March 26, 2014

Save the date!

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Disability, Discrimination, Family and Medical Leave Act, Interactive Process, Leaves of Absence, Reasonable Accommodation, Sexual Orientation, Sick Leave, Sick or Injured Child Care Leave, Training, Unexcused Absence tagged , , , at 5:18 pm by Tom Jacobson

The eleventh annual West Central Minnesota Employment Law Update will be held Thursday, June 12, 2014 at Alexandria Technical and Community College. The morning session of the event is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara Gullickson-McGrane and Penelope Phillips.

The afternoon session will feature Ted Schick, who will educate and entertain with his presentation, “Recruit, Motivate and Retain Your Workforce.”

Comments from last year’s event:

  • “I attend yearly and look forward to it! Thanks!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

We hope you can join us on June 12! Stay tuned for registration, agenda and other details.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 27, 2014

Getting the Story Straight

Posted in Disability, Discipline, Discrimination, Legitimate business reason, Legitimate Business Reason for Termination or other Adverse Action, Pretext, Retaliation, Uncategorized tagged , , , , at 3:49 pm by Tom Jacobson

crossed fingersAs much as everyone hopes that an employee will always be the right fit for a job, sometimes employers need to discharge a worker. And unless doing so breaks a contract or is based on some unlawful reason (such as illegal discrimination), the dismissal will usually withstand any legal challenge.

One of biggest mistakes an employer can make, though, is giving inconsistent reasons for dismissing the employee. This is because inconsistent reasoning hurts the employer’s credibility and can lead a court to find that the stated reason was really a pretext to cover up unlawful discrimination.

For example, in one recent case (Barnhart v. Regions Hospital) where a former employee claimed her firing resulted from unlawful discrimination, the employer claimed the real reason was her poor attendance and her failure to call in when she was going to be late or absent. However, other evidence suggested that the employer terminated her because of company restructuring. The judge ruled that this inconsistency called into question the true reason for the employee’ termination, and he ordered that the case would need to go trial where the true reason for the dismissal would have to be decided by a court. Had the employer given a consistent explanation, the case likely would have been dismissed.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 19, 2014

Fair Credit Reporting Act — a trap for the unwary

Posted in Application Process, Background Checking, Credit Checks, Fair Credit Reporting Act tagged , , , , , , , , , at 10:54 am by Tom Jacobson

In my last post, I noted how Minnesota’s new “ban the box” law limits how private sector employers may check the criminal history of potential employees. Another trap for employers who conduct background checks is the Fair Credit Reporting Act.

The FCRA is a federal law that restricts how employers may obtain and use consumer reports and investigative consumer reports in connection with hiring and making other decisions about employees. For example, the law requires that applicants and employees must be notified in writing of the employer’s intent to obtain such reports before they are obtained. This notice must be a “stand alone” document that contains only the disclosure. Minnesota law also requires that this notice must contain a box for the applicant or employee to check to indicate whether s/he wants to receive a copy of the report (which must be provided free of charge).

Other FCRA requirements include obtaining the applicant’s or employee’s signed authorization before requesting or obtaining consumer reports or investigative consumer reports, certifying FCRA compliance to the consumer reporting agency from whom the reports are obtained, and providing written notices to an applicant or employee both before and when adverse action is taken based in whole or in part on a consumer report or investigative consumer report. Along with the written adverse action notices, employers must also provide a form known as the Summary of Your Rights under the Fair Credit Reporting Act. The Federal Trade Commission adopted a new summary of rights form which employers must use effective January 1, 2013.

Of course, the FCRA also has detailed definitions of what is a “consumer report,” “investigative consumer report,” “consumer reporting agency,” etc.

The consequences for non-compliance with the FCRA can be steep, for individuals may bring private lawsuits against employers who violate the law. In addition, certain federal and state agencies may seek injunctive relief and penalties. Criminal sanctions are also possible if an employer obtains information from a consumer reporting agency under false pretenses.

Obtaining credit information can be valuable tool for screening applicants and employees, especially if the job at issue involves financial management or oversight. However, employers obtaining consumer reports and investigative consumer reports must strictly comply with the FCRA and any of its state counterparts.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 31, 2014

Ban the box

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Workplace Violence tagged , , , , , at 2:56 pm by Tom Jacobson

Crime Scene TapeOne of the more challenging aspects of hiring can be knowing when and how to conduct a criminal background check on a potential employee. In a previous article I noted how asking for such information during the application process is generally a good idea. However, a recent change in the law now prohibits Minnesota employers from inquiring into an applicant’s criminal history until after the candidate is selected for an interview, or if there is not an interview, after a conditional job offer has been made to the candidate. In essence, this change now bans the “Have you ever been convicted of a crime?” box on all Minnesota job applications.

Employers wishing to conduct criminal background checks on prospective employees should also familiarize themselves with the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions  Under Title VII of the Civil Rights Act of 1964. This guidance, which is based on established federal law, confirms that the use of criminal records when making employment-related decisions must be job-related and consistent with business necessity.

