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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33478
Experience:  Retired (mostly)
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I am a manager of a small company (12 employees) in California.

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I am a manager of a small company (12 employees) in California. I was written up because an employee complain that I was providing a hostile work environment. She exaggerated and gave false information. My employer shared this information with other employees and left my write up on the printer for other employees to see. On top of it all, the employee who made the complaint is a personal friend and neighbor of my employer. She taunted me on my way to the meeting with my employer and sent a group text making comments alluding to knowing the nature and purpose of my meeting with my employer. This employee has been allowed to behave this way and I have lost my authority with my staff. What are my rights? What should I do?
Submitted: 9 months ago.
Category: California Employment Law
Expert:  socrateaser replied 9 months ago.
Hello,

No California court has yet determined the rights of an employee under the circumstances you describe here.

Were I representing you in court, I would use the following argument to protect your rights:

  • The "analytical framework" for assessing privacy claims should proceed as follows: "First, the claimant must possess a `legally protected [652] privacy interest.' [Citation.] An apt example from Hill [v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633]] is an interest `in precluding the dissemination or misuse of sensitive and confidential information ("informational privacy") ....' [Citation.] Under Hill, this class of information is deemed private `when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.' [Citation.] ... [¶] Second, Hill teaches that the privacy claimant must possess a reasonable expectation of privacy under the particular circumstances, including `customs, practices, and physical settings surrounding particular activities ....' [Citation.] As Hill explains, `A "reasonable" expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.' [Citation.] `[O]pportunities to consent voluntarily to activities impacting privacy interests obviously affect[] the expectations of the participant.' [Citation.] [¶] Third, Hill explains that the invasion of privacy complained of must be `serious' in nature, scope, and actual or potential impact to constitute an `egregious' breach of social norms .... [¶] Assuming that a claimant has met the foregoing Hill criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a `"balancing test."' [Citations.] (7) `Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests.' [Citation.] Protective measures, safeguards and other alternatives may minimize the privacy intrusion. `For example, if intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.'" (Pioneer Electronics, supra, 40 Cal.4th at pp. 370-371.)

 

Based upon the above, my argument would be that even as an employee, you are entitled to privacy in allegations of wrongful acts done by you in the workplace, because the common law provides that such invasions which cast a person in a false light towards others is actionable -- and that there is no special immunity provided to employers.

 

The disclosure of the complaints against you to the other employees was an outrageous invasion of your privacy rights, and to the extent that it deters your ability to perform your job functions, the disclosure should be actionable in the event that you are later terminated for being unable to continue to perform as manager.

 

The question of whether or not you can immediately sue your employer for the disclosure is more difficult. That is, the legal claim of "false light attribution" is a viable lawsuit. But, if you were to immediately sue, then the collateral issue of whether or not your employer could terminate you for doing so, becomes an issue -- at which point, my original argument that your termination would actually be caused by the employer's invasion of your privacy rights, and so the courts should prohibit the termination.

 

This is an extraordinarily complicated legal cause of action. I realize that you are looking for some simple statement of law, such as a section of the California Labor Code, which would immediately protect your interests. However, no such straightforward law exists. My argument here would be the best that you could do.

 

In sum, you may want to consider trying to negotiate some sort of resolution of the matter with your employer. If you cannot do so, then you could shop your case facts to 3-4 employment rights attorneys and see if anyone is interested in a novel lawsuit, such as you allegations appear to suggest.

 

That's really the best that anyone can do in this situation, because the state legislature has simply not provided any direct means of holding your employer liable for the unauthorized disclosure of of the sort of confidential information you describe.

 

To be sure, there is a colorable legal action here. But, finding a lawyer to "take the case" is a different question -- because, as there is no certainty in the outcome, you need a lawyer willing to take a risk -- and that can be a difficult thing to find.

 

This is some very difficult subject matter. If my answer is difficult to understand, feel free to ask for clarification and I will be happy to try to speak more plainly.

 

Hope this helps.

Customer: replied 9 months ago.

Thank you! If you could provide more clarification, I would appreciate it. Also, could you give examples of ways I could negotiate a resolution with my employer? What would be appropriate resolutions I could suggest?

Expert:  socrateaser replied 9 months ago.
If you could provide more clarification, I would appreciate it.

A: I'll be happy to clarify, but you will have to ask me a specific question about what you do not understand. Otherwise I don't know what you're asking me to clarify.

Also, could you give examples of ways I could negotiate a resolution with my employer? What would be appropriate resolutions I could suggest?

A: If it were me, I would ask my employer, something like, "Given that you have disclosed confidential information to all of the other employees, and that information is impairing my ability to manage the business, I need you to issue a statement that you have full confidence in my management abilities, the the allegations leveled against me are unsubstantiated, and that you expect every employee to continue to follow my leadership going forward."

