Neighborhood-Snooping Employers Have Little to Gain
Q: Is it unethical or illegal for an employer to go to the address on a prospective employee’s application to observe how the applicant lives?
--N.Z., Fullerton
A: It would not be wise for employers to go to applicants’ homes to observe their home lives for several reasons. First, this could be construed as an invasion of privacy. Second, it could be extremely embarrassing if the employer is seen spying. Finally, it seems like a waste of time since it is unlikely that anything the employer could observe from outside an applicant’s home would be helpful in determining if the applicant would be a good employee.
--Ron Riggio, Professor of psychology, Cal State Fullerton
State Panel Has Guidelines on Work-Site Temperatures
Q: At my current place of employment, we are having a dispute on the thermostat setting for the office. This is causing quite a problem and disruption in the office. Are there any guidelines that would help settle this issue?
--N.W., Laguna Beach
A: Yes. This often becomes a “hot” topic for the work force. The California Industrial Welfare Commission discusses working conditions under Section No. 15, Temperature.
The guidelines state “the temperature maintained in each work area shall provide reasonable comfort consistent with industrywide standards for the nature of the process and the work performed. A temperature of not less than 68 degrees (Fahrenheit) shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. If the nature of the work requires a temperature of less than 60 degrees, a heated room shall be provided to which employees may retire for warmth, and the room shall be maintained at not less than 68 degrees.
“Also, if excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort.” Reasonable comfort becomes the key element. Setting the thermostat to satisfy the comfort of the majority of office personnel would be my recommendation. The employer should try to accommodate any employees who are still uncomfortable, as long as the established guidelines are maintained.
--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group
Employees Sometimes Fall in Unions’ Sphere
Q: I’m in a group of more than 200 hourly employees who are not part of the bargaining unit. During my 11 years here as an engineering technician, I have fallen under the control of the union contract as far as pay scales, holidays and anything else that comes up involving hourly employees.
However, I was not required to pay union dues or pay the agency. Recently the union agreed to a contract with the company that states that all non-bargaining employees will become members of the union or pay the agency. This was done without us having a say in the matter.
Do I have any recourse to remain in a non-bargaining unit? Can this be done without a vote from the affected employees? Can union dues be withdrawn from my paycheck without my consent or signature?
--T.H., Whittier
A: To answer your last question first, the Taft-Hartley Act requires your authorization before the company may withhold union dues from your paycheck. However, your questions as to how it came about that the union and the company agreed that the contract would cover you are more difficult to answer.
Some employers will, as you mentioned, apply some of the terms and conditions of the collective bargaining agreement to non-bargaining unit employees. That is different, however, from being an actual member of the bargaining unit. Generally speaking, in order for you and others like you to become members of the unit, the union would have to show that it obtained the majority support of the affected employees, through either an election or a card-signing.
In limited circumstances, however, the company and the union can agree to an “accretion” of employees in certain jobs into the bargaining unit. In an accretion, the employer and the union agree that certain employees, because of the nature of the job, should properly be bargaining unit members. This can happen, for example, when new employees are acquired through a merger or acquisition.
This could have happened in your case, though it doesn’t sound right in light of the facts as you have outlined them. If you believe that you have been improperly made a member of the bargaining unit, you may want to consider contacting the National Labor Relations Board.
--Josephine Staton Tucker, Employment law attorney, Morrison & Foerster
Stress Leave Requires More Than Frustration
Q: I have worked for my company for 20 years and have now been reassigned to several new jobs that are very unfamiliar to me and unrelated to each other. I have to do all of these jobs simultaneously and they involve much detail. I have been working overtime but do not receive any additional compensation because I am classified as a “deputy manager,” though I don’t feel as if I’m doing any managerial work. I am interested in requesting stress leave. Can you give me information about stress leave?
--H.S., Huntington Beach
A: Although suddenly finding yourself confronted with new challenges and unfamiliar responsibilities can lead to a feeling of being overwhelmed, the law does not provide for “stress leave” merely for common workplace frustrations.
California workers’ compensation law can be invoked only if the stress that you suffer is beyond ordinary frustration and disappointment. To be eligible for such leave, you must suffer from a diagnosable psychiatric disorder causing disability or the need for medical treatment. Furthermore, you will have to prove that actual events in the workplace were the predominant cause of your psychiatric disorder.
The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid leave of absence for a serious health condition, regardless of whether the condition was caused by events in the workplace. The FMLA regulations provide that stress is not a “serious health condition,” however, unless it results from a mental illness and the mental illness involves in-patient hospital care or continuing treatment by a health-care provider.
Under both workers’ compensation law and the FMLA, your company can send you to its own psychiatrist to determine whether you are truly suffering from a mental illness and, in the case of workers’ compensation, what role any stress from events outside the workplace contributed to your psychiatric injury.
Keep in mind that even if a leave of absence is available to you, upon your return to work you will be confronted with the same frustrations and additional problems created by your absence.
Thus, a more meaningful solution for your dilemma might be to discuss with your supervisors the frustrations that you are having with your new job. You should determine whether any assistance or training is available for you. You should illustrate why certain tasks cannot be performed simultaneously by the same person and why a better system of division of labor or method of organization might enhance productivity for both you and the company.
Finally, you and your employer should discuss and verify whether you actually qualify for the “executive,” “administrative” or “professional” overtime exemptions. These exemptions apply not just to executives who actually manage employees, but also to those who are responsible for overseeing administrative operations of a business through planning, negotiating or representing the company in a significant way. If you are nonetheless non-exempt, your employer will be obligated to provide you with the proper overtime compensation.
--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine
