Leave laws under COVID-19

This week’s question comes from Carl who writes:

Q: “Last week I was at a dinner party and one of the people who attended eventually got sick and was told they may have Coronavirus. However, he has not been tested.  I feel fine, but I called my doctor to see what I should do. She said that I absolutely must self-quarantine for at least two weeks. I work in an office and I don’t have very much sick time to cover me and I am afraid I will lose my job.  Can they fire me if I don’t come in?”

A: Carl, I am sorry to hear that you have come in direct contact with somebody that may be positive for Covid-19 (the coronavirus).  This is a very trying time for all of us. Employers and employees are each attempting to cope with the many changing disruptions.  You should know that in California, you have a number of protections if you need to take time off because of a health condition.

All California employees accrue sick time at their jobs.  At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked.  For a regular full-time employee, that works out to about 1.3 hours a week or 5.3 hours each month.  You may use this leave for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.   

You mentioned that you did not have a lot of sick time remaining.  Employers in California are required to track sick time on your paystub. You should be able to review your paystub to see if the sick time is accruing correctly, and also, exactly how much time you have available to you. 

Currently, in San Francisco, they are attempting to implement an additional 5 days of paid leave for San Francisco workers affected by Covid-19, as well as support for businesses. However, that has not yet gone into effect.

The California Family Rights Act (CFRA) also allows leave for health issues.  However, not all employers or employees are covered by this law. 

An employer is a covered entity under the CFRA leave if they have more than 50 employees in a 75-mile radius of your worksite.  Roughly, if there are 50 or more employees in the Bay Area, with a few specific exceptions, they are likely a covered employer. In order for an employee of a covered entity to have leave rights under the CFRA, the employee must have worked for that employer for at least 1 year and must have worked 1250 hours within the last 12 months.  That works out to an average of just over 24 hours a week.  

If each of the eligibility requirements are met, the CFRA allows an employee to take up to 12 weeks of leave for a number of issues including the employee’s own serious health condition or the serious health condition of a spouse, child, or parent.

I would argue that because your primary health care provider instructed you to stay home, that you are covered under this law and would be entitled to leave.  It may also be considered a request for an accommodation given that you are being regarded as a person with a disability. However, since you do not currently have symptoms, others may argue differently.  Best practices would be to get the stay-at-home instruction from your doctor in writing and provide that to your employer when requesting the leave.  

Your employer can require that you use up your sick leave and any vacation time you have prior to implementing this leave.  In your case, since you believe you don’t have much sick time left, it would be another source of potential leave, however, it is not paid leave.  

At this point, if you are forced to stay home longer than 2 weeks and are on unpaid leave, you may contact the Employment Development Department regarding the possibility of receiving unemployment insurance benefits.  

If you do take eligible leave, the law protects you from retaliation.  You cannot be lawfully fired for taking leave for which you are entitled. Unfortunately, many businesses are also hurting from the effects of the coronavirus.  If an employer is forced to conduct layoffs, they are prohibited from using either the fact of your CFRA leave or a request for an accommodation or leave as a basis for determining which employees will be laid off. If a business goes out of business completely, employees may have little recourse other than to seek unemployment insurance.

This is a difficult time for all of us and I hope you all stay safe and know that there are protections for employees like you who are forced home for the good of their own health and the health of public. 

 

If you take eligible leave and do suffer retaliation or a termination because you took that leave, you should immediately contact a qualified employment attorney like those at Dolan Law Firm P.C.

 

read more

Justice Empowerment Scholarship 2020

Justice Empowerment Scholarship 2020

We’re proud to announce that our annual Justice Empowerment Scholarship is now open to receive submissions. Last year we awarded the scholarship to Adrian Hurndon, an undergraduate student at Northeast Community College. Adrian Hurndon, an upbeat percussionist, when asked what inspired him to submit a video for the 2019 Justice Empowerment Scholarship said, “It is the perfect opportunity to let people know that awareness is only part of the solution and it’s time to take action and stand up for ourselves.”

Justice Empowerment Scholarship Award Requirements

Award:  One $2,500 scholarship paid to the winning student.

