October 24, 2012

Electing To Be Absent — Employees’ Election Day Rights in Minnesota

Posted in Election Day, Election Day, Leaves of Absence, Voting Rights tagged , , , , , , at 9:07 am by Tom Jacobson

With less than two weeks to go before election day, this is a good time for Minnesota employers and employees to think ahead about their election day rights.

Specifically, employees have a right to be absent from work for the time necessary to vote.  Minnesota law (Minn. Stat. § 204C.04) provides that:

Every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.

Violating this law is a misdemeanor.

This right does not apply to all elections, but it does apply to any “regularly scheduled state primary or general election, an election to fill a vacancy in the office of United States senator or United States representative, or an election to fill a vacancy in the office of state senator or state representative.” So, it will apply this Nov. 6.

Another Minnesota law (Minn. Stat. § 204B.195) provides that employees who serve as election judges may, after giving their employer at least 20 days’ written notice, be absent from work to serve as election judges. The written request to be absent must be accompanied by a certification from the appointing authority stating the hourly compensation to be paid the employee for service as an election judge and the hours during which the employee will serve. Employers may reduce the salary or wages of employees serving as  election judges by the amount paid to the election judge by the appointing authority during the time the employee was absent from work. Also, employers may restrict the number of persons to be absent from work to serve as election judges to no more than 20 percent of the total work force at any single work site.

What you need to know:  By adhering to the statutes noted above, Minnesota employees and employers can protect the right to vote while minimizing any disruptions in the workplace. 

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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October 17, 2012

Why Honesty Is Always the Best Policy — Especially on a Job Application

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Dishonesty, Dishonesty, Misconduct, Unemployment Benefits tagged , , , , , , , at 10:54 am by Tom Jacobson

UPDATE: Due to an amendment to Minn. Stat. § 364.021 (effective Jan. 1, 2014), this article is outdated. For an update, see Ban the Box.

Years ago when I was a newly minted lawyer, a college buddy of mine was in a pickle.  He was applying for a job, and the application form asked if he’d ever been convicted of a crime.  “Remember my little run-in with the cops when they crashed that party I was at?” he asked. “Well, I got charged with a misdemeanor, but I’ve paid the fine and done the time, and it really has nothing to do with the job I’m applying for. Do I really need to disclose it?”

More recently, a number of my employer clients have asked, “May we ask about applicants’ criminal convictions, and if they disclose convictions, may we consider them in the hiring process?”

The answer to all of these questions is generally yes, and a recent Minnesota Court of Appeals case illustrates one of the reasons why.

The case involved Ryan Goebel, who in 2011 applied for a part-time job as a pizza cook at a Casey’s General Store. The application form asked if he had “ever been convicted of a crime other than a routine traffic violation.” Goebel failed to disclose his 1996 misdemeanor theft conviction or his 1997 convictions for gross misdemeanor check forgery and fifth-degree criminal sexual conduct.

Casey’s hired Goebel but later fired him after they learned about his criminal past. Goebel applied for unemployment, but his benefits were denied on the basis that his failure to disclose the convictions was misconduct that disqualified him from benefits.

Goebel appealed the decision, and in an October 15, 2012 decision the Court of Appeals affirmed the denial. In reaching its decision, the Court observed that:

[Goebel’s] theft, check forgery, and criminal sexual conduct may have been immaterial to his performance as a pizza cook, but they were not immaterial to his behavior as an employee with access to cash and inventory and contact with customers…. Casey’s had a right, arguably even a duty, to discover if prospective employees had a history of dishonest or inappropriate behavior. Thus, honesty in filling out a job application was a standard of behavior Casey’s had the right to reasonably expect, and [Goebel] violated that standard.

What you need to know: Applicants need to be honest on their applications, even if that means disclosing a prior criminal conviction. Even if a prior conviction has nothing to do with the job being applied for, the failure to disclose it may be considered misconduct because honesty on a job application is a standard of behavior employers have a right to reasonably expect. Employers have a right — and arguably a duty — to ask about an applicant’s prior criminal convictions. If such convictions are material to the job, they can — and should — be taken into account when evaluating the candidate’s application.  However, before using criminal records as a part of their hiring process, employers should familiarize themselves with the EEOC’s Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

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

October 5, 2012

NLRB Rules in Favor of Employer in its First Facebook Firing Case, Strikes down “Courtesy” Policy

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 8:58 am by Tom Jacobson

In its first decision in a case involving allegations of a firing over Facebook postings, the National Labor Relations Board (NLRB) has ruled in favor of the employer. In the same decision, the Board struck down the employer’s “Courtesy” policy.

The dispute centered mainly around two Facebook postings by a salesman for Knauz BMW in Lake Bluff, IL. In one, he posted sarcastic comments and photos of a Land Rover after it was driven by a customer’s 13-year old child over a wall and into a pond at an adjacent dealership. In the other post, he criticized Knauz for serving hot dogs and water at a luxury car sales event. He was fired a week later. The primary issue in the case became whether he was fired because of the Land Rover photos or because of his criticism of the dealership.

According to the NLRB, being fired for criticizing the dealership may have violated the National Labor Relations Act (NLRA). The NLRA protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. It also protects individual employees if they are acting on behalf of the group. Here, the NLRB said that because the Facebook criticism “involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions,” being fired for those comments may have violated the NLRA.

However, the NRLB also noted that posting the Land Rover photos was not protected by the NLRA. This is because they were “[P]osted solely by [the employee], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The administrative law judge who tried the case, Joel P. Biblowitz, found that the salesman was fired because of the Land Rover photos and not because of the Facebook criticism. The NLRB agreed with Judge Biblowitz and, therefore, affirmed that the dealership did not violate the NLRA when it fired the salesman.

Another issue in the case was the following “Courtesy” policy at Knauz:

Courtesy: Courtesy is the responsibility of every
employee. Everyone is expected to be courteous, polite
and friendly to our customers, vendors and suppliers, as
well as to their fellow employees. No one should be
disrespectful or use profanity or any other language
which injures the image or reputation of the Dealership.

The three-member panel split 2-1 on whether this policy violated the NLRA. The majority ruled that it did. Their reasoning was that employees may have reasonably believed that the policy prohibited any protests or criticisms, even those protected by the NLRA. The dissenting judge interpreted the rule as “nothing more than a common-sense behavioral guideline for employees” and was not “a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

What you need to know: Because the NLRB ruled that the salesman was fired for a non-protected reason (posting the sarcastic Land Rover photos), the Board did not rule on whether the criticism posted on Facebook was actually protected by the NLRA. The NLRB is likely to rule on that issue in future cases. In the meantime, the boundaries of what kinds of social media commentary are protected by the NLRA remain unclear. Therefore, employees should use care when posting work-related commentary on Facebook, and employers should use care when considering whether to take action based on such postings. In addition, employers should re-evaluate any “courtesy” rules to make sure they do not violate their employees’ rights under the NLRA.

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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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