October 16, 2014

Workplace bullying: on the job with Scut Farkus

Posted in Bullying, Bullying, Cyber Bullying, Discrimination, Harassment, Harassment, Hostile Work Environment, Workplace Violence tagged , , , , at 10:30 am by Tom Jacobson

Scut Farkus

Scut Farkus – future workplace bully?

In the holiday classic A Christmas Story, playground bully Scut Farkus torments Ralphie Parker until Ralphie pummels Scut after one too many snowballs to the face. We cheer for Ralphie because he’s the good kid who takes a stand against Scut’s relentless bullying. But what happens when Scut gets a job? What is the law on workplace bullying?

I recently attended a community conversation about workplace bullying. The discussion confirmed that there is much confusion about the topic. The debate is no doubt fueled by recent media attention and legislative attempts to regulate bullying.

Those efforts have been partially successful in the school setting. For example, the State of Minnesota earlier this year passed the Safe and Supportive Schools Act. This new law defines and regulates bullying in the state’s public and charter schools. However, workplace bullying is neither defined nor prohibited by any state or federal law.

Even if the conduct creates a hostile work environment, bullying alone is not unlawful unless the behavior violates some other established law. Recent court decisions emphasize how difficult it is to turn garden-variety bullying into a legal claim.

For example, in Johnson v City University of New York, an employee claimed that a co-worker’s bullying violated Title VII. The judge last month threw out the case, saying:

Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.

The Minnesota Court of Appeals last year overturned a $270,000.00 Ramsey County jury verdict in favor of an employee who reported being bullied by his boss (see Absey v. Dish Network, LLC). Because Minnesota has no anti-workplace bullying law, the plaintiff’s legal theory was actually based on Minnesota’s whistle-blower law, Minn. Stat. § 181.932. In reversing the jury’s verdict, the Court of Appeals ruled that the plaintiff failed to prove that the employer’s adverse action against him was because he complained about his boss.

Bullied employees have found some limited success in the courts. In one Indiana case, Raess v. Doescher, an employee won a lawsuit based on his employer’s behavior, which the court described as “aggressively and rapidly advanc[ing] on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” This conduct could certainly be characterized as “bullying,” but the plaintiff won his case not because he was “bullied” but because the jury found the employer’s conduct to be an assault under Indiana law.

These cases underscore the current reality that when employees are confronted by a Scut Farkus-like co-worker, there are no laws specifically defining or prohibiting workplace bullying. However, if the bully’s conduct is egregious enough, there already exist other legal claims that could provide recourse. In addition to assault and whistle-blower claims, it is conceivable that under the right set of facts, bullied employees could successfully sue for intentional infliction of emotional distress, negligence or other wrongs based on another employee’s bullying behaviors. And, when bullying is based on employees’ protected class status, they may have viable claims under Title VII and/or comparable laws.

But rather than litigation and legislation, perhaps the better solution is to curb such behaviors through better employment policies and practices that encourage and model respectful working relationships.

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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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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

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

March 19, 2012

Dharun Ravi Guilty in Tyler Clementi Cyber-bullying Case

Posted in Cyber Bullying, Employees' Privacy, Internet Policies, Negligent Retention, Sexual Orientation, Social Media in the Workplace, Social Networking tagged , , , , , at 10:02 am by Tom Jacobson

A jury has found Dharun Ravi guilty of 15 criminal charges stemming from the cyber-bullying of his Rutgers University roommate, Tyler Clementi. Ravi was charged with the crimes after he used a webcam to spy on Clementi and another man having sex in their dorm room. Shortly thereafter, Clementi committed suicide.  For more details on the underlying incident, see my October, 2010 post, Tyler Clementi Suicide: Lessons for HR – and for Us All.

Ravi was not charged with any crimes directly related to Clementi’s death, but he was charged with and found guilty of a number of crimes, ranging from invasion of privacy to lying to investigators and witness and evidence tampering.  For more information on the verdict itself, see NY Times article, Jury Finds Spying in Rutgers Dorm Was a Hate Crime.

What you need to know:  Although the case does not directly relate to the workplace, it does have employment law implications.  For example, many states, including Minnesota, recognize invasion of privacy as a legal claim. Therefore, it is entirely conceivable that such claims could be brought against an employer that allows its computers to be used for cyber-bullying.  Many states, including Minnesota, also allow claims to be brought against employers which negligently retain or fail to supervise employees who harm others; if the harm stems from cyber-bullying via a workplace computer, it is not too difficult to envision a negligence claim against the employer who allowed it to happen.  To reduce this risk, employers should adopt workplace technology / social media policies which prohibit the use of the company’s computer resources to commit cyber-bullying.