Deadline:  This is a recurring scholarship that will be offered every year. The deadline for the 2020 Justice Empowerment Scholarship is July 31, 2020.

Criteria:  Submissions are evaluated primarily on the persuasiveness of arguments contained in the video. Creativity, images, and innovation incorporated into the video are also taken into account. The scholarship winner is determined solely by the Dolan Law Firm.

Eligibility:  Students attending an accredited U.S. college (including community college) or university are eligible for the scholarship. High school seniors who will be attending an accredited U.S. college or university this Fall are also eligible to apply. No employees of the Dolan Law Firm, or their spouses and family members, nor any employees, spouses and family members of any vendors of the Dolan Law Firm, are eligible.

Submission Requirements: 

  • Applicants must create a 4 to 6 minute video on the topic of justice.
  • In the video, introduce yourself and address the following questions:

What does justice mean to you?

What you think needs to be changed in our society to make it more just?

How you can help bring about this change?

  • Videos must be uploaded to YouTube with the title: “2020 Justice Empowerment Scholarship Submission By _______”  Insert your name in the blank space.
  • In the description of the video on YouTube, briefly summarize your video and include in the description the following statement: The Justice Empowerment Scholarship is provided by the Dolan Law Firm which can be found online at https://dolanlawfirm.com

 

 

read more

Texting isn’t the only illegal phone activity while driving

This week’s question comes from Sandra in the Upper Haight, who writes:

Q: “Chris, can you settle a matter for me? My best friend and I share a car. She is new to The City and constantly holds her phone while driving to check directions. When she is not doing that, she uses Spotify on her phone to listen to music through the car’s speakers. I love her dearly and don’t want her to cause or be in a crash. I have told her she can’t use the phone in her hand while driving. She claims it’s only illegal to hold the phone to talk or text. Is she right?”

A: Sandra, your friend’s understanding of the law is incorrect.

Before discussing the law, even if your friend’s phone use was legal, it is extremely dangerous. More than 11,000 drivers and passengers are annually killed or injured in traffic collisions involving distracted driving in California. And distracted driving is on the rise. Nearly 13 percent of the state’s drivers were seen talking, texting or using a cellphone in some manner during a study conducted last year by the state Office of Traffic Safety, compared to 9 percent in 2015.

Taking your eye off the road for even a few seconds can result in a devastating crash. It takes 4.6 seconds to read or type the average text message. Just three seconds of driving at 65 mph is far enough to travel 100 yards, or the length of a football field. Most crashes happen with less than 2 seconds of reaction time.

Using a hands-free device — such as speakerphone, an earpiece, ear buds or the car’s communications system — does not make driving safe. In fact, research shows that headset mobile phone use while driving is not substantially safer than handheld use. Drivers need to have their eyes on the road, hands on wheel and mind on driving. It’s a myth that drivers can multitask well. There is no safe way to make a call or text while driving.

Since 2011, it has been illegal to drive a vehicle while using a phone unless also using Bluetooth or other hands-free technology. Furthermore, drivers under the age of 18 may not drive while using a phone — even if it is equipped with a hand-free service. Both statutes contain exceptions for making a call in an emergency.

California had another statute that focused on texting while driving. It was illegal to write, send or read a text while driving unless the driver was using the phone with voice-operated and hands-free technology.

The statute was written before phone applications came into common use. Thus, it was legal to drive while scrolling through the phone’s music playlist, searching for nearby restaurants, viewing status updates on Facebook or reading a Twitter feed. In People v. Spriggs (2014), the appellate court found a driver did not violate California Vehicle Code in accessing and using a navigation application on his phone while driving. The prior text was replaced last year with a new statute that became effective on Jan. 1.

It remains illegal to drive a vehicle while holding and operating a phone (or any type of “electronic wireless communications device”) unless it is “specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.” The broad loophole in state law allowing drivers to access the internet or use applications while holding the phone in their hand, however, has been eliminated.

