Workplace Privacy

[gramercy]

A quote from
OSHA's
Richard E. Fairfax, Director
Directorate of Enforcement Programs

In response to a similar situation:

"Question from your second e-mail: Would OSHA deem it a violation if the employer instead of docking pay imposed an admission fee on the use of toilets during non-scheduled breaks and the fee was calibrated to equal the employee's wage for the number of minutes she was in the bathroom?

Response: If the employer does not provide reasonable access to toilet facilities when the employees need to use them, the employer would be in violation of OSHA's general industry sanitation standard (29 Code of Federal Regulations §1910.141(c)(1)(i)). OSHA addressed the issue of employee access to toilet facilities in a memorandum to OSHA's Regional Administrators dated April 6, 1998 (copy enclosed). This memorandum is a public document and is available on OSHA's website Occupational Safety and Health Administration - OSHA HOME PAGE. [/I]Some of the issues raised in your questions (restroom breaks on own time, employer docking pay, or employer imposing an admission fee to use toilets during non-scheduled breaks) cross over into labor management relations, which is an area that OSHA does not regulate. Certainly any restriction that the employer imposes on bathroom use, such as the ones you describe, would have to be reviewed by an OSHA compliance officer on a case by case basis to determine if it is reasonable and does not interfere with the requirement that employees be allowed to use toilet facilities when they need to do so. "

So I guess that would be a "Yes"
Thanks, Again!

 

[seniorjudge]

Okay. Well, now that I know that the federal government is regulating potty breaks, I feel MUCH better!

 

[gramercy]

CBG-
Didn't mean to make you feel that way. I'm just turning over all the rocks for my member.
I appreciate all your posts, and your direct manner, as I do of all of you who help.
If you feel shot, I'll Fed Ex some Bactine.

By the by here's the link to my previous post re: OSHA, if you're interested:

02/27/2006 - Access to toilet facilities in a call center.

 

[VeronicaLodge]

Are there any other major and significant facts you have left out?

actually his first post says he has a contract

 

[gramercy]

In lay-person's terms, can anyone explain the difference between violating the law vs. an organization violating an employee's legal rights?

 

[eerelations]

Violating an employee's legal rights is violating the law.

 

[gramercy]

Thank you! Given the previous posts, I was left a bit confused.

 

[cbg]

I'll attempt to clarify.

There is no specific statute that makes the supervisors actions illegal. There is no statute I can point to and say, that law was violated by the write up. The write up, which is what I assumed you were asking about, is almost immaterial to the issue.

The employee missed a phone call and the caller complained. The employee was written up for missing the call. THIS DOES NOT VIOLATE ANY STATUE OR CASE LAW.

The supervisor's actions, i.e. being MIA from 10:30 on, resulted in the employee not being able to take her breaks or in being able to use the rest room. The supervisor's actions, therefore, NOT THE WRITE UP, resulted in the employee being deprived of her rights to rest, meal and rest room breaks under the law. Her rights would have been violated whether she was written up or not.

The supervisor acted illegally in not making provision for the employee to take her protected breaks, NOT in writing her up for missing a call.

Yes, I am splitting hairs. And it may be that part of the recompense she will receive is the removal of the write up from her file. But nonetheless, it is not the writeup that was the violation, but the failure to make provision for her in the first place.

 

[gramercy]

Thank you for the clarification!
Re: the splitting of hairs - Does the submission of derogatory material to her personnel file thats based upon the original premise that she was not provided her legal breaks not constitute illegal punitive action on the part of the organization?

 

[cbg]

It is true that she was written up for missing a phone call. The notation of that fact in her personnel file does not constitute anything illegal.

 

[gramercy]

Thank you. But, I must heartily disagree. I believe that any arbitrator would find in favor of the employee in this instant, as the employer, by allowing the derogatory information to be placed in the file, knowingly punished the employee for a situation that could not only not have been avoided, but clearly violates her rights not only under the law, but under the contract.
Could you explain the rationale behind your response?
Respectfully submitted.

 

[cbg]

Before I do, please explain what "derogatory material" you are referring to. In detail, please.

It might change my response.

 

[gramercy]

Thank you.
The evaluation states that on (the date in question) the employee "left the phones unattended during a personal break which had a negative impact on a board member, as she was unable to retrieve information in a timely manner. I (the supervisor) was out of the office for the day and had directed my secretary not to leave the phones unattended during this time. "... blah blah blah... "My evaluation at this level is that she has been insubordinate and unreliable with regard to my directives."... "I would like to submit my secretary to a Plan of Assistance at this time".
For the record, this is an employee of 10 years, has an impecable record, and the supervisor is another female who has been employed for less than 3 months.
A Plan of Assistance is a pre-cursor to termination, as if you didn't already know that...
I respect your opinions very much.
I am merely a research assistant with a proclivity towards advocacy. Am very well-read, but can't count to twenty with my shoes on. Oddly, I do bargaining research, statistics, and analysis...
Your opinions are important to me. Thank you.

 

[cbg]

I'm still not seeing this as illegal or defamatory. Unfair, certainly. Illegal, no.

Remember, the writeup is not illegal by statute. It was the EFFECT of the supervisor's actions that created the illegality.

 

[gramercy]

I appreciate your opinion, but please help me understand the logic. If the organization's HR department knew that this was a two-person office and one of the two was out of the office for the day. How could the only person left be accountable for leaving for a bathroom break and then be punished for it legally?
Thanks for your patience, I'm still learning.