Minnesota Labor & Employment Law Blog

National Labor Relations Board Strikes Out Again

Tiffany Schmidt — Thu, 17 May 2012 10:06:46 -0600

On April 26, the NLRB Acting General Counsel Lafe Solomon issued a memo outlining in detail how regional offices were to implement new representation case procedures starting on Monday, April 30. Now, just 20 days later on May 15, Mr. Solomon withdrew the guidance he had sent to the regional offices. This action was in response to a U.S. District Court decision that the rule the NLRB adopted in December 2011 amending the procedures for determining whether a majority of employees wish to be represented by a labor organization, was adopted without the statutorily required quorum, and was therefore invalid.

The Court makes no determination on the legality of the rule adopted by the NLRB. The rule was struck down on a technicality. With all the litigation the NLRB has been involved in over the last year, you would think it could have easily avoided this problem by making sure it had a quorum prior to voting on the rule.

Better luck next time, NLRB!

Tempted to Use a Summer Intern- Think Again

Marylee Abrams — Fri, 11 May 2012 09:55:41 -0600

The school year is coming to an end and a new batch of graduates will be hitting the job market, looking for their first real job. The struggling economy has little to offer, and employers are not confident enough to add personnel until the economy improves a bit. The natural temptation for both employers and job seekers is to consider summer internships. Free work, resume boost, whatever the motivation, it all sounds good. Even the internet is full of stories about famous people who worked as interns on the way to becoming who they are today. Oprah Winfrey, Lady Gaga, Brooke Shields, and Kanye West, all reportedly worked as an intern in their career. It sounds even better.

Last weekend Steven Greenhouse of the New York Times wrote, “As of Friday’s job reports showed, job growth is weak, and the unemployment rate for 20-24 year olds was 13.2 percent in April.” He mentions lawsuits filed by three different unpaid interns who worked for “Harpers Bazaar, on the movie set of “Black Swan,” and for Diane von Furstenberg’s fashion house, as well as the negative work experience of other interns who worked in Hollywood for Scott Rudin, and for a booking agent in New York. While some internships may provide valuable experience and boost a resume, others are little more than the exploitation of the vulnerable unemployed, required to perform menial tasks for free.

The Department of Labor takes a dim view of employers who seek to supplement their paid workforce, by using unpaid summer internships in this way. A DOL fact sheet offers guidance to “for-profit” private employers,” to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act, for the services they provide. Internships will most often be viewed as an employee-employer relationship, unless each element of the test described below is met.

Internship Test:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.

I blogged about summer internships around this same time last year. Unfortunately, the slow economy is perpetuating the practice, as employers and college graduates continue to look to alternate ways to solve their economic problems. Minnesota Lawyer called me for a quote on an internship article they are publishing, after recognizing the same seasonal employment issue. Employers should think again before concluding an unpaid internship is a great solution.

Management Rights Clauses Are Important for Public Employers

Tiffany Schmidt — Mon, 07 May 2012 14:21:51 -0600

In two recent arbitration decisions, grievances were denied in part because the action the Employer took was permitted under the “Employer Authority” or “Management Rights” article in the collective bargaining agreement.

In AFSCME, Council 65 and City of Chisholm, the street department employees’ filed a grievance after having their work scheduled changed by two hours. The City Administrator had the street department foreman notify workers two days before the shift change, that employees’ were to come in two hours earlier (prior to the start of the original shift) and leave two hours before the end of the original shift. All employees still worked an 8 hour work day. Arbitrator Gallagher ruled in favor of the Employer. He agreed that Article 4 reserved to management the right of “scheduling work.” Past practice arguments were made by the Union, but were unsuccessful.