A driver may use his or her hand to operate a phone while driving only if (1) the phone is mounted on the vehicle’s windshield use in the same manner as state law allows for portable GPS devices to be mounted or is affixed to a vehicle’s dashboard or center console in a manner that does not hinder the driver’s view of the road; and (2) “the driver’s hand is used to activate or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver’s finger.”

Sandra, to comply with the law, your friend needs to buy a bracket and properly mount the phone in the car. Even then, she cannot enter an address into the phone navigation app while driving. She must do this prior to driving or pull over, stop driving and then input the address. Likewise, she cannot actively use Spotify while driving. Instead, she should set her playlist beforehand and let it run.

Finally, even though the new statute closes an important loophole in phone use while driving, it is still best to turn the phone off or put it away while driving. Hundreds of thousands of serious injury crashes occur across America each year due to drivers distracted by calls, emails, texts and increasingly social media and other applications on their phones.

read more

Who pays when at fault drivers are minimally insured?

This week’s question comes from Lydia in South San Francisco who asks:

Q: “I was driving with my daughter in the car when a guy in an old pickup truck ran a stop sign and T boned us.  I broke my arm and my back is messed up pretty bad. My daughter was in a car seat on the other side of the car from where we got hit and was cut by broken glass and shaken up pretty bad.  I was hella scared that she had been badly injured because she was crying and bleeding. We both were taken to General Hospital by ambulance. My daughter was released that day without any stitches, but I had surgery to put in a steel plate in my arm and had to stay a couple of days.  My car is totaled and I’m off work, not getting paid. The guy’s insurance company says that he has only $15,000.00 insurance on his truck. I know he is a painter because there were ladders and paint in his truck and on the ground. I have pretty good insurance, but I don’t know if it pays for my medical bills. The other guy’s insurance company wants me to sign off to get his $15,000.00.   This is really stressing me out. What are my options?”

A: Lydia, thank God you and your daughter are alive.  It’s bad enough that you got injured but, like many of my clients, you were hit by someone who was minimally insured and, therefore, there are a lot of variables that need to be analyzed in order to determine if there is other available insurance to help cover your injuries and those of your daughter.

Under the law you are entitled to recover all medical expenses for you and your daughter, your wage loss, property damage, and other quantifiable economic losses.  Additionally, both you and your daughter are each entitled to compensation for your personal non-economic injuries such as pain, suffering and emotional distress. The law also recognizes that, in addition to recovering compensation for the harm which you suffered because of your injuries, when you witness a loved one be injured, you suffer a distinct and additional harm to your psyche.   This is called the negligent infliction of emotional distress. We commonly refer to economic and non-economic damages as “personal injuries” Under the terms of an insurance policy these harms are referred to as “bodily injury” damages.

Liability insurance, which we all must carry on our vehicles, is designed to “cover” these types of injuries.   In this case, the other driver appears to have been carrying only the state minimum: $15,000.00 per person, $30,000.00 per occurrence.  This means that the insurance company, no matter how great the harm, is responsible to pay no more than $15,000.00 to any one person, and no more than $30,000.00 to everyone who may have been harmed in the same accident.  Therefore, if the other driver’s insurance company is telling you that there is only a total of $15,000.00 available to cover the injuries for you and your daughter, they are not telling you the whole truth. Your injuries warrant payment of the $15,000.00 without question and, there is up to $15,000.00 to pay for your daughter’s injuries too. 

The state minimum also requires that a driver have coverage of  up to $5,000.00 for property damage caused by their negligence. A negligent party must pay the lesser of the amount to repair the car or its fair market value (the cost of a similar replacement vehicle).  Property damage coverage also pays for towing, storage and usually the cost of a rental vehicle until the car has been repaired or it has been “totaled” and the fair market value has been paid. Therefore, up to $5,000.00 is also available to compensate for your property damage.

Your recovery is not limited to the driver’s insurance.  If the driver has assets, such as real estate, you may look to those assets as a way of receiving full compensation.

