October 29, 2010

Employees’ election day rights expanded by 2010 change in Minnesota law

Posted in Election Day, Election Day, Leaves of Absence tagged , , at 4:37 pm by Tom Jacobson

With election day just around the corner, employers need to be mindful of a 2010 change which broadens the rights of Minnesota employees to miss work to vote.

Previously, employees had the right to be absent to vote during the morning of an election.  The “morning” limitation has been lifted, and employees may now be absent  for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of the election.  Employers are still prohibited from interfering with that right, and violation of this law is still a misdemeanor.

The law does not apply to every election, but it does apply to the November 2, 2010 mid-terms.

For more information on how this change affects an employer’s election day obligations, please contact me.

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.

October 27, 2010

If only we had a crystal ball

Posted in Discrimination, Employee Privacy, Fair Labor Standards Act tagged , , , , , , , , , , at 9:35 am by Tom Jacobson

When it comes to making decisions about employment practices, the goal is always to choose a course that will withstand legal scrutiny.  If we had a crystal ball and could predict how our choices now will be perceived by the courts in the future, those decisions would be much easier to make.   Because no one has that magic foresight, the best we can do is to make decisions based on past precedent and the current state of the law.

However, the United States Supreme Court’s docket does give us a glimpse of things to come, and that docket shows that several important employment-related questions will soon be answered.  One of the most significant cases is Staub v. Proctor which relates to discrimination cases where the actual bias was held by a lower-level company official but the adverse employment decision was made by someone higher up in the organization.  This is often referred to as “cat’s paw” or rubber-stamp liability.  The outcome of this case could have a major impact on how how personnel decisions are made.

The high court will also consider two retaliation cases, Thompson v. North American Stainless LP and Kasten v. Saint Gobain Performance Plastics Corp.  In the Thompson case, the fiance’ of an employee who filed a discrimination charge alleged that he was fired in retaliation for her charge.  The Thompson case could drastically increase the number of “associational” retaliation claims.  Kasten will resolve the question of whether an employee’s unwritten complaint to an employer can provide the basis for a retaliation claim under the Fair Labor Standards Act.

Employee privacy issues are before the court in NASA v. Nelson.  In that case, the concern is a question about illegal drug use asked during a background check.  The court  will also be considering the arbitration of employment claims (AT&T Mobility v. Concepcion), inconsistencies between a summary plan description and the plan itself under the Employee Retirement Income Security Act (CIGNA v. Amara), and an Arizona law that requires Arizona employers to use E-verify and revokes the business licenses of employers who knowingly hire illegal immigrants (Chamber of Commerce of the USA v. Whiting).

If only we had a crystal ball, we could make all personnel decisions knowing that they would withstand legal scrutiny if they were challenged in the future.  For now, the best we can do is make decisions based on what we already know, pay close attention to the ever-changing landscape , and then adjust our course when needed.

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.

October 22, 2010

Facebook follies continue to confound

Posted in Cyber Bullying, Social Media in the Workplace, Social Networking tagged , , , , at 3:17 pm by Tom Jacobson

Sometimes you just have to ask  yourself, “What were they thinking?” 

In a story today in the Red Tape Chronicles, MSNBC reports on the growing number of cases where Facebook interactions between teachers and students have crossed multiple boundaries (Teachers, Students and Facebook, a Toxic Mix, http://redtape.msnbc.com/2010/10/).   According to the story, three teachers were fired after posting comments like “This is sexy” under girls’ pictures.  Some of them even used Facebook to initiate real-life relationships with students.

A Pennsylvania school suspended a teacher after photos of her with a stripper showed up on Facebook.  A Florida teacher was suspended after posting a comment about how he “hated” his students and school.  In Washington, D.C. a special education teacher posted “You’re a retard, but I love you.”

On the flip-side the MSNBC story also notes that fake profiles attacking teachers and school administrators also abound on Facebook.  And, with the help of the American Civil Liberties Union, at least one student has been successful in gaining First Amendment protection under the United States Constitution for her Facebook criticism of her English teacher.

As Facebook and other social networking sites continue to evolve, so will the body of law surrounding it.  In the meantime, employers and employees would be wise to realize that while social networking sites can be a great business tool, they can also be a tremendous liability if not handled properly.

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. 

October 13, 2010

The spy who nagged me

Posted in Employee Handbooks, Employee Privacy, Personnel Records, Social Media in the Workplace tagged , , , , , at 11:13 am by Tom Jacobson

Dr. Evil nagged Austin Powers.  The FBI seems to have nagged Yassir Afifi.

