November 30, 2011

North Pole braces for Santa’s Facebook fury

Posted in Uncategorized at 10:28 pm by Tom Jacobson

 

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Your voice is needed!

Posted in Uncategorized tagged , , , , at 9:34 am by Tom Jacobson

It’s sometimes said that laws and sausage are two things we should never see being made. And one thing’s for sure — if the ingredients going into either of them are bad, the finished product can be sickening.

When it comes to lawmaking, the only way our legislators get the right ingredients is if we speak up and let them know what’s on our minds.  The Minnesota Legislature is gearing up for another session which will start in late January, 2012, so now is the perfect time to tell them what we want.

I currently chair the Legislative Committee of the Alexandria Lakes Area Chamber of Commerce, and we need your input.  If you have human resources issues that you would like to see addressed in St. Paul, let me know, and our committee will try to incorporate them into the position statements we will submit to our legislators and Governor Dayton before the session starts.  If you would like to contribute, your input is needed before December 31. Also, if you would like to serve on the committee, contact me for more details.

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

November 22, 2011

Thank you, Spencer

Posted in Caregiver Leave, Exigency Leave, Family and Medical Leave Act (FMLA), Military Ceremonies, Military Leave, National Guard, Uniformed Services Employment & Reemployment Act (USERRA), Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) tagged , , , , at 10:07 am by Tom Jacobson

My favorite airman, USAF Academy Cadet 3C Spencer Jacobson, will be home for Thanksgiving break tonight.  Having him here reminds me of how much it means for all of us to be “home for the holidays.”

It also reminds me of how thankful we should be for the thousands of men and women who have chosen to serve our country through their commitment to the military.  As these service members join (or re-join) the civilian workforce, the best way for employers to show their appreciation is to fully understand the legal obligations they owe to our service members and their families.  For example:

    • Uniformed Services Employment and Reemployment Rights Act (USERRA) makes it unlawful for any employer to refuse to hire or otherwise discriminate against any employee or applicant because of his or her past or present military service.
    • Family and Medical Leave Act (FMLA) requires larger employers (those with 50 or more employees) to provide leave to eligible employees when they qualify as “military caregivers” or need “exigency leave.”
    • Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) requires covered federal government contractors and subcontractors to take affirmative action to employ and advance in employment certain categories of veterans; prohibits discrimination against such veterans.
    • Minn. Stat. § 181.535 makes it unlawful for Minnesota employers to question a job applicant about National Guard or military reserve service, unless the employer is a governmental body subject to veterans preference requirements.
    • Minn. Stat. § 181.947 requires Minnesota employers to grant up to ten working days of a leave of absence without pay to an employee whose immediate family member, as a member of the United States armed forces, has been injured or killed while engaged in active service.
    • Minn. Stat. § 181.948 requires Minnesota employers to grant leaves of absence without pay to employees to attend send-off or homecoming ceremonies for mobilized service members who are in their immediate family.
    • Minn. Stat. § 192.325 makes it unlawful for a Minnesota employer to discriminate against an employee because the employee’s spouse, parent, or child is a member of the military; requires employers to provide unpaid time off for employees to attend provide non-paid time off for an employee to attend specified ceremonies and events held on behalf of a family member who serves in the military.
    • Minn. Stat. § 192.34 makes it a crime for any Minnesota employer to discharge or otherwise discriminate against a person because of his or her military service or desire to serve.
    • Minn. Stat. § 197.455 requires Minnesota counties, cities, towns, school districts, and other municipalities and political subdivisions to extend preference points to veterans.
    • Minn. Stat. § 197.46 provides job protection to veterans employed by Minnesota counties, cities, towns, school districts, and other municipalities and political subdivisions.

For more information about which of these laws may apply to your workplace, visit: Minnesota Veterans:  the Road Back Home (Minnesota Department of Human Rights, The Rights Stuff, March 2010); Laws that Protect Veterans and Military Status (Minnesota Department of Human Rights, The Rights Stuff Forum: Minnesota Veterans); United States Department of Labor USERRA Advisor; 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 Schultz, PA

November 16, 2011

What if JoePa worked for you?

Posted in Child Abuse and Neglect, Negligence tagged , , , , at 11:00 am by Tom Jacobson

The alleged child abuse that ultimately led to the ouster of legendary football coach Joe Paterno is heinous. And, as armchair quarterbacks watching the drama unfold on the flat screens in our man-caves, it’s easy to second-guess whether JoePa or anyone else at Penn State could or should have done more.  But, rather than debate what they should have done, perhaps the focus should be on the responsibilities we have if we know of or suspect child abuse.

Minnesota has enacted a mandatory reporting law known as the Child Abuse Reporting Act (CARA).  Under this law, certain people who work with children are designated as mandated reporters.  Included in the list are teachers, child care workers, health care providers, law enforcement personnel, clergy, etc.  If  they know or have reason to believe that a child has been abused or neglected, mandated reporters are required to report it to the appropriate authorities. An “internal” report to the reporter’s employer is not enough because CARA clearly states that reports must be made “to the local welfare agency, agency responsible for assessing or investigating the report, police department, or the county sheriff.”

