Camera to Uncover Criminal Activity Is Probably Legal

Q: Last year, my company had repeated shortages from the register, and we had no suspects. In desperation, I secretly placed a camera in the office, focused on the safe and the desk where the receipts are counted. A few months later, a significant shortage was discovered, and a review of the tape revealed the culprit: a trusted employee whom we did not suspect.

Now, in another company location, a similar scenario is playing itself out. I have installed a camera, and no one knows it is there. Is it legal to have such a camera in a workplace if the employees do not know about its presence?

--C.B., Laguna Beach

A: There is no clear legal prohibition of the use of surveillance cameras in the workplace.

Although the courts have determined that California’s constitutional right to privacy extends into the workplace, it is unlikely that surveillance to ferret out criminal activity would be held unlawful.

However, you would probably enhance your legal position--and might deter any other illegal activity--by letting the employees know that a camera is in use, without telling them exactly where it is.

--Calvin House, attorney, Fulbright & Jaworski, Adjunct professor, Western State University College of Law

Secret Files on Employees May Not Comply With Law

Q: I recently started a job in human resources at a company that has more than 600 workers.

This company keeps secret files on its employees with comments about the people and their performance.

When employees ask to review their personnel files, they are not shown or informed of this.

If an employee specifically asks if there are any other personnel files, we are instructed to tell him or her no. Is this legal? If not, what agency should I report this to?

--D.S., Irvine

A: The California Labor Code provides that employees have the right to inspect, at reasonable times and at reasonable intervals, all documents in their personnel files that may affect their continued employment or advancement.

The rule does not apply to letters of reference or documents relating to the investigation of a possible criminal offense. Unless the “secret files” to which you refer contain just those excepted items, they are probably not being kept in accordance with the law.

The California labor commissioner is responsible for enforcing that law. You should not report the situation to the labor commissioner, however, until you make some attempt internally to have your company comply with the law.

As a member of the human resources department, you are in management. Your first responsibility is to help to bring your company into compliance with the law, not to institute legal proceedings against the firm. It may well be that senior management at your company is not aware that the current practice of maintaining personnel files may be unlawful.

Also, you might point out to your supervisors that the whole purpose of keeping files on employees’ performance--to justify discipline or termination--may be frustrated if the files are kept secret. A court in a wrongful-termination suit is not likely to let your company use files in its defense that were not kept in accordance with the law.

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

Termination Not Based on Fact Can Be Contested

Q: I worked as a registered nurse for a hospital for more than 19 years. Most recently I had been an assessment R.N. dealing with mostly old and sick patients by phone.

Last year I developed some health problems, and my physician put me on medical leave for four months, which helped to clear the problem.

I returned to work in October. I mentioned to my supervisor that high-pitched noise (printing and label-making machines right next to me) caused the problem, which could be corrected if I were moved to a quieter area. She said it could not be done.

In late November I experienced severe pain in my right arm and shoulder. I had been working on the phone without any kind of neck support until I saw other departments using headsets. I asked to have one ordered for me. I went to my physician, who instructed me to make an appointment in January with a neurosurgeon. The second doctor put me on leave until March 5 because tests revealed that I had a herniated cervical disc, a bulging cervical disc and two bulging lumbar discs.

I took the doctor’s excuse paper to work. The next day my supervisor told me that my six-month leave of absence was up on Feb. 1 and that I was terminated as of that date.

I never abused my sick leave during my years at the hospital, and I was not aware that such a dismissal could be done. What recourse do I have?

--M.B., Huntington Beach

A: You may have recourse on several different fronts. Based on your description, your employer’s expressed reason for terminating you does not square with the facts.

As I understand it, you did return to work from your earlier four-month leave. Unless your employer’s leave policy is written differently from most, your current leave would not already amount to six months.

If that is the case and your employer has given you a false reason for your termination, your chances for success against your employer, should you bring legal proceedings, are greatly enhanced.

With that in mind, I see three potential avenues for you to contest your termination.

First, if your employer is subject to the California or federal Family Medical Leave acts, you may have a claim against your employer under either or both laws for discriminating against you for taking or attempting to take leaves under those laws.

Second, your physical condition may constitute a physical disability, and your employer’s termination of you may violate your rights under the California Fair Employment and Housing Act or the federal Americans with Disabilities Act, both of which prohibit discrimination on the basis of physical disability.

Third, your termination may violate the California Workers’ Compensation Act, which prohibits discrimination against employees for filing or making known their intention to file workers’ compensation claims.

I would consult either an attorney, the California Department of Fair Employment and Housing, the federal Equal Employment and Opportunities Commission or the federal Department of Labor to explore your rights.

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