In an arbitration between Minnesota Teamsters Public & Law Enforcement Employees’ Union, Local 320 and Chisago County, Arbitrator Bernice Fields ruled in favor of the Employer. The facts in this case involved a restructuring of the Sheriff’s department to accommodate $750,000 in budget cuts. The grievant was a lieutenant in the Sheriff’s department, who was subsequently demoted to sergeant with a cut in pay. All corporal and lieutenant positions were eliminated as part of a department-wide restructuring. A grievance was filed over whether or not the demotion was proper, whether the demotion was in retaliation for protected political/union activities, and whether past practice obligated the Employer to maintain the grievant at the salary of a lieutenant. Arbitrator Fields agreed the Employer Authority rights clause reserved the right to “establish and modify the organizational structure.” Arbitrator Fields stated, “Failure to recognize the Employer’s right to reorganize the work structure when it deems necessary would deny the Employer the ability to remain afloat and competitive in the turbulent financial whitewater that both public and private employers have navigated since 2008.”

All language in a collective bargaining agreement is important, but some of the most valuable language to an employer is the Employer Authority article. Employees care about wages and benefits, but Employers should put a priority on the language that is negotiated.

Using Criminal Background Checks in the Hiring Process

Marylee Abrams — Thu, 03 May 2012 09:54:56 -0600

Conducting criminal background checks is becoming routine in the hiring process of new employees. Many employers see them as one way to vette potential candidates, and reduce the pool of job applicants. Yet, automatically excluding a job applicant because of a criminal history may subject an employer to a disparate treatment claim brought by the EEOC.

Last week, the EEOC issued a helpful guide for employers called Enforcement Guidance of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Employers should be aware there are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).

First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.
Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

(A short question and answer guide was also issued, by the EEOC which summarizes the major points.)

Minnesota employers should also be aware of state statutes which relate to criminal history checks. Minn. Stat. 181.981 applies to private sector employers. It is designed to encourage the hiring of ex-offenders by limiting the parties ability in negligent hiring and retention cases, from introducing evidence relating to an employee’s past criminal history, when the job duties of the position did not expose co-workers or the public to any heightened risk of harm.

In the case of public employers, Minn. Stat. 364.021 prohibits most public employers from making inquiry about the criminal history of a job candidate, until the applicant has been selected for an interview. This of course does not apply where the public employer has a statutory duty to conduct a criminal history background on a job candidate such as corrections or law enforcement.

Hiring decisions have the potential for being scrutinized. As such, they should be carefully planned and if a criminal history is utilized, it should be reviewed to insure compliance with the most recent EEOC guidance.

More Than Sandwiches Being Served at Jimmy John's: Chapter 2

Marylee Abrams — Mon, 30 Apr 2012 09:55:04 -0600

The local Minneapolis office of the NLRB issued a decision last week, finding a Jimmy John’s franchisee illegally fired six employees for protected activity. This case is a follow-up to a blog I posted last fall about a failed union organizing campaign at Jimmy John’s, which resulted in a settlement agreement and a rerun election.

Chapter 2 of the sandwich saga involved the termination of six employees for posting 3,000 notices near ten Jimmy John’s sandwich shops owned by Milkin Enterprises. The employees had asked the employer to provide paid sick leave, and to change a sick leave policy that required employees to find replacements when they are ill and unable to work. Milkin Enterprises rejected the request, and the employees posted notices near ten sandwich shops warning customers their sandwiches could be made by ill employees. The postings included pictures of two identical sandwiches, and asked:

CAN’T TELL THE DIFFERENCE?
THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T
GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.

WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST…

HELP JIMMY JOHN’S WORKERS WIN SICK DAYS
SUPPORT US ONLINE AT www.jimmyjohnsworkers.org

The Judge ruled the employees’ activity was protected activity under the NLRA, as it was part of an on-going labor dispute. The employer was ordered to reinstate the employees with full back-pay and any other lost benefits.

The employer’s case was argued byMichael Landrum and Mary Dobbins of Landrum Dobbins. Mary is an accomplished law school classmate of mine. She expressed her disappointment over the result stating, “We believe the conduct of the employees was egregious and should not be protected.“

Under these circumstances, the employees had no concern for the business enterprise, or the impact the postings may have on patrons of Jimmy John’s. Instead their only concern was improving their working conditions. This is a really tough spot for employers today. The NLRB pendulum has shifted so far in the direction of protecting employee speech, it leaves little room for employers to protect their businesses. The next step is a review by the full Board. I will keep you posted.

