Nonfraternization Policies Are Not Only Legal but Wise

Q Is there a California labor law covering fraternization or nonfraternization at work, or is that strictly a matter of company policy?

--P.I., Orange

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A There is no specific law covering fraternization, although there is at least one court decision holding that the California Constitution’s right to privacy prevents an employer from placing unreasonable restrictions on fraternization among employees. On the other hand, another court decision holds that an employer may prevent dating or sexual relationships between supervisors and subordinates.

Thus, a policy that prohibits fraternization between management and nonmanagement employees is not only legal but wise. It can help prevent sexual harassment claims, conflicts of interest, and perceptions of favoritism that might arise from dating or other relationships between managers and nonmanagement employees.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Looking Into 401(k) Investments Q I am an employee at a small company and have been investing in its 401(k) plan for about 10 years. We are now receiving quarterly statements about our investments, but the company has been through some difficult financial times, and I am uneasy relying on these periodic statements to determine whether my money is actually safely invested.

Is there some way of verifying this independently? If I wait until retirement, it will be too late if there happens to be a problem.

--D.S., Irvine

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A As a participant in a Section 401(k) plan, you are entitled to request from your employer a copy of the plan’s annual information return, called a Form 5500, that is filed with the federal government. Form 5500 contains a balance sheet that lists all of the plan’s investments. This should provide you with the information that you need.

Your employer is obligated to provide the form to you within 30 days of your written request, or risk incurring a penalty of up to $100 per day. However, the employer may charge you up to 25 cents per page for photocopying costs.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

What Can’t Be Asked When Hiring Q When a job applicant is providing information, is an employer allowed to ask whether he has ever filed for unemployment?

--A.R., Los Angeles

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A A variety of laws restrict employers from asking certain questions in the hiring process. Questions that even hint at a discriminatory bias of the employer or violate certain rights of privacy are inappropriate, for example. Inquiries that identify an applicant’s sex, age, race, color, national origin, ancestry, marital status, religion, physical handicap or medical condition are prohibited.

Questions on whether an applicant has ever been arrested or filed for workers’ compensation benefits are prohibited by statute. Along the same line, it is probably inappropriate to ask applicants whether they have filed a discrimination complaint with the Equal Employment Opportunity Commission or filed for unemployment compensation. These are rights given to you by law.

Perhaps the employer wants to find out if you have a propensity for losing jobs or filing for unemployment, which might have a financial impact on the company. An employer certainly can ask you about your job history. But even though there are no specific laws against it, an employer probably has crossed the line if it asks about unemployment compensation.

The problem with refusing to answer any question on a job interview is that it might prevent you from getting the job. If that happens and you feel you were more qualified than the successful applicant, you might have a claim against the company.

It would be useful to get the names and phone numbers of other applicants prior to the interview, so that you could talk with them to determine if they had been asked the same questions. That way, it would not be just your word against your prospective employer’s.

--Don D. Sessions

Employee rights attorney

Mission Viejo

What’s Focus Group’s Purpose? Q I have been with my present employer for 16 years, and a new supervisor has asked me to be part of a “focus group.” I really resent this, because I think groups like this are hogwash. I just want to do my job as described in my job description, which has nothing about forcing me to join work groups.

Complaining to my supervisor would be pointless, since they apparently hired her for her new ideas. She is saying that my refusing to join this group could be considered insubordination. Is it?

--C.K., Altadena

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A It is unclear whether the “group” you are referring to is some sort of work team or a true “focus group.” The purpose of a focus group is to gather information from a group of people using a rather unstructured group process so that group members can freely express their views and opinions on some topic.

If the purpose of your new supervisor’s groups is to try to solicit some sort of information or feedback from workers (in other words, a true focus group), then participating in this sort of group should be voluntary. If individuals are forced to take part in a focus group, they often don’t speak much or don’t provide accurate information, thereby defeating the purpose of the group.

On the other hand, if your supervisor is implementing work teams and this represents a change in work procedures, you are obliged to participate. It sounds like you need to discuss this with your supervisor. Ask her about the purpose of the groups and her previous experience with them, including any evidence she can provide about their effectiveness. You might feel better about the groups if you know more about them.

In any case, I urge you to give it a try. In today’s workplace, interacting work teams are commonplace. Developing your skills as a “team player” is going to be important for your future career advancement.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College