The Perils of Polygraph Tests

Employers may be tempted from time to time to ask or even require employees to submit to polygraph tests, often called lie detector tests.  Are such tests legal?  This article will explore the legal ramifications of polygraph tests in the workplace.

Federal law

The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment.  Employers generally may not require or request an employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take such a test.  Employers are required to display the EPPA poster in the workplace for their employees.  There are, however, certain exemptions that will be discussed below.

Ongoing investigation exemption

According to federal law, an employer is not prohibited from requesting an employee to submit to a polygraph test if: 1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, etc.; 2) the employee had access to the property that is the subject to the investigation; 3) the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and 4) the employer executes a statement, provided to the examinee before the test that a) sets for the with particularity the specific incident or activity being investigated and the basis for testing particular employees, b) is signed by a person, other than the polygraph examiner, authorized to legally bind the employer, c) is retained by the employer for at least three years, and d) contains an identification of this specific economic loss, etc.

Security services exemption

Another federal exemption is the exemption for security services.  Federal law does not prohibit the use of polygraph tests on perspective employees by any private employer whose primary business purpose consists of providing armored car personnel, personnel engaged in the design, installation, and maintenance of security alarm systems, or other uniformed or plained clothes security personnel. 

Other federal exemptions

In addition to the above exemptions, there are other exemptions for national defense, government security, FBI contractors, etc. 

California law

California Labor Code section 432.2 states that “no employer shall demand or require any applicant for employment or perspective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment.”  In addition, Labor Code section 432.2 states that “no employer shall request any person to take such a test, or administer such a test, without first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.”

Government employee exemption

However, there is an exemption in Labor Code section 432.2 which states that the prohibition of this section does not apply to the Federal Government or any agency thereof or the State Government or any agency or any local subdivision thereof, including, but not limited to, counties, cities, districts, etc.  Employers need to be sure that these perspective employees would be hired by the actual government entity and not simply contracting with the city/county, or employed by someone else and simply doing work for the city/county. 

Conclusion

While there are some exemptions to the federal and state law prohibitions of polygraph tests in the workplace, the safest thing to do is avoid them.  The accuracy of polygraph tests has been questioned for years, and the risk employers run in requiring their employees to submit to such tests will almost always outweigh the benefit.

Sexual Harassment Training 101

All employers know that sexual harassment is among the most serious of workplace problems. California has passed legislation showing the importance of preventing workplace sexual harassment.  California Government Code section 12950.1 requires that employers comply with certain sexual harassment training rules and procedures.

Which employers must provide training?

This law applies to employers with 50 or more employees.  It is not required that all 50 employees be in California. 

Who must be trained?

Training must be given to all employees who are employed as supervisors as of July 1, 2005.  All employees who become supervisors after July 1, 2005 must receive training within six months of assuming a supervisory position. 

Who is a supervisor?

The new law does not define the word “supervisor.” Yet, the Fair Employment and Housing Act defines a “supervisor” as, among other things, one who has the authority to hire or fire, reward or discipline other employees, direct other employees, or exercise independent judgment.  This is a broad definition, and whether an employee is exempt or non-exempt for purposes of wages is not controlling. 

Employers should construe “supervisors” broadly - if there is doubt as to whether your employee is a “supervisor,” train them just to be safe. 

What type of training is sufficient?

The law requires that the training be of the “classroom” variety or other “interactive training.”  California’s Department of Fair Employment and Housing has strongly suggested that web-based training is sufficient as “interactive” training.  However, if a trainer is not actually present, one should be available to answer questions within two business days after the question is asked.   Furthermore, the training must include practical examples dealing with prevention of harassment, discrimination and retaliation.                    

Who can train?                                                                      

Three categories of people are qualified to train: (1) attorneys, (2) professors or instructors, and (3) Human Resource professionals or Harassment Prevention Consultants.  For each category, the trainers must have two years of experience.

How often must employees be trained?

Employees covered by the law must be trained every two years. 

How much training is needed?

If the training is conducted as “classroom training,” the actual time instructors spend teaching must total two hours, excluding breaks.  If the training is web-based, it must take at least two hours to complete the course.

