Employment Law

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.

This week’s question comes from Angela in Berkeley, who asks:

Q: “I work part-time at a restaurant to help pay for school. My mother is not in great health and lives alone, so sometimes I’m the only person who can help her when she’s too sick to perform daily functions. I’ve heard that even shift workers in California earn paid sick leave, but I don’t understand how that works or if I can use it to take care of my mother. I’m afraid to ask my employer in case they think they should stop scheduling me for as many shifts.”

A: Thank you for your question, Angela. I am sorry to hear about your mother and the tough situation you find yourself in. Luckily, both the state of California and the city of Berkeley have paid sick leave (“PSL”) laws that should offer you some comfort. By law, your employer is required to post a notice of your rights to paid sick leave in a conspicuous place at the worksite.

California’s Healthy Workplace Healthy Family Act of 2014 provides the equivalent of one PSL hour per 30 hours worked by any employee who works for at least 30 days within the state for a given employer, with very limited exceptions. Unless you work on an airplane crew or are a member of a union that has explicitly waived PSL rights by contract, you are covered by PSL protections. Employees begin accruing PSL hours on the first day of employment and may begin to use them starting on the 90th calendar day of employment. Employers must record the number of PSL hours accrued by all non-exempt employees on end of pay-period wage statements and retain all records of PSL hour accrual and use for three years. If an employee is rehired by an employer within one year of the date of separation, all previously accrued PSL hours must be immediately reinstated. PSL hours must be paid on the payday for the next payroll period as usual, at the average hourly wage over the previous 90 days of employment.

Where city and state laws conflict, employees enjoy the rights provided by the more protective policy. Effective October 2017, the City of Berkeley’s minimum wage ordinance further protects PSL rights for any employee who works at least 2 hours in a calendar work week within the city. Another difference between the protections provided by the state and city involves the maximum number of PSL hours an employee may use and accrue over each year of employment. California law allows all employers to cap use of PSL hours to 24 per year and cap accrual at 48 per year. The City of Berkeley’s ordinance provides different limits for smaller employers (with 24 or fewer employees) versus larger employers (with 25 or more employees). Smaller employers in Berkeley may cap both use and accrual of PSL hours at 48 per year. The city ordinance allows larger employers less leeway, allowing them to cap accrual of PSL hours only at 72 per year and does not allow such employers to limit employees’ use of PSL at all.

As to your question about taking PSL to care for your mother, PSL hours may be used for any medical need of an employee or the employee’s children, parents, spouse or registered domestic partner, grandparents, grandchildren, and siblings. Children and parents under this law include step, adopted and foster children and parents. Additionally, Berkeley’s ordinance provides the employee the ability to designate one additional person for whose care PSL may be used if that employee does not have a spouse or registered domestic partner.

An employee must provide their employer with “reasonable” advance notice of taking PSL if the need is foreseeable. For example, an employee cannot ask to take paid sick leave on the same day for a medical appointment scheduled weeks ahead of time. However, if the need is not foreseeable, such as when your mother needs you to care for her unexpectedly, the employee must merely provide notice as soon as possible. Under state law, an employer may not require an employee to provide documentation of the medical need causing the PSL use.

The law specifically provides that if you accumulate paid sick leave and take it for a valid reason, your employer cannot retaliate against you for doing so. There is a rebuttable presumption of retaliation if the employer takes any negative employment action, including reducing your scheduled shifts, within 90 days of taking PSL; that is, the law will presume the employer is retaliating unless they provide an unrelated lawful business reason for the action. If your employer retaliates against you for requesting or using a paid sick day, you can file a complaint with the California Labor Commissioner’s office or consult with a trial attorney to protect your rights.

This week’s question comes from Brian T., who asks:

Q: I work in an office with a fairly liberal policy on pets in the workplace. While I love animals, I am unfortunately allergic to certain types of longhaired dogs and cats. A co-worker of mine, who has a physical disability, brings his service dog to work every day to help him navigate around the office. The dog is very sweet, but I often find myself having an allergic reaction when I have to interact with this co-worker or walk by his office. Although I want to be sensitive and respectful of my co-worker’s needs, I also need to be able to work without having a serious allergic reaction. What are my options?

A: Thank you for your question, Brian. You raise a number of valid concerns and, under both California and Federal law, your employer will have to negotiate them with care. First, it is important to note that it sounds like your co-worker is utilizing a service animal, rather than an emotional support animal. Under the Americans with Disabilities Act (ADA), a service animal is defined as a dog that has been individually trained to perform tasks for an individual with a disability. On the other hand, federal law defines an “emotional support animal” by exclusion: as any animal used to assist, support, or provide service to a person with disabilities, but which does not meet the stricter definition of a service animal.

