February 27, 2013

Questions — and answers — about “legitimate business reasons”

Posted in At-will Employment, Discrimination, Legitimate business reason, Legitimate Business Reason for Termination or other Adverse Action, Wrongful Termination tagged , , , , , at 1:46 pm by Tom Jacobson

Questions, I’ve got some questions
I want to know you
But what if  I could ask you only one thing
Only this one time, what would you tell me?

— Jack Johnson, Questions (2006)

In the song Questions, Jack Johnson ponders the myriad of questions swirling around in his head about a new relationship. What are your intentions, suggestions and impressions? Will you try?

When we’re thinking about something new and exciting, our main curiosity is this: where will this lead? Our hope is that it will lead to a good place.

When bad things happen, we also have questions.  Most often the question is, “Why?”

So it is when an employer must discipline or discharge an employee. When that happens, the question swirling around in the employee’s head is often, “Why?” If the employer cannot offer legitimate business reasons for its actions, not only is the employee left scratching his or her head and wondering why, but the employer may struggle to defend the ensuing lawsuit when the employee claims the answer to “Why?” is discrimination or some other legal wrong.

The importance of having legitimate business reasons for an employment decision was recently reiterated in the case of Wood v. SatCom Marketing, LLC. In this case, Jenna Wood sued her former employer, SatCom, alleging violations of the Minnesota Whistleblower Act, Minnesota Human Rights Act, common law of wrongful termination, and the Fair Labor Standards Act. The case made its way to the United States Court of Appeals for the Eighth Circuit where the court rejected Woods’ claims after noting that while there was some evidence to support Wood’s claim, SatCom presented evidence of its legitimate business reasons for suspending and then dismissing Wood.

Specifically, the Court credited SatCom’s evidence that Wood severely neglected a data entry assignment, was late for work and failed to submit a required schedule. This, the Court said, supported the company’s decision to suspend Wood. The Court also noted that following her suspension, Wood disregarded a company directive by failing to return to work with a signed copy of an action plan and then twice violated the plan itself. Therefore, the Court held, SatCom had legitimate non-discriminatory reasons for its decision to discharge Wood. Further, the Court ruled that Wood did not present any evidence that SatCom’s stated reasons were a pretext for any unlawful discrimination. Thus, the Court affirmed the trial court’s decision to dismiss the case.

What you need to know: When employees challenge the adverse actions taken against them, employers have a much easier time defending the claims when they can present evidence of the legitimate non-discriminatory business reasons for their actions. Moreover, when those reasons are made clear to an employee before the adverse action, the employee may be less likely to challenge the employer’s decision because he or she will already have the answer to the question: s/he will already know why. 

For more information about this article, please contact me at alexandriamnlaw.com 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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February 15, 2013

New FMLA poster requirement takes effect March 8

Posted in Family and Medical Leave Act (FMLA), Leaves of Absence, Posting Requirements, Posting Requirements, Uncategorized tagged , , , , , , at 7:16 am by Tom Jacobson

FMLABy March 8, 2013 employers covered by the Family and Medical Leave Act must start using the new poster prepared by the United States Department of Labor. The poster summarizes the major provisions of the FMLA, and it advises employees how to file a complaint. The DOL requires the poster to be “displayed in a conspicuous place where employees and applicants for employment can see it…. [and] at all locations even if there are no eligible employees.” Covered employers may continue to use the old version of this poster until March 7, but thereafter they must post the new notice.

Not every employer in the U.S. is covered by the FMLA. Under the FMLA, a “covered employer” is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Download the DOL’s new poster by clicking here or by visiting the DOL Wage and Hour Division’s FMLA site. For more information about this article, please contact me at alexandriamnlaw.com 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

February 11, 2013

EEOC releases FY 2012 stats (plus, some musical fun with numbers)

Posted in Discrimination tagged , , , at 6:00 pm by Tom Jacobson

seal

In keeping with the spirit of the Grammys that were awarded last night, here’s a bit of numerical music trivia. In 1964 the Beatles released Eight Days a Week. In 1991 U2 released One. And sometime in between, Tommy Tutone dialed 867-5309/Jenny, Prince partied like it was 1999, and Chicago did 25 or 6 to 4.

