August 31, 2011

Better late than never? Employee wins unemployment claim after two month absence

Posted in Absenteeism, Absenteeism, Attendance, Leaves of Absence, Misconduct, Unemployment Benefits, Unexcused Absence tagged , , , at 9:29 am by Tom Jacobson

In a case that proves that things are not always as they seem, a Minnesota employee has been awarded unemployment benefits despite her failure to report to work for two months.

The case, Genemo v. Donatelle Plastics, Inc., involves Hawi Genemo who was employed by Donatelle Plastics, Inc.  After learning that her mother was seriously ill in a remote area of Africa, Genemo requested and was granted a leave of absence to visit and care for her mother.  The leave was to run from April 21 to May 19, 2010, and she was also told she could request additional time off if needed.

Unfortunately, while in Africa Genemo encountered civil unrest and a lack of mail, electricity, phone service and Internet. Thus, she was unable to contact Donatelle about her situation.  Because of the lack of contact, Donatelle discharged her effective May 27, 2010.  Genemo returned in July, 2010.

Genemo was initially disqualified from unemployment benefits on the basis that her failure to keep in contact with her employer was employment misconduct. The Minnesota Court of Appeals disagreed.  Relying on Minn. Stat. § 268.095, Subd. 6(b)(8), the court noted that it is not employment misconduct when an employee is absent “with proper notice to the employer, in order to provide necessary care because of the illness, injury, or disability of an immediate family member of the applicant.”  Because the initial notice was proper and because further notice was deemed “impractical if not impossible,” the court ruled that even though Donatelle’s decision was reasonable, Genemo’s absence and failure to contact Donatelle was not employment misconduct, so she was deemed eligible for unemployment benefits.

The case reminds us that things are not always as they seem.  Here, the employee’s unique circumstances fit within a narrow exception in Minnesota’s unemployment statute.  The lesson is that jumping to conclusions about an employee’s situation can lead to costly litigation.

For more information about this article, 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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August 26, 2011

A post about posters — new workplace posting requirement imposed by NLRB

Posted in Posting & Notice Requirements, Posting Requirements, Workplace Posters tagged , , , at 4:11 pm by Tom Jacobson

The National Labor Relations Board has issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act.  The final rule, which is scheduled to be published on August 30, will go into effect on November 14, 2011, and it will apply to nearly all private-sector employers in the U.S.

Therefore, unless employers fit into one of the NLRB’s narrow exemptions, they will be required to post the notice, and they may be required to notify employees of their rights via other means, such as via an intranet or internet site. Employers are exempt from the notice requirements if they do not fit the NLRB’s jurisdictional standards.  Those standards are primarily based on the size of the company and the nature of its business, and they are summarized in the final rule.

The NLRB has also published a fact sheet that briefly explains the rule.

According to the Society for Human Resource Management, the legality of the rule is likely to be challenged because the majority of the 7,034 comments the NLRB received on the rule were in opposition to it (Board Issues Final Rule on Posting Requirement, SHRM 8/26/2011).  However, unless and until the rule is actually struck down or withdrawn, it is a rule that will apply to nearly all private-sector employers in the U.S.

Of course, the NLRB is not the only authority that imposes posting requirements. Various state and federal agencies mandate their own notices. Minnesota employers can find and download state-mandated posters from the Minnesota Department of Labor and Industry’s website.

For more information about this case, 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

August 15, 2011

Fired & defamed: MN CEO wins $4 million award

Posted in Breach of Contract, Contracts, Defamation, Libel, Slander, Termination for Cause, Wrongful Termination tagged , , at 11:12 pm by Tom Jacobson

Firing its CEO and claiming it was for cause when it really was not proved to be a costly mistake for Minnesota-based Advanced BioEnergy, LLC.  According to a report in Minnesota Lawyer, ABE’s founder and former CEO, Revis Stephenson III, recently won a $4 million arbitration award after the company falsely claimed he was terminated for cause.

Stephenson’s contract with ABE provided that if he was fired without cause, he would be paid a severance worth approximately $800,000.00, but if he was fired for cause, he would be paid nothing.  The agreement also defined “cause.” ABE fired Stephenson and said it was for cause,  and Stephenson challenged the company’s decision.  The case went to arbitration, and the arbitrator found that the company did not have cause to terminate Stephenson but had only called it that to save money.  Moreover, the arbitrator concluded that ABE defamed Stephenson by falsely claiming it had cause for firing him.  The arbitrator awarded Stephenson $1 million for defamation, and the parties later agreed to a $4 million settlement for all claims.

As the arbitrator in this case noted, a false “for cause” label can hurt an employee’s job prospects.  Therefore, employers who want to dismiss an employee for cause need to make sure that’s the true reason because a false “for cause” characterization could lead to a claim for defamation.

For more information about this case, see CEO receives $4M award for defamation, Minnesota Lawyer, Aug. 5, 2011, or 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

August 8, 2011

Abercrombie & Fitch dressed down over hijab in religious discrimination case

Posted in Discrimination, Religion tagged , , , , , at 10:27 am by Tom Jacobson

Inflexible dress codes can lead to religious discrimination.  That’s the hard lesson recently learned by clothing giant Abercrombie & Fitch.

The lesson was taught by U.S. District Court Judge Gregory Frizzell, the federal judge presiding over a lawsuit brought by the Equal Employment Opportunity Commission after Abercrombie & Fitch refused to hire a teenage girl who is Muslim and who wore a hijab (the traditional religious head scarf).

The company argued that accommodating the girl’s beliefs by making an exception to its “Look Policy” would have imposed an undue hardship.  Judge Frizzell disagreed.  He concluded that the company had not demonstrated that it would sustain anything more than a minimal undue hardship.  As a result of Judge Frizzell’s ruling, the case will now proceed to a jury trial for a determination of any damages that Abercrombie & Fitch may have to pay.

The case is a reminder that is sometimes dress codes and religion intersect. Therefore, to avoid claims of religious discrimination, dress codes must be carefully drafted and flexibly applied.

For more information on this lawsuit, see Tulsa federal judge rules against Abercrombie & Fitch in lawsuit over hijab, or 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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