January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 or 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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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January 4, 2013

Swine flu as ADA disability? Maybe when pigs fly …

Posted in Americans with Disabilities Act, Disability, Discrimination, Regarded as Disabled tagged , , , , , , , , at 4:58 pm by Tom Jacobson

Dec. 26, 2012 -- Under the London Bridge, Lake Havasu, AZ

Dec. 26, 2012 — Under the London Bridge, Lake Havasu, AZ

Over Christmas I joined my wife’s family for an escape to Lake Havasu, AZ. We enjoyed the warm sun, visited the re-constructed London Bridge, lounged by the pool, and even though many of the 17 of us shared a cold, we had a fantastic time. And when it was time to get back to the office, no one fired me over a fear that I might infect everyone with some contagious disease I may have picked up while out-of-state.

Francisco Valdez was not so lucky.  According to court documents, Valdez worked for Minnesota Quarries, Inc. d/b/a Mankato Kasota Stone, Inc. In the spring of 2009 Valdez traveled to his native Mexico to visit his gravely ill sister who died while he was en route. At the time, the Centers for Disease control had advised against non-essential travel to Mexico due to a swine flu outbreak there. When Valdez tried to return to work a week later, the company’s HR director told him that he was being terminated because the company feared he might have contracted swine flu and because he had violated the company’s no-call/no-show policy.

Valdez sued Kasota Stone, alleging among other things that being fired because of a fear that he had swine flu violated the Americans with Disabilities Act. Specifically, Valdez claimed that because Kasota Stone was afraid he had swine flu, the company regarded him as disabled. Under the ADA, the term “disability” includes being “regarded as” having an impairment that substantially limits one or more of a person’s major life activities; therefore, the ADA makes it unlawful for an employer to discriminate against employees who it regards as having such impairments.

In a December 10, 2012 decision Judge Patrick J. Schiltz of the United States District Court for the District of Minnesota rejected Valdez’s claims. The court first noted that in “regarded as” cases under the ADA, “An employee is not ‘regarded as’ disabled if the impairment that he is regarded as having is both ‘transitory and minor.'” The court also pointed out that federal regulations exclude “common ailments like the cold or flu” from being considered as disabilities in “regarded as” cases. The court then concluded that despite the subjective fear of swine flu, the objective medical evidence indicates that in reality, swine flu is no more severe than “seasonal flu.” Thus, the court dismissed Valdez’s case after ruling that, “Because swine flu is objectively transitory and minor, it is not a disability under the “regarded as” prong of the ADA…. Valdez therefore cannot be considered disabled within the meaning of the ADA.”

What you need to know: Discriminating against an employee because he or she is “regarded as” having a disability is as unlawful as discriminating against one who actually has a disability. Although the Valdez case emphasizes that not every feared ailment is protected by the ADA, employers must exercise extreme caution if they want to take action against an employee because of his or her actual or perceived state of health.

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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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