Sunday, February 5, 2023

Stories from the Labor Law Helpline

In Episode 137 of The Workplace podcast, CalChamber employment law expert Matthew Roberts and CalChamber HR Adviser Ellen Savage discuss unique workplace issues that employers have asked about on the Labor Law Helpline, such as using secret video cameras, and talking to employees about personal hygiene, personal appearance and heating up foods with strong odors in the staff kitchen.

In Episode 136 of the podcast, we covered the hot button issues that employers have been asking about on the CalChamber Labor Law Helpline, but today we will be discussing the more uncommon, but real world human issues that take place in the workplace, Roberts says in kicking off the podcast

Secret Video Cameras

Employers often ask about the use of security cameras in the workplace for security or performance monitoring reasons, Roberts says. One employer called the Labor Law Helpline with a unique problem: fish from the company’s fish tank were disappearing and they wanted to install a security camera to catch the fish thief.

Had a security camera been used in the movie Finding Nemo, where fish kept trying to escape the fish tank in a dental office, we would have found Nemo much sooner, Savage points out. The film also would have ended in 20 minutes, Roberts quips.

California’s constitution has a broad right to privacy, so if an employer decides to install a security video camera, it is key that employees know about it, she says. If employees have a reasonable expectation of privacy, the employer must destroy that expectation. One way to accomplish this is by putting up a sign that states that the area is being recorded. It would be wise to also put the information in the employee handbook, and in new hire paperwork.

An employer once called the Helpline because they put a secret camera in their stockroom and caught their employee displaying very inappropriate behavior, Roberts says. What complicated the matter is that the employee locked the stockroom door while she was in there, which now adds an additional privacy issue concern to the situation.

Some areas, he explains, are expected areas of privacy, like bathrooms, locker rooms and changing rooms. Can this employer use the video footage to discipline the employee?

Savage replies that if the stockroom had not been locked, then the employer more likely could use the footage for discipline, but since it was locked, the employer should check with legal counsel before making a decision. With the door locked behind her, the employee might be able to argue she had a reasonable expectation of privacy.

If the employer had a sign that said something like, “Smile, you’re on camera,” the answer would be much easier, she adds.

As a best practice, if you have cameras, tell your employees the cameras are there because it destroys the expectation of privacy, Roberts says.

Personal Hygiene, Appearance

Issues of personal appearance or offensive body odor sometimes come up in the workplace. One employer called the Helpline to ask about an employee whose breath was so smelly that others could smell him from across the room. What, Roberts asks, can we do about that?

Savage replies that labor laws don’t specifically address this. The bad breath can be brought on by a medical issue, such as diabetes, so if the odor is due to a medical condition, employers should look to the Americans with Disabilities Act or the California Fair Employment and Housing Act and decide upon appropriate accommodations, such as putting the employee in a private office or offering remote work.

A resource Savage recommends is the U.S. Department of Labor’s Job Accommodation Network (JAN). AskJan.Org provides free, confidential guidance on workplace accommodations and disability employment issues.

If the odor, however, arises from a simple lack of personal hygiene — for example, a worker is going on a run before his shift and comes into work smelly — then the employer can talk to that employee about improving their hygiene, she says.

Another personal appearance issue that is more common than some may anticipate is employees coming into the workplace with hickeys, Roberts says. An employer at a senior living facility once called into the Helpline because an employee would come to work with hickeys on the neck and the residents were complaining about being uncomfortable seeing the abrasions.

Even though this is off-duty conduct between two people, can an employer address it, Roberts asks?

Absolutely, answers Savage. California protects a lot of things in the workplace, but having a hickey on the neck or anywhere else is not one of them, she explains. As the employer, it’s OK to tell the employee that they must cover up the abrasion, such as with a scarf or by wearing a turtleneck.

Importantly, she says, when enforcing this, the employer should be sure to enforce it equally among all genders.

And this goes for all dress code and personal appearance policies, Roberts adds. Make sure your personal appearance policies are gender neutral.

Heating Up Foods in Staff Kitchen

Roberts shares that a law firm he worked at had a microwave and since popcorn is his favorite snack, he decided to heat up some popcorn. Unfortunately, he overcooked the popcorn and burned it, causing a burnt smell to permeate the office.

“Smoke was coming out of the microwave and everything,” he says.

Employers have taken issues with employees heating up foods with different or unpleasant odors, such as fish or broccoli. So, Roberts asks, can employers have a policy stating that employees cannot heat up smelly food in the office microwave?

Again, California protects many things, but usage of the microwave is not in any statute in terms of a protected activity or protected class, Savage explains. What employers should keep in mind, however, is that not everyone has the same definition of “smelly,” so employers need to be careful in defining what “smelly” food is.

Moreover, employers may subject themselves to a national origin discrimination claim if they single out foods associated with a particular culture. Employers should be careful, she stresses, to not disparately target food based on national origin or religion.

CalChamber
CalChamber
The California Chamber of Commerce is the largest, broad-based business advocate to government in California, working at the state and federal levels to influence government actions affecting all California business. As a not-for-profit, we leverage our front-line knowledge of laws and regulations to provide affordable and easy-to-use compliance products and services.

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