If the driver worked for a painting company, even if he was off duty, his employer may be liable for his negligent conduct.  Under the law, if someone is in the “course and scope” of their employment [on the clock and working] at the time of a collision, or they were  using their vehicle for the benefit of their employer, such as carrying paint, ladders, etc. for work the next day or next job, then their employer is responsible for the harm they cause. Many  employers carry a “Certificate of General Liability” which is, in essence, business insurance. Therefore, this avenue must be fully investigated before you consider whether to settle your claim or not.

If there are no assets, and there is no employer liability, you then must examine your own insurance policy to see whether you have “uninsured,/underinsured” (UM/UIM) coverage.  This is insurance which you purchase to compensate you if you are injured by someone with no coverage or inadequate coverage. For example, if you have $100,000.00 per person, $300,000.00 per occurrence  in UM/UIM coverage, and he has a $15,000.00/$30,000.00 policy, you have an additional $85,000.00 in available insurance for each of you from your own policy. (I highly recommend that everyone carry a large UM/UIM policy as approximately 25% of all California drivers are uninsured and many more are underinsured.)  

You also may carry “comprehensive’ coverage which can provide additional funds to compensate you for your property loss above the $5,000.00 state minimum.

Depending on how “good” your insurance is, you may have “medical payments coverage” (med-pay) which provides for some money to help pay your medical bills.  This is not usually a large amount but every little bit counts. Making a claim against your own policy for UIM or med-pay coverage should not increase your premiums.

I suggest that you speak with a good Trial Lawyer before accepting any offer.  You have a serious injury deserving of serious compensation and the driver’s insurance company is not going to act in your best interests.

read more

Fraud and Misrepresentation in the Workplace

Fraud and Misrepresentation in the Workplace

By Christopher Dolan and Mari Bandoma Callado

This week’s question comes from Arthur B.

Dear Chris,

I was contacted via Linkedin by the Chief Financial Officer of a San Francisco-based start-up.  He offered me an opportunity to join the start-up as a program director with an annual salary of $120,000 plus a $30,000 raise by the end of the year.  I was flattered by the offer but was concerned about job security and the start-up’s financial stability. The CFO assured me that the position is permanent and long-term and that the start-up is in the midst of receiving a capital injection from an investor.  Based on the CFO’s statements, I uprooted my family and moved from Portland to San Francisco last August.  

At the end of the year,  I did not receive the raise I was promised and instead learned that I was being terminated because my position was being eliminated due to a “restructuring due to an impending acquisition”.  I protested that the CFO assured me that my position was long-term and permanent. The CFO responded that my position was in fact “at-will”. I have been unsuccessful obtaining comparable employment.  Do I have a claim for wrongful termination?

Thank you for your question, Arthur.  It can be difficult to establish a cause of action for wrongful termination for employees who were not terminated on the basis of discrimination or retaliation.  However, employees who were enticed to relocate their residence based on representations made about the job that later turned out to be false may have a claim pursuant to California Labor Code section 970, as well as other tort claims such as negligent misrepresentation.

California Labor Code section 970 was enacted in 1937 to protect migrant farm workers.  Experienced farm workers were often offered higher wages to entice them to relocate. However, once they get there, they learn that the wages would be much lower than what was promised or the hours they would work would be considerably less.  The law therefore recognizes that after spending considerable resources to move and/or turning down other job offers, these workers would have no choice but to accept terms that were different from what they were promised.

Often, experienced farm workers were offered higher wages and/or clean housing to induce them to relocate. Many times these employees would turn down other job offers and spend a lot of money to relocate. However, once they would get there, the job would not be anything like what was promised. For example, their wages would be much lower than what was promised and/or the duration of their job would be much shorter. Many times, because these employees had already spent considerable amounts of time and money, they would have no choice but to accept these less favorable terms.

Today, the statute applies to all classes and types of employment. California Labor Code section 970 prohibits employers from enticing employees to relocate to, from, or within California by falsely representing the:

  • Kind, character, or existence of work;
  • Length of time work would last;
  • Compensation for work;
  • Sanitary or housing conditions relating to work;
  • Existence or nonexistence of any pending strike, lockout or other labor dispute affecting work.