Dirty Little Secrets Of The Secret Service

Marylee Abrams — Thu, 19 Apr 2012 13:49:19 -0600

The secret is out on the Secret Service. The sex scandal involving 11 Secret Service agents, 2 of which are supervisors, and 10 military personnel surfaced when a dispute over payment of a Columbian prostitute resulted in a call to Cartagena police, who then contacted the U.S. Embassy, and the story went viral from there.

It is never a good sign when supervisors are found engaging in misconduct along with subordinates. It has been my experience when that happens there is a much larger problem which extends to the underlying workplace culture. It has also been my experience with workplace misconduct that this was likely not the first time Secret Service Agents engaged in risky behavior and trysts with prostitutes. There were just too many agents involved and the behavior too overt to conclude otherwise. News reports have indicated there were at least 20 prostitutes involved in the scandal, indicating this was pretty wide-spread.

We have heard little from the agents themselves other than one news report which indicated, "...some of the men stated they did not know the women were prostitutes.” Instead of well-trained security specialists, charged with protecting the President of the United States, they sound like frat boys who got caught with a woman in their room after hours, except the possible ramifications go way beyond loss of frat membership or suspension from a sports team. ABC News reported, “On Wednesday, the chairman and ranking Democrat on the House Committee on Oversight and Government Reform, Rep. Darrell Issa, R-Calif., and Rep. Elijah Cummings, D-Md., wrote to Mark J. Sullivan, the director of the U.S. Secret Service, about potential security concerns. "The incident in Cartagena is troubling because Secret Service agents and officers made a range of bad decisions, from drinking too much, to engaging with prostitutes, to bringing foreign nationals into contact with sensitive security information, to exposing themselves to blackmail and other forms of potential compromise."

Director Mark Sullivan appears to have acted swiftly and done the right thing by immediately removing the agents from Columbia, suspending their security clearance, and placing them on administrative leave pending a thorough investigation. Based on evidence already collected 3 agents have reportedly been forced out through early retirement, resignation, and proposed termination.

Something went terribly wrong, and the secret is now out of the bag. Between the White House investigation and Congressional hearings, this story will continue to unfold in the months to come. Managers should get beyond the "What were they thinking?" response, and be actively aware of workplace culture.

On Again, Off Again - Court Enjoins the NLRB's Requirement to Post About Employee Rights

Tiffany Schmidt — Wed, 18 Apr 2012 13:19:56 -0600

Last week, I blogged the deadline for employers to post the National Labor Relations Board poster on employee rights was fast approaching. Well, yesterday that changed again! The District of Columbia’s Circuit Court of Appeals temporarily enjoined the NLRB’s rule requiring the posting about employee rights. The Court of Appeals took this action, due to conflicting decisions which were issued at the district court level. Earlier this year, the D.C. District Court found the NLRB had the authority to issue the rule. However, last week the South Carolina District Court found the NLRB lacked the authority to issue the rule. Until this gets figured out in the courts, the requirement to post the NLRB poster on employee rights, is apparently on hold. I’ll let you know when a new deadline is set.

Only 17 Days Until Businesses Need to Post the Employee Rights Poster

Tiffany Schmidt — Fri, 13 Apr 2012 14:33:04 -0600

Most individuals and businesses at this time of year are more focused on the tax deadline that is quickly approaching next week, April 17th to be exact, than other deadlines which maybe on the horizon. Well, this month there is one other deadline which is quickly approaching for most employers, the requirement to post the Employee Rights under the National Labor Relations Act poster. Last year, the National Labor Relations Board (NLRB) announced it would be requiring both unionized and non-unionized employers to post an employee rights poster in the workplace. Originally, employers were going to be required to hang the poster effective November 14, 2011, but that deadline was delayed several times. Well, now the deadline is fast approaching (April 30th) and it doesn’t appear that it will be postponed this time.

