Question:
I live and work in California. I keep my resume updated, posted, and active
on the Internet on such sights as Monster.com, Dice.com, etc. Several
times, the VP of our HR department (our company is small and there are only
3 employees in HR) has confronted my boss about my resume being "out there."
Apparently, on Monster.com, an employer can say "show me all the resumes
that were updated within the last day." If you add or change anything, it
will trip this flag.
IMHO, 1) it's none of the company's business, 2) I have no definite
intention of leaving, quite the contrary, I like my job a lot, 3) in this
day and age when you receive no prior warning from companies when you are
laid-off, I have a family to think about and must be prepared at all times
in case something happens, 4) I didn't sign anything saying "I won't keep
looking."
I realize that CA is an "at-will" employment state. However, I feel like I
am being harrassed about this and I want to be able to say "Look, where and
when I post my resume is my business. If you want to know if I am intending
to leave, just ask me. I will give you as honest a response as when I ask
you if you are going to lay me off." Ultimately, I could plead that they
are coercing me into forfeiting my First Amendment rights, if they threaten
to let me go for this. Couldn't I?
Answer:
- Your first amendment rights are not directly involved. The first
amendment reads:
"Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people to assemble, and
to petition the Government for redress of grievances."
That means the federal government may not infringe on your freedom of
speech. That amendment applies to state and local governments as well
because of the 14th amendment. But it doesn't apply to private
companies (with a few exceptions).
California has imposed on private companies some rules requiring
employers to respect employee's first amendment rights. One such
rule, very indirect, is California Labor Code Section 96(k). That
section gives to the Labor Commissioner jurisdiction over:
"Claims for loss of wages as the result of demotion, suspension or
discharge from employment for lawful conduct occurring during
nonworking hours away from the employer's premises."
There is an exception for conduct that is "actually in direct conflict
with the essential enterprise-related interests of the employer" where
the conduct "would actually constitute a material and substantial
disruption of the employer's operation." (Section 98.6)
So I think you would have a department of labor complaint if your
off-duty conduct, outside of the employer's premises, results in
demotion, suspension or discharge.
It might be unwise to point this out to the employer. First, you like
the job. I presume you would rather have the job than a labor claim
for wrongful termination. Second, warning the employer might
influence them to find some other reason for the termination. Third,
you didn't say that your resume activities were all done outside of
the employer's time and premises.
But I like the first part of your strategy, where you would tell the
employer: "Look, where and when I post my resume is my business. If
you want to know if I am intending to leave, just ask me." I would
leave out that statement: "I will give you as honest a response as
when I ask you if you are going to lay me off." Telling the employer
that you don't trust them to be honest is never wise.
Another strategy would be to simply put up with the harassment. It
doesn't sound awful.
Another strategy would be to remove the resume and make everyone
happy.
- I typically think things over quite a bit before acting. Also, I like
to write things out because they look different on paper than they do
rattling around in my skull. After reading what I wrote, I came to the same
conclusions about warning my employer.
As a side bar, are you saying that if a private party attempts to "abridge
my freedom of speech", i.e. the posting of my resume online, I have no case?
Aren't there civil cases all the time where one individual or entity has
infringed upon another's civil rights?
- I'm getting over my head here. My limited understanding of the
philosophy behind suits for infringement of civil rights by
private citizens is that there must be a federal statute
prohibiting the interference and authorizing the suit. I expect
that there is a law making it illegal for an employer to tell an
employee not to make political speeches off-duty. I also think,
without proof, that there is no statute prohibiting the employer
from interfering with your right to post a resume on Monster,
except for the Labor Code Section 96(k) thing I told you about.
Others on this board know more about this field.