Meanwhile, I would get my resume together, contact some HR staffing agencies, and try to find substitute employment. The reason for this is simply that if your employer decides that he/she won't back you up, then you will be at risk of losing your job, and even if you have a lawsuit that you can pursue after you are terminated, you will need another job. You need to be proactive -- and it's always easier to find a new job, while you are still employed in a current position.

Hope this helps.
Customer: replied 9 months ago.

I would like further clarification on your argument. I don't quite understand the argument you quoted. I don't know if it is my intention to sue, but more about knowing my rights. I have a concern of now being under a microscope and walking on eggshells. Would this be considered a hostile work environment for me?

Expert:  socrateaser replied 9 months ago.
A "hostile work environment" only applies to circumstances where the employee (in this case, you) are subject to discrimination (race, color, nationality, religion, sex, sexual orientation, pregnancy, age, disability) and you are being harassed by coworkers or management as a consequence of the unlawful discrimination.

There is no general hostile work environment. That is, an employer can treat you like dirt, just as long as the treatment is not related to one of the unlawful discrimination classifications. Example 1:

Employer to Employee: "You are the stupidest employee I have ever had. Someone ought to take you out and shoot you dead in the street."

Believe it or not, the employer's statement is not legally actionable. The employer has simply express an opinion about the employee, and there is no relationship to any discriminatory class. Example 2:

Employer to Employee: "You are the stupidest female employee I have ever had. Someone ought to take you out and shoot you dead in the street."

This statement is legally actionable, because the employer is expressing an opinion about the employee based upon her sex. That is the razor thin line the permits an employee to sue for a hostile work environement.

In your case, the employer has not discriminated against you based upon any of the unlawful classifications. The employer has disclosed confidential information about you in an outrageous manner. The right to sue for such a claim is not based upon discrimination or hostile work environment. It's based upon what is known as a "common law tort," i.e., "invasion of privacy -- false light attribution." Your character has been cast in a false light, based upon the disclosure of the alleged sexual harassment -- which is unproved and uncorroborated. You can sue the employr for this disclosure -- but the employer may be able to retaliate againsts you for suing.

That is the unknown that has not been previously litigated. If you sue, can you be fired, or are you protected. I don't know the answer, and netiher does anyone else, until a court rules on the issue. So, there is a risk. You could sue, and the court could say, "You win damages for the disclosure, but your employer does not have to reinstate you to your previous job, and the employer has no obligation to pay you for any lost wages from the date of your termination until you find new employment."

That's a big risk, and there's no way to mitigate it. Which is why I suggest that you "dust off your resume" and start looking for a different job. Because, even if you decided to sue, you could be fired, and in the meanwhile, you wouldn't know whether or not you would win your lawsuit re the reinstatement claim. That would be a very bad position to be in.

I hope this better clarifies the situation for you. Please let me know if I can further assistn.
Customer: replied 9 months ago.
Thank you for providing clarification. In this case in which I was written up, I did not provide a hostile work environment as defined above. I was keeping an employee accountable for not performing her duties and violating our employment manual. She felt she was being talked to in a condescending manner and demeaned. I'm sure my employer wanted to cover his @$& and therefore wrote me up. Overall I was asked to change my management style because "employees" we're going home upset, crying and on the verge of quitting. In processing all this information, I remembered that this same employee made reference to me having a "Latina temper" and said it was because I was Mexican. Another coworker sitting next to me said "she's not Mexican" and the employee said in response "Spanish, Mexican it's all the same thing". It bothered me but I let it go. Is this something worth bringing up now?
Expert:  socrateaser replied 9 months ago.
Yes, it's worth bringing up. Ordinarily, if your employer were to ignore these types of comments about you by other employees, then that would qualify as a hostile work environment based upon race discrimination. The problem, right at this instant, is that it would look like you are making up a defense to overcome the complaints about your conduct towards the other employees.

But, you can complain to your employer about your subordinates' comments, so that there is a record of your complaint, and you can ask your employer to issue a directive to the other employees that they must not make racial comments of any kind about you.

Then, if the conduct continues, you would be able to file a complaint with the California Department of Fair Employment and Housing (DFEH). But, you will need some sort of corroborating evidence. That could be difficult to obtain, unless at least one other employee is willing to testify in your behalf to overhearing the racial commentary.

If you can't find anyone to support your complaint, then you would need an audio recording. The only way to lawfully get that sort of evidence would be to notify the employees in writing and in advance that they may be subject to audio recording during work, while in certain specific areas of the workplace.

Getting the evidence you need may be difficult, but if you really want to turn this matter to your favor, then you will have to find someone to testify to hearing the racial comments, or you will need an audio recording after notifying the employees that they may be subject to audio recording -- because without notice, the recording is a criminal act. Penal Code 632.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33478
Experience: Retired (mostly)
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