What records need to be kept?

The biennial training can be tracked by the individual employee, or by using a “training year” method in which the employer chooses training years for all supervisors.  Employers must remember, however, that new supervisory employees must be trained within six months of hire or promotion.  A record of who received the training, when it took place and what type, and who gave the training must be kept for two years. 

Final Points

Proper training does not completely safeguard employers from sexual harassment lawsuits.  Also, failure to provide training does not, in and of itself, make an employer liable for sexual harassment.  However, the Fair Employment and Housing Commission can order an employer to give proper training.  Yet if employers fail to properly train supervisory employees, a court could find that such violates the state’s public policy, creating even more liability if an employer is sued for sexual harassment.  Ensuring that employees are properly trained requires some effort and planning - yet in this regard, it is certainly worth it. 

Overtime and the occasional California employee

California overtime laws are among the most complex laws in the labor and employment law sphere. Employers are required to juggle various complicated overtime exemptions, as well as keep track of employee hours to make sure they don’t run afoul of any overtime laws. A recent case has added a new wrinkle to California’s overtime laws.

In a nutshell, California overtime laws apply to all non-exempt employees. Generally speaking, non-exempt employees working more than 8 hours in a day or 40 hours in a week are entitled to receive overtime pay. But what about employees who only occasionally work in California? In the case of Sullivan v. Oracle Corporation, the California Supreme Court tackled just this issue. The plaintiffs in the Sullivan case were employees that periodically worked in California. They wanted California overtime law to apply during any full day in which they worked in California.

The California Supreme Court sided with the plaintiffs, holding that when employees visit from other states, California overtime law applies: “To exclude nonresidents from the overtime laws’ protection would tend to defeat their purpose by encouraging employers to import unprotected workers from other states. Nothing in the language or history of the relevant statutes suggests the Legislature ever contemplated such a result.”

Yet the court was also careful to note that its holding was limited to just overtime, not necessarily to other wage and hour laws:

While we conclude [our] analysis does require us to apply California’s overtime law to…work performed here by nonresidents, one cannot necessarily assume the same result…for any other aspect of wage law. California…has expressed a strong interest in governing overtime compensation for work performed in California. In contrast, California’s interest in the content of an out-of-state business’s pay stubs, or the treatment of its employees’ vacation time, for example, may or may not be sufficient to justify choosing California law over the conflicting law of the employer’s home state. No such question is before us.”

In essence, the court punted on the non-overtime issues. Because the issue of whether to apply all California wage and hour law to visiting employees was not before the court, the court chose to simply wait until that specific issue was before them.

So listen up companies that employ workers that work periodically in California – California overtime law applies whenever these employees work in California. Stay tuned for whether all California wage and hour laws apply as well.

The difference between a “hostile work environment” and a work environment that is hostile

Employees often throw around the term “hostile work environment.” What exactly constitutes a hostile work environment can be difficult to define. In the realm of California employment law, there is a difference between a “hostile work environment” and a work environment that is occasionally hostile.

Dealing with rude or obnoxious people does not constitute a hostile work environment. A true hostile work environment, in a legal sense, occurs when an employee is subjected to abuse in the workplace because of the employee’s gender, race, age, religion, or other protected category. In California, unlawful harassment, i.e. a hostile work environment, is a form of discrimination.

Recently, a California appellate court illustrated this distinction. In the case of Kelley v. The Conco Companies, Kelley, a male apprentice iron worker was repeatedly subjected to sexually demeaning comments and gestures, as well as physical threats from a male supervisor and male co-workers. Kelly was frequently called a b*tch, was told he had a “nice a**, and was called numerous other sexually graphic names. His co-workers also barraged him with the f-word on a routine basis.

In its ruling, the court reiterated that the laws against discrimination were not intended to become a “general civility code for the American workplace.” While acknowledging that the words directed at Kelley were “graphic, vulgar, and sexually explicit” and “crude, offensive and demeaning,” the court held that the statements were neither an expression of sexual interest, nor a comment on Kelley’s actual or perceived sexual orientation. More bluntly, the court noted that when a supervisor refers to a male employee as a “b*tch” it is not kind, but it is not harassment in the absence of sexual interest or animus.