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

November 9, 2011

Never board the Titanic, but if you’re on it, bail!

Posted in Bullying, Negligence, Negligent Hiring, Negligent Retention tagged , , , , , , , at 10:26 am by Tom Jacobson

 The odds are pretty good that if the passengers and crew of the Titanic had known what was in store for them, they never would have boarded the ship.  Unfortunately for them, by the time they realized what was happening, it was too late, and 1,517 of them perished in the icy waters of the Atlantic.

Some employees can be like the Titanic. Their performance and/or attitudes are so ripped full of holes that they sink, bringing entire organizations down with them, or at least causing their employers to spend precious time and resources bailing everyone out.  The easy solution is to never board the Titanic. That is, never make a bad hire.  But sometimes employers need to find the life raft and dismiss problem employees.

It’s not only good business to make sure that employees fit well with the organization, but there are also liability reasons for this.  For example, if a Minnesota employer does not check an applicant’s background thoroughly enough, the employer can be held liable for negligently hiring an employee who later harms someone else.   That was the situation in the Minnesota case of Ponticas v. K.M.S. Investments where a landlord was held responsible when its property manager sexually assaulted a tenant.  The landlord had only done a cursory background check on the manager, but a better pre-hire investigation would have revealed the manager’s history of violent crime.

Similarly, if employees start to exhibit behaviors suggesting that they might harm others, their employers can be held liable for failing to protect those who are eventually harmed.  The Minnesota Supreme Court recognized this concept in the case of Yunker v. Honeywell, where an employee murdered a co-worker after a number of post-hire incidents suggested that the employee had violent propensities.

There is no crystal clear definition of what is a thorough enough background check to avoid a negligent hiring claim, nor is there a crystal clear definition of what employee behaviors are bad enough to trigger a negligent retention claim. However, the Minnesota courts have said that the test is whether the employer “knew or should have known” of the likelihood that the applicant or employee would harm someone.

Therefore, the extent of the background checks that are required depends on the sensitivity of the positions being filled. For jobs that put employees in positions where they can harm others, a more thorough background check is needed.

Likewise, the nature and severity of existing employees’ behaviors must be evaluated on a case by case basis. When their conduct is such that their employers “know or should know” of the risk of harm, appropriate discipline, up to and including discharge, should be taken.

Bon voyage!

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

June 14, 2011

Child pornography on workplace computers — ND employees become mandatory reporters

Posted in Computer Use, Cyber Bullying, Employee Handbooks, Employee Privacy, First Amendment, Social Media in the Workplace, Social Networking, Telework / Telecommuting tagged , , , , , , at 7:59 am by Tom Jacobson

In an effort to stem the troubling tide of child pornography, North Dakota has taken a unique approach: the state has passed a law requiring that all workers who know or suspect that child pornography is on a workplace computer must report the information to the North Dakota Department of Human Services.

The new law, which goes into effect on August 1, 2011 adds the following provision to section 50-25.1-03 of the state’s Child Abuse and Neglect Law:  “A person who has knowledge of or reasonable cause to suspect that a child is abused or neglected, based on images of sexual conduct by a child discovered on a workplace computer, shall report the circumstances to the department.” Under this law, it will be a crime for an employee/mandatory reporter to willfully fail to make the required report.  It will also be a crime for an employer to retaliate against an employee who makes a good faith report.

Minnesota also has a mandatory reporting law, Minnesota Statute § 626.556, but it does not impose a reporting obligation on workers in general; only certain professionals such as doctors, social workers, law enforcement personnel, clergy, etc., are designated as mandatory reporters of child abuse or neglect.  And, it does not directly address this issue of computerized child pornography.

North Dakota’s new law is not only an aggressive move to try to stop child pornography, for it is also a regulatory foray into the intertwining world of work, technology, social media, and privacy rights.   Arguably, this law gives North Dakota employers a stronger case that their employees should not expect any right of privacy with respect to their use of company computers.  It should also be signal to everyone that new laws will likely be passed to address the complex entanglement of work, social media and related technologies.

