October 6, 2015

Jack Link’s Missing Link: Company Pays $50K to Settle Claim of Ongoing Sexual Harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Harassment, Hostile Work Environment, Minnesota Human Rights Act, Sexual Harassment, Sexual Harassment, Title VII of the Civil Rights Act of 1964, Uncategorized tagged , , , , , , , at 10:28 am by Tom Jacobson

A recently settled Minnesota Department of Human Rights charge against Jack Link’s Beef Jerky emphasizes the importance of follow-through when responding to sexual harassment allegations. According to the Department, Jack Link’s initially took the “right step” in disciplining the alleged harasser but then failed to monitor the situation, which included ongoing harassment.

Specifically, MDHR reports that shortly after being hired by Jack Link’s, a female employee’s supervisor made sexual advances toward her, called her “baby,” said she was beautiful, asked if she was single, chanted “pack baby pack,” and asked if he was too old for her. The Department also reports that although Jack Link’s initially disciplined the supervisor, the company then promoted him to be woman’s direct supervisor, after which he continued to harass the employee. Claiming she could no longer tolerate the work environment, the woman quit.

Thus, based on the MDHR’s findings, the missing link in Jack Link’s response was the lack of follow-through and monitoring. As noted by MDHR Commissioner Kevin Lindsey:

This is an unusual case in that the employer took the right step in originally disciplining the supervisor. The employer however undermined its efforts by not subsequently monitoring the actions of the alleged harasser. Employers need to maintain contact with the employee who has complained of sexual harassment to make sure that the measures that they have undertaken are actually working.

To settle the charge, Jack Link’s agreed to pay the victim $50,000.00 and to provide training on the Minnesota Human Rights Act and how to properly respond to sexual harassment allegations.

Generally speaking, employers must first take steps to prevent unlawful workplace harassment. But if, despite those efforts, an employee claims that harassment has occurred, employers must take prompt action to correct and stop that behavior. As the Jack Link’s case points out, this includes careful monitoring and follow-through to make sure the harassment does not continue or recur.

For more information about this article or about the harassment training, policy development, and related services I can provide, 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 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

June 15, 2015

Supreme Court Rules for EEOC in Abercrombie & Fitch Dress Code Case

Posted in Application Process, Discrimination, Dress Code, Grooming, Reasonable Accommodation, Relgious Discrimination, Religion, Title VII of the Civil Rights Act of 1964 tagged , , , , , , , , at 10:36 am by Tom Jacobson

Employers must now use more caution when their dress codes clash with their employees’ religious beliefs. That is the result of the United States Supreme Court’s June 1, 2015 ruling in EEOC v. Abercrombie & Fitch Stores, Inc.

The case arose after Samantha Elauf applied for a job with Abercrombie. Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf known as a hijab. Abercrombie had a “look policy” that prohibited employees from wearing “caps” as being too informal for work attire. The policy did not define “caps.”

After an interview, the assistant store manager rated Elauf as qualified to be hired, but she was concerned that the headscarf would violate the company’s “look” policy. Elauf, however, never requested an exception to that policy so that she could wear the hijab. The assistant manager asked her district manager for guidance, and she told the district manager that she believed Elauf wore the headscarf because or her faith. The district manager said the headscarf would violate the look policy, and he directed the assistant store manager to not hire Elauf.

The EEOC then sued Abercrombie on behalf of Elauf on the basis that the company’s refusal to hire Elauf violated the religious discrimination prohibitions of Title VII. The trial court ruled in favor of the EEOC (See Abercrombie & Fitch Dressed Down over Hijab in Religious Discrimination Case). The Tenth Circuit Court of Appeals reversed on the basis that because Elauf never provided Abercrombie with actual notice of her need for accommodation of her religious belief, Abercrombie could not be liable under Title VII.

On further appeal, the Supreme Court agreed with the EEOC and trial court. Specifically, the high court ruled that to prove a claim of religious discrimination in the workplace, an applicant need only show only that his/her need for an accommodation was a motivating factor in the employer’s decision, not that the employer knew of the need. An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Thus, even if an employee or applicant has not requested a religious accommodation (for example, a dress code or grooming policy exception, schedule modification, etc.), an employer must not use that person’s religious faith as a factor in making decisions about the employee or applicant. In addition, employers should keep their dress and grooming codes somewhat flexible to allow for the accommodation of affected religious beliefs.

