Employers Have Latitude in ‘Monitoring’ of Calls
Q. Our employee handbook states that telephones “are to be used for business purposes only” and that the company may monitor conversations for quality assurance and to confirm that telephones are being used only for business purposes. Doesn’t the company have to announce to outside callers that their telephone conversations can be listened in on? There is no such announcement made now when someone calls in to our company.
--S.F., Fountain Valley
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A. It is true that a business must advise callers if it actively monitors telephone calls. Often, however, employers will provide advance notice, sometimes in an employee handbook, that calls may be monitored.
Companies do this so that the policy is on record should they choose in the future to monitor calls.
Your employer may be one of the businesses that has notified employees that calls may be monitored but that has not yet actually done so.
You should be aware too that “monitor” means more than listening in on calls. Many employers maintain records of each outgoing call and may therefore have a record should an employee be making an inordinate number of personal calls.
If your employer has a policy of limiting telephone use to business calls, employees who spend a significant amount of time on personal calls may be subject to disciplinary action, including termination.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
No Requirement to Give Time Off for Charity
Q. Are California employers required by law to give employees time off for volunteer activities? Must they compensate employees for their efforts to “give something back” to their communities?
--B.R., Los Angeles
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A. Most California employers are forbidden by law from discriminating against employees for taking time off to perform emergency duties as volunteer firefighters.
With that exception, there is no law requiring a California employer to give employees time off for volunteer activities. There also is no law requiring California employers to compensate employees for “giving something back” to their communities.
--Deborah C. Saxe
Management attorney
Heller Ehrman White & McAuliffe
Employee Wages Can’t Be Withheld for Losses
Q. Is it legal for a company to withhold your first week’s salary and pay it when you leave? The company says it is a security deposit against employee theft and fraud.
--B.F., West Hollywood
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A. It is illegal for the employer to delay paying your first week’s check in this manner.
An employer cannot make an employee cover its business losses. Even if your employer claims you caused losses through negligence, or even possible theft or fraud, it can’t deduct losses from your wages. The company would have to pay your wages, although it could make a separate claim against you.
Keep in mind that it is customary for companies to delay paying wages a week or so past the time services are provided to allow them to complete their paperwork and cut the checks.
If you complain about this practice and they fire you, you would be protected as a whistle-blower. You would then have a claim for wrongful termination.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Determining Liability of Payroll Preparer
Q. From the information we recently received, the reinstatement of the California overtime rule scheduled to take effect Jan. 1 states that the payroll preparer is personally responsible for any errors in overtime calculation made either by the preparer or the employee. Is this true?
--K.P., Chula Vista
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A. California’s new overtime law authorizes civil penalties for violations, including an employer’s failure to pay daily overtime premiums of time-and-one-half for work past eight hours a day and double time for work past 12 hours a day.
Beginning Jan. 1, an employer can be assessed a penalty of $50 for each underpaid employee in each payroll period in which the employee was underpaid.
The penalty increases to $100 if the employer is caught repeating the offense. The civil fine is payable to the affected employee rather than the state.
In addition, the employer would have to pay the underpaid employees the unpaid overtime premiums, interest and attorney’s fees.
As your letter suggests, the new penalties can be assessed against either the employer or a “person acting on behalf of an employer.”
It is not possible to predict how the Labor Commissioner or the courts will interpret this provision. I urge you to consult an experienced employment attorney, particularly if you suspect that an employer for whom you prepare payrolls may be underpaying its employees.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.
