Reasonable Expectation

Isn’t it true that nationwide employers can interview and hire employees for their California offices so long as they follow federal hiring laws?  In a nutshell, no way.  Hiring in California presents a host of nuanced, state-specific rules that often add up to “don’ts.” We list a few for you below.

Don’t Oversell

Question:  We really would like to hire this guy.  Is it okay to tell him what he wants to hear about the job?

Answer:  No, especially if he will be moving for the job.  California Labor Code § 970 prohibits employers from making knowingly false representations about the nature of the work, the length of time that the work will last, and the compensation, among other things.  Not only can an alleged misrepresentation serve as the basis for a civil lawsuit, it is also a misdemeanor punishable by a fine or imprisonment for up to 6 months, or both!

Don’t Forget to Exclude The “Puffer”

Question:  We can ask an applicant about criminal convictions, right?

Answer:  Yes, but make sure you do not ask questions about any arrests, detentions that did not result in conviction, or certain marijuana convictions that are over two years old.  If the marijuana inquiry prohibition is violated, an applicant can recover the greater of his or her actual damages or $200, plus attorneys’ fees and costs.  It is also a misdemeanor, punishable by a fine.

Don’t “Judge”

Question:  An applicant owns handguns and goes to the shooting range on weekends to practice.  These are valid reasons not hire him, right?

Answer:  No, if the conduct is lawful, and takes place off-premises and during nonworking hours.  Labor Code §§ 96(k) and 98.6 (c)(1) protect applicants from such discrimination.  If such discrimination occurs, the applicant will be entitled to employment, and reimbursement for lost wages and benefits caused by the acts of the prospective employer.

Don’t Take Solace in Your Arbitration Agreements

Question:  Our company requires new hires in all states where we do business, including those in California, to sign an arbitration agreement.  We won’t have to worry about lawsuits in California court, correct?

Answer:  Not necessarily.  The California Supreme Court held in Armendariz v. Foundation Psychcare Services that “unconscionable” arbitration agreements are unenforceable.  Unconscionability is defined very broadly and includes situations where an employee does not have a realistic opportunity to bargain about the terms of an arbitration agreement, or where the terms are harsh or one-sided.  Some thought the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion would chip away at Armendariz in favor of enforcement of arbitration agreements, but most California courts have refused to part with the Armendariz holding. (See e.g., Compton v. Superior Court).

Don’t Forget The “Paper”

Question:  We follow federal law in the distributions to new employees at or near the time of hire.  We are good to go in California, right?

Answer:  No.  California has specific distribution requirements at or near the time of hire, including:

  • California Labor Code § 2810.5 requires private California employers to provide written notice to employees no later than their first day at work about information including, but not limited to, the rate of pay, basis of pay (e.g., hourly, salary, commission, etc.), allowances for items claimed as part of the minimum wage (e.g., tips, meals and lodging), the regular payday, employer’s name, address, and phone number, any “dba,” and information regarding the employer’s worker’s compensation insurance carrier. 
  • Employers must submit a Report of New Employee(s) (DE 34) within 20 days of any new employee’s first day of work.  Employers must also provide new employees with, among other things, a Disability Insurance Provisions pamphlet (DE 2515) within five days of hire, a Paid Family Leave Insurance pamphlet (DE 2511) no later than any new employee’s first day of work, and a California tax withholding form (DE-4), which some employees must complete upon hire. 
  • The California Department of Fair Employment and Housing requires employers to provide its Sexual Harassment pamphlet (DFEH 185) or an equivalent document to all new hires.

Workplace Solutions: Even if you have only a handful of employees in California, it is prudent to familiarize yourself with the California-specific requirements pertaining to hiring and new employees.  A review of  any employment applications, interview questions, and new hire packets or checklists are all steps to ensure California compliance.

Wouldn’t we like to know if a potential applicant has ever criticized a former employer, or whether their online presence gives evidence of illegal activity or violent, discriminatory or unethical behavior? Or just poor judgment? What if they belong to political groups, like the Tea Party or the ACLU?

What is so wrong with learning information like that? The answer is it can expose the employer to liability.

The use of social media in hiring decisions remains a hotbed of potential legal risk for employers. Yet, an increasing number of employers are using social media sites such as Facebook, LinkedIn, Twitter, YouTube and even Craigslist to screen potential candidates to avoid hiring the “wrong” candidate.

What Can An Employer Look At?  California enacted AB 1844 last year, which affords job applicants greater social media protections by prohibiting employers from seeking log-in information from applicants, asking applicants to “friend” other employees, or asking an applicant’s “friends” to disclose what the applicant has posted on social media.  However, employers are not explicitly restricted from accessing publicly available information about candidates.

  • Bandwagon effect:  Since California passed AB 1844, many other states have followed with similar legislation. On the federal front, the National Labor Relations Board (NLRB) has kept a watchful eye on employers using social media information in employment decisions.  It is worried that concerted activity protected under federal labor laws may be restricted.  On February 4, 2013, the federal government reintroduced the Social Networking Online Protection Act” (SNOPA) which would prevent employers from seeking access to social media and other online information from job seekers and current employees.

­Discrimination Traps.  Social media can reveal personal information about a candidate that would be illegal to request during the hiring process (e.g., physical disability, age, marital status, religious affiliation, political affiliations, etc.).  Employers should be mindful that this may open the door for potential discrimination claims.