Some changes have been made to the poster since it was originally proposed by the NLRB. It is no longer an automatic unfair labor practice to not hang the poster, nor is there an indefinite extension of the statute of limitations for filing an unfair labor practice charge.

If you haven’t already done so, go to the NLRB website and download the poster for free. Remember the poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. Also, if 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language. The NLRB has foreign language versions also available on its website. Additionally, if your business regularly posts policy updates electronically on a company intranet page, you are required to include this notice there as well.

Steps to take now:

1) Research to determine if you are one of the employers required to hang this new poster.
2) Train your managers/supervisors so they are aware of the new poster, and know how to respond to employee questions.
3) Hang the poster by the April 30, 2012 deadline.

Workplace Investigation Training: April 10 and 11, 2012

Marylee Abrams — Mon, 09 Apr 2012 15:10:31 -0600

I am once again co-teaching the 2-day intensive Internal Affairs Investigation Seminar with Wayne Shellum through UMCPI. The course is designed to equip workplace investigators to conduct full, fair, neutral investigations.

Workplace investigations are stressful, and fraught with changing situations. My teaching responsibility for the course covers the legal aspects of conducting a workplace investigation. My goal is to equip anyone conducting a workplace investigation, with the legal framework they need to plan and carry-out a thorough investigation.

One of the most crucial things for an investigator is to have an intentional plan. This will include identifying employee rights, developing strategies for collecting all necessary data, and obtaining successful interviews from both witnesses and the employees who are the subject of the investigation. Finally, an investigator has to have the confidence to draft conclusions based on the facts collected.

The course is generally offered at least once a year, and sometimes twice depending on demand. To all “would be” workplace investigators, get the training you need to prepare yourself. Investigations can be a wild ride with many twists and turns. They definitely are not for the faint of heart.

Proceed With Caution When Asking for Facebook Passwords From Job Applicants

Tiffany Schmidt — Tue, 27 Mar 2012 10:52:18 -0600

It has been a while since I have had the chance to post a new blog. I have been adjusting to life with a newborn in the house again. Josée is now two months old, and I am able to get back to a regular work schedule and blogging.

It is all over the internet. Job seekers are being asked to provide prospective employers with their passwords for e-mail and social media sites. The Associated Press reported, a sheriff’s department in Virginia asked job applicants to “friend” background investigators, because today virtual friends know more about each other than actual next door neighbors. The background investigators then look at the social media sites for any potential “derogatory” behavior that could damage the sheriff agency’s reputation if the applicant is hired.

Legislators are not ignoring the phenomena either. Connecticut Senator Richard Blumenthal is currently sponsoring legislation which would make it illegal for employers to ask for this information, citing the private nature of the inquiry.

Currently, it is not illegal for an employer to request a password from a job applicant, but it is certainly a slippery slope with regard to protecting an employer’s right to know, against an applicant’s right to privacy. It is also against Facebook’s policies for users to provide their passwords to others. It is understandable employer’s want to hire the best candidate and protect their business interests, but before social media was even around, employer’s had many other avenues available to properly vet a job applicant, including background checks, reference checks, and detailed interviews.

Social media is the water-cooler of the 21st century. People voice their complaints, share stories and opinions, all on social media websites. Requesting a job applicant’s password is akin to asking for the key to their personal diary. It is important to determine why an employer is interested in the information found on a social media site. Is it really necessary for hiring a job applicant? After the employer gets information from a social media site, what will be done with it?

If an employer is concerned about the character of a prospective job applicant, then traditional background checks, reference checks and interviews are an appropriate means to gather the necessary information to make an employment determination. If an employer is concerned about protecting their business interests from employees sharing information or disparaging the business on social media sites, the better approach would be to inform applicants as a requirement to being hired, they must sign a confidentiality agreement and a non-disparagement agreement. Of course, such agreements must not impact on an employee’s speech rights under the NLRA.

