Legal Affairs and Policies Questions & Answers

My department was served with a subpoena. What do I do?

A subpoena is simply a request for information. It's that phase of the litigation process known as discovery. What lawyers are often trying to discover can be found in a student or employee file or they can learn the information by talking to an individual. In the absence of an objection from a challenging party, it is college policy to comply with all lawfully issued subpoenas.

An FBI agent with a shiny badge came to campus asking for information about my department and copies of records. Is it OK that I talked with him and gave him the records he wanted?

Sometimes an agent is on campus conducting a background check on a student who is seeking a position with the government. Typically, he or she will present a consent form signed by the student which allows the college to release information from the students' educational record. If the agent doesn't present you with a consent form, ask for one.

On rare occasions a government official might be on campus conducting an investigation of some other kind. Should this occur, you should contact the VP for your area. He or she will then determine what other college officials should be notified.

I heard the college monitors our email. Is that true and, if so, is that legal?

The college monitors the web for uses of the server that are inconsistent with the college's acceptable use policy. To find out what qualifies as appropriate uses of campus technology see the acceptable use policy here.

It's important to note that while the college does not routinely monitor individual emails, employees have no privacy right in material sent over the college server, including email sent from non-employer hosted addresses. Employers possess the right to monitor the use of their technology in this way. As indicated in the policy, Westmont's IT resources are owned by the College, and access is a privilege granted to faculty, staff and students in support of their studies, instruction, duties as employees, official business with the College, and other College-sanctioned activities.

Isn't it against the law to exclude non-Christians from employment at the college?

The short answer is: it depends. Both federal and state laws generally prohibit discrimination in employment based on religion (and a host of other bases called "protected categories"). However, this general rule does have some limited exceptions. One of those exceptions is the legal exemption for religiously affiliated employers. As a Christian college, Westmont may elect to hire what the law calls "co-religionists."

In both federal and state anti-discrimination statutes, employers that are owned, operated, or controlled by a religious institution are permitted to make hiring decisions based on religion. As a Christian College, Westmont is provided with this privilege under the law.

A co-worker/student/visitor/family member needs some legal advice. Where should I send them?

Here are a few sites you may find helpful in the event you have legal questions of a personal nature.

Can the college file a restraining order on my behalf?

Where an employee has been confronted with actual or a credible threat of violence in the workplace, an employer can file a workplace restraining order that is designed to protect not merely the employee but the workplace itself. For restraining orders arising out of matters unrelated to the work place, an employee should consult personal legal counsel. Employees who have existing restraining orders in place should contact public safety who will most likely be provided with a copy of the order on your behalf by your legal counsel.

If you have reason to believe that your safety is at risk in the work place, please contact the VP for your area. For emergency situations, please call security or 911 depending on the situation and your need.

I heard that the college will fire you if you get divorced; is that true; is that even legal?

The college community may legally impose standards upon itself that you may not find at another non-religiously affiliated places of employment.

Westmont's community life statement and behavioral expectations contain the standards by which those who join our college community choose to abide as followers of Christ. These standards do not prohibit divorce; after all, there are scriptural grounds for divorce. But exhibiting a life long commitment to marriage is among our community standards.

In all cases where a marriage is strained or broken, the college's first desire in such situations is to be of as much support as possible to the employee facing the difficulty. To that end, Westmont's Employee Assistance Program provides counseling free for a certain number of sessions and then subject to a co-pay thereafter. In addition, the college's own counseling center has a variety of reading resources for individuals facing marital difficulty that employees may find helpful.

Westmont expects that no faculty or staff member considering an end to their marriage will contemplate that possibility lightly or without prayer and wise consultation. If a Westmont employee becomes divorced, he or she is not automatically terminated. But where private and confidential conversation with the employee indicates that the community's commitment to lifelong marriage is not met, then the college will take the appropriate action.

What do I do if one of my new employees is struggling with their job duties because of a medical condition?

While you won't always know when a member of your staff has a medical condition, if an employee is unable to perform job duties you'll find out about it. Some job duties are an essential part of an employee's position and the inability to perform them as a result of a medical condition triggers certain legal duties for the employer.

Reasonable Accommodation
Where a medical or physical condition impairs an employee's ability to perform the essential functions of his/her job, the law requires employers to make reasonable adjustments, modifications, provide tools and/or services that will enable the employee to perform their job duties. The law refers to those adjustments, services, tools, etc. as "reasonable accommodation." Reasonable accommodations come in a variety of forms and will depend on the nature of both the impairment the employee has and the nature of the job tasks the individual performs.

On some occasions, employees in need of an accommodation to help them perform core job duties (i.e., essential job functions) will request accommodations on their own. On other occasions, the possible need for an accommodation is based on what the employee tells you or your observation of an obvious physical impairment.

A sudden decline in the performance of essential duties; failure to meet deadlines; or an increasingly negative attitude indicate you have a struggling employee. Couple those characteristics with frequent late arrivals, recurrent sick days, and/or your own observation of a new physical impairment of some type; and you might have a staff member with a need for a reasonable accommodation. When you know or have reason to know that these deficiencies are due to medical condition, you'll need to engage the employee in a conversation to determine what if any accommodation is necessary and can be reasonably provided. The law refers to this conversation as the "interactive process."

Interactive Process
Upon request for an accommodation or upon observation of some medical or physical condition impairing the employee's ability to perform, the law requires the employer to make a timely, good faith effort at determining the accommodations available that would allow the employee to perform essential job functions without undue hardship to the employer.

During the interactive process you may discover that all your employee needs is an ergonomic chair to alleviate sciatica pain while sitting at a desk. Perhaps you'll need to adjust a work schedule so that the employee can attend regular appointments with a doctor. In all cases, it is best to start the conversation by addressing the employee's job expectations; the instances in which the employee has not met them; and the reason for that failure. The office of Human Resources can help you with the interactive process and assist you in determining what, if any, reasonable accommodation your staff member might need.

What if there is no reasonable accommodation available that would allow the employee to perform essential job functions?

Beyond Accommodation
Sometimes conversations with the employee, recommendations from his or her physician, and assistance from the office of Human Resources, all indicate that no reasonable accommodation exists and the employee is no longer qualified to perform the job for which he or she was hired. The inability may be temporary, in which case the employee may be entitled to a medical leave until they are again able to perform either with or without accommodation. In the event the inability is permanent, separation from the college may occur. If you have reached either of these stages with an employee you have no doubt been in conversation with the office of Human Resources. If you have not; you should be. Go ahead; I'll wait.

Can I hold a raffle on campus as an incentive for people to participate in my program or complete a survey? 

You may hold an "opportunity drawing" so long as you do the following:

  • Do not require payment of any kind to participate in the drawing 
  • Provide for a general and indiscriminate distribution of drawing tickets, i.e., everyone who wants a ticket gets one, whether or not they are fulfilling the task/participating in the program 
    • Example:  You want people to complete a survey and will offer a chance to win a $150.00 Amazon gift card to anyone who does so.  
      • Advertise that "no payment of any kind is required to enter the prize drawing" 
      • Indicate that those who complete the survey will automatically be entered into the drawing to win.
      • Provide instructions on how one can enter the drawing for the prize when choosing not to complete the survey.