  • Example:  An applicant, a mother who tweets that her son is undergoing cancer treatments, is not hired.  She could bring a claim for association discrimination under the Americans with Disabilities Act (ADA), the California Fair Employment & Housing Act (FEHA), or even the Genetic Information Nondiscrimination Act (GINA).
  • Example: A decision not to hire an individual because he or she has sued a previous employer could violate laws prohibiting retaliation under antidiscrimination, wage and hour, or whistleblower statutes.
  • Example: The CA Department of Industrial Relations has interpreted Section 96(k), which prohibits employers from taking adverse action due to an employee’s lawful conduct outside of work, to apply to decisions not to hire employees, even though the statute does not explicitly reference hiring. 

Workplace Solutions:  The best practice is to avoid using social media in hiring decisions since there are serious legal risks involved.  If an employer would still “Like” to do this, the following steps can help you mitigate those risks:

  • Document the hiring process.  Include a checklist of the relevant hiring credentials that sets forth the scope of any lawful use of social media information (e.g., if a candidate’s social media background is relevant to the position being filled).
  • Wait Until You Extend the Offer.  If you make an offer and then later discover that a new hire has made a material misrepresentation about prior employment, etc., you can then record the offense.
  • Designate a Screener.  Have a non-decision-maker do the search and only have them report on permissible job-related information.  Filter out the rest.
  • Educate Your Employees.  Instruct HR and management employees to not conduct independent searches on prospective candidates.  Train and educate personnel on how information from or even accessing an individual’s profile on social media and the Internet may give rise to allegations of employment discrimination.
  • Be consistent:  If you are going to use social media in hiring, use it for all applicants, not just some. 
  • Be skeptical.  Remember, not everything on the Internet is true!

Picture this scenario:  you run a private residential facility for abused children.  Late one night, one of your computers is used to access pornographic web-sites and other inappropriate material in violation of several well-publicized workplace policies.  After further investigation, you learn that the inappropriate computer usage occurred on several occasions, but was limited to that one computer, which is located in an office shared by two day-shift employees in the administrative building.  Several employees have access to the building and could have used the computer on the nights in question.  Concerned that the culprit might be a staff member who works with the children, you hatch the perfect plan to catch him or her:  place a hidden camera in the office!  Of course, you don’t want to publicize its placement.  That would defeat the purpose and the guilty party would simply find another computer to use.  Besides, you plan to activate the camera only at night, several hours after the day shift has left the facility.  The daytime occupants of the office won’t care that it’s there.  Genius!

Did we mention that you are operating this facility in California?

The above scenario mirrors the facts of a case brought by, you guessed it, the two day shift employees who brought suit alleging that the placement of the hidden camera in their office without their knowledge or consent violated their right to privacy under both common law and the California Constitution.  What?  Are you telling me that merely placing a camera in an office, without even recording the occupants during business hours, is unlawful?  Fortunately, the California Supreme Court answered that question with a resounding “no” in Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).  However, the case makes clear that whether or not you can surreptitiously videotape depends on the facts and circumstances unique to your workplace, and you must carefully evaluate when, where, why and how you can do so in order to minimize your liability.

For starters, in California, employees have a constitutional right to privacy which creates at least a limited right of action against both private and government entities, which is in addition to other tort actions, like unlawful intrusion.  California has a well-developed body of law prescribing the various elements that a plaintiff must prove in order to succeed on an invasion of privacy claim; however, when considering secretly videotaping your employees, these are the big questions you have to ask:

Do employees have a reasonable expectation of privacy in the area that is going to be recorded?  Bathrooms, locker rooms or other areas where reasonable persons would agree employees rightfully expect privacy are strictly off-limits.  However, hallways or entryways where employees interact with the public and one another and expect that their activities can and will be viewed by others are generally areas where a reasonable person would not have an expectation of privacy. 

Do you have a good faith legitimate business reason for secretly videotaping?  Harassment, blackmail or prurient curiosity are never valid reasons for secretly recording your employees’ actions.  On the other hand, the court found the reason articulated by Hillside in our case above, which was to prevent a rogue employee with access to children in a residential facility from accessing pornographic material at the facility, was a legitimate reason that did not offend societal standards.

Is the taping conducted in a reasonable manner, or is it offensive?  Even if secret videotaping is conducted for legitimate business reasons in areas where employees have no reasonable expectation of privacy, the manner in which the recording is conducted could still subject an employer to a breach of privacy claim.  For example, if a camera is zoomed in on a female employee’s cleavage while she’s conversing with a customer, or an employees’ back-side as he/she walks down the hallway, what otherwise would have been acceptable becomes arguably offensive and unacceptable.

Workplace Solutions: In the end, whether, when, why, and how to surreptitiously videotape your California employees should be decided on a case by case basis after full review of the factual circumstances.  Most videotaping does not need to be secret and disclosing your intention to do so may prevent employees from engaging in behavior that violates your policies. 

If you determine videotaping is appropriate, determine whether the purpose of filming can be accomplished with the employees’ knowledge or whether secret taping is required.  If notice is appropriate, consent to the taping is recommended, but notice will typically suffice, especially where the cameras are prominently displayed and in common areas.  Placement of signs, such as “smile, you’re on camera,” in areas where videotaping is taking place is a common way to provide notice of taping.