February 29, 2012

Save the date!

Posted in Training tagged , , , at 5:14 pm by Tom Jacobson

Mark your calendar for the 9th Annual West Central Minnesota Employment Law Update to be held May 31, 2012 in Alexandria!  The full agenda and registration information for this year’s presentation will be available soon.  In the meantime, here’s what some of last year’s participants had to say about our 2011 event:

  • A necessity!
  • Informative!
  • Great Info!
  • Amazing!
  • Excellent!
  • Love it!
  • Real life problems, real life answers!
I hope you can join us on May 31.  Stay tuned for more details.

For more information about this event, 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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February 23, 2012

GINA recordkeeping requirements set by EEOC

Posted in Discrimination, Genetic Information Non-discriminaton Act (GINA), Personnel Records, Record Retention tagged , , , , at 10:49 am by Tom Jacobson

The Equal Employment Opportunity Commission (EEOC) has extended the existing record-keeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) to employers covered by Title II of the Genetic Information Non-Disclosure Act (GINA).  The GINA requirements will go into effect on April 3, 2012.

The impact on employers should be minimal because, as noted by the EEOC in the Federal Register, “The final rule does not require the creation of any documents or impose any reporting requirements. It imposes the same record retention requirements under GINA that apply under Title VII and the ADA, i.e., any records made or kept must be retained for the period of time specified in the Title VII and ADA regulations.”  Private-sector employees with 15 or more employees and governmental employers are subject to Title VII, the ADA, and GINA.

What you need to know: Employers must be familiar with the myriad of recordkeeping requirements that apply in the workplace.  For a summary of the record retention requirements that exist under Title VII, the ADA, and now GINA, see the EEOC’s publication, Summary of Selected Recordkeeping Obligations in 29 CFR Part 1602. However, employers must also be aware that many other laws, including, but not limited to, the Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), Occupational Safety and Health Act (OSHA), and state personnel record laws have other recordkeeping requirements that must be followed.

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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 16, 2012

Discrimination against lactation? Federal judge throws out nursing mom’s case

Posted in Discrimination, Gender / Sex, Nursing Mothers tagged , , , , , at 9:33 pm by Tom Jacobson

Donnecia Venters was fired by Houston Funding after she announced her intent to express breast milk for her newborn daughter in a back office at work after her maternity leave ended.  According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC), this violated Title VII of the Civil Rights Act of 1964. In its press release announcing the lawsuit, EEOC’s Houston District Director R.J. Ruff, Jr., said, “Employers cannot discriminate against working mothers because of medical conditions related to their pregnancy or childbirth.” To this, EEOC’s Houston Regional Attorney Jim Sacher added, “This lawsuit will send a message to employers that the EEOC will vigorously enforce federal law by prosecuting companies which deny equal opportunity to women.”

U.S. District Court Judge Lynn Hughes, who is presiding over the case, did not see it that way.  In what some are describing as a controversial decision (see
Lactation discrimination? Judge says firing women for breast-pumping is legal), he dismissed the suit.  In his February 2, 2012 opinion, Judge Hughes wrote, “Firing someone because of lactation or breast pumping is not sex discrimination.”  He also concluded that “…the law does not punish lactation discrimination.”

Employers should not, however, interpret Judge Hughes’ decision as a free pass for lactation discrimination because it appears likely that his decision will be appealed.  Also, based on a related report, Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC, the EEOC appears poised to aggressively pursue similar cases.

Moreover, other laws protect the rights of nursing mothers.  For example, the federal Fair Labor Standards Act (FLSA) requires covered employers to provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.  Similarly, in many states, including Minnesota, employers are required by statute to provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.  Both the FLSA and the corresponding Minnesota statute have other provisions regarding the facilities that must be provided, the employers to which the laws apply, and undue hardship exceptions.

What you need to know:  Employers must carefully consider the needs of nursing mothers.  Despite one federal judge’s dismissal of a lawsuit alleging lactation discrimination, those mothers may be protected by state and federal anti-discrimination laws.  Moreover, the FLSA and various state laws give additional rights to nursing mothers.

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

February 8, 2012

Love … it’s a burning thing

Posted in Discrimination, Employee Handbooks, Office Romance - Dating, Sexual Harassment tagged , , , , , , at 10:34 am by Tom Jacobson

“Love. It’s a burning thing
And it makes a fiery ring.
Bound by wild desire,
I fell into a ring of fire.”

Johnny Cash, Ring of Fire

Valentine’s Day is next week.  At the risk of seeming to shoot Cupid out of the sky, I think that makes it a good time to consider the consequences of office romance.

Consensual relationships which are, or have the potential of becoming intimate, sexual or romantic in nature sometimes develop between employees. Because such relationships may make other employees and those involved in the relationship uncomfortable, they can increase an employer’s risk of liability for sexual harassment and other claims.

What you need to know:  Yes, love truly is a burning thing.  But, if an employer does not properly handle office romances, it is the company that can get burned. Therefore, employers should discourage those relationships, particularly those between a supervisor and subordinate and those in which differences in age, background, or other characteristics of the two individuals compromise the ability of either one to make an informed decision about participating in the relationship.  Employers should also adopt policies which clearly describe their employees’ obligations, rights and options when workplace romance ignites … or burns out.

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

February 1, 2012

Social media report #2 issued by NLRB

Posted in Computer Use, Employee Handbooks, Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , at 9:07 am by Tom Jacobson

In my October 19, 2011 article, Social Media Report Issued by NLRB, I wrote about a report issued by Lafe Solomon, Acting General Counsel for the National Labor Relations Board (NLRB).  His report highlighted several cases where actions taken against employees were evaluated under the National Labor Relations Act (NLRA).  Solomon has now issued a second such memorandum.

The new report reiterates the main underpinnings of the initial report.  As summarized by the NLRB:

    • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
    • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Because Solomon’s reports quote actual practices and/or policies which were in various cases found to be lawful or unlawful, they are good resources for any employer to review when considering social media-based disciplinary action against an employee or when implementing or revising social media policies.

What you need to know:  It’s a fine line between social media posts that are protected concerted activity under the NLRA and those that are not. Likewise, it is a fine line between social media policies that do or do not violate the NLRA. Therefore, before action is taken against an employee because of his or her social media activity, and before social media policies are implemented, the NLRA itself and the NLRB’s position on these issues must be taken into account.

For more information about this article or how to address social media issues in the workplace, 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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