Episode 137: Stories From the Labor Law Helpline

Foreign.

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Employment Law Council and the Labor Law Helpline manager with the California Chamber of Commerce. For this episode, we'll be returning to the well, so to speak. And we'll be exploring more employer issues that we hear about on our Labor Law helpline from our members who call in and have questions for us and our helpline advisors. And back assisting me with this, we have my colleague and Labor Law helpline advisor, Ellen Savage, returning to the podcast. Welcome back to the show, Ellen.

Hey, thanks, Matt. So glad to be back.

Yeah, so last time we had you on, you know, we explored some of the hottest button issues for our members, things like remote pay and final pay and vaccination stuff, which, you know, of course, as we record this podcast today, it just explodes in the news again. But today I thought it would be a great experience for our listeners to kind of hear about the more uncommon and out of left field questions, really, that we sometimes get from our members. And quite frankly, these are those real world human relations issues that we see in the workplace. So, you know, with that, let's, let's dive in. You ready to go, Ellen?

I am ready.

All right. So one of the more common questions that are always really difficult for employers to answer because it just kind of boils over into our personal lives are things like video cameras. Right. We all generally have a sense of privacy, a concern about Big Brother watching us. And so employers will have different reasons for wanting to put video cameras in their workplaces. Security, property protection, even things like performance monitoring. And so we get a number of questions along these lines, and they lead to some really interesting discussions. And one of the first ones I wanted to address really is, and this is a great one that Ellen, I think you can elaborate on is can we install secret cameras in the workplace because we think someone is stealing fish out of the office fish tank? Which, Ellen, you've really got to provide some background on that one for me.

So, yeah, somebody did call. And why install secret cameras? Because they had a fish tank and the fish kept disappearing. So for me, this kind of brings to mind the Disney movie, you know, finding Nemo and picturing poor Nemo trapped in the fish tank in the dentist's office. But if there had only been a secret video camera, we could have found Neemo much sooner. But as you said, Matt, really the key here is, let's remember that California's constitution has within it a right to privacy that's more broad than the right under the federal constitution. So if we're going to have cameras in the workplace, really the key is we need to make sure our employees know they are there. If the employees have a reasonable expectation of privacy in an area, we need to what we call destroy that expectation of privacy by letting them know, posting a sign that there's cameras, putting it in our handbook, maybe having them sign something when they're higher that they know there's a camera. So unfortunately, no. No secret cameras, Matt. Not even for the fish.

Well, I think if we had that, Finding Nemo would have been a 30 minute movie and we wouldn't have had all the fun out there in the ocean. A question I got that was related to this, which I found really fascinating, was the employer had installed cameras in the stock room. And I think this is really important because, you know, as you said, Ellen, there's these privacy expectations under the California Constitution. And although employees are in our workplace, there is at least some level of expectation of privacy. And it's generally, yeah, it's generally heightened. Where you would expect there to be a heightened level of privacy like bathrooms and locker rooms and changing rooms and the like. But as I mentioned at the outset, employers, they have loss prevention issues or office fish loss prevention issues, as you had. And so they'll install the cameras. And in this case, the employer installed the cameras in the stock room. So the stock room is a common area for the employees to go in and grab the things that they need to help perform their jobs. And this employer caught an employee engaging in very inappropriate behavior. And I'll let you use your imagination out there, listeners, as far as what this inappropriate behavior was, but very significant. And they caught it on camera. But the employee had locked the stockroom door, generating what, you know, we may think is a potential privacy issue. And that was a real concern for the employer. So what they had asked was, can we use this footage to discipline the employee because they engaged in really inappropriate behavior at the workplace. Definitely subject to discipline. What do you think about that, Ellen?

You know, I'm thinking along the same lines as you are, Matt. If the stockroom had not been locked.

Maybe we could use it for discipline. But because the stockroom was locked, it gives me at least pause. It makes me say, check in with your legal counsel before you make this decision. Because maybe with a locked door behind her, she did have a reasonable expectation of privacy. And that brings me back to, hey, let's post signs. If we have a sign in the stockroom that says, smile, you're on camera, then, locked door or not, I think we've got a much easier answer.

Yeah, and I think you're right. I totally agree with that, Ellen. It's really important. And, you know, the case decisions we've gotten have said that, like, if you're gonna put the cameras out there, the best practice is tell them they're there and let them know. Because at that point, it just really, as you said, destroys the privacy interest. Okay. Moving away from cameras and spying and, you know, catching employees doing things they probably shouldn't be doing at the workplace. Let's move on to things where employees are doing things out in the open in the workplace with their personal appearance and their conduct. You know, employers like to maintain things like dress codes, professionalism, standards. We like to have office courtesies. Right. For some of us, we may be in small offices with a lot of people around us, and we have to kind of suspend all of our own individual freedom, so to speak, to all get along together there in the office. So one of the common ones that we get, Alan, is, you know, the employee who's coming in with really offensive body odor. I had one who had really offensive bad breath. Like, employees were complaining to the HR manager that they could smell it almost across the room, and they knew who it was because it was distinctive. What can employers do about that?

So the labor laws don't really specifically address this one. Interestingly, the bad breath issue can often arise from diabetes. I've learned that over the years. If you have an employee who just simply doesn't shower regularly, you got a teenager working in a sandwich shop, and he comes right after cross country practice, you can talk with him about improving hygiene. But if the body odor or the bad breath, whatever, is a result of a disability, then we might need to talk about the Americans with Disabilities Act, California's Fair Employment and Housing act, and looking at some reasonable accommodations. There are some disabilities.

