Month: September 2019

By: Sarah Antonia Zomaya

In an era where many companies provide ping pong tables, nap pods, and complimentary craft beer, the lack of accommodations for nursing workers is rankling. Although there may be no specific health dangers to breastfeeding in the bathroom, employers should strive to normalize breastfeeding, and women should not be subjected to feeding their babies in a bathroom when no one else would even consider eating in a bathroom.

On September 30, 2018, Governor Jerry Brown signed Assembly Bill 1976 (AB 1976) into California law. AB 1976 requires employers to provide break time and a room, other than the bathroom, where women can breastfeed or pump milk. This bill provides for cleaner and safer areas for working mothers to breastfeed and pump. Opponents argue that AB 1976 would create an undue burden on employers and would expose employers to frivolous lawsuits, yet the bill provides for an exception. If an employer is able to demonstrate that this bill imposes an undue hardship, the employer only has to provide a location other than a toilet stall. AB 1976 is a small change (before employers were required to only provide a location other than a toilet stall) that supports working mothers and reduces a significant barrier that deters women from continuing to breastfeed when they return to work.

AB 1976 is a step in the right direction because of the health benefits it affords to infants and women, economic benefits to employers, and because it offsets the shortcomings of federal law.

AB 1976 Is NECESSARY FOR THE HEALTH OF YOUR BABY

Many women do not have the option to stay home from work to breastfeed their babies. Breastfeeding offers many health benefits to infants, and that benefit should not depend upon a mother’s employment. Research shows that breastfeeding lowers the risk of asthma, leukemia, obesity, ear infection, eczema, diarrhea and vomiting, lower respiratory infection, necrotizing enterocolitis (a disease that affects the gastrointestinal tract in preemie babies, or babies born before 37 weeks), sudden infant death syndrome, and type 2 diabetes. Furthermore, research shows that if 90% of mothers exclusively breastfed their babies for 6 months, nearly 1,000 infant deaths could be prevented every year. The foregoing syndromes are substantial, and employers should encourage breastfeeding in any way we can in order to protect babies.

Additionally, the American Academy of Pediatrics recommends that a mother exclusively breastfeed her child for 6 months. While a mother’s employment may not have an impact on the initiation of breastfeeding, a mother’s employment does have a negative influence on the duration of a mother’s breastfeeding.

Although opponents argue that AB 1976 places employers at a higher risk for frivolous lawsuits and may cause an undue burden on the employer, the benefits to babies are insurmountable. Having to express milk in a bathroom is a barrier to breastfeeding and AB 1976 will therefore significantly benefit the children of working mothers.  Because the employer’s implementation of AB 1976 will make it more comfortable, clean, and safe for women to breastfeed, women will be encouraged to breastfeed through the recommended 6 months and even through the baby’s first year. 

AB 1976 BENEFITS WOMEN’S HEALTH

Breastfeeding aids women’s health following childbirth, and women should not to forego that health benefit because of their employment. Breastfeeding lowers the risk of significant health problem in mothers, including type 2 diabetes, certain types of breast cancer, and ovarian cancer. Further, breastfeeding yields many other benefits to a woman’s health including: decreased postpartum bleeding, decreased menstrual blood loss, increased child spacing, and earlier return to pre-pregnancy weight. After childbirth, women should not be forced to choose between work and their health. AB 1976 provides a simple solution that makes it easier and more comfortable for women to breastfeed or pump while at work.

AB 1976 WILL LEAD TO ECONOMIC BENEFITS FOR EMPLOYERS

If the substantial health benefits of breastfeeding to mothers and infants aren’t compelling enough, AB 1976 will also lead to economic benefits for the employer, public and private insurers, and families.

AB 1976 will economically benefit employers because research shows that breastfeeding leads to higher employee productivity, lower absenteeism, improved morale, lower medical costs, and increased employment retention by working mothers who breastfeed. Employers can also use these lactation accommodations as a recruitment tool; the better lactation accommodations employers provide, the better employees they may be able to recruit. Additionally, a company can avoid public ridicule if it provides proper accommodations for nursing workers.

Research shows that if breastfeeding rates met the Healthy People goals, healthcare costs would be decreased by $3.6 billion, resulting in savings to public and private insurers. Healthcare costs would decrease significantly because babies who are breastfed typically need fewer sick care visits, prescriptions, and hospitalizations.

Breastfeeding economically benefits families because mothers who exclusively breastfeed their children avoid the costs of instant formula. Further, breastfeeding benefits the environment because there will be less trash from formula cans and bottles.

Notwithstanding the significant health benefits that breastfeeding affords to mothers and infants, following the imposition of AB 1976, employers will receive economic benefits as well.

AB 1976 OFFERS PROTECTIONS WHERE FEDERAL LAW FAILS

AB 1976 is a necessary protection for nursing workers and compensates for the shortcomings of the Pregnancy Discrimination Act and the Family and Medical Leave Act.

The Pregnancy Discrimination Act prohibits discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” Opposite to the commonsensical thought, federal courts have held that breastfeeding is not protected under the Pregnancy Discrimination Act.

Next, the Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job protected time off for a list of reasons, including “the birth of a child and to care for the newborn child within one year of birth.”  The FMLA is a significant progression because it provides for a longer duration of breastfeeding, but it falls short in four critical aspects. First, only 56.3% of working mothers with children who are 18 months or younger are eligible for FMLA time off. Second, women who are least likely to breastfeed are also the least likely to be eligible for FMLA time off. The FMLA applies to employees who have worked for at least 1 year, for a minimum of 1250 hours, and the FMLA applies only to employers who have at least 50 employees. Therefore, eligible women likely have higher incomes, are more highly educated, and are more likely to be older, non-Hispanic, white, and married – which are all characteristics associated with increased rates of breastfeeding. Third, even if a mother is eligible for FMLA time off, she may not be able to take the FMLA leave time because it is unpaid. Last, FMLA provides only for a continuous leave. Because mothers can only take a continuous 12 week leave, mothers are unsupported in reducing their work hours or taking more flexible hours for breastfeeding.

AB 1976 will offer extended, necessary protections to working mothers because it will provide for breastfeeding accommodations when federal law has not.

WHAT MORE CAN WE DO?

Requiring employers to provide a comfortable space where women can breastfeed or pump is a tremendous stride for women in the workplace, but there is always more work to be done. Thank you to Assemblywoman Monique Limón for pushing AB 1976 through, but the work of our legislators is not over.

AB 1976 is a step in the right direction, but complying with the law is the bare minimum. As discussed above, breastfeeding can reap significant economic benefits to employers; the more an employer supports and accommodates breastfeeding, the more the employer will experience those economic benefits. If an employer provides nursing workers with pumping equipment, nursing workers will likely breastfeed for a longer period of time leading to health benefits for women and children and economic benefits to the employer. Employers may be further incentivized to provide women with high-grade breast pump equipment because that would reduce the amount of time women spend pumping.

If employers are willing to install nap pods and ping pong tables to facilitate employee productivity, employers should similarly install lactation pods not only to facilitate employee productivity, but also for the health of women and babies.

AB 1976 supports working mothers and reduces a significant barrier that deters women from continuing to breastfeed when they return to work. AB 1976 is an indispensable bill because of the health benefits it affords to women and babies, economic benefits to employers, and because it protects women where federal law fails.

Sources:

https://www.sacbee.com/news/politics-government/capitol-alert/article219055110.html

https://www.calpeculiarities.com/2018/09/04/california-legislative-update-sexual-harassment-other-bills-await-governors-signature/

https://www.lexology.com/library/detail.aspx?g=b99ccf5b-8433-49e5-925a-5cca610fc423

https://a37.asmdc.org/content/lim%C3%B3n-legislature-october-2018

https://www.cdc.gov/breastfeeding/data/facts.html

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3020209/

https://www.liebertpub.com/doi/pdf/10.1089/jwh.2014.5059

https://www.harpersbazaar.com/culture/features/a21203672/why-women-stop-breastfeeding-pumping-at-work/

https://www.romper.com/p/what-are-the-dangers-of-breastfeeding-in-a-bathroom-expert-weighs-in-8593752

https://www.womenshealth.gov/breastfeeding/making-decision-breastfeed

Photo sources:

https://www.romper.com/p/what-are-the-dangers-of-breastfeeding-in-a-bathroom-expert-weighs-in-8593752

https://www.workingmother.com/more-work-for-mother

https://www.asianscientist.com/2016/08/in-the-lab/baby-cry-tonal-language-mandarin/

http://www.constructionmanagermagazine.com/insight/do-women-get-good-deal-construction/

 

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Sarah Zomaya, at the time of this post, is a third-year law student at Penn State’s Dickinson Law. She is from Southern California and is interested in corporate transactional law. Sarah is currently serving as Vice President of the Business Law Society and as an Comments Editor of the Dickinson Law Review.

By: Michael Slobom

You’ve likely read the headlines.  From massive data breaches with nine-figure settlements to reports of social-media companies employing clandestine data-handling practices, privacy concerns in the digital age permeate every aspect of public and private life.  But the burgeoning field of privacy law does not begin and end with major corporate enterprises:

Even small business owners and budding entrepreneurs must remain vigilant of privacy laws.

This post discusses an area of privacy law that newly minted business owners can (and do) overlook:  employment privacy.  Employment privacy law governs the privacy rights held by employees in the context of the employer-employee relationship.  These rights apply predominantly in the workplace but can extend to outside the workplace as well.

privacy in the united states

In the United States, privacy rights emanate from a patchwork of federal and state laws.  At the federal level, privacy protections rely on industry-specific legislation, with laws regulating specific types of information. Employer practices can trigger these laws and, in turn, expose employers to civil liability.

State law privacy protections can be more complex, and often more extensive.  Some state constitutions expressly recognize a right to privacy; other states have enacted legislation specifically targeting workplace privacy concerns.  And nearly all states recognize a common-law right to privacy, which encompasses virtually all employment practices when the correct set of circumstances are present.

overview of employee privacy rights

The right to privacy is significantly less protected in the workplace than in other settings, and employers have broad leeway in defining the scope of employee privacy through carefully crafted company policies.  Aside from illegal interview questions, the most common employee privacy concerns arise when an employer searches an employee’s possessions or person or monitors an employee’s actions, speech, or correspondence.  Employee privacy rights function as limitations on the extent to which employers may engage in those activities.

When analyzing an employee’s violation of privacy claim, courts first determine whether the employee had a “reasonable expectation of privacy” and then balance that expectation against the employer’s reason for committing the alleged violation.  The “reasonable expectation of privacy” test is comprised of two questions.  First, did the employee actually believe that his or her information was private?  For example, an employee’s use of passwords or segregation of personal information from employment-related information may show that the employee believed the information was private.  Second, was the employee’s expectation of privacy reasonable? For example, a written company policy reserving the employer’s right to search company property—such as computers, desks, or lockers—can render an expectation of privacy in that property unreasonable.

While the amorphous “reasonable expectation of privacy” test may provide seemingly little certainty when it comes to what an employer may or may not do, some common aspects of workplace privacy have been tested in the courts.  Those aspects provide a starting point for establishing a workplace privacy policy.

searches

Personal Searches

Employers may maintain policies permitting them to conduct “reasonable” searches of an employee’s person, workspace, or personal property.  The search’s reasonableness hinges on whether the employer’s right to investigate misconduct and ensure compliance with workplace rules outweighs the employee’s privacy concerns.

Employers must ensure that any employee search serves a legitimate business reason.  Does the employer suspect the employee has violated a workplace rule?  Will the search reveal evidence of the violation? Additionally, the search itself must be conducted in a reasonable manner, meaning the search must last no longer than necessary to accomplish the employer’s objective and should never involve physical force.

 Postal Mail

Generally, employers may open mail delivered to the workplace, even when it is addressed to an employee.  It should be noted, however, that federal law criminalizes obstructing the “passage of mail,” but a criminal violation will not occur once the mail has been delivered to the final destination (i.e., the workplace).

Drug Testing

Employers generally have broad rights to test job applicants for drug use, but there are often more restrictions on testing existing employees depending on the applicable state’s laws.  Some courts have found that requiring existing employees to submit to drug tests without cause constitutes an invasion of privacy.  Other courts focus on the employer’s reason for conducting the drug test, with some courts looking favorably upon an employer’s interest in safety and productivity.  And even still, other courts have found that random drug testing constitutes an invasion of an employee’s right to privacy, unless the employer has a good faith suspicion of the employee’s drug use or the employee’s job involves the safety of others.

monitoring

Internet, Email, and Telephone Privacy

Employers generally have a right to monitor employee internet, email, and telephone use, but state and federal laws impose some restrictions.  The Electronic Communications Privacy Act (ECPA), for example, prohibits employers from monitoring employees’ personal phone calls, even when using an employer’s equipment.  However, some courts have approved of employers intercepting personal phone calls for the limited purpose of determining whether the call is work-related or personal.  In any event, the surveillance must cease once the employer determines that the call is personal.

Under ECPA, employers must either possess a legitimate business reason for monitoring or obtain employee consent prior to monitoring.  Consent may be obtained simply by providing employees with written notice of the monitoring policy and obtaining each employee’s written acknowledgement of the policy.  It is important to note, however, that some state laws impose more stringent regulations on this type of monitoring:  Maryland, for example, requires consent from all parties to a conversation.

Video Surveillance

Private employers generally have the right to use video surveillance cameras to monitor their employees as long as they have a legitimate business reason for doing so.  Acceptable business reasons include deterring violence or theft and monitoring employee productivity.  The right extends to parking structures, where employers may use video cameras to ensure security and employee safety.

There are caveats, however.  First, most states require employers to provide notice of the surveillance to anyone who the cameras might capture.  Additionally, many state laws prohibit employers from using cameras in sensitive areas of the workplace, such as restrooms, locker rooms, and break rooms.

Importantly, video recordings must not collect audio.  While the federal wiretapping law does not to prohibit the use of silent video surveillance, using video recording devices capable of recording audio conversations violates the law.

Finally, the National Labor Relations Board has found that the use of video surveillance to monitor union activities violates federal labor law.

GPS Tracking

Employers are generally permitted to install GPS tracking devices on company-owned property to monitor employees’ use of the property.  The law in some states, however, becomes murkier when employers use such technology to track employees themselves.  Some states, such as Minnesota and California, expressly prohibit such use of GPS technology.

Social Media

Generally, employers may view public employee social media posts.  Beyond public posts, however, general privacy law concepts govern how employers can obtain such information and what employers can do once they’ve obtained it.  In the past several years, states have begun implementing laws to provide statutory solutions to those issues.  For instance, many state laws expressly prohibit employers from forcing employees to share their usernames and passwords.  Some states, including California, Colorado, Connecticut, North Dakota, and New York, protect employees from discipline and discharge for information posted to their social media accounts, except where the information damages the employer.

recommendations

While this post overviews some of the most common workplace privacy concerns, it by no means identifies all possible issues.  Employee privacy rights can arise in myriad scenarios, and employers must establish proper privacy policies and procedures not only for the sake of avoiding liability but also to avoid decreased workplace morale.  A few general principles can serve as a starting point:

Notice.  Employers should always provide employees with notice of workplace policies that implicate employee privacy.  The notice should be written, and it should describe in detail the privacy-related practices that the employer has adopted, the employer’s justification for adopting those practices, and how the employer will use any information it gathers.

Consent. Obtaining employee acknowledgement of and consent to potentially invasive employment practices can help shield against liability.  The acknowledgement and consent should be made in writing and signed by each employee.  Additionally, the acknowledgement and consent should be obtained prior to each employee’s start date

Consistency.  Employers are more likely to demonstrate a practice’s reasonableness by showing consistent application.  This means that employers should treat similar situations similarly.  For example, an employer who wishes to administer drug tests to job applicants should require all applicants to submit to such tests.

Legitimacy.  As with all employment-related practices, employers should ensure that that they have a legitimate business reason for the policies they adopt.  Employers are much more likely to run afoul of employment laws when their practices are found to be arbitrary.  Before implementing a policy or taking an action that implicates an employee’s rights, employers should consider how that policy or action serves the interests of the business.

SOURCES: 

https://www.justia.com/employment/hiring-employment-contracts/privacy-in-employment/

https://www.phelps.com/elaborate-nlrb-rules-that-employers-video-surveillance-of-workers-union-activity-violated-nlra-8-2-2018

https://blog.hubstaff.com/employee-tracking-policy/

https://www.privacypolicies.com/blog/privacy-at-work/

 

PHOTO SOURCES:

https://www.pexels.com/photo/man-and-woman-handshake-567633/

https://www.canva.com/photos/MADGx9UxGN4-two-gray-bullet-security-cameras/

https://pixabay.com/illustrations/privacy-policy-security-sure-538719/

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Michael Slobom is a 2019 graduate Penn State’s Dickinson Law.  He was born and raised in Southern California and received his B.A. in Political Science from California State University, Fullerton.  Michael currently serves as a law clerk to a judge on the Delaware Superior Court.