Though not nearly as entertaining, the U.S. Equal Employment Opportunity Commission (EEOC) last month released its final numbers for fiscal year (Oct. 1 to Sept. 30) 2012. Because I can sense your collective yawn over statistics, just read to the end for more musical fun with numbers.

The agency reports that it received 99,412 private sector workplace discrimination charges during FY 2012, which was down slightly from the 99,947 charges it received in 2011. Other 2012 highlights include:

  • The most frequently filed charges were for allegations of retaliation (37,836); race (33,512); and sex discrimination, including allegations of sexual harassment and pregnancy (30,356).
  • Through its administrative process, the agency obtained $365.4 million in recoveries from private sector and state and local government employers – its largest amount of monetary recovery.
  • The agency’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.
  • The agency completed 240 systemic investigations which in part lead to 46 settlements or conciliation agreements that secured $36.2 million for victims.
  • Discharge from employment was the most frequently-cited discriminatory employment action.

What you need to know:  Just for fun walk Three Doors Down and rock on with Three Dog Night signing “One is the Loneliest Number.” Then, ask Lynyrd Skynyrd to give you “Three Steps” before you shoot your .38 Special with 10,000 Maniacs, or take a flight with the B-52’s and color your world with Maroon 5. Of course, if you’re having trouble sleeping, check out all of the EEOC’s statistics on its Enforcement and Litigation Statistics page, but be careful – they may leave your Third Eye Blind.

For more information about this article, please contact me at alexandriamnlaw.com 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

February 1, 2013

Family of shooting victim sues Accent Signage

Posted in Background Checking, Bullying, Firearms / Guns, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision, Physical Contact, Workplace Violence tagged , , , , , at 6:04 pm by Tom Jacobson

Kare 11 and NPR are reporting that the family of Jacob Beneke, who was shot and killed in the Sept. 27, 2012 Accent Signage shooting incident in Minneapolis, has sued the company and the estate of the shooter, Andrew Engeldinger.  The twenty-page complaint, which has been filed in the Hennepin County District Court, alleges six separate claims, including that Accent negligently supervised and/or retained Engeldinger.

Whether the Beneke family will ultimately prevail on any of its claims remains to be seen, as the case will likely take months, if not years, to work its way through the court system. Meanwhile, the case gives us a chance to take a look at what is  “negligent supervision” or “negligent retention” in the employment context.

Generally speaking, these claims arise when an employer knows or should know that an employee is violent or aggressive and might engage in conduct that would injure others. Thus, the focus in such cases is mostly on what the employer knew — or should have known — about the violent propensities of the employee who later hurts someone. If the evidence supports that element, then it can be said that the employer owed a duty to protect others from the employee’s threat of harm. If the employer had that duty, then the focus becomes whether it breached that duty by failing to take precautions to protect others and whether or not that breach caused the harm suffered by others.

The Beneke case is not the first time the Minnesota courts have grappled with a negligent supervision/retention claim in the context of a workplace shooting. In 1993 the Minnesota Court of Appeals addressed it in the case of Yunker v Honeywell, Inc., which was also a case where the family of a workplace shooting victim sued the employer (Honeywell) for negligence. There, the Court held that because there was evidence suggesting that the shooter had a history of harassing and threatening co-workers, angry confrontations, challenging co-workers to fight, and scratching “one more day and you’re dead” on a locker door, there was enough evidence to put Honeywell on notice that the employee posed a risk of harm to others. Thus, the Court said, Honeywell owed a legal duty to protect others from this employee.

What you need to know: When an employer knows or should know that an employee poses a risk of harm to others, the employer owes a duty to its other employees to take reasonable precautions to protect them. Whether that duty exists, and what precautions are needed, vary on the facts and circumstances of each situation and workplace. To be proactive, employers need to recognize the signs of potential violence and be prepared to take steps to prevent it from happening.

For more information about this article, please contact me at alexandriamnlaw.com 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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