Law Limits Searches--and Privacy--in Workplace

Q My employer recently hired a security company to stem losses from theft. Some of my co-workers have been asked to empty their pockets and open bags and purses. One pregnant woman was asked to lift her blouse as she was departing.

I can understand the company’s need to safeguard its property, but I wonder if it has stepped over the line. Are there any regulations limiting company searches of employees and their vehicles?

W.K., Placentia

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A There are regulations on what employers can and can’t do in searching employee property.

The California Constitution contains a provision guaranteeing all persons in California their right of privacy, although that right is not without limits.

Generally, as long as the employer makes clear in advance that lockers, desks and other such areas are subject to search, the employer may search them at random.

Whether more intrusive searches are acceptable is a gray area. Generally, most lawyers would not advise employers to search personal property, such as purses or vehicles, without some reasonable cause to believe the employee being searched is involved in theft or other improper activity.

And requiring a pregnant employee to lift her blouse would certainly appear to be an improper intrusion into her privacy.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Unless There’s a Safety Issue, Music May Stay

Q Is there any law regulating music in the workplace?

I recently was forced to quit a job--one of the best I ever had--because I couldn’t stand the music and the company refused to turn it off.

--M.M., Santa Barbara

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A Unless you can establish that the music is creating an unsafe workplace, there is no law permitting employees to insist that music not be played.

If the music is creating a safety issue, the California Occupational Safety and Health Administration would be the agency to contact. Cal-OSHA is charged with ensuring that workplaces are safe.

It has the authority to investigate and, if appropriate, issue penalties against employers who permit an unsafe workplace to exist.

The Cal-OSHA number should be in your phone book under State of California.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Whistle-Blowers Have Some Job Protections

Q My daughter works for a health-care company. Can she be fired if she accuses the company of malpractice? She is an excellent worker.

--J.D., Santa Maria

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A Whistle-blowers certainly are protected from being fired, if their complaints involve violations of specific statutes and general “public policy” rulings by courts, or if they are fired contrary to the employer’s written policy.

Your daughter should make sure that she has copies of all documents indicating that she is in fact an excellent worker. She should try to obtain evidence of malpractice if she can do so without violating any policies regarding confidentiality or proprietary information. She should then complain in writing to the company or to the government entity regulating it. Her complaint to the government agency can be made anonymously if she prefers.

Unfortunately, the company’s first reaction might be to fire your daughter rather than to rectify past malpractice or prevent future malpractice. It might feel reluctant to admit to mistakes to past patients.

Your daughter would have a claim for wrongful termination if she reasonably believes there was a violation of law, even if it is determined later that there was no violation.

If your daughter is fired, the company still might be eager to settle any claims to avoid undue publicity involving allegations of malpractice.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Allowable Expenses Are at Firm’s Discretion

Q I frequently travel by personal car on company business, staying in hotels. Sometimes I leave one hotel and check into another on the same day. My employer pays the Internal Revenue Service’s rate for mileage and gives me a per diem for meals.

The employer is supposed to reimburse me for the full expense of hotels, but will not reimburse tips for the bellman at more than $2 per day and nothing for the chambermaid. I thought employers were required to reimburse all of an employee’s actual expenses incurred on company business.

--C.G., Westlake

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A Although an employer is obligated to reimburse employees for necessary and reasonable business expenses incurred, it may place limits on reimbursement of discretionary items such as tips. It is not customary to tip housekeepers in business-class hotels, particularly for a one-night stay.

Moreover, if you are only staying a night or two at a hotel, you should not have more than a bag or two. This is why your employer probably limits reimbursement for bellman tips to $2.

Of course, you are entitled to provide greater tips to hotel service personnel if you so desire. But these higher tips would not appear to constitute “necessary” business expenses that your employer would be required to reimburse.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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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; or e-mail it to [email protected]. 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.