Bromhidrosis, thyroid disorders, that really can cause these body odor issues. So maybe we talk to the employee about what can be done. Maybe they have their own private office. Even if they're an employee who would otherwise work in an open cubicle, maybe they work from home. We've got to talk about what we can do to accommodate. There's a wonderful website run by the US Department of Labor. It's not going to give you legal advice, but it's going to give you some good ideas. Called Askjan.org, it's the job Accommodation Network. And that website can give you some ideas on how to deal with all kinds of disabilities, including this one, excellent.

I think that's an excellent resource too, Ellen, because that's a common one that we use and one that I know the Equal Employment Opportunity Commission will refer to as well. Whenever you have reasonable accommodation questions and you're looking to get started and get some guidance and ideas about how you might be able to address those things. So moving on to a non odor producing issue, something that when I first joined the helpline some years back, I was shocked when I got this question originally because I'd never come across it in my entire career and did some research on it and realized that it's something that's a lot more common than I had anticipated. But employees had been coming into the workplace with hickeys, or what are known as they look kind of like abrasions or rashes because of certain physical contact that's incurring between two employees or two people really. And so these employees would come in there and the member that I had gotten really had, they worked in a senior assisted living home and there was a concern among the residents because the residents were just really uncomfortable around these individuals and employees who looked like they had lesions on their neck, really. And so there was complaints. And so that employer called me and said, what can we do about this? And so Ellen, can employers really address this in the first place? I mean, this is off duty conduct between to people, but it's coming to the workplace. Is the employer able to do anything to address the hickeys on their neck?

So absolutely. First, let me say I love your description of what a hickey is. That was well done. Yes. California Matt protects a lot of things in the workplace, but so far having a hickey on one's neck or anywhere else is not one of them. We see this a lot in, like you said, this type of situation that you described as senior care home or customer service positions like retail and restaurants. And yes, as the employer, you can simply tell the employee to cover it up. I don't care if it's summer, put on a scarf, put on a turtleneck. And of course, when you're enforcing this policy, let's make sure to be gender neutral in the way we enforce it against all genders.

Right. And any gender that shows up with a hickey, they have to cover it up just the same. Right. And that goes true really for all of our, you know, dress code, personal appearance policies is to ensure that those things are gender neutral. Now one more question. I think that'll be really fascinating before we go because I get to tell a fun Story about myself with this is, you know, one of the law firms that I was working at before I joined Cal Chamber had a microwave in the break room, like many employers do. And I really had a hankering for popcorn. I'm a popcorn fiend, self admitted. That is probably my favorite snack ever. And so, you know, I'm in the middle of a brief or in the middle of some kind of motion that I was writing to file with the court, and I said, you know, that's it. I'm hungry. So I heat up a bag of popcorn in the microwave. I was unfamiliar with the microwave, and I burned it and I got into a lot of trouble. I mean, it was smoke coming out of the microwave and everything. So needless to say, I was embarrassed and my employer was really upset with me because I pretty much ruined the rest of the day there in the office.

Other employers have had issues with other types of smelly foods and things that tend to emit off of just a different odor that's not really that pleasant. When they heat up in the microwave, things like fish and broccoli come to mind. So, Ellen, can we have a policy that employees can't heat up fish and other types of smelly foods in the office microwave? Is that something we can do as employers?

Yeah. You know, again, California protects almost everything, but so far, use of the microwave is nowhere in any statute in terms of a protected activity or protected class. The trick here, though, for the employer is really to realize that not everybody has the same definition of smelly. You know, everybody pops popcorn in the microwave and, well, except for you, Matt. They usually make it smell really good in the office, and so everybody's happy. And that's a strong smell. But on the other hand, you've got employees who are heating up salmon in the microwave, and that might not have the same universal appeal across all employees. I actually know an employee who once got in trouble for heating up salmon in the microwave. So it's definitely a thing. So you've got to be careful. What is it you're defining as, quote, smelly food? And also you might find yourself backing yourself into some type of national origin discrimination claim. Maybe it's not what you're thinking, but I've had employers who tell me, you know, quote, oh, I don't like the smell of that food the ethnic people heat up. And that makes me concerned. Stop and think about what the concern is and that it does not disparately impact based on national origin or even maybe based on something somebody has to eat for a religious purpose that might happen.

Yeah. And I think that's just the thing is to step back and kind of think about, as you said, disparate treatment is just the most important thing that I was always concerned about with this is, you know, are we picking on a particular culture or religion or something that's a protected class under the Fair Employment and Housing Act? And think about how we make sure that any policies that we implement that we implement or that we put in place don't just impact one national origin negatively over every other one. So I think that point is well taken. You know, Ellen, this was really fun. I had a lot of fun with this one, especially in in light of all the, you know, COVID 19 stuff and all the more serious stuff that we talked about on the last podcast. So it was really great to have you and your expert on the podcast again. So thank you for joining us today, Ellen.

Oh, absolutely. Delighted. I'll bring in some popcorn to work tomorrow for you. Matt.

No, I'm looking forward to it. I'm I'm an expert with the Cal Chamber Microwave at this point, so I'm comfortable with it. And thank you listeners for joining us on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.