So what can employers and employees take away from this case? Unlawful harassment and rudeness are two different things. There is a difference between a “hostile work environment” and a work environment that is occasionally hostile. Legally speaking, a hostile work environment must have some element of discrimination to be actionable harassment. Yet the line is not always clear, so employers must still be wary of these situations and take steps to remedy the situation before lines are crossed.

Social Networking and the Workplace

It seems like everyone is on Facebook, or some other social networking site. Chances are virtually every one of your employees has a Facebook profile. According to a 2009 Harris Interactive survey of over 2,600 Human Resources professionals, 45% of them said that they go to social networking sites to research job applicants. The same study also found that 35% of employers made the decision not to hire an applicant based on what they found on the applicant’s social network (Facebook) page. The Human Resources professionals found the following to the biggest no-no’s in connection with social networking sites:

· Posting indiscreet photos and information

· Posting activity involving alcohol and/or drugs

· Badmouthing former employees

Despite the permanent nature of posting information and pictures in a digital space, many Facebook users feel like “no one is watching” when they post a picture from a wild party or leave comments blasting a former boss. Yet, employers in increasing numbers are watching what job applicants post to social networking sites. These sites can give employers valuable insight as to what job applicants are “really” like, as opposed to the polished that can be found in a resume or job interview.

And for employees who use Facebook or other social networking sites, here are five tips that can help you avoid problems:

1. Don’t reveal too much information. Don’t reveal more on Facebook than you would in real life; err on the side of discretion.

2. Think twice before hitting the “submit” button. The second you click “submit,” your picture or post is “out there.” And while you can always delete it later, you never know who has seen the information in the meantime.

3. Imagine how the information you are posting would look to a prospective employer.

4. Review your privacy settings. Sites like Facebook permit users to decide what pictures and information are shared with whom – narrow your settings so only accepted friends can see your information.

5. Google yourself periodically. Every few months run a quick google search of your name to see what comes up. If something negative surfaces, there may be time to change it.

Facebook and other social networking sites are not going away. Facebook has over 600 million users, and it’s growing every day. Employers can use these sites as a powerful tool in selecting job applicants. And employees should take simple steps to ensure that their social networking endeavors do not cause problems down the road.

Emergency Action Plans

Emergency situations can happen anywhere, without warning. Virtually every day we see footage on the news of devastating natural disasters or emergency situations all over the world. What are an employer’s duties with respect to emergencies?

California law requires that every employer have an Emergency Action Plan. Such a plan must include steps for evacuating employees, providing emergency medical attention, and reporting emergencies to employees and local agencies. While every employer must have a program, not all employers are required to “keep records” of such a plan. The record keeping requirements do not apply if the employer (1) has 10 or fewer employees, (2) has 20 or fewer employees and is in a designated low-hazard industry, or (3) is a local government entity, seasonal employer or licensed contractor.

Where a written plan is required, the plan must specify the following: (1) person(s) responsible for implementing the plan or portions of the plan; (2) how to communicate emergencies to employees; (3) fire and emergency evacuation policies; and (4) personnel assigned to provide first aid and emergency medical attention.

California also requires that employers train employees when a plan is established or modified. Newly hired employees also must be trained. The best way to accomplish this training is by conducting emergency training and emergency drills periodically. Formal inspections are generally not required by California law. More information regarding Emergency Action Plans can be found at http://www.dir.ca.gov/title8/3220.html.

We all know it is impossible to predict or completely safeguard employees from all emergencies or disasters. Yet the law does require employers to take steps to protect their employees, and a big part of that is the Emergency Action Plan. If your company does not have such a plan in place, take the time to create one. If your company hasn’t reviewed its plan in several years, take the time to review it. You owe it to your employees, and it’s the law.

What does insubordination mean, anyway?