I would not advise employers to ask job applicants for passwords to e-mail and social media sites. I would not want one of my employer clients to be the test case in the legal system over this unsettled issue. Right now, the old-fashioned approach is a better alternative to vetting prospective employees.

The Vikings Were Robbed or Employment Sanctions in the NFL

Marylee Abrams — Fri, 23 Mar 2012 08:24:36 -0600

I remember the 2010 Vikings and Saints NFC Championship game like it was yesterday. I was at my cousin Vicki’s house with my extended family, glued to the big-screen television, hoping Brett Favre would lead the team to the Super Bowl. We have had quite a long dry spell in Minnesota, since the days of Coach Bud Grant and the Purple People Eaters. The 2009 season was like a fairytale, and we were so hopeful to break the Super Bowl curse plaguing our team.

My vivid memories of the game are still quite visceral, and were shared by all those who watched the slaughter with me. We all cringed and groaned each time the Saints wiped Brett Favre off his feet. We shouted and shook our fists in the air, wondering whether the referees were seeing the same viciousness we were, and each time Favre got up and staggered back to the line. The camera panned to Favre’s wife and daughter in the box seats, and we knew things were bad. It is only now we know the brutal hits were part of a bounty system.

The Saints team culture had completely lost focus on the game of football, and thrown out the gentlemen part of sportsmanship. In place was a pay for performance system, rewarding players for vicious hits on opponents. The Pioneer Press reported Saints players were paid, “$1,500 for knocking someone out of the game, $1,000 for getting a player carted off the field.”

Football is big business. I am glad to see NFL Commissioner Roger Goodell took the problem seriously by investigating the allegations and issuing the largest fines and sanctions in NFL history. The Saints conduct clearly warranted serious sanctions, and perhaps even a criminal investigation. This is supported by the fact “…the Saints lied in what the league called a deliberate effort to conceal the program’s existence from league investigators and had a clear determination to maintain the program.” I suggest the sanctions meted out should have included taking away the 2009 Super Bowl win from the Saints as well.

In my law practice, I advise employers to carefully consider the actions of employees before administering any discipline, taking great effort to make sure the “punishment fits the crime.” Discipline should be designed to correct behavior and insure it does not happen again. I am waiting to see the discipline issued to individual Saints players who participated in the bounty system.

In the case of the Saints, stripping them of their 2009 Super Bowl win, in addition to the other sanctions issued against the team, and coaching staff will go far to insure the bounty system will not ever happen again. In the end the Vikings were still robbed, at least the robbers are paying for their misdeeds.

A New Type of Discrimination Emerges From our Struggling Economy: Unemployed Status

Marylee Abrams — Mon, 12 Mar 2012 14:40:02 -0600

Our Minnesota state legislature is currently considering adding a new protected class status to the age, race, gender, disability and other protected classes covered under both state and federal laws. The new protected class being considered is the unemployed.

A bill recognizing unemployed status as a protected class was introduced in the Minnesota Senate last month, and a companion bill was introduced in the House. The Senate file had its first reading and was referred to the Judiciary and Public Safety Committee. The House file was read and forwarded on to the Commerce and Regulatory Reform Committee. Both bills are similar, but not identical. The Senate version carries a civil penalty of not more than $5,000.00 for a first offense and not more than $10,000 for a second offense. The House version currently carries no civil penalty.

Minnesota is not alone and joins over 18 other states who are similarly considering unemployed status as a protected class. According to James Hays and Rebecca Hirschklau of the Sheppard Mullin employment blog, the state of New Jersey has already adopted new legislation recognizing the unemployed as a protected status. They also reported new legislation has been proposed on the federal level in both the House and Senate seeking to bar private employers with fifteen or more employees from discriminating against individuals who are unemployed. The proposed federal legislation covers job postings and hiring decisions, unless current employment is a bona fide occupational requirement.