Both the ADA and the California Fair Employment and Housing Act (FEHA) prohibit discrimination on the basis of disability in employment and housing matters. As part of their anti-discrimination requirements, both the FEHA and the ADA mandate that employers must extend reasonable accommodations to qualified employees with disabilities in order to allow them to perform the essential functions of their job, so long as doing so does not pose an undue hardship on the employer. Both laws regard bringing a service animal to work as a possible reasonable accommodation under appropriate circumstances.

In the case of your co-worker, it sounds like he uses a service animal because his job requires him to get up and move around the office and his own physical limitations make doing so difficult. Therefore, unless having the animal at work presents undue hardship, your employer is likely required by law to allow him to utilize a service animal at the office as a reasonable accommodation to aid in his mobility.

Adding the concern of your allergies into the mix, however, makes things more complicated.  Having a serious allergy that prevents or hinders you from performing the essential functions of your job is also a valid concern, and could potentially qualify as a disability deserving of reasonable accommodations. As such, your employer will likely have to perform a balancing act in order to make sure that all employees with disabilities are treated fairly under the law.

The law requires your employer to engage in a good faith, interactive process with you, as well as your co-worker, to arrive at a lawful solution that works for both parties. This will likely require some creativity and flexibility. The particular accommodations discussed during the interactive process will depend on the severity of your allergies, the extent of your co-worker’s need for the specific accommodation of a service animal, and the unique environment in which you both work.

One solution might involve eliminating in-person contact between you and the service animal by simply relocating your workspace to the opposite side of the office and arranging to use separate bathrooms and common spaces. If physically separating you from your co-worker would create an undue hardship, as may be the case in a small office environment, your employer should still make reasonable efforts to minimize your exposure. This could mean adjusting each of your work schedules, temporarily removing the service animal at any time when you and your coworker have to attend meetings together, providing options for one or both of you to work remotely, and/or allowing you to wear protective equipment such as an allergen mask.

If your allergies are so severe that even working in the same environment as the service animal present serious health risks for you, speak to your employer about these concerns immediately. To ensure that your legal rights are fully protected, you should contact an employment attorney, such as those at the Dolan Law Firm PC, to help you navigate the situation.

This week’s question comes from Maya in San Francisco, who writes:

Q: Dear Chris, I interviewed for a receptionist position at a San Francisco company. The person interviewing me offered me the job, but said that I would need to conform to the company’s “grooming policy,” which states “hairstyle should reflect a business and/or professional image.” When I said that I would prefer not to cut my dreadlocks, she rescinded the job offer. I told her that I do not understand what how I wear my hair has to do with my ability to do the job and she told me that “dreadlocks are simply not professional.” Isn’t this discrimination?

A: Thank you for your question, Maya, and I’m sorry for the frustration you’ve experienced in the job market. It certainly does sound like your situation could qualify as unlawful discrimination, under not only the general anti-discrimination provisions of California’s Fair Employment and Housing Act (FEHA) but also under the newly-enacted Create a Respectful and Open Workplace for Natural Hair Act (the “C.R.O.W.N. Act”). When the C.R.O.W.N. Act was signed into law in July, California became the first state in the nation to legally protect people in workplaces, as well as K-12 public schools and charter schools, from discrimination specifically based on their natural hair.

Under FEHA, employers have long been prohibited from implementing dress or grooming policies that adversely impact one race more than another. By stating that “dreadlocks are simply not professional,” without any rational justification related to your ability to perform the job, the interviewer appeared to indicate that the company’s “grooming policy” establishes different employment standards based on race by prohibiting one of various natural and protective hair styles available to black employees. An arbitrary employment policy like this would likely be deemed contrary to FEHA, even before the C.R.O.W.N Act takes effect on Jan. 1, 2020.

However, any legal debate that might have been made previously on this issue will soon be rendered moot when the C.R.O.W.N. Act supercedes the more general existing anti-discrimination policies to expressly provide that hairstyles fall within the definition of race. The C.R.O.W.N. Act expands statutory protections by amending the FEHA and the California Education Code to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

When it takes effect next year, the C.R.O.W.N. Act will prohibit employers from enforcing purportedly “race neutral” grooming policies that restrict natural hair styles, such as Afros, braids, twists, cornrows and dreadlocks, that that disproportionately impact employees of color. The C.R.O.W.N Act expressly defines “protective hairstyles” as including, but not limited to, “braids, locks, and twists” and makes clear that traits historically associated with race, such as hair texture and hairstyle, should be protected from discrimination in the workplace and in schools. The C.R.O.W.N. Act recognizes that “[p]rofessionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”

You should note that an employment discrimination claim must be filed with the Department of Fair Employment and Housing (“DFEH”) within one year of the unlawful event or your rights to seek recovery may be barred. The DFEH’s phone number is 1-800-884-1684 and their web site is: http://www.dfeh.ca.gov/. In addition, it is always a good idea to contact a trial lawyer with knowledge of employment laws to discuss your case.