In Episode 138 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.
Topics include logging bathroom breaks by using locked doors; deducting mailing stamp costs from a final paycheck; ensuring that company property is returned by confiscating employees’ car keys; hotel room sharing; office romances; alleged sexual harassment of customers; and pregnancy disability leave.
At the Labor Law Helpline, CalChamber advisers hear from employers who want to ensure they don’t run afoul of employment law rules. And because employers have a lot of overhead costs associated with their businesses, they will often find creative ways to ensure that employees are working and not sitting idle, Roberts says in kicking off the podcast.
Savage recounts the story of one employer who was so concerned with productivity at his company that he installed an electronic code padlock in the employee bathroom and gave individual codes to each employee. This system allowed the employer to keep track of the time each employee spent on their bathroom break.
When the employer asked Savage if this system was permissible under law, she answered that while the Labor Code does not specifically address timing people in the bathroom, the practice is still concerning for a few reasons.
• First, employees may have a reasonable expectation of privacy regarding how long it takes to go to the bathroom.
• Second, workers have a right to use the restroom and by timing how long someone is using the bathroom, the employer is discouraging workers from using it.
• Third, if an employee has a disability that requires that they spend more time in the bathroom, the tracking practice may raise questions of disability discrimination or a failure to accommodate claim.
“And…last, it’s just a really terrible morale issue,” Savage points out.
Roberts agrees, adding that when employers try to hammer down on nonproductive times, they can lose sight of the overall picture of their operations. Asking employees to punch in an individual code to use the restroom is bad for morale and can affect worker retention.
If an employee really is taking overly long rest breaks, the employer may bring up the issue with the employee. If the employee has a disability that’s responsible for their using the bathroom so often, the employer may then look into accommodation options, but other than that, “people need to use the restroom. It’s just a fact of life,” Savage says.
‘Cost of Doing Business’
Another cost-saving HR question posed on the Helpline was whether an employer can deduct the cost of the postage used mailing an employee their final paycheck if an employee asks for the check to be mailed.
Savage explains that the Labor Code states that an “employee who quits with less than 72 hours’ notice has the legal right to have their check mailed if they so request.”
Deducting the cost of a postage stamp could end up costing the employer 30 days waiting time penalties, she warns.
“So…pennywise, pound foolish there,” she said.
Roberts agrees, pointing out that it’s just the “cost of doing business.”
Another cost of doing business is loaning company equipment to employees so that they can perform their job duties. These items — such as tools, uniforms and name badges, among other items — sometimes get lost or simply are not returned to the employer, Roberts says.
A small restaurant owner tried mitigating this property loss by asking his workers to turn in their car keys at the beginning of their shift. At the end of their shift, the keys would be returned to the employees once they returned their company-provided aprons and badges.
Savage says that there is no law that permits an employer to confiscate an employee’s car keys. This type of practice can bring about other legal problems that will ultimately cost an employer more than the cost of an apron or a badge.
Roberts explains that seizing and searching employee property requires a very high, legitimate business reason, and retrieving something like an apron or a badge is simply not going to meet that high standard.
Sharing Hotel Rooms
In order to cut down on travel expenses, some employers ask employees to share hotel rooms when they travel, Roberts says.
There is no law barring this practice, Savage says, but employers should keep in mind that some employees may have a disability accommodation need or a religious belief that would prohibit them from sharing a hotel room with an employee of the opposite gender.
Moreover, shared hotel rooms should be treated like a worksite, and harassment or hostile work environment issues will need to be addressed if they come up, Roberts adds.
An employer once asked Savage if he could terminate an employee for refusing to speak to him. Savage replied that refusing to speak to the employer could be deemed insubordination and the employee could indeed be fired for it.
Upon pressing the employer further, however, Savage learned that the employee didn’t speak to the employer because the two recently had an affair and the employer’s spouse — who also worked in the office with them — found out about it.
These new details changed Savage’s earlier advice and she urged the employer to consult with legal counsel.
Another employer called into the Helpline because it was discovered that a pregnant employee was having an affair with another employee in the office. The employer asked for advice out of concern for potential safety issues that could arise should the pregnant employee’s husband find out about the affair.
Affairs in the workplace can cause HR problems and it is why a lot of companies prohibit romantic relationships among employees when there is a conflict of interest, such as among supervisors and subordinates, Savage explains. If there was no conflict of interest among these two employees, then an employer should not treat a pregnant employee any differently as this can lead to claims of pregnancy discrimination.
Savage recommends that if an office romance is among married employees, or employees in committed relationships, the employer should consult with legal counsel before moving forward.
Alleged Sexual Harassment of Customer
One of Roberts’ most memorable calls came from a pizza restaurant owner who reported that a pizza delivery employee made a delivery to a customer and wrote down a message on the pizza box asking for the customer to call him and left his name and number.
The customer’s husband called the pizza owner to say that this was sexual harassment and demanded $3 million in return.
Labor laws protect employees from sexual harassment, but they don’t hold employers liable for the sexual harassment of a customer, Savage says. Some professionals, such as lawyers, realtors and doctors, must abide by sexual harassment laws in the Labor Code (known as professional relationship sexual harassment), but pizza delivery workers do not.
The employer may, however, discipline the employee, she adds.
Pregnancy Leave Questions
Savage’s most memorable Helpline call came from an HR director who called asking about pregnancy disability laws. After being put on hold every couple of minutes, Savage learned that the HR director was in active labor and called into the Helpline to ask about her pregnancy disability rights.