For more information, see the EEOC’s publications, Questions and Answers: Religious Discrimination in the Workplace and Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities, 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 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

May 26, 2015

Registration Deadline is June 1 for Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 4:20 pm by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

The registration deadline for the Twelfth Annual West Central Minnesota Employment Law Update is June 1. Seating for the June 11, 2015 event is limited, so please register soon if you plan to attend.

For more details and registration forms, please see Registration Open for Twelfth Annual West Central MN Employment Law Update, or contact me at taj@alexandriamnlaw.com or 320-763-3141.

I hope to see you on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 29, 2015

Supreme Court Slams Brakes on EEOC Lawsuits

Posted in Alternative Dispute Resolution, Conciliation, Discrimination, EEOC Conciliation, Title VII of the Civil Rights Act of 1964 tagged , , , , at 3:57 pm by Tom Jacobson

IMG_5578The United States Supreme Court today slammed the brakes on lawsuits started by the Equal Employment Opportunity Commission. Specifically, the Court ruled that because the EEOC has a statutory duty to attempt conciliation before suing, the courts have authority to review whether the EEOC has fulfilled that duty. Giving courts the authority to review EEOC conciliation should stifle what some believed was the EEOC’s overly zealous litigation strategy.

The case is Mach Mining, LLC v EEOC, which started as a Title VII sex discrimination charge against the company. During its investigation, the EEOC found probable cause to believe that discrimination had occurred. The agency then invited the company to participate in conciliation to resolve the dispute. The agency also said that a representative would contact them to start the process. A year later the EEOC sent another letter saying that conciliation had been unsuccessful. The EEOC then sued the company.

In response to the lawsuit, Mach Mining argued that the EEOC had not attempted to conciliate in good faith before suing them. This argument was based on Title VII’s requirement that before suing, the EEOC must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

The EEOC countered by arguing that the courts do not have the power to decide whether or not the agency makes such an effort. The agency also argued that even if the courts have that power, its two letters to Mach Mining met that standard.

The Court agreed with Mach Mining and held that the courts have the authority to review whether or not pre-suit conciliation was adequate. Specifically, the Court noted that:

Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts’ authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims.

The Court then went on to establish a judicial process for making this determination:

  • A sworn affidavit from the EEOC stating that it has performed its conciliation obligations but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.
  • If the employer then provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the fact-finding necessary to decide that limited dispute.
  • Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

By adding this level of judicial oversight to the EEOC charge process, those faced with Title VII discrimination charges should now have greater assurance that the EEOC will work harder to resolve those charges informally before rushing to the courthouse.

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 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 17, 2015

Registration Open for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 9:19 am by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

Registration is now open for the Twelfth Annual West Central Minnesota Employment Law Update to be held Thursday, June 11, 2015. The event is sponsored by West Central Minnesota SHRM, and it will be held at Alexandria Technical and Community College.

The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters. Masters is an award-winning author and international speaker who provides attendees with not only a memorable multi-media experience, but also immediate “take-home” value for all levels of HR leadership to help them develop and empower a workforce of future leaders.

Click on the following links for more information and the registration form:

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

Contact me at taj@alexandriamnlaw.com or 320-763-3141 if you need more information. We hope you can join us on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 20, 2015

Save the Date for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , at 9:04 am by Tom Jacobson

The twelfth annual West Central Minnesota Employment Law Update will be held Thursday, June 11, 2015 at Alexandria Technical and Community College. The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters.

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

We hope you can join us on June 11! Stay tuned for registration, agenda and other details.

Save the Date

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 29, 2015

Hit-men, harassment & the perils of office romance

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Harassment, Hostile Work Environment, Minnesota Human Rights Act, Office Dating, Office Romance - Dating, Sexual Harassment, Sexual Harassment, Title VII of the Civil Rights Act of 1964, Workplace Romance tagged , , , , , , , at 11:09 am by Tom Jacobson

office romanceWith Valentine’s Day just around the corner, it seems like a good time to remind everyone that office romance is generally a very bad idea. After all, it might lead to murder-for-hire plots, ugly custody fights, and the occasional sexual harassment suit.

