Don’t Use Office E-Mail if Privacy Is a Consideration

Question: I work for a company of less than 50 employees. We regularly send mail to each other through e-mail, and we have access to the Internet.

Is it legal for my employer to review messages sent out on the Internet that may be personal in nature?

--S.B., Newport Beach

Answer: The privacy issue that you raise is a hot topic in the legal community, but no clear rules have emerged from the courts yet. On the one hand, California privacy law provides some protection for an employee’s reasonable expectations of privacy in the workplace. Moreover, statutory prohibitions on eavesdropping and wiretapping provide some privacy protection for electronic communications.

On the other hand, employers exercise substantial control over equipment and communications at their places of business. Eventually, some clear rules may be established. Until that happens, you should assume that electronic messages generated or received at your office--including voice-mail--are not confidential and may be reviewed by your employer. (Government investigators and parties involved in litigation with your employer may also be able to obtain your messages.)

I suggest you find other ways to exchange private messages. For example, use your home computer to access the Internet via an on-line service, such as America Online, CompuServe or Prodigy. Communicate with your fellow employees in person or by written notes.

--Calvin House, attorney

Fulbright & Jaworski L.L.P.

Adjunct professor, Western State University College of Law

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Question: I work for a grocery company, and mine is a union job. On the annual bid, there are a few floating positions. During the course of the year, schedules for the positions fluctuate and the employees could end up working seven to nine consecutive days. Also, by mutual consent, employees will trade days off and will also end up working seven to nine consecutive days. My question is: How much overtime pay, if any, is the company responsible for?

--J.W., Costa Mesa

Answer: There are many exceptions to the overtime rules. In most situations, a union worker is not subject to the state or federal overtime rules if the collective bargaining agreement provides 1) cash straight time wage rate of at least $1 an hour above the state minimum rate and 2) premium rates for overtime work. The premium rates can be a set figure or a multiple of the straight time rate as similar to the state or federal rules.

You should review your collective bargaining agreement to see if it has these requirements. If it does not, the state or federal rules would apply. Even if you are not subject to the state or federal overtime rules, you still may be subject to other state or federal wage and employment laws.

--Don D. Sessions, Employee rights attorney

Mission Viejo

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Question: I’m a certified nursing assistant who provides home care for the elderly. I work 12 hours a day, five days a week and I don’t receive overtime, just straight time for the 60 hours. I was told the reason is that it’s not mandatory for health care agencies to provide overtime pay. Is this true?

--J.C., Anaheim

Answer: Yes. Both state and federal wage and hour laws provide overtime exemptions for home-care workers who assist the elderly or disabled. The exemption does not apply, however, where the home-care worker spends more than 20% of his or her time doing work, such as general housework, not directly related to care for the elderly or disabled person.

The exemption also does not apply to trained health care personnel, such as nurses who administer medications or monitor vital signs. But a recent court case has held that certified nursing assistants do not constitute “trained health care personnel,” for the purposes of this rule.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor and employment law Instructor, UC Irvine

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Question: I work for a security company and have found out that they are charging their customers for overtime (holiday pay) for the officers’ time, yet not paying these officers the holiday pay. In addition, they don’t pay the officer for the actual time spent on post. Example: If the employee has to work to 5:21 p.m., he or she gets paid for only a quarter of an hour of overtime. The employee has to work to 5:30 p.m. in order to get half an hour overtime.

Are there any rules as to how parts of an hour are accounted for or can the employer make their own rules? Is this in violation of labor laws? Is there any recourse I can follow for myself and other employees?

--B.B., Yorba Linda

Answer: As to your first question, what your employer is doing is probably appropriate. What your employer charges its customers for the services it provides is a matter of contract between your employer and its customers. There is no labor law requirement that the employer pay its employees in exactly the same manner as it charges its customers for the employees’ time.

As to the holiday wages paid by your employer, that too is a matter of contract between you and your employer. Therefore, if your employer has a policy that certain holidays are paid, and you work on one of those holidays, you perhaps should be receiving additional pay for the time worked on the holiday. If you believe you are not being paid appropriately, you may contact the Division of Labor Standards Enforcement to pursue a claim.

As to your second question, the general rule is that employers must pay for all hours worked, even very small fractions. However, there is an administrative enforcement exception that allows employers when paying overtime to round off to the nearest five-, 10- or 15-minute period, but only if in so doing the employees tend to receive overtime compensation for all hours worked.

It appears from your description that your employer is relying on this exception and rounding to the nearest quarter-hour in paying overtime. That is acceptable only if your employer also allows its employees to benefit by rounding off, Thus, using your example, to be allowed to rely on this exception, your employer would have to pay a half-hour of overtime to any employee who worked from 5:23 p.m. to 5:30 p.m. If your employer is not doing that, it may have liability under federal and state labor laws. Contact the Division of Labor Standards Enforcement if you believe that you have a valid claim.

--Michael A. Hood

Attorney, Paul, Hastings, Janofsky & Walker

D o you have a question about an on-the-job situation? If so, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, Calif. 92626. Or call (714) 966-7873 and leave a voice-mail message with your name and where you live. Questions of general interest will be answered in this column on Mondays.