Q The company I worked for hired an independent company to review phone etiquette.
Employees were asked to sign a release/waiver allowing our telephone conversations to be recorded. Although I never signed the release, the company went ahead and recorded one of my phone conversations anyway.
Even though I had demonstrated exemplary phone etiquette and the tape in no way harmed my reputation with the company, I am very disturbed by the notion that the company can record my phone conversations without my consent.
Is this legal?
--D.P., Costa Mesa
A It may not be. California law prohibits the recording of any confidential telephone conversation unless both parties consent to the taping.
In your case, if your employer did not tell those employees who refused to sign the release/waiver form that it still intended to record them, you may have a claim against your employer for taping you.
If, however, your employer announced that it intended to monitor and record all conversations, regardless of whether the employee consented, you would have no legitimate expectation that your conversations were confidential, and the taping would be lawful.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Former Department Reluctant to Cut the Ties
Q I have worked for the same organization for 10 years. Three years ago, I transferred to a new department, and enjoy the responsibilities and people very much.
However, some of the managers from the old department continue to treat me as though I still work for them. They ask me to do things for them or return to train the employee who took my place, even though she has been in the position more than two years now.
I don't want to work with one foot in the old department and one foot in the new, but I don't want to burn bridges either. How do I cut myself loose from the old ties?
A You need to discuss this situation with your supervisor and the supervisor of the old department.
Some arrangement needs to be made so that you are assigned a portion of your time to help out in the old department. Or that department needs to get the training or supervision so that it can function without our help.
This is an issue that should be resolved by the supervisors of the two departments.
--Ron Riggio, director
Kravis Leadership Institute
Claremont McKenna College
Libel Laws Apply Even if Fact Is Made Fiction
Q I am writing a novel about my former place of employment. The names are fictitious but the situations and personalities are drawn directly from life. Some of the situations are comical, but others are not, particularly the climactic incident where members of management knowingly violate employment law.
Before I send the manuscript off to a publishing house, what measures can I take to protect myself from being sued? Are there any cases that I could refer to for guidance?
--O.N., Costa Mesa
A If, in spite of the fictional quality of your writing, the company and its executives are generally recognizable in your manuscript, you could be sued for defamation if you falsely suggest that management knowingly violated employment laws. You may think that laws were being violated, but are you sure you have the whole story?
Libel is defined under California law as a false publication "which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or has a tendency to injure him in his occupation." Different standards of proof apply depending, on whether the alleged victim of defamation is a "public figure." But unless a court or other tribunal found the company or its executives guilty of labor law violations after some legal proceeding, you are on risky ground making these allegations.
You may also be sued for invasion of privacy if you portray an individual in a false light or if you reveal private, personal information about the person. This is a complex area of the law, and you should have your manuscript reviewed by an attorney who is an expert in the 1st Amendment and defamation law before proceeding toward publication.
--James J. McDonald Jr.
Attorney, Fisher & Phillips LLP
Labor law instructor, UC Irvine
Employee's Travel Time May Count as Overtime
Q I took a job as a field service technician for a New York-based company. I was told by my supervisor and human resources rep that they do not pay overtime for travel. I fly one to two times per week, which means I leave home at 5:30 a.m. and return after work hours.
I understand that this is contrary to California law. Please clarify and let me know if I am due back pay.
A Salaried white-collar employees are not entitled to pay for travel time. It appears from your question, however, that you are an hourly employee rather than a salaried executive, professional or administrative employee.
If so, under California law, your travel time is considered time worked if the travel is required by your employer. This rule applies to air travel, even if no productive work is done on the plane, or time spent waiting at the airport. In contrast, time spent by hourly employees in commuting between home and office is not counted as hours worked.
To calculate the wages you are owed, you first need to determine when your workday begins and ends. If it takes you longer to get to and from the airport than it ordinarily would take you to commute to and from work, you would subtract your ordinary commuting time from your travel time to and from the airport. In addition, your employer is entitled to deduct an unpaid, 30-minute meal period for every five hours that you are on the clock, unless you actually perform work during the meal periods.
Keep in mind that you are entitled to overtime--1 1/2 times your regular, hourly wage rate--if your workweek exceeds 40 hours when you fly. For periods before this year, (when California abolished daily overtime premiums in most industries), you should also be able to recover time-and-a-half when your workday exceeded eight hours and double time when your workday exceeded 12 hours.
You may also be entitled to recover any attorney's fees, interest on all back pay and, under federal law, double damages for at least a portion of the wages you are owed.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman