Orange County Employment Law Attorney

The Real People Employment Law Question 11-11-15:

Can I terminate my employment at with no notice? my employer has a very strange clause on termination?

The Clause In Question:

TERMINATION: Employee may terminate Employee’s employment at any time, for any or no reason, with 30 days’ written notice to the Company. The company may terminate Employee’s employment at any time, for any or no reason, with or with the consent of the Employee. Termination shall occur upon delivery of written notice or immediately upon Employee’s death. In the even the termination notice states a termination date other than the date of delivery, termination shall be effective upon the later of the delivery date of the notice or the date specified in such notice; however, a termination notice states a future effective date shall not restrict the right of the other party to terminate employment at any time prior to such effective date.

The Employment Law Straight Answer:

Yes, you can. Your contract is not an enforceable agreement at all. The reason is a basic first year law school contracts class answer: there is no mutuality of obligation. That is, in the facts stated, you begin, continue and end as an at will employee, i.e., terminable at will without notice or cause needed, as presumed by CA Labor Code Section 2922. Your employer however, has imposed on you unilaterally, with no apparent new consideration given, the duty of a 30 day notice. This imbalance of promises will cause a court to find the contract so patently unjust as to be no contract at all.

Orange County Employment Law Attorney

The Real People Employment Law Question 11-05-15:

Do I have a case?

I had been laid off from my job a couple months after I got promoted and after being with the company for 6 years. Previous year there was an investigation with a manager because I wasn’t being treated fairly and I was pregnant, due to stress I was…

The Employment Law Straight Answer:

Yes, you have a case. The strength of the case will be determined by a number of additional questions: a) was the lay-off of one a true reduction in force, or a pretext for discrimination? Changing a title, moving around a few duties, transferring someone new into the department or hiring someone with a different title, are all tactics that I’ve seen used to cover up a discrimination / retaliation case.

Relevant to the case will be when the decision to “downsize” was made compared to when you began suffering from an allergy and needing time off. Other questions must be decided: is the layoff a cover for retaliation because of the previous pregnancy leave? Did you have time off under the protections of the FMLA / CFRA (12 weeks off with guaranteed return to the same position)? Did the employer know or have reason to know you have a disabling allergy? Did you request an accommodation to work outside the office that seemed to provoke the allergic reaction? Did the employer consider your allergic reaction in making the lay-off decision?

Your additional stated facts present a classical discrimination scenario proved by circumstantial evidence: a) a promotion — indicating good performance; b) a “lay-off” because poor performance cannot be documented; c) you were the only laid off employee and d) you were likely replaced even if the person has a new title and slightly different duties. I urge you to seek further legal counsel, and to be aware of the 1 year deadline to file a discrimination claim with the CA Dept. of Fair Employment and Housing. www.dfeh.ca.gov.

Orange County Employment Law Attorney

The Real People Employment Law Question 11-04-15:

Can my employer legally access my external private chat conversation if the email associated with the chat was the company email address?

The Employment Law Straight Answer:

“Yes” — i.e., the company can legally access the chat.

The ultimate legal question is whether a court will conclude you have a reasonable expectation of privacy. That expectation interest runs up against two obstacles: the somewhat simplistic mindset of judges who are likely to conclude that if you’re at work, you have no privacy expectation except possibly in the bathroom. The second obstacle is the increasing awareness in the general population that electronic data can be, and often is, being monitored by employers. Most employee advisors offer the cautionary guidance: assume no privacy. Conduct your private communications away from work, off company intranet and company servers, and only on you own computer equipment and other electronic devices (including smartphones and tablets). [Even your private smart phone may be subject to search if your employer is paying all or part of your carrier’s charges]

Your question also invites a slightly technical response. Employees should be aware that their Google Chat (or Slack) or other chat service creates a record of the chat. “Off the record” is a term of art in IT, and it means encrypted. Many think that if they use the Google Chat “off the record” their chat won’t be captured. Anyone monitoring and sharing your screen remotely can take screen capture snapshots. Even your HTTPS is subject to interception and monitoring if the employer possesses a “trusted certificate.”

What the ECPA Gives, it Taketh Away.

The Electronic Communications Privacy Act (ECPA) prohibits interception of internet traffic.  But the law also states broad exceptions for employer snooping and interception — one of which is to monitor if you’re actually working when you’re on the clock. The other major exception to the ECPA is written consent. Many smart employers obtain a sweeping consent signed by each employer, either by hand or electronically. Still smarter employers back up the consent with a personnel policy of “no privacy” expectation, and that all electronic communications are subject to monitoring.

Conclusion:  

To paraphrase an old comic, known to be pretty tight with his money, Jack Benny, when an armed robber demanded “Your life or your money!” Benny asked for time to think about it.  But really, your chat or your job?

Orange County Employment Law Attorney

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