March 25, 2011

Can you keep a secret?

Posted in Confidential Information, Trade Secrets tagged , , at 3:19 pm by Tom Jacobson

In today’s business world a company’s greatest asset is sometimes the confidential information it and no one else has.  For example, a company’s customer lists, marketing plans, business strategies, formulas, and information of all types can be extremely valuable when it is not known to the public.  It becomes valuable because it is a secret.  But can you keep that secret?  Or, is your company at risk to lose that information with the click of mouse by a departing employee?

One helpful tool for protecting confidential information is the Minnesota Uniform Trade Secrets Act, http://bit.ly/h5oN6l.  If you are interested in learning more about how to use this statute to protect your company’s valuable trade secrets, I invite you to attend a free seminar from 8:00 to 10:00 a.m. at the Alexandria, Minnesota Holiday Inn on April 5, 2011.  The seminar will be co-hosted by my law firm and the law firms of Briggs and Morgan and Tillitt McCarten Johnson & Haseman.

For more information on how to register, 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

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March 14, 2011

The crystal ball gets a bit clearer

Posted in Uncategorized at 8:52 pm by Tom Jacobson

In my October 27, 2010 post, If only we had a crystal ball (http://bit.ly/cA47Jl), I summarized a few cases to be decided this term by the United States Supreme Court.  There, I noted that it would be nice if we had a crystal ball to predict the outcomes of these cases.  The crystal ball is now a bit more clear after the Court’s March 1, 2011 decision in Staub v. Proctor Hospital (http://bit.ly/eznvHr). 

The basic facts in Staub were that a supervisor was biased against an employee because of the employee’s military commitments.  Because of that animus, the supervisor put the employee on a corrective action plan.  When another company official, who had no apparent anti-military bias at all against the employee, found out that the employee violated the corrective action plan, he fired the employee.  The employee then sued for unlawful discrimination under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  Thus, the question in the case was whether the company could be held liable when the ultimate decision-maker was not motivated by any unlawful bias.

The Supreme Court’s answer was yes.  The Court specifically concluded that the lack of bias on the part of a company official who does the firing does not insulate the employer from liability.  Otherwise, the Court said, an employer could shield itself from liability by simply isolating the ultimate decision makers from the supervisors who have the unlawful bias.  This is sometimes referred to as the “cat’s paw” defense, which the Supreme Court has now rejected.

Although the Staub case was decided under USERRA, it is quite likely that its impact will be felt in all types of discrimination cases.  As a result, to reduce the risk of liability under the myriad of state and federal anti-discrimination laws, employers should step up their anti-discrimination training and education for all employees and supervisors, not just those who are the ultimate decision-makers.

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

March 4, 2011

Liar liar, time to fire?

Posted in Dishonesty, Misconduct, Unemployment Benefits tagged , , , , , , , , at 8:50 am by Tom Jacobson

“You can’t handle the truth!”  (Jack Nicholson, as Col. Nathan R. Jessep, in  A Few Good Men, 1992 http://www.youtube.com/watch?v=8hGvQtumNAY).  It must be that some job applicants believe their potential employers can’t handle it, either.

The Huffington Post recently ran a story about Ruth Lyons’ struggle to find a job (Big Retail Companies Require Job Applicants to Disclose Their Age, http://huff.to/gczZGx).  The story describes how several large companies require applicants to disclose their age on job applications.  As noted in the story, although the practice is technically lawful, it would likely raise a red flag in any age discrimination case.

But a more interesting aspect of the story is how Lyons handled her job search:  she lied.  According to the story, after she was rejected for several jobs where she had listed her true birth date (April 28, 1951), Lyons started listing her birthday as April 28, 1969.  One company, which had never responded to her application when she used her correct birthdate, hired her after she re-applied using her fake age.

Though Lyons’ approach may have landed her a job, it raises another question: What are the employer’s rights when an employee lies on a job application or during an interview?  Resume’ puffing is nothing new, but what about outright lies during the application process?

The Minnesota Court of Appeals recently grappled with this in the case of Santillana v. Central Minnesota Council on Aging (http://bit.ly/gIZt3o).  In that case, Krista Santillana was fired by one employer for theft, but when she later applied for a job with Central Minnesota Council on Aging, she told them she had left the previous job because she was interested in part time work.  When CMCA found out about her history, they fired her.  Santillana applied for unemployment, and the Court of Appeals eventually ruled that by lying during the application process, she failed to disclose a fact that was material to her job.  Therefore, the court held that Santillana committed misconduct that disqualified her from unemployment benefits. 

The Santillana case should not, however, be interpreted to mean that an applicant’s dishonesty gives an employer a free pass for discipline or discharge.  The case was about a lie that was material to the applicant’s job, and the legal issue was the impact of that lie on the employee’s claim for unemployment benefits.  Furthermore, in other cases courts have ruled that an employee’s lie during the application process does not provide an employer with an automatic defense to certain discrimination claims. 

Nevertheless, a lie by an applicant should certainly give any employer a good reason to question that person’s future as an employee.  Providing notices about the importance of honesty and full disclosure during the application process would certainly help the employer if a lie is discovered post-hire.  And, diligent follow-through with reference and background checking will help ferret out the applicants who lack the integrity expected of any employee.

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

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