September 28, 2012

Simple Steps DO Make a Difference in Preventing Workplace Violence

Posted in Firearms / Guns, Workplace Violence tagged , , , at 10:14 am by Tom Jacobson

Yesterday’s heinous shootings at Accent Signage in Minneapolis are another sad reminder that workplace violence happens all too often. According to the Occupational Safety and Health Administration, there were 506 workplace homicides in the U.S. in 2010, and nearly two million Americans report being victims of workplace violence each year.

Sometimes we’re NIMBY’s about this.  We naively insist that these things only happen elsewhere and Never In My Back Yard. And, even though we may acknowledge the risk, we decide that prevention is too complicated or too expensive, so we do nothing more than cross our fingers and hope the worst never happens.  Two recent real-life examples from my own community show that this is simply not true.

A few weeks ago, a  person entered a neighborhood business and asked the receptionist to use the restroom. The receptionist had no idea of who the individual was or what he was up to. Following company policy, the receptionist simply asked him to sign in as a “visitor” before using the restroom. This was enough to spook the guy into leaving the building. Police officers, who were already in the area looking for suspects in an alleged home-intrusion case that had happened nearby earlier that day, apprehended the guy shortly thereafter. Of course, we’ll never know what might have happened had the guy made his way into the facility, but we do know that this business avoided what could have been a very ugly situation.

Another example is a local business that realized an intruder entered their building through an unlocked back door and then wandered about the unoccupied space in the same building. That problem was solved by simply locking the back door and restricting public access to the front door only.

What you need to know: Sadly, workplace violence is a reality, regardless of how big the business or small the community. Acknowledging the risk is the first step toward eliminating it. The next step is implementing preventative strategies which, depending on the business setting, may include measures as simple as locking doors or requiring a visitor sign-in log. OSHA also offers numerous resources, such as information on risk factors, prevention programs and training resources.

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

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September 24, 2012

Royal Photos Shine Light on Privacy Concerns

Posted in Background Checking, Computer Use, Cyber Bullying, Employee Privacy, Internet Policies, Intrusion upon Seclusion, Invasion of Privacy, Misappropriation of Likeness, Publication of Private Facts, Social Networking, Telework / Telecommuting, Uncategorized tagged , , , , , , , at 10:30 am by Tom Jacobson

As far as I know, no paparazzi has ever caught me in a compromising photo. Well, there is one of me shaving my legs before qualifying for Nationals at the 1985 North Central Conference swimming championships.  It surfaced on Facebook 25 years later (thanks to one of my fun-loving teammates!), but my Gillette moment has obviously never drawn the kind of attention that two royals frolicking on a balcony in France get.

Me, prepping for NCC Swimming Championships (spring, 1985).

The whole Kate and William thing shines new light on an old problem: the blurred line between a person’s public life and private life. So, just what are a person’s rights when that line is crossed?

Minnesota recognizes three distinct claims for invasion of privacy: intrusion upon seclusion, misappropriation of another’s likeness, and publication of private facts.  The Minnesota Supreme Court recognized these three separate claims in the 1998 case of Lake v. Wal-Mart Stores, Inc. In that case, the Court differentiated between the three claims as follows:

Intrusion upon seclusion occurs when one intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns if the intrusion would be highly offensive to a reasonable person.

Misappropriation protects an individual’s identity and is committed when one appropriates to his own use or benefit the name or likeness of another.

Publication of private facts is an invasion of privacy when one gives publicity to a matter concerning the private life of another if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

For the most part, the issue is the same as it has always been: people have a right to live their private lives, to not have others misappropriate their identities, and to not have private aspects of their lives made public. But what has changed is the ease with which these rights can be violated. Sophisticated, yet accessible, technology makes it easy to gather information about others. And, with a few clicks of a mouse, that information can be shared with the world.

The workplace presents special privacy challenges. Employers have a need to know about the people they hire and employ, so they want to gather information about those employees. Employers also need to make sure their computers, websites, e-mail and other technologies are being used appropriately, so they may want to monitor their employees’ use of these technologies. And, once sensitive information is learned, employers are challenged to make sure it is not used or shared inappropriately.

What you need to know: To minimize the risk of being held liable for invasion of privacy, employers need to develop policies and procedures that strike a balance between their need to gather and use relevant information about employees and their employees’ privacy rights.  This is particularly true with respect to technology and social media policies.