Take the recent Stearns County, Minnesota case involving Nomad Pipeline Services CEO Robert Schueller. He was charged with orchestrating a murder-for-hire plot where it’s alleged that he tried to hire a hit man to kill the fiance’ of an employee with whom he had an affair (see MyFox9, Charges: Office affair break-up, murder-for-hire plot). Mr. Schueller ultimately pled guilty to one count of sending threatening communication (See WCCO TV, Company President Pleads Guilty in Plot Involving Employees).

Or, there’s the case that fellow blawger Eric Meyer recently noted where an office affair apparently resulted in pregnancy, a custody battle, and a sexual harassment claim.

Those are extreme examples of love gone bad, but I’ve seen office romance cases that have taken a big toll, albeit without the intrigue. Co-workers perceive favoritism toward the boss’s paramour. Jilted lovers persist in their advances, which are then perceived as hostile. Encounters that were once consensual are suddenly claimed to be unwelcome. Employees struggle to know how to end a personal relationship when they have to continue working with their former significant other. What was once romance becomes harassment that ends up in court.

Of course, there are examples where office dating blossoms into healthy relationships. However, no one can predict where a new romance will lead. To mimimize the risk that it will lead to the courthouse, see my prior article, Big Bang and the Office Dating Game.

Have you taken my poll on President Obama’s mandatory paid sick leave proposal? If not, click here. Poll closes January 30.

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 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

October 9, 2014

Employment retaliation: the high cost of revenge

Posted in Discrimination, National Origin, Race, Retaliation, Title VII of the Civil Rights Act of 1964 tagged , , , , , , at 7:40 pm by Tom Jacobson

Kinkead 10-10-14

While seeking revenge, dig two graves; one for yourself. Douglas Horton

Most laws granting rights to employees include anti-retaliation provisions intended to protect the employees who exercise those rights. Title VII of the Civil Rights Act of 1964 is no exception. Buffalo, MN based Izza Bending Tube & Wire and Wells Fargo & Co. recently learned that lesson the expensive way. That is, via costly settlements of EEOC employment retaliation charges.

Both cases were investigated by the Minneapolis, MN area office of the EEOC. In the Wells Fargo case, the EEOC determined that an employee reported to the company’s human resources department that she was being subjected to differential treatment based on her race and national origin. The agency also found that the employee’s supervisor told her not to speak Spanish during her non-duty time. Shortly after the employee’s report, the EEOC found, Wells Fargo disciplined and then terminated the employee for practices other employees regularly engaged in without discipline. This, the EEOC concluded, violated the employment retaliation provisions of Title VII.

To resolve the charge, Wells Fargo agreed to pay $295,000.00. The company also agreed to:

  • Conduct training on the laws prohibiting employment discrimination, with special emphasis on employment retaliation and English-only speaking requirements;
  • Distribute to all employees an annual e-mail affirming its commitment to diversity, multilingual ability and the use of languages other than English in the workplace;
  • Report to the EEOC all allegations of discrimination or employment retaliation annually for three years.

In the Izza case, the EEOC alleged that a manager first instructed an employee to not hire a black temporary worker for a permanent position and then told the employee to get rid of him because of his race. The EEOC further alleged that after the employee filed a discrimination charge with the EEOC, she was laid off and then terminated in retaliation. Izza settled the case by paying $45,000.00 and agreeing to train employees and report any retaliation complaints to the EEOC.

The main takeaway from these cases is that retaliating against employees who exercise their Title VII rights is by itself a violation of Title VII, and resolving those cases can be extremely expensive. The same holds true for employees who exercise their rights under the Minnesota Human Rights Act and many other employment laws. Moreover, preserving access to the justice system by fighting employment retaliation under Title VII is one of the EEOC’s 2013-2016 Strategic Enforcement Plan priorities. Therefore, employers would be wise to make prohibiting employment retaliation one of their HR priorities. Or, start digging.

