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Sklover's expert opinion
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September 16, 1996: 9:30 p.m. ET
Labor lawyer answers more of your questions on workplace legal issues
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NEW YORK (CNNfn) - This week's expert opinion comes from New York attorney Alan L. Sklover, whose practice focuses on employment issues.
"Is it illegal to read employees' e-mail messages?"
"In matters of employee-privacy concerns, the primary factor most courts consider is whether, and to what extent, the employee has a 'legitimate expectation of privacy.' This is generally defined as the reasonableness of your belief that your object of concern (here, your e-mail messages) was safe from the eyes and ears of your employer.
"In turn, how reasonable a belief you have is determined by both (a) your control over your object of concern, and (b) your employer's legitimate need to look at your object of concern.
"What does all this mean to you? If your computer is locked, and only you have the key, you have a legitimate expectation of privacy, and an enforceable right to it (i.e., you could sue your employer). On the other hand, if many people have access to your computer on a regular basis, your right to privacy of your e-mail is doubtful.
"Also, if your job is such that urgent, valuable or crucial information or e-mail messages at times come across your monitor screen, and your boss's business depends on them, your legitimate expectation of privacy is again doubtful."
"An employee, age 43, is required to work a large part of the day with a computer having a 14-inch monitor. If the employee requests a 17-inch monitor, citing age-related visual difficulties, does the employer have the legal obligation to buy this equipment?"
"The Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of disability. The ADA requires that employers make reasonable accommodations for employees with disabilities, unless the accommodation would cause the employer an undue hardship. As you might imagine, a great deal of discussion and debate frequently takes place in ADA claims regarding whether in the case at hand we see a true 'disability,' whether the requested change is a 'reasonable accommodation,' and whether the cost and difficulty entailed constitutes an 'undue hardship.'
"Many of the terms used in the ADA legislation and regulations are quite broad, and ill-defined. Courts are busily working at these definitions, and over time it is expected greater clarity of meaning will come about. Each claim must be viewed in the light of its own particular facts, circumstances and context.
"For further information, and assistance, you might call the office of Americans with Disabilities Act Information Line at the U.S. Justice Department at (202) 514-0301."
"I am a union member that does not agree with my union's political views. Is there some way I can recoup that portion of my dues that is being spent on campaigning?"
"Labor unions devote considerable efforts and resources to affecting the political process. The rationale for this is that effective manipulation of the political process to promote the interests of union members is a proper union function.
"While unions do not have their own views, membership and leadership are generally entitled to devote efforts and resources to the political process.
"Other than by utilizing internal union procedures and lobbying, we know of no law or authority which could help you recoup that portion of your union dues spent in ways -- political or otherwise -- not to your liking."
"My wife works as an aide in a Houston, Texas, area school system. She is required to work all day (7 a.m. to 2:30 p.m.) with no breaks for lunch. During lunch time, she is required to be with the students, special-education needs (pupils with) both mental and physical handicaps. Can her employer require her to work all day with no break for lunch?"
"To the surprise and dismay of many, no federal law sets requirements for mandatory work breaks, meal breaks or rest periods.
"About half of the states do set minimum work, meal and rest breaks, some simple (New Hampshire requires 30 minutes of mealtime for every five hours of continual work) and some fairly complicated (Oregon specifies the point during the workday when a 30-minute mealbreak must occur).
"Unfortunately for your wife, Texas has no law requiring meal or rest breaks."
"I signed a non-compete agreement before I started with my current employer. The agreement says that I cannot work for another (company) doing the same type of work within 100 miles, for 90 days (after leaving my current job). How solid are these type of documents? I have heard many people say that non-competes never hold up in court."
"Non-compete agreements (often called 'covenants against competition') are agreements under which the employee agrees not to work for a company which competes with his employer after his present employment terminates. These agreements are utilized to ensure that valuable company practices, policies, plans and secrets do not fall into the hands of competitors.
"While courts are showing increasing reluctance to enforce these agreements if they appear unusually burdensome or restrictive to the employee's ability to make a living, those who do not believe that these agreements are enforceable are seriously mistaken. In fact, where money, some advantage or other legal 'consideration' is given the employee in exchange for his or her signing the document, many courts enforce them quite strictly.
There are no formal rules, but each case is reviewed for its own unique facts, circumstances and context. The factors frequently seen set out in written court decisions include:
- geographic scope;
- time duration;
- amount paid for signing;
- burden on employee's ability to make a living, or to go into public assistance;
- actual threat posed by violation;
- whether the employer honored all of its obligations to the employee.
"As a general matter, I would not view the 90-day time period (you spoke of) to be particularly burdensome or restrictive."
"I have been a contract employee for a large company for about 10 months, (and now there) is possibility to change my position to a permanent one. If I am paid $35 an hour as a contractor, what salary should I ask for (to assume) the same position as a permanent employee? By the way, the $35 per hour is paid through a (temporary-employment) agency. I don't know how much my company pays the agency (for my services)."
"I don't believe there exists any general rule of thumb by which you can come up with a good estimate of starting salary for a full-time, permanent employee based on the hourly price paid to a temp agency for those same services. There are just too many variables.