A frequent reason given by employers for terminating an employee is “insubordination.” Employers sometimes treat this word as a catch-all – if the employment relationship is not working out, employers will often simply allege that an employee has been “insubordinate”. California is an at-will state, meaning that absent an employment contract, employees can be fired with or without cause at any time. Yet terminating an employee usually makes him or her eligible for unemployment benefits. Are employees terminated for “insubordination” eligible for unemployment?

It depends.

The Employment Development Department of California (EDD) holds that insubordination generally falls into four categories: (1) disobeying an employer’s order or instruction; (2) disputing or ridiculing authority; (3) exceeding authority; or (4) using vulgar or profane language towards a supervisor. A brief discussion of each factor follows below.

In relation to the first factor, according to the California Labor Code: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.” The following conditions must be established for a discharge for disobeying an employer's order or instruction to constitute misconduct under the EDD: (1) the employer's order was reasonable and lawful; (2) the claimant's refusal was intentional; and (3) the claimant's refusal was unjustified.

As to the second factor, an employee is insubordinate under California law if he or she "makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest." Of course, not all disputes between an employer and an employee result in discharge of the employee for misconduct. According to the EDD, differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. Moreover, an isolated instance of an error in judgment is not misconduct.

As to the third factor, when termination results from an employee exceeding authority, there are multiple elements to consider. First, the job’s inherent authority must be taken into account - if the parameters of authority are outlined clearly and are violated knowingly by the claimant, the discharge would be for misconduct. Second, authority to take action may also be created by the failure of the employer to limit or to object to unauthorized or undesirable conduct. Third, emergency situations may arise which require the employee to take immediate action for the employer's protection or best interests.

Finally, according to California law, an employee is insubordinate if he or she addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee. According to the EDD’s website, “In determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office…Generally, a single remark or outburst uttered in a situation of stress or provocation does not constitute misconduct.”

These examples are by no means exhaustive. The determination of whether an employee terminated for “insubordination” rises to the level of “misconduct” for purposes of unemployment benefits really is a case-by-case determination. But the above factors are instructive nonetheless. So next time you consider terminating an employee for “insubordination,” take a minute and apply these factors to your particular situation.

Do’s and Don’t of Final Paychecks

Terminating an employee is never fun. No one likes to do it. Yet, for any number of reasons, there are times when it is necessary end the employment relationship. Employers need to be careful that they don’t set traps for themselves in dealing with final paychecks. This article will explain some important rules on this topic.

The first key issue is whether the employee has been terminated or has simply resigned. In the case of a termination, or lay-off with no specific return date within the normal pay period, all wages and accrued vacation earned but unpaid are due and payable immediately (see Labor Code section 201). An employer may not ask or require the employee to wait until the next regular payday for the final wages. Moreover, it is illegal to withhold a paycheck for any reason, including inducing a former employee to return tools or uniforms, pay back money that might be owed to the employer, or turn in expense reimbursement forms. The key word in dealing with terminations and final paychecks is that they must be given to the employee immediately.

The standard is different for resignations. If an employee voluntarily quits and gives more than 72 hours notice, all wages and accrued vacation are due and payable on the last day of work. Yet if the employee quits without giving 72 hours notice, all wages and accrued vacation are due and payable not later than 72 hours after notice is given. In these situations, the employee is entitled to receive his or her final wages by mail if he or she so requests and provides the employer with a mailing address. The date of mailing is considered the date of payment for purposes of the 72 hour requirement.

As for the place of final payment, quitting employees are normally required to return to the place of employment to pick up their final check. Again, employers are not required to mail the final paycheck unless the employee requests payment by mail and provides an address. Unless an employee specifically requests that their final paycheck be mailed, the safer practice is to simply hold the paycheck until the employee picks it up.

Applicant interview no-no’s

California is not an easy place to be an employer. Even an employment interview can be fraught with danger given California’s often pro-employee laws. What types of questions are fair game during an employment interview? What questions should be avoided? This article will explore certain questions that should not be posed while interviewing job applicants.

First, questions about martial status or children are never a good idea. Employers cannot ask whether an applicant is pregnant, has children, or is planning to have children. If you know that an applicant has children, you are prohibited from asking if the applicant has made provisions for child care.

