Employer can peek at paychecks

Q: I work in a medium-sized company that outsources its payroll services. Last week our boss opened a co-worker's check. He said he wanted to see if the amount was correct. The woman complained to our assistant manager, who in turn mentioned it to the boss. He replied, "I can open anyone's check." We are all upset. Is this legal? He could have gotten the pay info from the computer file.

A: In this age of identity theft, Internet scams and computer hacking, concerns about privacy have been heightened, said Alan Sklover, senior partner of Sklover & Donath in New York City.

"Legal issues of personal privacy of employees at work are more common than ever," said Sklover, who represents employees.

In this instance, though, he sided with your employer. "Because the information the boss obtained was company information and because he had a justifiable reason to want to know that information, his opening a paycheck does not seem to be unreasonably intrusive," Sklover said.

What's more, "it was company information the boss sought, and the opening of a paycheck envelope would not seem to unreasonably violate privacy," he said.

But that intrusiveness has its limits. "If the boss opened up the employee's pocketbook and searched through her wallet for that same information, the employee would have a strong case," he said.

Courts seem to be seeking a "reasonable middle ground" to balance the workplace privacy concerns of employers and employees, Sklover said.

For example, he cited a recent federal circuit court ruling in California that said employees using company e-mail have "no reasonable expectation" of personal privacy. But the court also found that employees using their own instant messaging from their desks at work do have such a "reasonable and therefore legally protectable expectation of privacy."

Q: I am the office manager of a company with 10 employees. We have no hourly workers; everyone is on salary and we aren't unionized. I have two questions: Is it legal for the company to play favorites when it comes to giving days off for religious holidays? Employees of the same religion are treated differently. Some get the day off with pay, others are charged a sick day. And is it legal to pay some employees overtime but not others?

A. It's legal for an employer to play favorites as long as it's not on the basis of sex, race, religion, national origin or other categories protected by federal anti-discrimination laws, said Richard Kass, a partner at Bond Schoeneck & King in New York City.

Although you mention religion, garden-variety favoritism might really be at play and might be perfectly legal.

"So if the company gives better religious-leave benefits to employees who have fancier titles or to employees with more seniority or to employees who the boss just thinks are doing a better job, that's OK," Kass said. "But if the company gives better religious-leave benefits to Irish Catholics than it gives to Italian Catholics, that's illegal."

Religious discrimination also could be a factor, even if everyone involved is of the same religion and nationality. For example, the company can't favor Orthodox Jews over Conservative Jews, or Sunni Muslims over Shia Muslims, he said. "The important thing is that every employee's religious observances are accommodated, one way or the other," he said.

As to your second question, all employees are entitled to overtime pay unless they are exempt from the overtime laws, Kass said. The most common exemptions are for executive, professional, administrative and outside-sales employees who meet certain pay and duties criteria.

Just because an employee is paid a salary doesn't mean that person is automatically exempt from overtime. Other more important factors come into play. For more information, contact the U.S. Labor Department.

Reach Carrie Mason-Draffen at carrie.draffen@newsday.com.