Despite these challenges, checking into a prospective employee’s criminal background is still a good idea. Doing so can help an employer avoid hiring an employee whose history indicates a potential threat to the company, its employees, customers, vendors or the general public. The trick is knowing what to ask and when to ask it.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 6, 2014

January 16 Employment Law Update Announced

Posted in Uncategorized tagged , , , , , , at 2:51 pm by Tom Jacobson

Want to keep up to date on the latest developments in employment law? Need continuing education credits? If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2014. The day-long event has been approved for the following continuing education credits: 6.5 hours CPP/FPC; 6.5 hours MN CLE; 6.75 hours ND CLE; 8.0 hours CPE; 1.0 hour HRPD.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 16!

P.S. Don’t forget to ask me about a discount on the registration fee!

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

September 27, 2013

The Big Bang and the office dating game

Posted in Discrimination, Gender / Sex, Harassment, Hostile Work Environment, Office Dating, Sexual Harassment, Workplace Romance tagged , , , , , , , , at 10:47 am by Tom Jacobson

Raj & Mrs Davis

Raj & Mrs. Davis commiserate

In case you missed the season premier of The Big Bang Theory , it looks like romance may be on the horizon for Raj and the university’s Director of Employee Relations, Mrs. Davis. If that storyline goes anywhere, it will undoubtedly be fodder for many of my posts over the next few months, including this one.

In this episode, Raj has recently broken up with his girlfriend, and Mrs. Davis’ marriage is apparently on the rocks. The two of them hit it off well at a work party, so it doesn’t take a theoretical physicist to hypothesize where this is headed.

Workplace romance is nothing new, but it can be very difficult to manage. Take, for example, the recent case of Larson v. Arthur J. Gallagher & Co., where two female employees sued their employer for sexual harassment and related claims. Their claims were based on allegations that their manager had a practice of engaging in consensual but sexually inappropriate relationships with female employees, which led the manager to exhibit favoritism toward his paramours and those who supported (or did not disapprove of) his relationships. The plaintiffs also claimed the employer retaliated against them after they reported their concerns about these relationships.

The United States District Court for the District of Minnesota ultimately dismissed these claims after finding that the plaintiffs could not show widespread sexual favoritism or that men were treated differently than women. Regarding the retaliation claim, the court ruled that the plaintiffs could not have had an objectively reasonable belief that their employer broke the law; therefore they did not engage in protected activity when they reported their concerns.

What you need to know: Although the Larson case was dismissed, the parties no doubt spent considerable time and money litigating the issues. And the fact that this all led to an expensive lawsuit suggests that the overall workplace environment at this company was unhealthy. Perhaps they could have altogether avoided the angst and litigation with an office dating/relationship policy addressing topics such as:

  • The impact of such relationships on the work environment;
  • The types of relationships that are allowed or prohibited;
  • The right to say “no” if the relationship is or becomes undesired;
  • Employee’s options if feeling pressured to start or continue such a relationship;
  • Consequences if the relationship is between a superior and subordinate;
  • Employer’s options to change or end the working relationships of employees who are involved in romantic/dating relationships.

Office relationships can develop into romance, and when they do, they can be very difficult to manage. Implementing an appropriate workplace dating/relationship policy may ease the heartache. For more information about how to handle them, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930′s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 19, 2013

He’s no woman, but hear him roar

Posted in Discrimination, Equal Pay, Gender / Sex tagged , , , , , , at 11:34 am by Tom Jacobson

I am woman. Hear me roar. Ray Burton  / Helen Reddy  (1971)

Peace 2One of my sisters started college the same year I started kindergarten – 1970 (that’s my weak attempt at noting in a politically correct way how much younger than her I am). I gained from her an appreciation of the great music of that era, plus she was for me a window to the world of civil unrest in America during the late 1960′s and early 1970′s.

I have a vague memory of her coming home after applying for a summer job at a local gas station and telling our parents that she didn’t get the job after being told something like, “Girls don’t work at gas stations.” If that were to happen today, I suspect we’d be filing an EEOC charge faster than you could say “Title VII.” Thankfully, such overt discrimination is rare in today’s workplaces, but recent headlines about the “glass ceiling” (see Gender pay gap at exec levels: Why women aren’t paid the same as men, CBS News Aug. 14, 2013) remind us that another form of gender discrimination — unequal pay for equal work — persists.

Generally speaking, the Equal Pay Act of 1963 says that except in certain gender-neutral circumstances, employers must not discriminate between employees on the basis of sex by paying them at a rate that is less than what they pay employees of the opposite sex for equal work. While we typically think of this as a rule that prevents employers from paying women less than men for the same work, a recent Minnesota case highlights that the law is gender neutral: men also must not be paid less than their female counterparts.