California Labor Code section 970 is supplemented by sections 971 and 972.  Section 971 provides criminal penalties (fine up to $1,000 and/or 6 months of jail time) against employers who violate section 970, while section 972 provides a for a “private right of action” allowing the employee to bring a civil action as well as an entitlement to recover double damages.  These damages may include but are not limited to moving expenses, rejecting other job offers, loss of income due to inabilities to find another job, sale/purchase of a home, a lease, transportation, buying furniture, etc.

A claim for fraud under the labor code must be filed within one year from the date of the misrepresentation so we recommend that you contact a trial attorney and/or the Department of Labor Standards Enforcement immediately.

read more

More Accountability is Needed for Amazon

More accountability is needed for Amazon

 

This week’s article will focus on a legal battle my firm is currently engaged in with Amazon. On Nov. 28, 2015, our client purchased, through Amazon, a hoverboard for her son for Christmas. The hoverboard was manufactured by a Chinese company, TurnUpUp. On Dec. 16, 2015, the hoverboard arrived. The shipping label said that it had been shipped by Forrinix Technology, a company in Alhambra, California. The hoverboard was opened on Christmas and enjoyed throughout the holiday. On New Year’s Eve, after a day of play, the hoverboard was plugged in to charge overnight. When the mother heard a noise coming from her son’s bedroom and went to investigate, she saw that the hoverboard was burning intensely like a firework, and the bed and bedroom were on fire. During the fire, our client suffered severe burns, and the bedroom sustained heavy fire damage. The cause of the fire was determined to be exploding lithium ion batteries.

Unbeknownst to our client and the rest of the world, Amazon had knowledge of a rash of hoverboard fires. Amazon had sold over 400,000 hoverboards in the weeks leading up to Christmas. It had over 60,000 separate listings for hoverboards at the peak of the season. Amazon had been receiving reports of fires associated with hoverboards around the world. According to testimony I obtained during a deposition of the head of Amazon’s Product Safety and Recalls Team, Mr. Jones, by mid-November 2015, Amazon was “monitoring” hoverboard fire issues, reviewing cases from as far back as January 2014. As Christmas approached, Amazon was in almost daily contact with the United States Consumer Products Safety Commission (CPSC) passing along reports of fires that Amazon had received from its customers.

Indeed, the CPSC had asked Amazon to monitor and report all hoverboard fires as Amazon was the largest single seller of these products in the U.S. and Amazon could directly communicate with purchasers. By Nov. 20, 2015, Amazon was aware that Costco, concerned for the safety of its customers, had pulled hoverboards from their shelves and stopped selling them to the public. Because of concern over fires, on Dec. 4, 2010, Amazon had pulled all hoverboard listings from its United Kingdom sales platform but kept selling them in the U.S. Finally, on Dec. 10, 2015, Doug Herrington, head of Amazon’s North American retail business, made the decision to remove all third-party sellers’ hoverboards from its website because of complaints “of hoverboards/batteries catching fire or exploding, or of sparking battery charges for hoverboards,” and because of concerns that the reports “might be indicative of safety issues of these products across Chinese manufacturing.” Over 60,000 separate listings were taken down from Amazon’s “marketplace.”

Although Amazon stopped selling hoverboards, Amazon neither stopped delivery of those in transit, nor did our client receive any notice from Amazon about the potential for fire.

Under California law, anyone or any enterprise in the “chain of distribution” between the manufacturer and the retailer can be held liable for injuries caused by the product. This makes everybody who is involved in the sale of the product is responsible for making sure the products are safe, which is a benefit to every consumer. They can inspect them, reject them, research them and otherwise determine if they are suitable for sale.

Additionally, they are in the best position to purchase insurance, which can cover injuries caused to consumer and at a fraction the cost of that among the many products they sell, thereby increasing the price only slightly while incorporating the true costs of the product into its sales price. If the true costs, including insurance, make the product too expensive, then application of free market principles should lead to it being discontinued from sale. This increases the cost a few pennies spread across all who use the product, which is fairer than having one injured person bear all the costs and losses associated with the product when they are injured. That is, in effect, a subsidy. (OK, I am revealing what I learned in one of my degrees involving law and economics.)