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

September 13, 2012

My Former Life as an Intern

Posted in Fair Labor Standards Act, Interns and Internships, Minimum Wage, Overtime, Trainees tagged , , , , , , , , , at 6:32 pm by Tom Jacobson

Me, at Congressman Oxley’s desk (spring, 1987)

During my final semester at the University of North Dakota, I was lucky enough to land an internship on Capitol Hill.  It was a remarkable experience. I was assigned to work with the press secretary for Rep. Mike Oxley from Ohio (long before Sarbanes-Oxley was ever on the radar). My introduction to the office went something like this. “Hi, Tom, I’m Mike’s press secretary, Sharon, and as you can see, I am very pregnant. I’m going to have this baby any day now, and while I’m on maternity leave, you’ll be doing my job.  Enjoy your time in Washington!”

The baby arrived within days, and so began my three-month stint as college student / intern turned rookie press secretary.

Photo I took of President Reagan entering White House Rose Garden (spring, 1987)

The stipend from the program sponsor didn’t come anywhere close to covering whatever minimum wage was at the time, but the education was priceless. I attended committee meetings and did all kinds of press secretary-ish stuff. I saw President Reagan at a Rose Garden press conference, and once I even shared an elevator with Iowa Rep. Fred Grandy (a/k/a “Gopher”from The Love Boat) (sorry, no photo of that!). I don’t recall if my reaction was being starstruck or realizing how odd politics really are. But I digress …

Internships are  a mainstay in our educational system, for they serve the invaluable purpose of giving students real world experience that simply cannot be taught in the classroom.  However, several companies, such as Fox Searchlight and Hearst Corporation, have recently been sued by interns who claim that their internships violated the Fair Labor Standards Act.

How so? Well, the FLSA generally requires that anyone who is employed must be compensated for the services they perform. The Department of Labor takes the position that in the for-profit private sector, interns are usually considered to be “employees,” and as such, they are entitled to minimum wage and overtime. However, the DOL also recognizes that if an intern fits within a very narrow exception established for “trainees,” the FLSA does not apply.  To meet this exception, all six of the following criteria must be met:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

This test is more fully explained in DOL Fact Sheet # 71, where the DOL also notes that, “This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.”

What you need to know:  As the Hearst, Fox Searchlight and similar cases play out, we will have a better idea of how this exception will be applied in future cases. In the meantime, employers who hire or who are considering hiring interns should be wary of the DOL’s narrow interpretation of “trainee,” which means that for the time being most interns will be considered employees who are entitled minimum wage, overtime, and the protections of the FLSA.

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

September 5, 2012

Called for Interference — off the Gridiron and in the Board Room

Posted in Application Process, Contracts, Hiring and Recruiting, Interference with Contract, Interference with Prospective Business, Non-Compete Agreements tagged , , , , , , at 8:11 am by Tom Jacobson

It’s that time of year again. The Twins’ dismal season is almost over, the Lynx are enjoying another great run, and we hope that maybe — just maybe — this will be the year the Vikings make the playoffs or the Gophers make it to a bowl game. In the meantime, we’ll have to wait and see if the replacement refs hired by the NFL during the lockout can tell the difference between good pass defense and interference.

The gridiron isn’t the only place where interference can be called, for interference can also be called on the playing field of business. Specifically, if someone improperly interferes with a contract between others, the interfering party can be held liable for the interference. Interference can also be called if someone improperly interferes with the potential business relationship between others.

But like in football, where there is a difference between good pass defense and pass interference, there is a difference between good old-fashioned business competition and wrongful interference. To prove improper interference with a contract, a plaintiff must prove that s/he had a contract with another, that the defendant knew about the contract, that the defendant intentionally caused a breach of the contract without justification, and that the plaintiff suffered damage because of the interference.

For example, if a company hires a great employee who once worked for a competitor, that’s just good old-fashioned competition. But, if that company knowingly hires an employee who should not work there because of a non-compete agreement with a former employer, the former employer may have a valid claim for contractual interference against the new employer.

What you need to know:  As a part of the hiring process, employers should develop a protocol for asking applicants if they are subject to any non-compete agreements, confidentiality agreements, or similar contracts that may restrict their ability to work for the new company.  This is particularly true for executive and management-level hires and all hires in highly competitive and technical industries where non-compete and confidentiality / non-disclosure agreements are relatively common.

Figuring out and playing by the rules in the business play book can be difficult. When you need help understanding or enforcing them, stop in, call, 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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