February 28, 2011

The specialist

Posted in Uncategorized tagged , , , , , , , , at 10:02 pm by Tom Jacobson

I am pleased to announce that the Minnesota State Bar Association has certified me as a Labor and Employment Law Specialist.  The certified specialist designation is earned by leading attorneys who have completed a rigorous approval process, including an examination in the specialty area, peer review, and documented experience. Certified attorneys have demonstrated superior knowledge, skill and integrity in their specific field and can use the designation of specialist to advertise their credentials.

This Certification program is administered by the MSBA and has been approved by the State Board of Legal Certification.  The MSBA has been accredited as an independent professional organization for certifying attorneys as Criminal Law Specialists, Real Property Law Specialists, Civil Trial Law Specialists and Labor and Employment Law Specialists. This achievement has been earned by fewer than 3% of all licensed Minnesota attorneys.   More information about Certified Legal Specialists is at http://www2.mnbar.org/certify.

With over 16,000 members, the MSBA is the state’s largest and most influential voluntary organization of attorneys, providing continuing legal education and public service opportunities for lawyers, and assistance to the legal system.

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February 22, 2011

Firing over Facebook photo — a violation of Minnesota law?

Posted in Employee Privacy, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 9:34 am by Tom Jacobson

In several previous articles, I’ve commented on situations where employers have disciplined employees because of their Facebook posts.   CBS News is now reporting another such case which, if it had occurred in Minnesota, would have likely led to a courtroom victory for the employee (see Did the Internet Kill Privacy?, http://bit.ly/fKX0vW).

The story relates to Ashley Payne, a 24-year old school teacher from Georgia.  After Payne vacationed in Ireland, she posted on Facebook a picture of herself holding a glass of beer and a glass of wine.  The picture also contained some “profanity.”  Payne mistakenly assumed the photo would remain private, but of course it did not.  A parent of one of her students saw it and complained to the principal who then gave Payne the option of resigning or being suspended.  Payne chose to resign.

Forcing a Minnesota employee to make such a choice over photos of herself holding glasses of alcohol would likely have violated state law.  Minnesota has enacted the Lawful Consumable Products Act (see Minnesota Statutes, Section 181.938, http://bit.ly/fyiKcT).  This statute prohibits an employer from disciplining or discharging an employee who engages in the lawful consumption of alcohol or tobacco, provided that the consumption takes place off the employer’s premises and during non-work hours.  Consequently, no matter how opposed an employer may be to drinking and smoking, disciplining an employee or rejecting an applicant for engaging in these off-duty activities would be unlawful.

As the CBS story about Payne shows, it is nearly impossible to maintain true “privacy” on Facebook.  And, while it makes sense for employers to check Facebook and other sources for information about employees and applicants, extreme caution needs to be taken when deciding how to use the information gained — especially if it relates to lawful off-duty conduct.

If you have any questions about this post, please contact me at 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 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

February 16, 2011

Proposed rule: employers must post notice of union rights

Posted in Posting Requirements, Posting Requrements tagged , , , , , , at 10:50 am by Tom Jacobson

Under a rule proposed by the National Labor Relations Board, employers would be required to post a notice informing employees of their right to unionize.  According to the NLRB, “[M]any employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”  (See Board proposes rule to require posting of NLRA rights, NLRB Dec. 10, 2010 http://bit.ly/e8BEx4).

If the rule, (http://bit.ly/f4A8GU) becomes final, employers would be required to post yet another notice along with the myriad of other employment-related notices they must already post.  Furthermore, failure to post the notice would be treated as an unfair labor practice under the National Labor Relations Act.

Board member Brian Hayes dissented from the proposed rule, noting “the Board lacks the statutory authority to promulgate or enforce the type of rule which the petitions contemplated and which the proposed rule makes explicit.”  Other opponents have noted that the proposed notice provides a skewed explanation of employees’ rights along with pro-organizing examples.  (See NLRB rule has lawyers bracing for litigation, Minnesota Lawyer Feb. 14, 2011).

There is certainly a basis for these concerns.  The NLRA is a complex statute which is not limited to merely granting rights to employees; it also imposes obligations on them, and it provides certain protections to employers as well.  The text of the NLRB’s proposed notice lists all of the employees’ rights, but it does not mention their corresponding obligations or the employers’ rights.

The comment period for this proposed rule ends on February 22, 2010.  Comments may be posted electronically by going to http://bit.ly/f4A8GU.

If you have any questions about this post, please contact me at 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 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

February 10, 2011

Facebook firing case settled

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 3:41 pm by Tom Jacobson

Last November I noted that the National Labor Relations Board had filed a complaint against American Medical Response of Connecticut, Inc., after AMR fired Dawnmarie Souza for posting negative comments about AMR on Facebook (see NLRB challenges Facebook firing,  http://bit.ly/ebpxp7).

The problems started when Souza posted negative comments about her supervisor on Facebook and then responded to comments her co-workers had also posted.  Souza was fired because of her commentary, and the NLRB took the position that firing her violated the National Labor Relations Act because it interfered with her right to discuss with her co-workers the terms and conditions of their employment.

The case has now been settled (see Settlement reached in case involving discharge for Facebook comments,  http://bit.ly/gAfETD.  According to the NLRB, the settlement requires AMR to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”  A private and undisclosed settlement was also reached between Souza and AMR.

Although the National Labor Relations Act was enacted long before anyone ever posted anything on Facebook,  the Souza case shows that the right of employees to discuss the terms and conditions of employment is being extended into the realm of social medial.  Therefore, the case should cause employers to take a close look at their social media policies to make sure they are not overbroad.

If you have any questions about this post, please contact me at 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.

February 1, 2011

“Total Bullsh*t”: good HR response – not!

Posted in Discrimination, Gender / Sex, Harassment, Reprisal, Retaliation, Training tagged , , at 9:20 am by Tom Jacobson

Yes, this stuff still happens …

Rebecca Young-Losee was an administrative assistant at Graphic Packaging, International, Inc.   According to the allegations in her federal lawsuit now pending in Iowa,  her supervisor called her “retarded,” “crippled,” “stupid,” and a “bitch.”  Understandably upset by this treatment, she complained multiple times to the company’s plant manager, production manager, office manager, and human resources representative.  The HR representative advised her to submit a “formal complaint of harassment,” which Young-Losee did.

After submitting the formal complaint, Young-Losee met with the plant manager and two other managers.  During this meeting, the plant manager interrupted Young-Losee and would not allow her speak.  Eventually, he wadded up her complaint, threw it in the trash, told her it was “total bullshit,” pointed to the door and said “I want you out of here” and that he never wanted to see her again.

Not too surprisingly, the United States Court of Appeals for the Eighth Circuit ruled on January 26, 2011 that Young-Losee’s lawsuit for being fired in retaliation for making her discrimination complaint may proceed.  You can read the full opinion at Young-Losee v Graphic Packaging International, Inc.

This case is a classic example of how a poor response by an employer can generate a lawsuit that might have been completely avoidable.  Young-Losee’s underlying harassment complaint may actually be total BS, but she had a right to complain.   Unfortunately, GPI’s alleged reaction has led to costly litigation that probably could have been avoided had GPI’s managers taken her complaint seriously and responded with reasonable actions aimed at promptly ending the harassment.

If you have any questions about this post, please contact me at 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.

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