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

October 6, 2014

Disciplining off-duty conduct: why the NFL model doesn’t work in the real world

Posted in Application Process, Arrest records, Background Checking, Ban the Box, Child Abuse and Neglect, Conviction Records, Credit Checks, Criminal History, Discrimination, Fair Credit Reporting Act, Interviewing, Minnesota Human Rights Act, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision, Title VII of the Civil Rights Act of 1964 tagged , , , , , , , , at 4:15 pm by Tom Jacobson

Police light122811Imagine that you’re an HR director and a security-cam video supposedly depicting one of your key employees knocking out his girlfriend in an elevator ends up on YouTube for the world to see. Or, imagine that one of your key employees is indicted for abusing his son after photos allegedly depicting the boy’s wounds from his dad’s switch go viral. Imagine further that neither incident occurred on your company’s premises or while the employee was on the job.

Sound familiar?

Fortunately, most of us never have to deal with employees who make headlines like Ray Rice and Adrian Peterson (see Ray Rice Terminated by Team, Suspended by NFL after New Violent Video, CNN Sept. 16, 2014; Minnesota Vikings Reverse Course, Suspend Adrian Peterson, ABC News Sept. 17, 2014). However, all employers must occasionally confront the challenge of what to about an employee’s off-duty misconduct.

With the suspensions of Rice and Peterson fresh in our minds, it may seem like an easy solution: suspend or fire any employee who is charged with or convicted of a crime that we find repulsive or contrary to our organization’s values. That may work in the NFL, but for the rest of the working world, it’s not that simple. There are many laws that limit how employers may use such information.

One example is Title VII of the Civil Rights Act of 1964. Among other things, this law prohibits racial discrimination in employment. Applying Title VII, the courts have said that the overly restrictive use of criminal background information in the workplace is unlawful because it disproportionately excludes certain racial groups from employment.

So, what is too restrictive? There is no hard and fast rule, but the Equal Employment Opportunity Commission, which enforces Title VII, has provided some guidance (see Background Checks: What Employers Need to Know). Specifically, the EEOC first stresses that employers who obtain criminal history information about employees or applicants must do so uniformly: doing it for only members of protected classes will violate Title VII.

The EEOC also notes that once such information is obtained, it must be used in a non-discriminatory way:

  • The same standards must be applied to everyone.
  • A policy or practice must not exclude people with criminal records if the policy or practice significantly disadvantages individuals with a protected characteristic and does not accurately predict who will be a responsible, reliable, or safe employee. As stated by the EEOC, the policy or practice is unlawful if it has a “disparate impact” on protected employees and is not “job related and consistent with business necessity.”
  • Be prepared to make exceptions for problems potentially caused by disabilities.

To determine whether a person’s criminal history is “job related and consistent with business necessity” under Title VII, employers need to consider: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job held or sought (see Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, EEOC April 25, 2012).

Another federal law, the Fair Credit Reporting Act, also applies when employers hire a third party to conduct background checks. The FCRA includes requirements about what employers must do before obtaining such information and what they must do before and after taking adverse action based on the reports obtained. The FCRA is enforced by the Federal Trade Commission, which has published a summary of employers’ obligations under the law (see Using Consumer Reports: What Employers Need to Know, FTC Jan. 2012).

For Minnesota employers, the state’s “Ban the Box” law (Minn. Stat. Sect. 364.021) presents another challenge. Like Title VII, this law does not prevent an employer from considering a person’s criminal history when making work-related decisions. It does, however, restrict when that information may be obtained or used. Specifically, the law prohibits employers from inquiring into or considering criminal records or history until after applicants have been selected for an interview or, if there is no interview, after a conditional offer of employment is made.

With all of these restrictions, why even bother looking into someone’s off-duty conduct?

Despite these challenges, it’s still good business to hire and keep employees who fit well with the organization. And, there are  risk-management reasons for doing background checks.

For example, if a Minnesota employer does not check an applicant’s background thoroughly enough, it can be held liable for negligently hiring someone who later harms another. That was the situation in the case of Ponticas v. K.M.S. Investments where a landlord was held responsible for its property manager’s sexual assault of a tenant.  The landlord had only done a cursory background check on the manager, and 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.

Now imagine again that video or indictment on your desk. Or imagine that your background check has revealed some other off-duty misconduct that you wished you never knew about. Know that the NFL’s model simply does not apply in the real world. Employers facing these situations should think carefully and not automatically leap to the conclusion that the employee should suffer some work-related consequence in addition to whatever sanction s/he got elsewhere.

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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