September 28, 2011

Minnesota to cooperate with Feds in contractor misclassification enforcement

Posted in Fair Labor Standards Act, Independent Contractors, Independent Contractors tagged , , , , , at 9:05 am by Tom Jacobson

In memorandum of understanding (MOU) between the Minnesota Department of Labor and Industry (DOLI) and the United States Department of Labor (DOL), the State of Minnesota agreed on September 19, 2011 to coordinate with DOL and the IRS in their efforts to end the problem of employers misclassifying employees as independent contractors (see Labor secretary, IRS commissioner sign memorandum of understanding to improve agencies’ coordination on employee misclassification compliance and education).

The problem is that when an employee is improperly classified as an independent contractor, the consequences are wide-ranging.  For example, unpaid overtime, taxes, eligibility for unemployment benefits, protection under various equal employment opportunity laws, eligibility for leaves of absence, personnel record retention, etc., all come into play.  Because of these intertwined laws (which are all enforced by different state and federal agencies), the DOL spearheaded this attempt to coordinate efforts.  Regarding the MOU, DOL Secretary Hilda Solis said,”We’re here today to sign a series of agreements that together send a coordinated message: We’re standing united to end the practice of misclassifying employees…. We are taking important steps toward making sure that the American dream is still available for all employees and responsible employers alike.”

Other participants in this coordinated effort are DOL’s Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor.  The states of Connecticut, Maryland, Massachusetts, Missouri, Utah and Washington also signed the MOU.  It appears that Hawaii, Illinois, Montana and New York will follow suit.

It’s too early to tell whether this means Minnesota’s DOLI will become more aggressive in enforcing misclassification cases.   However, the MOU certainly confirms that if DOLI finds employees who were improperly classified as independent contractors, the news will likely spread to numerous other agencies, thus compounding the consequences for any violators.  To reduce the risk of liability, employers should carefully examine any existing or proposed independent contractor relationships to determine whether true independence exists under the law.

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 Schultz, PA

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September 21, 2011

Facebook firings revisited — NLRB extends its reach

Posted in Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media in the Workplace tagged , , , at 10:44 am by Tom Jacobson

I’ve written many times about employees who lose their jobs because of their Facebook activities (see, for example: Facebook faux pas costs waitress her jobFacebook firings and the First AmendmentFiring over Facebook photo — a violation of Minnesota law?).  In yet another foray into the world of work and social media, the National Labor Relations Board(NLRB) has now extended its reach into the issue.

Specifically, the NLRB ruled on September 6, 2011 that Hispanics United of Buffalo (NY) unlawfully discharged five employees after they posted comments on Facebook about working conditions (see Administrative Law Judge finds New York nonprofit unlawfully discharged employees following Facebook posts). According to the NLRB, “After hearing a coworker criticize other employees for not doing enough to help the organization’s clients, the employee posted those allegations to her Facebook page.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues.”

Hispanics United fired the five employees on the basis that their posts “constituted harassment of the employee originally mentioned in the post.”  The NLRB ruled that the firing was unlawful because the employees’ conduct was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA).

NLRB action is such cases is nothing new.  For example, the NLRB has ruled that social media policies which too broadly restrict employees’ rights to discuss terms and conditions of employment violate the NLRA (see my previous posts, NLRB challenges Facebook firing and Facebook firing case settled).  What’s significant about the Hispanics United case is that it involved a non-unionized workforce, and it did not target an employer’s social media policy.

The case is likely to be reviewed on appeal, but for now it stands as another reminder that the NLRB is aggressively pursuing Facebook firing cases and is taking a broad view of what is protected concerted activity under the NLRA.  It is also a reminder that certain provisions of the NLRA apply regardless of whether or not a workplace is unionized.

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 Schultz, PA

September 14, 2011

A poke is no joke

Posted in Misconduct, Physical Contact, Single Incident, Unemployment Benefits, Workplace Violence tagged , , , at 10:01 am by Tom Jacobson

In a case involving a workplace “poking” incident, the Minnesota Court of Appeals has ruled that there is no “single incident” exception to employment misconduct under the Minnesota Unemployment Insurance Law.

The case, Potter v. Northern Empire Pizza, Inc., involved Roger Potter and his coworker, Dylan Kaste, both of whom were employed as Domino’s Pizza delivery drivers in the Fargo-Moorhead area.  While on the job, Kaste grabbed Potter’s keys (which were lying near a delivery bag), yelled at Potter, then “threw” the keys onto a desk.   Potter got upset, and later in their shift, he poked Kaste in the side as Kaste passed by.  Kaste “spun around” and yelled, “you suck.” The company discharged Potter the next evening and suspended Kaste. The only reason for Potter’s termination was the single poking incident.

Potter began collecting unemployment benefits, but the Minnesota Department of Employment and Economic Development (DEED), later determined he was ineligible for benefits and ordered him to repay the benefits he had received. An Unemployment Law Judge (ULJ) agreed with DEED’s decision, and Potter appealed his case to the Minnesota Court of Appeals.

The main issue before the Court was whether the single poking incident was misconduct that disqualified Potter from eligibility for unemployment benefits. The Court first summarized the “rise and fall” of the “single incident exception” under the Minnesota Unemployment Insurance Law and ultimately concluded that the exception no longer exists:

The former single-incident or hothead-incident exception to the definition of employment misconduct no longer exists and employers may reasonably expect employees to refrain from engaging in even single acts of combative physical contact. The single incident of Potter intentionally poking his coworker in the ribcage constitutes employment misconduct. Because no exception to Potter’s employment misconduct applies, we affirm the ULJ’s determination that Potter is ineligible to receive unemployment benefits.

However, the Court also noted that although there is no “single incident exception,” the law still requires a ULJ to consider whether a discharge was for “only a single incident” when determining whether misconduct occurred.

For employers and employees and employers alike, the lesson is that when at work, a poke is no joke:  even if it is a single combative act, it can be misconduct under the Minnesota Unemployment Insurance Law.

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 Schultz, PA

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