Tread carefully when asking about hobbies or social activities. It is discriminatory to ask about clubs, societies, or organizations to which the applicant belongs that might indicate race, religion, sex, age, etc.

In addition, do not ask what languages an applicant knows unless the job requires the applicant to speak and/or write a particular language fluently. In any event, applicants who can speak more than one language will usually volunteer that information in their resume or cover letter.

In some cases it is proper to ask an applicant’s age. If required for the job, an employer may ask whether the applicant is over a particular age (e.g. a bartending job). Otherwise, do not ask an applicant’s age.

Finally, questions regarding an applicant’s education, while important, can create risky situations. Some questions about an applicant’s education may be interpreted as seeking information about their age. While it is of course permissible to ask where an applicant went to school and what degrees he or she has attained, questions such as “What year did you graduate?” and “Are you a recent graduate?” may be deemed discriminatory.

Job applicant interviews are a necessary part of the hiring process, and employers need to gather pertinent information from applicants before deciding whether to hire them. Yet, certain questions do pose risks. Employers can save themselves serious headaches by avoiding these pitfalls.

Avoiding a hostile work environment

The term “hostile work environment” has found its way into the vernacular in the past decade or so. These three words can make plaintiff’s lawyers rich, and leave employers on the hook for huge verdicts. Employers know they have a duty to prevent a hostile work environment. But what is an employer’s duty in regards to a hostile work environment caused by third parties? A California Court recently confirmed that an employer has a duty to take corrective measures to prevent a hostile work environment caused by third parties – even when this type of harassment or hostile work environment may be “inherently part of the job.”

In the case of Turman v. Tuning Point of Central California, the plaintiff Turman was a resident monitor at a halfway house for defendant Turning Point. Residents of the halfway house were almost exclusively male prisoners who were being transitioned back into society prior to their full release on parole. Turman alleged that while she was at work, male residents propositioned her for sex, made sexual gestures to her, and called her lewd names. When Turman complained to her supervisor, her supervisor simply suggested she issue fewer disciplinary citations for the residents’ rule violation, which he believed was the cause of their harassing conduct. The trial court found that, while Turman was subjected to severe harassment because of her gender and that such harassment created a hostile work environment, Turning Point did not “fail to take immediate and appropriate corrective action.”

However, the Appellate Court reversed the judgment, finding that since Turning Point’s response to the reported abuse – Turman’s supervisor telling her to issue fewer disciplinary citations to residents so they would be nicer to her – did not amount to corrective action to alleviate the abuse. The Court acknowledged that even though male residents living under restricted/penal conditions are likely to harass a female supervisor, and that enduring inappropriate behavior by prisoners may be “inherently” part of the job, that does not absolve an employer from its legal responsibility to take immediate and appropriate action to correct the situation.

This case puts California employers on notice of their duty to take immediate action to correct a hostile work environment, even when the problem is caused by third parties.

Avoiding waiting-time penalties

Labor Code section 201(a) requires that employers pay final wages "immediately" upon termination of an employee. Labor Code section 203 imposes a "waiting time" penalty that continues the unpaid wages for up to 30 days while they remain unpaid.

Employers – especially out-of-state employers doing business in California – sometimes enact policies that result in routine late payments of employees’ final wages. Often employers have policies where the discharged employee is paid during the next regular payday, or the final paycheck is issued by mail from a payroll location, meaning that the final paycheck may not be received until days or weeks after termination.

These frequent late payments may not result in a very large late penalty for any single employee, but the cumulative liability across an entire work force can be substantial. These late-payment policies often result in class action lawsuits, which can cost large companies hundreds of thousands of dollars.

Recently, in Pineda v. Bank America, the California Supreme Court gave a boost to such class actions by holding that late penalties under Section 203 can be collected for up to three years after the underlying final wages were paid. Prior case law applied only a one-year statute of limitations. Pineda triples the exposure of employers.

In light of Pineda, employers should give their procedures for generating final paychecks a second look. Make sure that employees are given their final paychecks immediately to avoid problems down the road.