The case, Barron v DeCare Dental, LLC involves Patrick Barron’s allegation that he was paid less than his female co-workers and was otherwise unlawfully discriminated against by his employer. The employer asked the court to dismiss the EPA claim because of evidence suggesting that the differential was based on factors other than sex, namely conduct issues, review scores and length of employment. However, other evidence presented to the court undermined DeCare’s argument. Specifically, Barron presented evidence suggesting that some female employees were paid more despite less tenure, that performance issues had historically not been an issue, and that a supervisor testified how it would be “unfair” to pay Barron less. Because of these disputed facts, the court denied DeCare’s motion to dismiss and ordered the case to proceed to trial.

What you need to know: The Barron v. DeCare case is not ground-breaking, but it does remind us of a couple of key concepts:

  • The EPA makes it unlawful for employers to pay employees less than their co-workers of the opposite sex, unless the differential is based on specified gender-neutral criteria.
  • The EPA itself is gender neutral; that is, it protects both male and female employees.
  • Inconsistencies in the evidence submitted to support an employer’s claim that pay differentials are based on factors other than sex will weaken that defense and likely send the case to trial.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 9, 2013

Six years to bring drug test claims, says MN Supreme Court

Posted in Drug and Alcohol Testing, Limitation of Actions, Minnesota Drug and Alcohol Testing in the Workplace Act, Statutes of Limitation tagged , , , , , , , , , , , at 7:39 am by Tom Jacobson

 “Time keeps on slippin, slippin, slippin into the future.”
Fly Like an Eagle, Steve Miller Band (1976)

Fly Like an EagleDeadlines. They are those points in  time by which we have to get stuff done. If we miss them, we suffer the consequences.

When it comes to lawsuits, those deadlines are called statutes of limitation, and missing them has a very severe consequence: if claimants do not start their lawsuits within the time allowed by law, they are forever barred from doing so, no matter how good their cases may have been. Those deadlines vary depending on the nature of each case, and sometimes the courts have to step in and decide which statute of limitations applies.

For example, in the recent case of Sipe v STS Manufacturing, Inc. the Minnesota Supreme Court had to decide which statute of limitation applies to claims for wrongful discharge brought under the Minnesota Drug and Alcohol Testing in the Workplace Act (“MDATWA”). In that case, Terrance Sipe was fired in 2008 after a positive drug test. Nearly three years later, he sued STS and Labor Ready/True Blue, claiming they violated MDATWA, which gives an employee a cause of action against those who violate the statute. STS and Labor Ready argued that Sipe’s claims were barred by the two-year statute of limitations “for libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury.” Sipe argued that the six-year time limit for “liability created by statute” applied. The Court agreed with Sipe. Specifically, the Court reasoned:

Because Sipe’s claim under [MDATWA] was created by statute, …  it is subject to the six-year statute of limitations … as a cause of action “upon a liability created by statute.”

What you need to know: Time does indeed slip into the future, and as it does, the deadlines for taking action to protect legal rights draw nearer. Those deadlines vary depending on the nature of each claim.  Some are measured in years – others in days. Therefore, those who think  they may have any legal claim need to act quickly to avoid losing their legal rights. For claims under MDATWA, that timeline is six years from date of the violation. This makes it that much more important for employers to know and understand how drug and alcohol testing can be done legally in the Minnesota workplace, and it also underscores the importance of record retention, for violations can be challenged up to six years after the fact.

For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

July 31, 2013

Things are not always as they seem

Posted in Americans with Disabilities Act, Disability, Discrimination, Fair Labor Standards Act, Minimum Wage, Overtime, Reasonable Accommodation tagged , , , , , , , , , , , , , at 4:50 pm by Tom Jacobson

IMG_5116 Edited“Why is Sam sticking his fingers in Spencer’s mouth?” That’s what ran through my head a couple of years ago when I snapped this picture of one of my sons and a teammate working at a swim meet. When you look closely, you’ll see that things are not always as they seem.

Things are not always as they may seem in the legal world, either. A while back I wrote about an employee who was found eligible for unemployment benefits despite her failure to report to work for two months. For more on that story, click here.

There’s also the more recent case of Lucas v. Jerusalem Cafe, LLC. where a number of workers who were unauthorized aliens sued their employer for overtime and minimum wage violations under the Fair Labor Standards Act. Because they were unauthorized aliens, our first reaction might be to question why they would have a right to sue for a FLSA violation or even collect wages in the first place. That’s what the employer argued, but the court disagreed, noting that “The FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized aliens in violation of federal law.” Interestingly, the court also noted how the employer’s argument rested “on a legal theory as flawed today as it was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit income.”

But what if an employee sleeps on the job?  Shouldn’t he be fired? Not if waking him would be a reasonable accommodation for a disability under the Americans with Disabilities Act, according to the federal judge in Virginia who is presiding over the case of Riddle v. Hubbell Lighting, Inc.

Unemployment statutes, the ADA and the FLSA are just a few of the many employment laws where outcomes are not always what you might expect them to be. For a better idea of what those outcomes might be, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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