We will be watching both our Minnesota legislature, and Congress, and let you know what happens….Stay tuned

"Would You Fire Someone For Working Through Lunch?"

Marylee Abrams — Thu, 01 Mar 2012 11:49:36 -0600

My long-time friend and recruitment advertising guru, Chris Bacon, sent me an interesting article she ran across and asked my legal opinion, “Would you fire someone for working through lunch?” The online article she forwarded to me outlined an absurd set of facts.

Sharon Smiley, a receptionist/office assistant with a Chicago real estate company opted to not eat lunch, and instead she worked at her desk, answering phones and working on a spread sheet for her employer. When her manager observed her working during her lunch break, she was told to go and speak with the HR manager, who promptly terminated her employment for violation of the lunch policy and insubordination. A two-year court battle over unemployment benefits followed. Last month, a Cook County judge ruled Smiley’s conduct did not rise to the level of misconduct, and awarded her unemployment benefits.

I understand the concept of workplace policies and the concern employers have about employees working “off the clock,” creating overtime problems under the FLSA. But really…… terminating an employee for working through lunch! What about common sense, communication, and simply correcting an employee’s misstep?

While Sharon Smiley represented herself throughout the two year legal battle over unemployment benefits, you can bet her employer did not. They no doubt spent a handsome price on legal fees arguing that a ten year employee who opted to work through lunch had committed gross misconduct, warranting the denial of unemployment benefits.

The short answer to my friend Chris is “NO!” I would not advise any client of mine to terminate an employee who works through their half- hour lunch break. I would advise the employer to speak to Ms. Smiley and explain why working through lunch is not acceptable. Since the “work” had already been performed, the employer should also check to see if Smiley was entitled to overtime for the one instance. The matter should be documented and Ms. Smiley provided a copy of the written documentation. The documentation should include a warning to Ms. Smiley that she could be disciplined if she works through lunch again in the future. In all reality though, Ms. Smiley seems bright enough that simply advising her she can’t work through lunch and why might have been enough to deter the behavior from happening again. Oh, and let’s not forget, a shake-up in HR might be warranted too.

Requiring Job Applicants Have A High School Diploma Could Be Discrimination: The EEOC Viewpoint

Marylee Abrams — Wed, 22 Feb 2012 15:53:48 -0600

Many job postings for entry level positions require a job applicant have a high school diploma or an equivalent GED. It sounds simple enough, but in some circumstances it may actually run afoul of the EEOC.

Last fall the EEOC published an informal letter on the topic, giving guidance on when requiring a high school diploma is permissible. A qualification standard “…such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

In plain English this means if an employer adopts a high school diploma requirement for a specific job, and the requirement “screens out” individuals who are unable to “…graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma. “ At this point, "...the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process."

Don’t panic. The EEOC letter clearly indicates employers are not prohibited from adopting a high school diploma job requirement, and no changes will be necessary in the vast majority of cases. However, employers must use caution, and carefully consider the legitimacy of the diploma requirement in light of the job duties, and respond appropriately to an applicant who indicates they were unable to achieve a high school diploma due to a learning disability.

Trash Talk Facebook Posts in a University Setting on Appeal to the Minnesota Supreme Court

Marylee Abrams — Thu, 16 Feb 2012 12:31:43 -0600

Last summer I blogged about the inappropriate Facebook posts of a University of Minnesota mortuary science student. She had posted comments about cadavers, descriptions of embalming as cathartic, made threats to stab someone in the throat, and she nicknamed a cadaver “Bernie” from the classic comedy film “Weekend at Bernie’s.” As a result of her Facebook posts she received academic sanctions. She subsequently filed a court action arguing she had a constitutional right to free speech in her Facebook posts. The Court of Appeals ruled against the student, indicating her “…posts to a social networking website materially and substantially disrupt[ed] the work and discipline of the university.” The mortuary science student has spoken out once again by appealing the decision to the Minnesota Supreme Court, who heard oral arguments in the case last week.