Amazon claims it is not in the chain of distribution: it is just a new form of classified advertising. This is BS. Amazon is the largest single seller of products. In its own documentation, Amazon calls itself a retailer. It gets paid a posting fee for each item listed. Amazon completely controls the content of each posting and has the right to edit and delete it. Buyers and sellers must communicate only through Amazon, and they cannot contact each other directly. The financial transaction is handled through Amazon. Amazon takes a percentage of every product sold, including shipping. Any product difficulties or complaints must go through Amazon. If a product is returned, Amazon charges the seller a return fee. Amazon offers an A-Z guaranty saying it will make the customer satisfied, including a refund, even if the manufacturer goes out of business. And now Amazon has fulfillment centers where it keeps stock on hand to satisfy orders.

Amazon has changed the landscape of our world, causing people to lose retail jobs by the hundreds of thousands. Amazon is one of the most valuable companies in the world. It must step up and be responsible corporate citizens instead of just not caring what it sells and if the consumer gets hurt.

To change this, I am working with the Consumer Attorneys of California to get a law passed, which would make Amazon just as responsible as any other retailer when the products it sells cause harm. It’s part of what I think a lawyer representing injured people should do: protect their rights and fight against corporate greed.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions and topics for future articles to help@dolanlawfirm.com.

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

read more

Are Uber drivers employees?

Today’s question comes from Jennifer T. in Diamond Heights who asks:

Q: “I drive for Uber, Lyft, and DoorDash. I have filed my taxes as an independent contractor as that’s what I was told to do by these companies. I heard that there is a new law which will provide me with protections that usually have only been provided to employees. What am I, an independent contractor or employee? What new protections do I have now?”

A: The new law that you have heard about, AB 5, amends Labor Code Section 3351, adds a new Labor Code Section 2750.3, and amends sections 606.5 and 621 of the Unemployment Insurance Code, to ensure the workers who are currently exploited by being misclassified as independent contractors are instead recognized as employees who have basic rights and protections. The legislative history produced during its enactment declared that when workers are unfairly misclassified as independent contractors: (1) these workers are harmed by the loss of significant workplace protections such as they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave; (2) it is unfair to other employers who must compete with companies that misclassify; and (3) there is harm to the state of California in the form of lost revenue from these companies avoiding obligations such as payroll taxes and premiums required under workers’ compensation, Social Security, unemployment, and disability insurance programs.

The new Labor Code Section 2750.3(a)(1) remedies these injustices by providing that a person providing labor or services for remuneration (money) shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the terms of the contract for the performance of the work and in fact; (B) the person performs work that is outside the usual course of the hiring entity’s business; (C) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The amended Labor Code Section 3351 provides that the law applies to every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and specifically includes: non-resident immigrants and those without proper documentation; minors; elected and appointed paid public officers; incarcerated persons engaged in vocational rehabilitation for pay; truck drivers; and tutors. The law also exempts a long list of occupations including, but not limited to: physicians and surgeons; dentists; podiatrists; psychologists; veterinarians; licensed lawyers, architects, engineers, private investigators, accountants, barbers, estheticians, and cosmetologists; registered security brokers and advisors; real estate salespeople; live-in nannies; direct sales people; and commercial fisherman. The law also does not apply to any workers who can negotiate for their rate of pay, control their hours, and market themselves to multiple businesses, such as: travel agents; outsourced marketing consultants; HR administrators; graphic artists; design professionals; grant writers; fine artists; tax preparers; some still photographers; photojournalists; freelance writers who only do occasional work; repossession agents; and construction trucking service providers.

