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Michelle Galbraith may look like a nice PTA mom who is trying to raise money for her childs school:
but Michelle Galbraith helped defraud the California State General Fund out of millions of dollars, and the State of California is laying off school teachers in her neighborhood because of the State budget deficit.
I recently contacted Ms. Galbraith, to find out if you knew that documents she provided to me during the Formal Complaint were altered before she provided them to me. She responded by contacting the Los Altos Police Department, which "admonished" me, by email. The fact that she contacted the police, rather than answer the question, indicates she knew the documents were altered. If I could get the appropriate law enforcement agency (FBI) to investigate whether or not the phone number in the photograph is mine, I would not have been compelled to contact Michelle Galbraith directly.
Michelle Galbraith JD.
After obstructing justice, by altering phone company documents, to conceal ongoing problems, Ms. Galbraith now writes articles for various magazines.
Grass Valley/Nevada County
By Michelle Galbraith, J.D. April 2008
It’s not about the money
By Michelle Galbraith, J.D
A report says places of employment are getting safer every year. According to the Bureau of Labor Statistics, 5,703 people died on the job in 2006, compared to 5,734 in 2005. Unfortunately, some industries present such a high level of risk that some amount of injury and death is inevitable.
In order, the 10 jobs with the highest fatality rates in 2006 were: commercial fishermen, pilots (primarily of small aircraft, such as crop dusters), loggers, structural iron and steel workers, refuse collectors, farmers/ranchers, power linemen, roofers, drivers, and agricultural workers.
For fishermen and pilots, weather clearly plays a significant role in the fatality rates. For other jobs, like window washing, equipment and individual physical demands increase the risk to workers.
A smaller, but still substantial, risk of death arises from co-workers or customers. Taxi drivers were the most common victims of homicide on the job, at the rate of 27 deaths per 100,000 in 2006. Liquor store and jewelry store employees were also at heightened risk, as were those working in law enforcement.
Solutions for Improving Safety
For example, in response to several recent homicides of social workers, a few states - Mississippi, Alabama and Kentucky - are implementing the use of GPS-enabled cell phones to protect their employees. The phones are equipped with a panic button that calls 911, as well as a GPS locator to help authorities find the at-risk employee. In addition, the GPS allows supervisors to track social workers' locations.
Obviously, a system such as this could save lives in an industry where employees commonly travel and meet with unfamiliar clients. For other businesses, however, the benefits of GPS-style protection don't outweigh the costs - either to the employer's budget or to the employee's privacy. In Mississippi, the emergency GPS phone system costs approximately $1,000 per year, per phone. Moreover, many employees worry that GPS technology empowers supervisors to invade their privacy. Supervisors could theoretically track employees' movements constantly throughout the day, and penalize employees for extended lunch breaks or unexpected stops at Starbucks. Privacy advocates say the technology could even allow supervisors to monitor employees during non-working hours.
Protecting Low-Risk Employees
Balance business need against privacy concerns in determining whether, and how, to implement a workplace protection system. To protect privacy rights, consult with service providers to learn if employees can disable the tracking devices during non-working hours, and clearly establish privacy policies for the timing and use of GPS tracking information. Similarly, employers considering other methods of employee protection (such as electronic identification badges for unlocking doors, security guards or searches of employee personal property) should weigh anticipated benefits against the intrusion on employee privacy, and solicit employee input prior to starting any program that might lead to claims that an employee's privacy rights have been violated.
Employers Must Balance Speech Rights"Congress shall make no law … abridging the freedom of speech …." By Michelle Galbraith, J.D.
The First Amendment to the United States Constitution protects an individual’s freedom of speech against government intrusion. In some instances, courts extended this protection to infringement on speech in the workplace, allowing employees to express certain opinions and beliefs on the job. But many forms of speech in a private workplace can create claims of a hostile work environment.
Employers bear the burden of often-competing objectives: protecting employees from speech that could be construed as “hostile,” while avoiding claims that an employee’s speech is stifled in a discriminatory manner.
Discerning "Free" vs. "Hostile" Speech
Certain types of speech don’t belong in the workplace. For example, most employers know that certain words can constitute sexual harassment or create a hostile work environment, exposing the employer to liability. But is political speech, religious speech or social commentary inappropriate for the workplace? Or elements that fall outside the typical definition of “speech,” such as art, music or clothing? What about statements made by nonemployees?
Each may create the potential for liability. Because certain speech is protected, employers may face liability for preventing it. California law protects employees’ rights to converse in their own language and, in many instances, to wear religious garments. Employers find themselves caught between protecting certain types of employee speech while simultaneously prohibiting others. In some instances, the protected and prohibited forms of speech overlap.
Defining a Hostile Work Environment
Understanding what constitutes a "hostile work environment" is the first step in establishing policies pertaining to employee speech. The U.S. Supreme Court ruled that a hostile environment exists when conduct creates an “objectively hostile or abusive environment” that’s “subjectively perceived” by the victim as abusive. What constitutes “hostile and abusive” speech is open to wide interpretation. Courts have commonly construed this to include comments on a person’s race, religion, sex, national origin, disability or age — protected classes.