CARA also allows anyone to voluntarily report known or suspected child abuse. As with mandated reports, voluntary reports are to be made to the appropriate authorities.

Failing to make a mandated report is a crime, for mandated reporters who ignore their duties can be convicted of a misdemeanor.   Conversely, by making good faith reports, mandated and voluntary reporters are immune from criminal and civil liability.

Although the Minnesota Supreme Court has ruled that CARA does not by itself create a civil cause of action that could be brought against a reporter or reporter’s employer that fails to make a report, the Court has ruled that an obligation to report may be evidence of a standard of care that is owed by the employer to the victim.  Thus, it does not take too much imagination to see how an employer that employs mandated reporters could be held liable for a failure to report.

So, the lesson to be learned from Penn State’s mistakes is that Minnesota employers who employ people who work with children must understand CARA. At a minimum, they must understand who are mandated reporters and when and to whom the reports must be made. The failure to do so can subject employees and employers alike to liability. More importantly, failure means that all we learned from JoePa is how to win football games. We owe our children more than that.

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

November 9, 2011

Never board the Titanic, but if you’re on it, bail!

Posted in Bullying, Negligence, Negligent Hiring, Negligent Retention tagged , , , , , , , at 10:26 am by Tom Jacobson

 The odds are pretty good that if the passengers and crew of the Titanic had known what was in store for them, they never would have boarded the ship.  Unfortunately for them, by the time they realized what was happening, it was too late, and 1,517 of them perished in the icy waters of the Atlantic.

Some employees can be like the Titanic. Their performance and/or attitudes are so ripped full of holes that they sink, bringing entire organizations down with them, or at least causing their employers to spend precious time and resources bailing everyone out.  The easy solution is to never board the Titanic. That is, never make a bad hire.  But sometimes employers need to find the life raft and dismiss problem employees.

It’s not only good business to make sure that employees fit well with the organization, but there are also liability reasons for this.  For example, if a Minnesota employer does not check an applicant’s background thoroughly enough, the employer can be held liable for negligently hiring an employee who later harms someone else.   That was the situation in the Minnesota case of Ponticas v. K.M.S. Investments where a landlord was held responsible when its property manager sexually assaulted a tenant.  The landlord had only done a cursory background check on the manager, but a better pre-hire investigation would have revealed the manager’s history of violent crime.

Similarly, if employees start to exhibit behaviors suggesting that they might harm others, their employers can be held liable for failing to protect those who are eventually harmed.  The Minnesota Supreme Court recognized this concept in the case of Yunker v. Honeywell, where an employee murdered a co-worker after a number of post-hire incidents suggested that the employee had violent propensities.

There is no crystal clear definition of what is a thorough enough background check to avoid a negligent hiring claim, nor is there a crystal clear definition of what employee behaviors are bad enough to trigger a negligent retention claim. However, the Minnesota courts have said that the test is whether the employer “knew or should have known” of the likelihood that the applicant or employee would harm someone.

Therefore, the extent of the background checks that are required depends on the sensitivity of the positions being filled. For jobs that put employees in positions where they can harm others, a more thorough background check is needed.

Likewise, the nature and severity of existing employees’ behaviors must be evaluated on a case by case basis. When their conduct is such that their employers “know or should know” of the risk of harm, appropriate discipline, up to and including discharge, should be taken.

Bon voyage!

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

November 2, 2011

Raising Cain: HR lessons from the political battlefield

Posted in Discrimination, Employee Handbooks, Gender / Sex, Sexual Harassment, Sexual Harassment tagged , , , at 10:22 am by Tom Jacobson

Allegations that presidential hopeful Herman Cain sexually harassed employees while he was head of the National Restaurant Association in the 1990’s have sent his campaign into damage control mode (see Herman Cain denies allegations of sexual harassment, Cain says he was “falsely accused” of harassment, Herman Cain reacts to allegations, etc.).  How these allegations will ultimately impact his bid for the White House remains to be seen, but the story gives us a chance to reflect again on the overall problem of sexual harassment.

Sexual harassment has been recognized as a form of unlawful sex discrimination since the 1980’s, but it continues to be a problem in the workplace.  The Equal Employment Opportunity Commission reports that in 2010 there were 11,717 charges of sexual harassment filed nationwide.  According to the EEOC’s statistics, these charges resulted in $48.4 million in benefits paid, excluding money recovered in litigation.  Of  course, this also does not account for the tremendous expense and disruption that results from investigating and resolving these charges, nor does it account for the countless complaints that are undoubtedly raised and resolved internally by employers each year.

The first step in combating the problem is gaining an understanding of what sexual harassment is.  In Minnesota, the state legislature has defined sexual harassment in the workplace to include:

 …unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment …;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment …; or

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment…, or creating an intimidating, hostile, or offensive employment … environment.

The federal definition is similar, but knowing the definition is only part of the solution.  The definition should also be incorporated into written policies which, among other things, should expressly prohibit sexual harassment, outline what a victim should do if it occurs, and stress that no employee will be retaliated against for raising the issue.  Complaints need to be taken seriously, investigated properly, and resolved promptly and in a way that is likely to end the harassment. Education and training are also key components to preventing sexual harassment.

For more information about sexual harassment policies, investigations or anything else covered in 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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