an experienced Orange County employment lawyer.

How Do I Know If My Workplace Policy Discriminates Against a Certain Religion?

If you are interested in accommodating all employees and avoiding claims of religious discrimination, a “one size fits all” policy for all employees may not be the best solution for your business. Speak to your legal counsel about whether your policies and practices provide a method for addressing the religious practices of your employees.

For more information on religious discrimination, contact the Orange County employment attorneys at Newport Trial Group today.



United States Supreme Court May Ultimately Decide Issue of Mandatory Union Fees for California Schoolteachers

Once again, unions are under fire in California. A lawsuit attacking mandatory union dues filed in Federal Court by a group of California public school teachers appears as if it may be headed for the U.S. Supreme Court. The case, filed last May, is currently pending in the 9th Circuit Court of Appeals.

Under the National Labor Relations Act (“NLRA”), which governs almost all private sector employees, an employee cannot be required to be a member of a union or pay it any monies as a condition of employment unless “the collective bargaining agreement between the employer and the union contains a provision requiring all employees to either join the union or pay union fees.”

At issue in this case is a California law requiring teachers to join a union to gain employment, and to pay union dues in order to maintain their employment. While the teachers are allegedly able to opt out of paying dues that support non-union business or political activity, the group filing the lawsuit claims that exercising these opt-outs results in negative consequences and that the opt-outs themselves are not altogether comprehensive. As a result, the group is seeking an end to mandatory union membership and membership dues, arguing that they, the California Teacher’s Association, are free to pursue any agenda they wish without considering the views of the individual teachers that fund the union.

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