Until these laws are on the books, or until existing laws are interpreted and applied to these ever-changing technologies, the best practice is to develop sound employment policies that clarify what every employee’s rights and responsibilities are with respect to their use of social media, computers, smart phones and whatever the next great technologies may be.

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, PA

October 22, 2010

Facebook follies continue to confound

Posted in Cyber Bullying, Social Media in the Workplace, Social Networking tagged , , , , at 3:17 pm by Tom Jacobson

Sometimes you just have to ask  yourself, “What were they thinking?” 

In a story today in the Red Tape Chronicles, MSNBC reports on the growing number of cases where Facebook interactions between teachers and students have crossed multiple boundaries (Teachers, Students and Facebook, a Toxic Mix, http://redtape.msnbc.com/2010/10/).   According to the story, three teachers were fired after posting comments like “This is sexy” under girls’ pictures.  Some of them even used Facebook to initiate real-life relationships with students.

A Pennsylvania school suspended a teacher after photos of her with a stripper showed up on Facebook.  A Florida teacher was suspended after posting a comment about how he “hated” his students and school.  In Washington, D.C. a special education teacher posted “You’re a retard, but I love you.”

On the flip-side the MSNBC story also notes that fake profiles attacking teachers and school administrators also abound on Facebook.  And, with the help of the American Civil Liberties Union, at least one student has been successful in gaining First Amendment protection under the United States Constitution for her Facebook criticism of her English teacher.

As Facebook and other social networking sites continue to evolve, so will the body of law surrounding it.  In the meantime, employers and employees would be wise to realize that while social networking sites can be a great business tool, they can also be a tremendous liability if not handled properly.

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. 

October 6, 2010

Tyler Clementi suicide: lessons for HR – and for us all

Posted in Bullying, Discrimination, Harassment, Harassment, Sexual Orientation, Workplace Violence tagged , , , , , at 8:55 am by Tom Jacobson

Tyler Clementi took his own life last month. He was an 18 year old student at Rutgers University.  He was also gay, and after a sexual encounter between him and another man was secretly broadcast over the internet (allegedly by his roommate using a webcam), he jumped to his death from the George Washington Bridge.

When I read the reports of this tragedy, I was reminded of the question posted on a Society for Human Resource Management discussion forum, “Workplace bullying:  is it HR’s responsibility to control?”  That question was posted months ago, and to date it has generated well over 600 comments.

So what does the suicide of an 18 year old college freshman have to do with HR?  It’s quite simple.  Tyler Clementi is really no different than any employee who has suffered the humiliation of workplace bullying.  One does not have to dig too deep to find similar examples of disgruntled workers who have harmed — and even killed — themselves and others after being harassed, bullied or otherwise disrespected on the job.

What are the lessons for HR?  First, anti-harassment policies are critically important.  They need to clearly spell out the types of harassment that are prohibited in the workplace.

These policies also need to clearly describe how victims can report their concerns, and employees (especially supervisors and managers) need to be trained on what the policies mean and how they are to be applied.  Some reports on Tyler Clementi’s death indicate that after this sexual encounter was broadcast, he reported it to his resident assistant, but that process did not save Clementi.  Comparing this to HR, I wonder if Rutgers had told Clementi where he could go for help and whether the university had trained the RA on how to deal with Clementi’s concerns.

Surely, to allow bullying to exist in the workplace will expose any company to liability, especially it is based on an employee’s legally-protected characteristic.  But the lesson for us all is that regardless of our beliefs and attitudes about another’s lifestyle and traits, every person has a right to be treated with dignity and respect.

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.  Also, the views expressed in this blog are those of the author and do not necessarily reflect those of Swenson Lervick Syverson Trosvig Jacobson, PA.

July 28, 2010

Workplace Bullying — is it really that big of a deal?

Posted in Bullying, Harassment, Workplace Violence tagged , , , , at 9:21 am by Tom Jacobson

Several months ago, the following question was posted on the Society for Human Resource Management (SHRM) discussion group on LinkedIn:  Workplace bullying:  Is this HR’s responsibility to control?  To date, the question has prompted 510 comments, far more than any other question currently circulating among the group.

Undoubtedly, stopping the workplace bully is important for any number of reasons.  Bullying diminishes productivity, hurts morale and could lead to liability under several legal theories. 

But, the SHRM discussion makes me wonder:  is workplace bullying really that big of a deal?  What do you think?

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.

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