When 20 year old Afifi went in for a recent oil change, he noticed an antenna protruding from under his car.  His mechanic yanked on it and pulled out a magnetically mounted GPS tracking unit, battery pack and radio transmitter.  After Afifi posted pictures of the device on the internet, the FBI paid him a visit to retrieve their gear.  Afifi denies doing anything to merit such attention from the authorities.  For more detail on Afifi’s story, read FBI Busted Tracking Student, Demands GPS Spy Gear Return, MSNBC.com http://bit.ly/atOxaL.

Whether the FBI acted properly or somehow invaded Afifi’s privacy is a nagging question in some legal circles.  It reminds me of the nagging questions asked by many employers:  What privacy rights to employees have?  To what extent can an employer “spy” on employees and applicants?

The questions arise at many levels.  “Work” is now conducted via e-mail, text, Facebook, Twitter and practically every other social media that exists.  Can an employer monitor those communications?  Does it matter if the communications are work-related but are conducted on the employee’s personal computer or cell phone?  Is it permissible to use cell phones, GPS units, and other devices to track an employee’s whereabouts?  How can an employer make sure that its confidential trade secrets are not published on the web with just a click of someone’s mouse or downloaded onto the thumb drive of a departing employee?  Can an employer use Facebook, MySpace or other social media to gather information about employees or applicants?

There are no easy answers to these questions.  Generally speaking, employees have a limited right of privacy with respect to information such as their work-related medical records.  Yet, employers need to retain the right to make sure the workers they employ are actually working and not using company resources improperly.  While social media and other on-line resources can provide a wealth of information about employees and applicants, the misuse of that information by an employer can subject the employer  to legal claims.

As with so many HR issues, the solutions lie in developing policies that clearly spell out employees’ privacy rights  (or lack thereof) while on the job.  By doing so, employers will help define the limits of work-related privacy and will reduce their risk of liability for privacy-based employment claims.

Should such lawsuits really be a serious concern?  Just ask the Lower Merion School District (PA).  They just paid $610,000.00 to settle two lawsuits centering around thousands of webcam photos secretly taken of students via their school-issued laptops (Pa. school settles 2 webcam spy lawsuits for $610K,  http://yhoo.it/bmFigL).  Although that case involved public school students and not employees, the core lesson is the same — failure to proactivelyaddress these issues will be extremely costly for employers.

October 6, 2010

Tyler Clementi suicide: lessons for HR – and for us all

Posted in Bullying, Discrimination, Harassment, Harassment, Sexual Orientation, Workplace Violence tagged , , , , , at 8:55 am by Tom Jacobson

Tyler Clementi took his own life last month. He was an 18 year old student at Rutgers University.  He was also gay, and after a sexual encounter between him and another man was secretly broadcast over the internet (allegedly by his roommate using a webcam), he jumped to his death from the George Washington Bridge.

When I read the reports of this tragedy, I was reminded of the question posted on a Society for Human Resource Management discussion forum, “Workplace bullying:  is it HR’s responsibility to control?”  That question was posted months ago, and to date it has generated well over 600 comments.

So what does the suicide of an 18 year old college freshman have to do with HR?  It’s quite simple.  Tyler Clementi is really no different than any employee who has suffered the humiliation of workplace bullying.  One does not have to dig too deep to find similar examples of disgruntled workers who have harmed — and even killed — themselves and others after being harassed, bullied or otherwise disrespected on the job.

What are the lessons for HR?  First, anti-harassment policies are critically important.  They need to clearly spell out the types of harassment that are prohibited in the workplace.

These policies also need to clearly describe how victims can report their concerns, and employees (especially supervisors and managers) need to be trained on what the policies mean and how they are to be applied.  Some reports on Tyler Clementi’s death indicate that after this sexual encounter was broadcast, he reported it to his resident assistant, but that process did not save Clementi.  Comparing this to HR, I wonder if Rutgers had told Clementi where he could go for help and whether the university had trained the RA on how to deal with Clementi’s concerns.

Surely, to allow bullying to exist in the workplace will expose any company to liability, especially it is based on an employee’s legally-protected characteristic.  But the lesson for us all is that regardless of our beliefs and attitudes about another’s lifestyle and traits, every person has a right to be treated with dignity and respect.

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.  Also, the views expressed in this blog are those of the author and do not necessarily reflect those of Swenson Lervick Syverson Trosvig Jacobson, PA.

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