July 1, 2014

Key provisions of WESA take effect July 1

Posted in Care of Relatives Leave, Discrimination, Domestic violence, Employee Handbooks, Employee Privacy, Equal Pay, Gender / Sex, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Nursing Mothers, Parenting Leave, Pregnancy, Retaliation, Sick Leave, Sick or Injured Child Care Leave, Wage non-disclosure, Women's Economic Security Act tagged , , , , , at 12:56 pm by Tom Jacobson

2014_05_11_WESA_signingAlthough Gov. Mark Dayton signed it into law on May 11, 2014 the following key provisions of the Women’s Economic Security Act (WESA) go into effect today:

  • Expansion of Minnesota’s parenting and pregnancy leave laws: More employees are now eligible for this leave, and the amount of available leave has been increased from six to twelve weeks. Applies to Minnesota employers with 21 or more employees.
  • Expansion of permissible use of sick leave: Parents-in-law and grandchildren are now included in the list of persons for whom eligible employees may use their sick leave. Employees may also use sick leave for “safety leave,” which is leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. Applies to Minnesota employers with 21 or more employees.
  • Wage disclosure prohibitions; employee handbook notice requirement; remedies: Prohibits employers from, among other things, requiring employees to keep their wages confidential. Requires employers to include in their employee handbooks a notice regarding employees’ rights and remedies under the new law. Allows employers to prohibit wage disclosure to competitors and to otherwise protect trade secrets, proprietary and other privileged information. Applies to all Minnesota employers with one or more employees.
  • Clarifies rights of nursing mothers: Clarifies that when making reasonable efforts to provide a room or other location for expressing breast milk in privacy, that space must: be in close proximity to the work area; be somewhere other than a bathroom or a toilet stall; be shielded from view; be free from intrusion from coworkers and the public; and include access to an electrical outlet.  Applies to all Minnesota employers with one or more employees.

This is only a summary of portions of WESA that take effect today. Other provisions of WESA went into effect on May 12, 2014; more will take effect August 1, 2014. To learn how WESA may impact your workplace, 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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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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

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

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

May 23, 2011

The times they are a changin’: will you sink or swim?

Posted in Computer Use, Confidential Information, Employee Privacy, Exempt/Non-Exempt Employees, Independent Contractors, Internet Policies, Social Media in the Workplace, Social Networking tagged , , , at 8:11 pm by Tom Jacobson

As I sit through the 2011 Minnesota Employment Law Institute, this 1964 Bob Dylan classic has been running through my mind:

“Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.”

The Times They Are a Changin’, Bob Dylan (1964), http://bit.ly/hAPUnh.

Dylan’s words couldn’t be more fitting for today’s employers.  The 2011 Institute points out that rising around us are floodwaters like Facebook, blogs, tweets, Wikileaks, the new Americans with Disabilities Act regulations, increased enforcement efforts by the Department of Labor, protecting confidential information and trade secrets, and the mis-classification of non-exempt employees and independent contractors.  Employers who accept the sea of change and learn how to swim through it will succeed; those who don’t will sink like stones.

To learn to swim, we hire instructors and take lessons.  If you would like more information about how I can teach you to swim though the sea of employment law change, 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

February 22, 2011

Firing over Facebook photo — a violation of Minnesota law?

Posted in Employee Privacy, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 9:34 am by Tom Jacobson

In several previous articles, I’ve commented on situations where employers have disciplined employees because of their Facebook posts.   CBS News is now reporting another such case which, if it had occurred in Minnesota, would have likely led to a courtroom victory for the employee (see Did the Internet Kill Privacy?, http://bit.ly/fKX0vW).

The story relates to Ashley Payne, a 24-year old school teacher from Georgia.  After Payne vacationed in Ireland, she posted on Facebook a picture of herself holding a glass of beer and a glass of wine.  The picture also contained some “profanity.”  Payne mistakenly assumed the photo would remain private, but of course it did not.  A parent of one of her students saw it and complained to the principal who then gave Payne the option of resigning or being suspended.  Payne chose to resign.

Forcing a Minnesota employee to make such a choice over photos of herself holding glasses of alcohol would likely have violated state law.  Minnesota has enacted the Lawful Consumable Products Act (see Minnesota Statutes, Section 181.938, http://bit.ly/fyiKcT).  This statute prohibits an employer from disciplining or discharging an employee who engages in the lawful consumption of alcohol or tobacco, provided that the consumption takes place off the employer’s premises and during non-work hours.  Consequently, no matter how opposed an employer may be to drinking and smoking, disciplining an employee or rejecting an applicant for engaging in these off-duty activities would be unlawful.

