Federal and state employment discrimination laws are expansive, however, every activity and every person is not protected from discrimination.

Employers can lawfully discriminate based on work performance and other legitimate business decisions. Employers cannot discriminate based on race, religion, national origin, sex, age, or disability. Employers also cannot retaliate against an individual who participates in an investigation on the company or against an individual who refuses to participate in discriminatory activities.

There are many unfair activities that occur in the workplace every day, but the question is whether such activity is legally protected. The law does not want courts to act like the CEO of businesses, so it leaves room for the employers to make its own business decisions.

If, for example, an employee tells his supervisor’s boss that the supervisor is not performing his or her job properly, and the employee is subsequently fired, the supervisor is not liable for unlawful employment discrimination. The situation may have been different if the employee reported the supervisor for doing something illegal like discriminating against a protected group.

It is also important to note that all employers are not covered under the federal and state discrimination laws. Under federal law, only employers with fifteen or more employees must comply with the discrimination laws. In California, employers with five or more employees are covered under employment discrimination laws. It may be unfair that the law itself discriminates based on company size, but it is not unlawful for a small company to participate in certain discriminatory methods.

Discrimination laws do not cover every situation, but many situations are protected by employment laws. Employers typically try to conceal their discriminatory motives for taking an adverse action against employees, so it is important to seek a qualified labor and employee attorney who can research your case and help you prove that the employer’s stated reason is a pretext for a discriminatory motive.

It is an employer’s job to use various tactics to determine the best applicant for the position. In today’s economy, jobs are scarce. When a new job ad does go up, the number of applicants per job is overwhelming. Many employers are looking for a reason not to hire applicants simply so they can narrow down the pool.

Given the emergence of technology and social media, employers are now conducting social media background checks. In Santa Barbara, California, one company specializes in going beyond background and credit checks, and conducts social media checks on potential employees. According to the New York Times, Social Intelligence does a thorough and comprehensive search of the Internet to find anything the applicant has posted to the world wide web in the last seven years.

Facebook, Myspace, Twitter, Flickr are all fair game. Social Intelligence are specifically looking for online evidence of racist remarks, drug references, sexually explicit photos, videos, flagrant displays of weapons or bombs and violent activity.

After concern over the company’s practice was raised, The Federal Trade Commission found that the company did comply with the Fair Credit Reporting Act. Still, critics claim that the company is delving into information that is generally not relevant to the job duties.

Further, employers are restricted under Federal law and California law for discriminating based on certain protected activity. Social media content is another discrimination method. However, employers are not necessarily violating the laws based on their Internet scouring. Federal and state law only prohibits discrimination based on protected activity or categories, including, race, religion, sex, national origin, age, disability, and participating in company investigations.

Discriminating based on drug references, for example, is not illegal. Thus, you should be mindful that what you post and try to delete on one site, could reappear. If you deactivate your Facebook account and subsequently reactivate it, all of your old material will reappear.

It is important to be careful what you post online. Even if you are currently employed, your next future employer may be able to scour the Internet and dig up postings from your past.

However, the employer could come across information online that falls into a legally protected category. Thus, you should contact a labor and employment attorney who knows the laws and can determine whether you have been unlawfully discriminated against in your job search.

Before an employee uses social media in the form of a text, email, or post, they should ask, “Can I do this and keep my job?” The best way to find out is to consult the employer-employee contract. An employer-employee contract can be explicit. One example is a unique contract signed by both parties. An employer-employee contract can also be implicit. An example is a handbook of regulations. Contracts can cover activity beyond the workplace and work hours. Yet contracts cannot intrude excessively upon constitutionally-guaranteed freedoms such as the freedom of speech.

An employer can restrict how employees use the Internet on the company’s network. An employer can define how an employee should use their company email account. An employer can create guidelines stating how an employee must use the company’s electronic equipment, which can include computers and cell phones. An employer can even limit an employee’s actions off the job to publicize information about the company. This is especially true with regard to negative, confidential, or proprietary information.

An employer cannot demand access to an employee’s personal cell phone, computer, email account, or webpage. An employer also cannot demand access to an area of a social networking site that an employee has made private and secured with a protection such as a password. The federal law that concerns this matter is the Stored Communications Act, 18 U.S.C. § 2701.

An employer is prohibited from terminating an employee for posting negative comments about an employer in a private, secured area. The federal law that concerns this matter is National Labor Relations Act, 29 U.S.C. § 151-169. There are a few rules that the employee must follow to remain protected. The employee must make comments in accordance with the reasonable terms of the employer-employee contract, such as not posting during their shift and not using the company’s equipment or networks. In addition, the employee must not make comments that constitute harassment of individuals.

The protection for employees who make such negative comments developed gradually between January and June of 2011. Federal administrative law judges ruled in a number of cases involving the National Labor Relations Board (NLRB). The judges viewed groups of negative posts as a discussion among coworkers. This is a concerted, protected activity.

As social media becomes more complex, employees’ rights are likely to change. Keep up with court cases to learn more about the development of labor law.

According to California Labor Code Section 351, employers and their agents are not allowed to take any portion of an employee’s tips. A tip is an amount given voluntarily by a customer over the required amount due for goods provided or services rendered. This means that employers cannot require employees to “pool” their tips and take part for themselves. Yet employers can require employees to pool their tips so that a tip for one employee is shared among many employees. This practice is known as involuntary tip pooling.

An example of involuntary tip pooling is when a waiter receives a tip, and the busboy and host receive part of the tip. Even if a manager, supervisor, or owner participates in serving the customer who tipped the waiter, they are not eligible to receive part of the tip. At restaurants, the persons who are eligible to share in tip pools are persons who provide “direct table service:” waiters, busboys, bartenders, hosts, and maitre d’s. Chefs who prepare food directly at the table of a customer are eligible to receive part of the tip, but chefs who remain in the kitchen, dishwashers, and cooks are not.

California’s Labor Code does not provide a private right of action for an employee to sue an employer for violating the tip pooling policy. Employees can bring a lawsuit to recover lost wages under what is termed a “common law claim for conversion.” This is a civil law action in which the employee sues to regain their right of ownership over personal property; here, money.

Involuntary tip pools are present in businesses other than restaurants, such as bars, dry cleaners, coffee shops, casinos, and places that feature dancers. In 2008, the San Diego Superior Court ruled in the infamous Starbucks case Jou Chau v. Starbucks Corporation that shift supervisors were ineligible to share in tip pools. The verdict was widely acknowledged as a blow for Starbucks. It appeared that the company would have to pay back over $86 million plus interest in damages. In 2009, California’s Fourth Appellate District, Division 1, repealed the trial court’s award. The Fourth Appellate District judges wrote in their opinion that shift supervisors were part of a team that prepared drinks, cleaned tables, and worked cash registers. Their duties and the title, “shift supervisor,” did not raise their status to that of a regular supervisor or manager.

Photo by Protflux (http://www.flickr.com/photos/protoflux/)

Light duty is a restricted form of work for employees who temporarily cannot perform their usual tasks. California’s Department of Industrial Relations recognizes “light duty” as a generic term. The Department suggests that an employer and employee determine what constitutes light duty for an employee after considering the unique tasks of the job, the nature of the employee’s disability, and the instructions of the employee’s treating physician. The California Labor Code recognizes certain collective bargaining agreements between unions and employers that define light duty programs as valid and binding. This means that if either party fails to follow the terms of the agreement, a court can order them to resolve the problem in a manner which accords with the agreement.

Light duty can involve one or more of the following modifications: a reduction in the number of working hours, an insertion of extra breaks or meal periods, a complete or partial restriction from the performance of high-risk tasks, and a frequent rotation between tasks to avoid aggravating the employee’s disability. An employee can also make their job light duty by adjusting a work station, redesigning tools for temporary use, and wearing protective equipment. Light duty may involve the use of special equipment, such as an ergonomic chair or desk, to complete certain or all tasks.

An employee may be assigned to light duty for injuries such as a broken bone, pregnancy, or a short-term illness or debilitating course of medical treatment. Employees who incur a permanent disability, such as severe arthritis, are not entitled to be placed on light duty permanently. There is an exception, which was clarified in the 2011 case Cuiellette v. City of Los Angeles. If an employer has a policy of creating permanent light duty positions to accommodate employees who have become disabled, it is illegal for them to offer light duty to certain employees and not others. In situations such as in Cuiellette, all of the employees placed on light duty should be similarly situated.

If an employee was placed on light duty because of a temporary disability and suffers a subsequent disability, it is illegal for the employer not to place them on light duty again. In 2008, the U.S. Department of Labor published a Final Regulations for the Family and Medical Leave Act (FMLA). This document clarified that time spent on light duty work does not count against an employee’s FMLA leave time.