skip to main content

Listen

Read

Watch

Schedules

Programs

Events

Give

Account

Donation Heart Ribbon

Legal Update: What Employers Can And Can’t Do

Audio

Aired 2/1/11

A lot of legal issues come up in the workplace, in fact that area of law it the specialty of our legal analyst Dan Eaton. On today's legal update, we'll focus on two recent cases that test the boundaries of what employers can and can't do when it comes to the livelihood and personal information of their workers. We'll also get an update on California's new gun ammunition sales restrictions, that were supposed to have gone into effect today.

A lot of legal issues come up in the workplace, in fact that area of law it the specialty of our legal analyst Dan Eaton. On today's legal update, we'll focus on two recent cases that test the boundaries of what employers can and can't do when it comes to the livelihood and personal information of their workers. We'll also get an update on California's new gun ammunition sales restrictions, that were supposed to have gone into effect today.

Guest

Dan Eaton, San Diego attorney and These Days legal analyst

Read Transcript

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: A lot of legal issues come up in the work place, in fact, that area of law is the specialty of our legal analyst, Dan Eaton. On today's legal update, we'll focus on two recent cases that test the boundaries of what employers can and can't do, when it comes to the lively hood and personal information of their workers. We'll also get an update on California's new gun ammunition sales restrictions that was supposed to have gone into effect today. Joining us for the latest on these legal stories is my guest, San Diego attorney Dan Eaton, hi Dan.

EATON: Good morning, Maureen.

CAVANAUGH: Now, the first case we address, with a U.S. Supreme Court ruling on whether an employer can legally fire someone just because they have a close personal relationship with another employee who's filing a complaint against the company. This case was dubbed the case of the fired fiance. Tell us about the factual background.

EATON: It's actually a fun case. What happened was a Kentucky woman who worked for a company by the name of north American stainless filed a charge of sex discrimination against her employer. Well, her fiance also worked for the same company. And what the company did was, allegedly, was fire this -- the fiance in retaliation for the woman filing her sex discrimination charge. So he said, no, I don't think so. So he filed a charge of his own climbing retaliation. Those are the alleged facts of it.

CAVANAUGH: Now, the lower courts ruled in favor of the company. They said that this did not -- the title seven, the federal anti-discrimination employment law did not permit claims of third retaliation.

EATON: For the woman timing her sex discrimination charge so he said, no, I don't think so. So he filed a charge of his own claiming retaliation, those are the simple alleged facts of this.

CAVANAUGH: Now, the lower courts ruled in favor of the company, they said that this did not -- that the entitle seven, the federal anti-discrimination law did not permit claims of third party retaliation, does third party retaliation mean?

EATON: Well, let's be clear [check] like demoting, against that person, third party retaliation says the person files a charge of discrimination, and then the company takes some action against a third party.

CAVANAUGH: Right.

EATON: Such as a third party, or in this case a fiance, to punish that first worker from filing the sex discrimination charge.

CAVANAUGH: So why do the lower courts rule against the fiance?

EATON: Because of the language of title seven, and actually courts were split on this. Until the Supreme Court resolved this issue. The federal law, title seven have been the federal anti-discrimination law says that it shall be an unlawful employment practice for an employer to discriminate against any of his employees because he has made a change of some kind of unlawful practice, the law,a laws a person claiming to be aggrieved by an unlawful employment practice to sue the employer. Now, the Courts reason in this case, that, look, the person who can sue, [check] because they filed a charge. Well, the fiance wasn't filed because he filed a charge, or engaged in other activities such as supporting his fiance's claim in testimony and so or the. He was fired, he says, simply because he was her fiance. And that's unlawful retaliation.

CAVANAUGH: There was no law in effect, so the lower court said, this did not apply, [check].

EATON: Right, been protected activity, and the decision was actually am written by Justice Scalia, and what Justice Scalia wrote for the Court was, that this was a pretty easy case in terms of this kind of retaliation being unlawful, let me just read his opinion. With quote, we have little difficulty concluding that the facts alleged by the fired fiance are true, that the company's firing of him violate title seven, title seven retaliation provision, prohibits any employer action that might have well dissuaded a reasonable work are from [check] we think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired, close quote. And that's how the supreme court resolved that threshold question of whether there had been a violation of title 7 at all.

CAVANAUGH: So what stops now, somebody who just happens to be a good friend of a check economic in that good friend gets fired, how do we stop a claim of, oh, you fired me because my friend was firing a haught against you?