According to Pioneer Press reporter Emily Gurnon, the student’s attorney argued she was “…off campus when she posted the comments, she didn’t identify the cadaver by name, and she didn’t describe the dissection procedure in detail, which student rules forbid.” Gurnon appeared to have been present for the oral arguments, quoting Jordan Kushner, the student’s attorney, in response to Justice Paul H. Anderson’s question about deference to the University’s sanctions and the need to provide for the safety of students. Attorney Kushner responded “there were no specific threats…That would be a different situation.” Kushner also quoted his client as saying, “She needs to joke and express humor, or she’d be the most miserable person on the planet.”

The right to free speech does not give students or employees carte blanche to say whatever they want. In this case the mortuary student’s remarks were stupid, immature, and disrespectful. Like the saying goes, “Say it, forget it. Write it, regret it.” I am hopeful the Minnesota Supreme Court will give us some guidance and clear up the cultural blur between personal and professional use of social media.

The Fallacy of "At-Will" Employment

Marylee Abrams — Wed, 08 Feb 2012 08:00:00 -0600

At-will employment is believed by many employers to allow them the ability to terminate an employee for any reason or no-reason at all, except for a discriminatory reason. We advise our clients to make “at-will” employment status very clear in job offers and in employee handbooks. This prevents an “at-will” employee from believing a contract has been established which guarantees continued employment.

The fallacy of “at-will” employment is that if employers do terminate an employee without notifying them of the legitimate reasons for termination, the employee is free to make-up a reason. This may be in the form of a discrimination claim, sexual harassment claim, wage and hour claim etc.

Truth and honesty with employees is always the best course of action for any employer. Additionally, using good business practices which include accurate performance evaluations, coaching, counseling, fair and reasonable discipline, and providing training opportunities to employees is important. Clear communication of employee expectations is also essential for every employer, as is documenting an employee’s work record. It has been my experience that employees who have been put on notice of work expectations, been treated fairly, and given an opportunity to make necessary changes, are less likely to challenge termination decisions.

The notion of at-will employment is really deceptive. A better course of action for employers is to follow the golden rule, “Treat others, like you want to be treated yourself.” It is one way to reduce legal bills, and avoid some of the costly challenges to employment termination decisions.

Train, Transfer, or Terminate: What To Do About Employee Misconduct?

Marylee Abrams — Mon, 06 Feb 2012 11:04:31 -0600

Our public employer clients often express frustration with employees who have a pattern of acting badly at work. How much longer do they have to put up with a problem employee? What options do they have? Two recent arbitration decisions underscore the point public employers are able to terminate employees who act badly at work. Both termination cases involved hospital workers, and were decided by two different experienced arbitrators.

Arbitrator Jacobs upheld the termination of a 30 year employee, who had a pattern of disciplinary problems, culminating in a verbal altercation with a fellow employee. The employee had a documented pattern of problems dating back to 2007 including attendance issues, insubordination, poor workplace demeanor, and attitude problems towards co-workers. Arbitrator Jacobs stated, “She has demonstrated an unwillingness and/or inability to change her workplace behavior or performance as the Employer wants. Keep in mind that the Employer gets to call the shots here in terms of what it expects from its employees. That someone has been doing it in a particular way for years does not carry the day. The question is whether they are doing it the way the Employer wants it done now. Here the grievant has a demonstrable problem doing that.”

Arbitrator Fogelberg upheld the termination of a hospital worker who also had a pattern of bad behavior. The final straw was a loud verbal altercation with another employee, which was interpreted as threatening and abusive. “[H]is disruptive behavior toward his fellow workers proved to have an adverse effect on morale and detracted from the Clinic’s ability to focus on its patients. Moreover, the steps taken by Management demonstrate little of the desired result was achieved.”

Crucial in both arbitration awards is the extraordinary efforts the employers had taken to advise the employee about work expectations. These efforts included documenting performance issues, coaching, counseling, training, and progressive discipline. While any one of the individual incidents may not have been termination worthy, the cumulative nature of the documented misconduct sustained the termination decisions.

