A New Legal Protection for the Individual Employee Changes Bathrooms
Human resources needs to know that there is legal protection for the individual employee that is provided to them for free. Situations where an individual’s privacy and dignity could be compromised should be avoided at all costs.
This makes it a duty of human resources to understand employment law that pertains to each employee as an individual.
In order for employment law to pertain to the individual it may meet these standards:
- Lack of consent
- Violation of privacy
- Faulty definitions of employee versus contractor
These are the biggest reasons why individuals seek out lawyers for themselves.
Obtain the Individual’s Consent
Human Resources needs to ask permission to do a background check, to search bags, to get a urine test for alcohol and drugs and to take pictures/recordings of individuals.
In the health care profession, there needs to be a vaccine consent form that gives informed consent to the risks of taking the vaccine as a job requirement.
Because of social media, a new requirement is to have employees sign a model release. This means that they are consenting to have their image or recording used even after they leave the job.
Just a rule of thumb: If you think a certain rule would violate your privacy in a different context, then it should be brought up to legal before proceeding. Even if there is not a law for it today does not mean that there won’t be tomorrow.
Individual Right to Privacy
Individual privacy laws still apply when an employee agrees to work for a company. You cannot record employees in the bathroom (or even in the break room with a sound recorder turned on.) If am employee did not consent to being recorded, there may be a violation of privacy.
A new form of violation of privacy is when people are blocking access to the bathrooms because they do not approve of the individual’s gender decision.
You cannot ask about hormone replace therapy or other “proof” of gender. Many companies are just making bathrooms “unisex” to cover this.
Also, employee handbooks need to be changed to have gender-neutral dress codes. Employees should be involved with creating a new dress code policy.
A special note: It is typically illegal for an employer to discuss the wages of one employee to another due to privacy. At the same time, it is completely legal for employees to discuss their wages with each other due to labor and wage laws.
Wage laws that pertain to the individual:
- The Fair Labor Standards Act
- The Family and Medical Leave Act
- The Migrant and Seasonal Agricultural Worker Protection Act
- OSHA Field Sanitation Laws
- Immigration and Nationality Act
- Davis-Bacon Act
- McNamara-O’Hara Service Contract Act
- Garnishments and Consumer Credit Protection Act
- And many more state and local laws
From this list, you can tell that there are a lot of moving parts when it comes to individual wage law. The Wage Division will make sure your company is in compliance if human resources drops the ball.
Hourly Rate Contractor versus Employee
The labor laws listed about give rules pertaining to who is considered a contractor and who is considered an employee. It is a good idea to get the time stamps of everyone working for you, and Time Clock Wizard offers a free trial so you can test online time stamping.
A lot of companies believe that contractors will save them money; however, if the contractor fulfills too many employee duties, they may get re-classified as an employee. Sometime penalties are retroactive.
It is just a good idea to keep track of actual time worked.
Individual Rights Conclusion
If the procedure is something you would not do in another context, then make sure that the process is legal to proceed. Although employees are human capital, they are also not objects.
They have the right to privacy. You need to gain their consent for many types of invasive activities. You also need to be aware that a contractor can become an employee at any time; keeping track of start dates and hours worked is a good first step.
While you may have gotten consent to record employees, you cannot record with sound in the break rooms nor record anywhere in bathrooms. Speaking of bathrooms, an individual chooses their gender and which restroom to use.