EATON: Well, Maureen, the Supreme Court, the Justice Scalia addressed the very [check] who is tanning to sue, and what kind of relationship, and the Court specifically quote, declined to identify a if I canned class of relationships for which third party [check] almost always meet the standard and conflicting a mild reprisal on a mere acquaintance will almost never do so, but beyond that, we are reluctant to generalize what the Court said in coloring who could sue, is that are they within the zone of interest protect would by title seven, the federal civil rights law, and employment law, and said the fiance was within that Zen of interest, he, quote, is not an accidental victim of the retaliation, collateral damage, so to meek to at this time employer's unlawful act. To the contrary, [check]y hurting him was the unlawful act by which the emmer punished her, close quote. So in other words, [check] in response to the firing of an. Ee or a retaliation. That share holder will be outside the zone of and. A fiance co. Ee would.

CAVANAUGH: Yeah, because it would actually hurt the person [check].

EATON: Exactly right, Maureen.

CAVANAUGH: Do you think that this would apply to California's employment discrimination law?

EATON: Maureen, it well could, and the reason is because California law has similar -- the fair employment and housing act, employment provision, has similar retaliation language. And California courts often use federal court rulings, particularly superior court rulings of where language is similar between the two statutes. So you could sue third party legislation being applied in California, although, I wasn't able to find any particular cases on point. Although, as you pointed out, my practice [check].

CAVANAUGH: The next case that we're gonna talk about is a really complicated one. It has to do with a woman who sued Sacramento retail developer. Sheep sued for sexual harassment, retaliation, and wrongful firing. All stemming to disclosure to her boss [check] and subsequent e-mails that went back and forth from her employer to her disseminated among other members of the upper echelons of this development corporation, and her attorney. So tell me, first of all, if in of course the am with just had not revealed that she was pregnant to her. She, should that be any reason for her to be terminated.

EATON: No. In fact, employers are not allowed to ask about a pregnancy status. And she certainly was not under an obligation to disclose it. What happened, was the woman, Gena Homes in this case, [check] she would have been pregnant at the time she was hired and interviewed of the employer [check] not necessarily so much because of the undisclosed pregnancy, but because the woman kept ongoing back and forth on how much dime she said she was going to take off. [check] ever she disclosed pregnancy, initially.

CAVANAUGH: And just to move it forward, she became very upset that some details, personal details that she had revealed to her employer about her desire to be pregnant, and her problems with pregnancy were disseminated to other employees in the company. And she e-mailed her attorney about who she could do this, but she e-mailed her attorney on the company e-mail.

DEFENDANT: That's exactly right. What she did was she sprained to her boss some of the details [check] the boss then disclosed it to a handful of company fiduciaries whom he felt needed to know [check] and she said, oh, that's a privacy issue. So then sheep used the company's equipment to e-mail her attorney some very specific information that she apparently wanted to keep [check] its computer was subject to being monitored.

CAVANAUGH: And so therefore when she ultimately put in her lawsuit, her claim against her employer, and they came back and they used these e-mails to her attorney. She said that she should not be allowed. So how did the Court of Appeals rule on that?

EATON: The Court of appeals said no, actually [check] attorney-client communications are confidential and privileged. Even knows that. But an attorney client communication is only privileged if it is confidential, and confidential means it is transmitted in such a way that [check] discloses the information to no third purpose other than those who are present to further the interest of the client in the consultation. Obviously an employer that she's complaining about is not one of those people. Because she did transmit it on company computer, that she knew from a handbook could be reviewed, was not to be used for personal e-mails or anything, the em[check].

CAVANAUGH: This just one of a number of cases this you've prohibited to us on this program that basically warns people about the fact that which you use company e-mail that those conversations are really the company's property.

EATON: Well, that's, the Supreme Court of course ducked that issue in last year's case, Kwan versus City of Ontario, that just left year [check] but said this the California court of appeal in this case, said, look, if the company puts you in the clear and consistent notice that those e-mails are subject to review, that you shouldn't use it for personal business issue then those e-mails are subject to review. And Maureen, this goes beyond the issue of attorney client privilege, the clear less lesson to employers is to be clear and consistent on putting. Eyes [check] and the clear message to employees is don't use your company equipment even if you have a password that gets into it, if you don't want your employer to review it.