You, as a Lyft, Uber, and DoorDash driver, are squarely protected under this law and must now receive the benefits other employees would receive, including earning at least the minimum wage. In its perpetual refusal to follow the law, Uber has indicated that it will not comply with AB 5 and filed a federal lawsuit at the end of last year claiming the law to be unconstitutional. Notably, it did not file in a California State Court, which it predicts would be a futile exercise because AB 5 was based on a groundbreaking California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”), which established the new test for determining whether a particular set of job circumstances make someone an employee or independent contractor. Uber hopes the conservative U.S. Supreme Court will be more receptive to their pleas. Fortunately, this will likely be an uphill battle as the Supreme Court has routinely upheld a state’s rights to legislate its own citizens’ working conditions.

read more

Pause and Think Before You Hit Record: The Implications of Secret Recordings in the Workplace

By: Christopher Dolan and Vanessa Deniston

 

This week’s question comes from Edgar M…

Q: “I work for a large corporation with offices nationwide. I was recently switched to a new department, and already, I have been having problems with my new direct supervisor. He regularly makes racially charged comments around me, which I find offensive. I have told him to stop, but that has only made things worse. I have tried complaining to my HR representative about this behavior, but she is good friends with my direct supervisor and doesn’t believe my reports. I feel the only way I will be taken seriously is if I am somehow able to record my supervisor’s racist comments as proof. Can I do this if no one will take me seriously?”

A: Thank you for your question, Edgar. Certainly, the impulse to capture an injustice on tape is a hard impulse to ignore, especially when those around you are turning a blind eye to or claiming it isn’t happening. Secretly recording someone without their knowledge and consent, however, is a criminal offense under state and federal law with serious consequences.

The federal Wiretap Act of 1968 (18 U.S.C. § 2511) provides it is illegal to secretly record any oral, telephonic, or electronic communication that the communicator would reasonably expect to be private. The California Penal Code § 632(a), enacted under the California Invasion of Privacy Act of 1967, makes it illegal for any person to intentionally and without the consent of all parties to a communication use a recording device to record a confidential communication, whether or not the conversation occurs in person or through some other medium, such as over the phone. Such an offense may be punished by a fine of up to $2,500 per violation and/or by a term of imprisonment of up to one year. California is one of a handful of states with a “two-party [or “all-party”] consent” law, meaning the consent of every single party to the conversation is required before a person can legally record a confidential conversation. In other words, if nine out of ten board members agree you can record a private board meeting, that is one too few.

These criminal consequences will outweigh any potential benefit you may derive from capturing such evidence on tape, especially because in nearly all cases, secret recordings are not admissible evidence in court. Penal Code § 632(d) provides that unless you are trying to prove a violation of section 632 itself, any evidence obtained as a result of recording a confidential communication is not admissible in any judicial, administrative, legislative, or other proceeding. In short, if you have a secret recording of your supervisor spouting racist inappropriate comments that you feel is a smoking gun for your case, it will likely be excluded long before a jury can ever hear about it.

The grey area lies in whether there is a reasonable expectation of privacy in the space where the recording is made. The answer to this question depends on the recording’s location and context. For instance, there is a big difference between recording a conversation in a busy airport terminal and recording a private disciplinary meeting between you, your supervisor, and a Human Resources representative in an office behind a closed door. This is because it is reasonable to expect that a conversation in public airport terminal to be overheard by people passing by. The same is not true for the private HR meeting. 

Context may be nuanced, however. There may be reasonable expectation of privacy in that same airport terminal at 4:00am on arrival of a red-eye flight if the conversation occurs in an empty corner of the terminal where there are no staff or people in sight. Likewise, a conversation at top volume in the doorway of your supervisor’s office adjacent to an open floor plan in earshot of the entire office. There is quite a different expectation of privacy in this context, as opposed to the private HR meeting.

Even if you believe, however, that you are in an environment where there is no reasonable expectation of privacy, there are many variables to be considered and it’s likely not worth the risk. If you believe your supervisor is doing or saying something inappropriate, rather than record them, make a written complaint to your Human Resources department, quoting the specific language you heard or describing the conduct you observed and indicating it made you feel uncomfortable. By creating a written record with your employer, you protect yourself far more than you do by making a recording that could potentially expose you to criminal liability.  Always contact an employment attorney to assist you in taking legal, effective steps towards addressing a difficult workplace issue.

read more