Some state courts and legislatures extend the definition of “hostile work environment” speech to include comments about obesity, receipt of public assistance, political affiliation and even personal appearance. This is an uncertain area of the law and varies according to circumstance. As one court put it, “one person’s ‘discussion’ may be another person’s ‘harassment.’” Irrespective of the comments’ subject matter, however, courts will typically base a finding of “hostile work environment” on an evaluation of whether the speech is severe or pervasive, or interferes with a reasonable person’s work.
The Supreme Court’s definition of a hostile work environment does not reference abusive “speech.” It instead defines the environment based on worker “conduct.” Employers must be aware that policies based on traditional notions of “speech” may be too limited to prevent claims of a hostile environment. The category of “speech,” as broadly defined by the courts, may include not only the written and spoken word, but also art, music and clothing. Other types of nonverbal conduct may constitute “speech” as well, as evidenced by the many court cases over the last century finding the act of burning the American flag constitutionally protected “speech.”
In addition, employers may be surprised to learn that “workplace speech” extends beyond comments, acts and physical displays by employees. In many instances, this concept also includes conduct by nonemployees. Restaurant owners may be liable for hostile work environment harassment if patrons act in an abusive manner toward employees. Therefore, an employer’s duty to protect against a hostile work environment can extend beyond control over his or her own employees.
Allowing unchecked employee speech creates liability. Befuddled employers may begin to weigh the merits of enforcing a completely “silent” work environment as one strategy to mitigate risk. Unfortunately, this solution won’t work — and not just from a practicality standpoint. Legally, employers can’t prohibit employees from engaging in certain types of speech. For example, if a California business employs more than five people, it can’t prohibit its employees from speaking a foreign language in the workplace.
Employers may avoid this rule only by demonstrating that the use of English is necessary for the safe and efficient operation of their business, and that there is no alternative practice to the language restriction that would have a less discriminatory impact.
Other forms of speech in the workplace also enjoy legal protections. Employees are statutorily permitted to discuss salaries and working conditions, and many unions specifically outline permitted topics of conversation. Employers also may not restrict an employee’s religious expression via clothing, such as turbans or veils, absent a nondiscriminatory safety-related reason. Employers must exercise caution in monitoring and restricting employee speech in all its forms.
Employers face a delicate balancing act: permitting lawful speech while avoiding claims that an employee’s speech or conduct is offensive. The California Supreme Court recently analyzed this balancing act in Aguilar v. Avis Rent A Car. In that case, an Avis manager harassed Latino subordinates by calling them vulgar names based on their ethnicity. The subordinates sued, alleging that the name-calling constituted a hostile work environment.
Avis argued that it couldn’t restrict the manager’s choice of language because that would violate the manager’s free speech rights under the First Amendment of the Constitution. The California Supreme Court disagreed, ruling that an employee can be ordered to stop using derogatory language if it’s likely that the continued use of such language would contribute to the creation or continuation of a hostile work environment.
California employers can’t shield themselves from liability against harassment suits by claiming that inappropriate speech is protected by the First Amendment. To best protect employee needs, every employee handbook should contain a policy on harassment, and should specify the types of behavior, including verbal and nonverbal conduct, that will not be tolerated. The policy should restrict speech only when necessary for legitimate business purposes, such as preventing harassment, and should carefully document why the policy is necessary.
With all policies pertaining to harassment and hostile work environment, employees should be trained to report concerns about inappropriate conduct.
Gossip is one final example of workplace speech that frequently causes problems for employers, but isn’t as serious as harassment. Typically, gossip is not illegal, but it’s also not protected unless it’s about certain defined topics, such as compensation. Gossip can be harmful to company morale, distracting to employees and could, in some instances, rise to the level of harassment. Employers can discipline gossiping employees — not necessarily for the speech itself, but for the unprofessional atmosphere that it creates. Employers who attempt to prohibit gossip may be viewed as overly critical and micro-managing. Perceptions such as these could also damage employee morale.
Instead of discipline, some employers enjoy success with gossip-prevention programs. Consultants offer training seminars and workbooks with creative ways to address office rumors and prevent employees from engendering negativity. Attendees of “Gossip Stoppers” seminars go through training to stop rumors in their tracks by refusing to pass them on, and receive paper clips as a reminder to “fasten loose lips.” Lighthearted techniques can get the message across that gossip is unacceptable, while avoiding risky mandates banning gossip completely.
If employers don’t want or need to conduct specific anti-gossip training, many experts find that simply improving communication with employees can reduce gossip. Often, employee gossip focuses on management complaints, concerns about company stability and working conditions. Employers who keep employees informed about issues facing the company and who give employees appropriate outlets for venting concerns may discover that they can suppress rumors before they affect productivity.
Speaking to the Bottom Line
Workplace speech clearly creates complicated and changing legal issues. Employers considering policies that restrict speech, conduct, dress or displays in the workplace should meet with legal counsel to ensure that the restrictions are written narrowly to achieve specific legitimate business purposes.