June 30, 2011

Parades, puppies and the “Fargo” woodchipper

Posted in Attendance, Breaks, Computer Use, Confidential Information, Contracts, Employee Privacy, Fair Labor Standards Act, Hours Worked, Leaves of Absence, Leaves of Absence, Overtime, Record Keeping, Social Media in the Workplace, Telework / Telecommuting, Vacation Policies tagged , , at 8:51 am by Tom Jacobson

Last week I took a staycation.  Despite the fact that it was one of the rainiest June weeks on record for our neck of the woods, we had a great time. We watched two parades and a swim meet, spent time with our son who is home on leave from the Air Force Academy, and we played with our litter of Labrador pups .  We even took a side-trip to Fargo to see the wood chipper from the movie, Fargo.  And, except for my first day off when I needed to put out a fire that started the day before, I managed to not check my work e-mail or voice mail for a week.

But what if I had checked my e-mail or voice mail?  What if I had texted my secretary or my clients?  What if I had decided to post this commentary from home during one of those downpours?  Telecommuting, or “telework,” would have allowed me to turn my staycation into a working vacation.

Telecommuting offers tremendous benefits.  It allows for flexible work arrangements.  It can save on fuel and other transportation costs.  It can keep employees productive when circumstances would otherwise prevent them from working.

But telecommuting can also be a trap for the unwary.  Aside from the fact that it can distract us from our R&R, working remotely raises a number of employer-employee issues, such as:

* How are working hours tracked for an employee who works remotely?

* Is the telecommuting employee getting the break time to which s/he may be legally entitled?

* Is the employee entitled to overtime when the hours worked remotely are added to his/her workweek?

* Is an employee really on “leave” if s/he is working remotely while supposedly taking time off?

* Is the employee entitled to any tax deductions for a “home office”?

* To what extent is an employee entitled to worker’s compensation benefits if s/he is injured while working from home, and does this give the employer the right to inspect the employee’s home for safety concerns?

* How secure is the employer’s data if an employee is accessing it from or storing it on his/her home computer?

* What privacy rights, if any, does an employee have with respect to his/her cell phone, computer, etc. that is used to work remotely?

* Which jobs work best for telecommuting arrangements?

* What is lost (or in come cases, gained) when telecommuting co-workers do not have face-to-face contact?

* How can the employer be assured that the teleworking employee is actually working?

To avoid falling into a telecommuting trap, employers need to understand the risks, as well as the rewards, of remote working arrangements.  Then, by developing telecommuting agreements and policies,  employers can take full advantage of the benefits that telecommuting can offer.  For more information about the development and use of such policies and agreements, 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

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September 24, 2010

HR policy development, part 2 of 3: policy violations as “misconduct” in unemployment cases

Posted in Breaks, Employee Handbooks, Misconduct, Smoking, Unemployment Benefits tagged , , , , , , at 9:24 am by Tom Jacobson

In the first of this three-part series, I highlighted the case of Cross v. Prairie Meadows (http://bit.ly/bDzdNt) where the employer’s well-written policies were a key reason why the court threw out a sexual harassment lawsuit against the company. In this installment, the issue is how well-written policies can help show that an employee committed employment misconduct which disqualifies him/her from unemployment benefits; the case is Gaustad v. Minnesota Department of Employment and Economic Devlopment (http://bit.ly/9uLFWY).

In the Gaustad case, Jon Gaustad worked for Innova Industries, Inc.  Innova had a very clear work break policy; breaks were strictly regulated in order to manage work flow.  Innova also had a strict no-smoking policy inside its plant and a clear designation of where smoking was permitted outside the plant.  Both policies were plainly stated in the company’s employee handbook.  The smoking policy, which had been adopted after a discarded cigarette butt caused a serious plant fire, was also posted in the employee break room, and it had been handed out to employees.

After two prior warnings about violating the company’s smoking and break policies, Gaustad was fired for a third violation.  Gaustad filed for unemployment.  His claim made its way to the Minnesota Court of Appeals, and the court ultimately rejected it. 

The court initially noted that when an employee refuses to abide by an employer’s reasonable policies, the employee commits employment misconduct and is disqualified from unemployment benefits.  The court also noted that an employer’s policies are reasonable when the employer can articulate or identify purposes which further a legitimate employer interest.

In this case, the court concluded that Innova’s policies were indeed reasonable because the break policy was needed to aid the manufacturing process, and the smoking policy was needed due to the prior fire.  Because Gaustad deliberately and knowingly violated those policies, the court determined that his actions were misconduct.

Just as Cross v. Prairie Meadows highlights the importance of having a well-written sexual harassment policy, Gaustad v. Minnesota Department of Employment and Economic Devlopment points out that reasonable personnel policies (that is, policies that  further a legitimate employer interest) can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.

Next in this series:  leave policies under the FMLA and USERRA.

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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