To Worker It’s a Hang-Up, but Boss May Monitor Calls

Question: I work in the marketing department of a large Orange County health maintenance organization. We work in a fairly new office that has a telephone system that allows supervisors to monitor all calls. We’re told that they won’t listen to personal calls, but there’s no way to tell. Our manager closes her door so we can’t tell when she’s listening. It’s very intimidating. The company does not have this monitoring system at most of its sales offices. Is this legal and, if so, is it fair that it’s not done in all the offices?

--A.T., Santa Ana

Answer: Employer monitoring of telemarketing and other calls made and received while at work is legal, particularly where employees are notified in advance by the employer that such monitoring may occur. While federal and state laws generally prohibit eavesdropping on telephone conversations, there is a specific exception in the federal law for employer monitoring and California law applies only to telephone calls made where there is an expectation of confidentiality. If employees know in advance that calls may be monitored, there can be no expectation of confidentiality.

While many telemarketing companies monitor marketing calls for quality control purposes, there is no restriction upon the type of calls an employer may monitor. An employer may even monitor personal calls made on company telephones.

The “fairness” of this practice is a subjective matter. Your employer may be singling out your facility because of poor productivity or a greater number of customer complaints there, or perhaps just because it is technically feasible to monitor calls at this new facility, where it is not feasible to do so at older facilities. Probably your best solution is not to make or receive personal calls at work, or to make such calls from a pay phone that you know will not be monitored.

--James J. McDonald Jr., attorney, Fisher & Phillips, law instructor, UC Irvine

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Q: I work in a hospital as a technologist. We take calls on nights and weekends and are paid standby pay when we’re not called in. We have been told that if we are called in because it is especially busy, we are required to come in regardless of what we may be doing.

Can the hospital require this? It seems like we are effectively on call 24 hours, 365 days a year. Also, should our travel time be included in our call-back time?

--G.H., Stanton

A: Your question regards a very complex issue. Yes, hospitals can require employees to be available, as needed, to effectively secure the health and safety of patient care.

A hospital technologist usually is considered an exempt position by both state and federal wage regulations. Therefore, employees who work in these positions are exempt from overtime and the employer has no premium pay obligations. Additional pay arrangements for standby, on-call, call-back, or travel time compensation are established by company policy and practice or contract agreements. Generally, standby and travel time pay are separate agreements. This can vary dependent on many factors: employee job classification, geographic location (rural or metropolitan) and the established competitive hospital compensation rate in the area.

The emphasis of your question appears more on the issue of feeling overworked rather than pay obligations, particularly if the hospital administration uses this policy to call you into work frequently. Being on call 24 hours, 365 days a year certainly can be detrimental to both the health, well-being and safety of employees and patients alike.

I recommend you address your concerns with the appropriate person in hospital administration. Review the situation--is the issue staffing shortages, scheduling or a combination of both? The solution may be to establish staff standby rotation schedules. There are many creative ways to accomplish such a schedule. Generally this staffing technique permits employees some flexibility, accomplishes the work demands and allows needed time off.

--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group

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Q: My supervisor recently brought me to her office and told me she was going to put me on final notice. This came as a shock, because she never gave me a letter of concern or even a verbal warning. I work for an airline and she has seen me making a few safety infractions.

Not once did she say “I am writing you up.” But when I was in her office, she already had three notices in my file--none of which were signed by me. Here is the catch: I’m on probation for three more weeks. Each new employee goes through a six-month probation. I’m wondering if I have a case should I be terminated?

--B.W., Irvine

A: I think a strong argument can be made that an airline has a compelling interest in maintaining high safety standards. Your letter said that your supervisor has seen you “making a few safety infractions.” That statement implies that your supervisor advised you, at least orally, that you had violated some policy regarding safety.

It is also likely that even if your company has a progressive discipline policy, a supervisor, under certain circumstances, is permitted to give an employee a final warning without having given the employee prior oral or written notice. For example, where safety infractions have potentially serious consequences, an employer may decide that the employee is not entitled to an extended period of time in which to cure the problem.

Thus, if you are discharged for committing another safety infraction during your probation, I am not confident that you will have a powerful wrongful termination case. As to your comment regarding the length of your probation versus the length of a new employee’s probation, I am not certain of its relevance. If your point is that your probationary period is much shorter, that is because a corrective probationary period serves a much different purpose than an introductory probationary period.

Corrective probation is to provide an employee with performance or other problems a reasonable time period within which to cure the deficiency. Introductory probation is to give the employer an initial time period to evaluate the employee’s abilities and to terminate employment immediately for any non-discriminatory reason, should the employer decide the relationship is not working out. Introductory probation is almost always longer than corrective probation.

--Josephine Staton Tucker, employment law attorney, Morrison & Foerster

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Q: I just started working for a vacation time-share company. Where can I go to find out if the company is legitimate or not?

A: You can inquire with your co-workers as to how long the company has been in business, whether there have been any legal proceedings brought against it, who the owners are, etc. In addition, you can check with such services as Dunn & Bradstreet or Equifax to determine if they have information concerning the organization.

If your employer is a corporation, you can check with the California secretary of state to determine who are the corporate officers and directors. The above are probably the best sources of the information that you are looking for.

--Michael A. Hood, employment law attorney, Paul, Hastings, Janofsky & Walker