As the CBS story about Payne shows, it is nearly impossible to maintain true “privacy” on Facebook.  And, while it makes sense for employers to check Facebook and other sources for information about employees and applicants, extreme caution needs to be taken when deciding how to use the information gained — especially if it relates to lawful off-duty conduct.

If you have any questions about this post, 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

November 23, 2010

Facebook firings and the First Amendment

Posted in Discrimination, Employee Handbooks, Employee Privacy, First Amendment, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , at 10:10 am by Tom Jacobson

It’s a free country.  Sort of.

The recent firing of Alisha Arnold by Eagan, MN-based TempWorks Software adds yet another layer to the complex world of work and social media.  According to KSTP-TV, Arnold was fired after she and her husband created a controversial website  that asked the public to vote for or against the abortion of their unborn child (see Apple Valley Woman Who Launched Abortion Voting Site Is Fired, http://kstp.com/article/stories/S1851233.shtml?cat=0).  According to a memo KSTP obtained, TempWorks reasoned that Arnold’s postings posed a “grave risk to the reputation of the company…”.

But isn’t it a free country?  Doesn’t the First Amendment prohibit an employer from firing an employee who speaks her mind?  Not necessarily.  Although public (that is, governmental) employers must be cautious about First Amendment issues, the First Amendment does not apply to  private employers such as TempWorks.  So, Arnold will not be protected by the First Amendment even though TempWorks apparently fired her because of what she said and how her comments/actions somehow damaged the company’s reputation.

Even though private sector employers really do not have to worry about the First Amendment, there are plenty of other reasons why they should be cautious about firing employees over their Facebook posts or other on-line activities.  For example, Minnesota law prohibits employers from discharging employees because they engage in the use or enjoyment of lawful consumable products (such as alcohol or tobacco), if the use or enjoyment takes place off the premises of the employer during nonworking hours (consider a Facebook post of an employee at a party).  And, other laws prohibit employers from disciplining or discharging employees because of many other legally protected characteristics (consider an employee’s own website advocating civil rights of some kind).

So, even if a private sector employee’s on-line activities pose a “grave risk to the reputation of the company,” those activities may be protected by something other than the First Amendment, and that should cause employers to proceed with caution before taking action.  Well-written Internet and social media policies can help define everyone’s respective rights and responsibilities.

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 27, 2010

If only we had a crystal ball

Posted in Discrimination, Employee Privacy, Fair Labor Standards Act tagged , , , , , , , , , , at 9:35 am by Tom Jacobson

When it comes to making decisions about employment practices, the goal is always to choose a course that will withstand legal scrutiny.  If we had a crystal ball and could predict how our choices now will be perceived by the courts in the future, those decisions would be much easier to make.   Because no one has that magic foresight, the best we can do is to make decisions based on past precedent and the current state of the law.

However, the United States Supreme Court’s docket does give us a glimpse of things to come, and that docket shows that several important employment-related questions will soon be answered.  One of the most significant cases is Staub v. Proctor which relates to discrimination cases where the actual bias was held by a lower-level company official but the adverse employment decision was made by someone higher up in the organization.  This is often referred to as “cat’s paw” or rubber-stamp liability.  The outcome of this case could have a major impact on how how personnel decisions are made.

The high court will also consider two retaliation cases, Thompson v. North American Stainless LP and Kasten v. Saint Gobain Performance Plastics Corp.  In the Thompson case, the fiance’ of an employee who filed a discrimination charge alleged that he was fired in retaliation for her charge.  The Thompson case could drastically increase the number of “associational” retaliation claims.  Kasten will resolve the question of whether an employee’s unwritten complaint to an employer can provide the basis for a retaliation claim under the Fair Labor Standards Act.

Employee privacy issues are before the court in NASA v. Nelson.  In that case, the concern is a question about illegal drug use asked during a background check.  The court  will also be considering the arbitration of employment claims (AT&T Mobility v. Concepcion), inconsistencies between a summary plan description and the plan itself under the Employee Retirement Income Security Act (CIGNA v. Amara), and an Arizona law that requires Arizona employers to use E-verify and revokes the business licenses of employers who knowingly hire illegal immigrants (Chamber of Commerce of the USA v. Whiting).

If only we had a crystal ball, we could make all personnel decisions knowing that they would withstand legal scrutiny if they were challenged in the future.  For now, the best we can do is make decisions based on what we already know, pay close attention to the ever-changing landscape , and then adjust our course when needed.

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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