CAVANAUGH: Now, finally, I want to update us on something we talked about in a previous segment. We talked about a new law that was actually enacted in 2009, but was actually scheduled to go in today. February 502011. It would regulate the sale of handgun ammunition. But on January 10th, a Fresno state court threw out key parts of the law. Why did they [check].

EATON: Because the law prohibited -- required certain regulations, concerning fingerprinting and so on, for ammunition that was primarily used for handguns. And the trial court, [check] just this morning by the way, I understand from the Fresno sport, that that's too vague. It was too vague to [check] exactly what kind of ammunition was at issue. And therefore it was unconstitutionally vague, and therefore it could not go into effect. And he blocked it from going into effect. And it's not in effect today.

CAVANAUGH: [check].

EATON: Only part of the law, but it shut down a part of the law, that was very important to a lot of the people or proponents. [check] and it shut down that part of the law that dealt with applying that aspect of the raw, and other aspects of the law, to certain forms of handgun regulations issue so now there's been eye response, the newly [check] and also the person who sponsored that law itself actually introduced last week a pill that would delete the [check] burdens of course on gun owners. So now [check].

CAVANAUGH: I see, so for people who want to see this law go forward, which -- so it's going on this dual track now?

EATON: Right.

CAVANAUGH: Possibly changing the legislation itself, and the lawsuit may be appealed.

EATON: Well, that's right. Senator de León of Los Angeles, has put forward a bill that would change the law. But it would change the law [check] may very well appeal this as well.

CAVANAUGH: Dan Eaton, a lot of it did information in a very short period of timE, I really appreciate it.

EATON: All right. Thanks a lot Maureen.

CAVANAUGH: I've been speaking with These Days legal analyst, Dan Eaton. If you would like to comment, please go online, kpbs.org/thesedays. And stay with us for hour two of These Days coming up in just a few empties here on KPBS.

Comments

Avatar for user 'gretchen1957'

gretchen1957 | February 1, 2011 at 2:09 p.m. ― 3 years, 8 months ago

Legal issues in the workplace: What about an employer who keeps an obscene picture and article on their website? The employee files a sexual harassment claim and it's denied for First Amendment protection of the author....Really?

( | suggest removal )

Avatar for user 'GAPsquared'

GAPsquared | February 2, 2011 at 9:18 a.m. ― 3 years, 8 months ago

I wonder if Dan Eaton, Esq., the guest legal analyst that commented on the legal case involving an employee that communicated with her attorney using "company e-mail", would clarify a few details about the court decision. Did the court's decision pivot on the employee using company-owned computer equipment to access her own personal email account with a 3rd party provider like say AOL or Gmail, or did it hinge on her having used an e-mail account on the company-provided e-mail service. I hope he can clarify that point in this comment section. Thanks.

( | suggest removal )

Avatar for user 'deaton'

deaton | February 3, 2011 at 12:57 p.m. ― 3 years, 8 months ago

GAPsquared:

Thanks for your excellent question. The employee used her company-provided e-mail service, not her personal, third-party provider account. In fact, the California Court of Appeal went out of its way to distinguish a 2010 decision of the New Jersey Supreme Court, Stengart v. Loving Care Agency, Inc. (N.J. 2010) 990 A.2d 650. In that case, the New Jersey high court held that attorney-client communications an employee sent from a company computer WERE privileged where: (1) the employee accessed a "personal web-based email account" from her employer's computer; (2) "the use of such an account was not clearly covered by the company's policy;" and (3) the e-mails between the New Jersey employee and her attorney "contained a standard hallmark warning that the communications were personal, confidential, attorney-client communications."

In the California Court of Appeal case I discussed, Holmes v. Petrovich Development Company, LLC, by contrast, the e-mail was sent from the employee's company-assigned e-mail account. Under those circumstances, it didn't matter that the employee used her private password to use the company computer and deleted the e-mails to her attorney after they were sent. As the Court of Appeal put it: "When [the employee] e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless [the employee] allowed others to have access to her e-mails and disclosed their content. Instead, she used [her employer's] computer, after being expressly advised this was a means that was not private and was accessible by [her boss], the very person about whom [the employee] contacted her lawyer and whom [the employee] sued. This is akin to consulting her attorney in one of [her employer's] conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [her boss] would be privileged."

Thanks for giving me the opportunity to clarify this important point. And thanks for listening.

Dan Eaton

( | suggest removal )