All employers should read “document, document, document,” between the lines in both arbitration decisions. Train, transfer, try, and if the employee is still acting badly, then termination may be the appropriate action.

More Social Media Employment Cases Decided By The NLRB

Marylee Abrams — Wed, 01 Feb 2012 15:31:04 -0600

Last week, NLRB Acting General Counsel Lafe Solomon issued a second Operations Management Memo (OMM), covering 14 new employment cases concerning employee use of Facebook. It took me until now to read the 35 page memo, and synthesize the information for a blog. My first impression of the new cases is shock over the general decline in civility of employees, and the lack of boundaries they exhibit when they use Facebook to vent about work, co-workers, and supervisors. The cases read like employees gone wild, with vulgar, obscene rants aimed at their employers.

Seven of the new cases involved questions about the employer’s social media policies being too broad, and therefore unlawful. In 5 of the cases, the employer’s social media policy was determined to be overly broad and restrictive of employee rights.

Seven of the cases concerned employee use of Facebook. Specifically, employees made disparaging posts about work issues including complaining about not being promoted, poor management attitudes, and irritating, lazy co-workers. In 4 of those cases, the NLRB ruled the employee’s disparaging comments were protected concerted activity under Section 7 of the NLRA.

Notes to the Operations Management Memo underscore two main points:

"Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."

I have blogged in the past about other NLRB decisions and the previous OMM issued in August, 2011. Actions Employers should take right now:

Conduct an immediate review of workplace social media policies to make sure the policies are not overbroad.
Managers should be trained on employee use of social media. Businesses are held responsible for the actions of their managers should they threaten or discipline employees for rants on social media sites.
Don’t panic. The social media cases are very fact-specific. Review facts and make intentional decisions in light of the guidance offered in the OMM.
Get legal advice early. It could be very cost-effective in the long- run.

Welcome Baby Josée Marie Schmidt

Marylee Abrams — Mon, 30 Jan 2012 09:57:17 -0600

My law partner Tiffany Schmidt welcomed baby Josée Marie Schmidt last week. Josee joined her sisters Cambria and Brynn early January 25, 2012 at 3:23 am. She weighed in at 7lbs. 5 oz.. Mother and baby Josée are both doing well.

Employee Trouble on the High Seas

Tiffany Schmidt — Tue, 17 Jan 2012 15:20:05 -0600

Photo by: Gregoria Borgia

If you haven’t heard about the Friday crash of cruise liner Costa Concordia off the coast of Italy, you must be disconnected from all technology, newspapers, and media, because it has been the #1 news story. The employment side to this tragedy at sea, is the alleged horse-play that went on in the ship’s bridge and the fact the Captain may have abandoned ship. Today, MSNBC.com reported this is not the first time the ship’s captain, Francesco Schettino has disobeyed orders. According to Italian news reports, Captain Schettino once left Marseilles, France in bad weather, against both company policy and Coast Guard orders. He was also once reportedly caught sailing too close to the shore in another part of Italy.

In addition to the human tragedy and loss of life, this event is going to be costly for Carnival Cruise Lines, the owner of the Costa Concordia. Especially, if it is shown that Captain Schettino had previous performance issues which were not addressed by Carnival. According to news reports, human error is primarily to blame for the cruise liner crash, and that responsibility ultimately rests with the captain. Captian Schettino deviated from the correct route for the ship and contravened safety procedures.

I don’t know if Carnival took disciplinary action against Captain Schettino for past violations of company policy, but if they didn’t, they certainly should have. Discipline for violation of company policies is meant to correct employee behavior. Company policies are important for a number of reasons including but not limited to notifying employees of expected behavior, and outlining safety procedures.

As a Minnesota resident, my thoughts and prayers go out to all the families involved in this crash, especially, the Heil family of White Bear Lake, who is still waiting for word on their missing parents.