"The margin, or profit, of temp agencies varies by the type of services provided, from one region to another, even by whether the paying customer (that is, the employer) is large or small, a regular customer or not, and on many other variables as well.
"I think your best route to determining a good starting salary is to look over the want ads, speak with recruiters and human-resource personnel, and to speak with others who are presently employed in your area of expertise and in your city. Then factor in your level of expertise, skills and special skills.
"If I know that I'm going to be laid off as part of a group, can I negotiate my own severance package with the company, or am I stuck with what they give me?"
"Our office specializes in the negotiation of severance packages, in varied industries and locations around the country. If there is one message we stress to each and every one of our clients, it is that severance is extremely negotiable, even in a large-size downsizing, and even when human resources takes the position that the severance offer is 'written in stone,' that is, non-negotiable.
"Every person has different circumstances in their lives -- including their personal and family lives -- and the needs of each person in severance are therefore different. We urge our clients to assess their needs in severance -- for compensation continuation, benefits, bonus, pension, outplacement, training, relocation, agreed 'departure statement,' etc. -- and to request that their severance package specifically address those very needs. No request is off-limits; anything can be requested, so long as the request is tactfully and respectfully made.
"Our clients are continually surprised to learn how negotiable severance packages are."
"My son is an airline pilot. Last September he was hired by ... a rapidly growing commuter airline ... as a 'street captain,' meaning that he was more qualified than most of (the airline's) co-pilots, who could not upgrade to captain because of a lack of experience or hours of flight time.
"He was fired a few weeks ago without explanation ... about a month before his probationary year would have been up and he would have been a full-fledged member of the Air Line Pilots Association (union). He found out that at least four other 'street captains' were fired a few weeks before their probationary period was up as well.
"(The airline) will not tell him why they fired him, nor will they let him resign. This impacts his career in aviation in the most negative way. I'd like to know if there is anything he can do to find out why he was fired and/or how he can convince the company to let him resign."
"In all probability there is nothing that can be done to convince an employer to state why it terminated a probationary employee, or to rehire that employee so that he or she might resign first.
"It is a general rule that, unless a contract provides otherwise, an employer is entirely at will to terminate its employment relation with any of its employees, so long as the termination is not the result of an illegal discrimination. As your son was expressly considered a probationary employee, his legal rights in this area are even more restrictive.
"Employers are always reluctant to provide a reason for termination, for the very reason that there can be developed arguments, and possibly lawsuits, over why this reason for firing is either wrong, or insufficient, or discriminatory in purpose or effect. Their view is this: saying why an employee was terminated can only cause the employer problems, so why do so.
"On behalf of clients I have actually requested of corporate human-resources directors that a fired employee be given an opportunity to 'resign,' I have always been turned down in these requests with the explanation that granting such a request would make their own company's decision to fire that employee appear to be a mistake, or it would make it appear to the rest of the world like they were participating in a charade, or fraud of some sort.
"If a company buys another company, can the buying company take the remaining employees' 401(k) money that is vested and transfer it into the buying company's 401(k) without the written approval of the vested person?
"My wife's bank was bought out, and terminated its 401(k). No distribution was made to the employees, (with money instead) rolled over into the buying bank's existing 401(k). There were no inquiries from the company -- they just informed the employees that they had done it!"
"401(k) plans give employees the choice of deferring payment of part of their present compensation until retirement. The amount deferred under these plans -- part of all of which is often matched by some employers -- is then invested for retirement.
"As retirement 'plans,' 401(k)'s are subject to the protections afforded by ERISA, or the federal Employee Retirement Income Security Act. ERISA requires that preparation of a written plan of administration and the appointment of a plan administrator. ERISA also requires that the plan administrator must give to each participating employee a 'summary plan description,' which sets forth how the plan operates.
"Your wife should contact the plan administrator of her 401(k) plan to both request a copy of the summary plan description, and to question transfer of funds from the predecessor bank she used to work for.
"It is my expectation that the technicalities of the 401(k) plan provide either that the transfer from the prior employer to the present employer was permissible, or the kind of merger between the two banks does not qualify as a transfer or rollover."
"I had a picture of my wife removed from my office because it was deemed 'inappropriate.' The photo was of my wife posing in a body-building contest.
"There was no warning given, and no company guidelines published for what constitutes 'inappropriate.' (Rather,) a 'task force' was sent around the building after business hours to remove 'inappropriate' material in offices. I think my rights were violated. What do you think?"
"Removal of items from the workplace -- such as photographs of scantily-clad women or men -- is becoming quite common. This is being done by employers to avoid complaints or lawsuits by employees claiming existence of a "hostile" work environment, a form of sexual harassment and, thus, violation of civil rights.
"You are entirely right in suggesting that your employer should have acted more tactfully by utilizing, as you mention, a warning, and a definition of 'inappropriate.' If someone had already lodged a complaint, however, only the taking of prompt action such as the type used by your employer would it eliminate most of the risk of a lawsuit.
"Was the picture of your wife returned to you? If not, I would suggest you request it. If it is not returned to you, I would agree that your rights were violated, because your property was seized.
"If your picture was returned to you, I would not believe your rights were violated. Instead, your freedom was slightly diminished to accommodate the feelings of others. I would not consider that a violation of rights."
Watch for more responses to your questions in expert opinion. 
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