March 6, 2013

Laws and sausage

Posted in Application Process, Background Checking, Conviction Records, Criminal History, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Non-Compete Agreements tagged , , , , at 10:00 am by Tom Jacobson

Laws are like sausages. Better not to see them being made.

John Godfrey Saxe

sausage440It’s that time of year again.  The Minnesota Legislature and Congress are both in session, so that gives us a chance to see what sort of legislation is being ground up and processed into what could become the new law of the land. Here are a couple of work-related bills worth watching.

Minnesota H.F. 506: This proposed law would void non-compete agreements in all but a few limited circumstances.  Generally speaking, it would bar non-competes between employers and employees.  This law would have a tremendous impact on any employer that uses non-competes as a tool for protecting their business interests.

Minnesota H.F. 690 /Minnesota S.F. 523: These bills would amend Minn. Stat. § 364.021 by prohibiting private sector employers from considering an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. This restriction already exists for public employers, but the new law would expand this to private employers as well.

H.R. 675: Introduced in the U.S. House of Representatives, this bill, dubbed the Part-Time Worker Bill of Rights Act of 2013, would amend the Family and Medical Leave act by removing from the law the requirement that before an employee is eligible for FMLA leave, s/he must work 1,250 hours during the year preceding the request for leave. Thus, if this bill were to become law, virtually any part-time employee with at least one year of service with an employer covered by the FMLA would gain FMLA leave rights.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com. If you have concerns about the impact of this legislation, please contact your duly elected senators and representatives.

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

January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 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

November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

September 5, 2012

Called for Interference — off the Gridiron and in the Board Room

Posted in Application Process, Contracts, Hiring and Recruiting, Interference with Contract, Interference with Prospective Business, Non-Compete Agreements tagged , , , , , , at 8:11 am by Tom Jacobson

It’s that time of year again. The Twins’ dismal season is almost over, the Lynx are enjoying another great run, and we hope that maybe — just maybe — this will be the year the Vikings make the playoffs or the Gophers make it to a bowl game. In the meantime, we’ll have to wait and see if the replacement refs hired by the NFL during the lockout can tell the difference between good pass defense and interference.

The gridiron isn’t the only place where interference can be called, for interference can also be called on the playing field of business. Specifically, if someone improperly interferes with a contract between others, the interfering party can be held liable for the interference. Interference can also be called if someone improperly interferes with the potential business relationship between others.

But like in football, where there is a difference between good pass defense and pass interference, there is a difference between good old-fashioned business competition and wrongful interference. To prove improper interference with a contract, a plaintiff must prove that s/he had a contract with another, that the defendant knew about the contract, that the defendant intentionally caused a breach of the contract without justification, and that the plaintiff suffered damage because of the interference.

For example, if a company hires a great employee who once worked for a competitor, that’s just good old-fashioned competition. But, if that company knowingly hires an employee who should not work there because of a non-compete agreement with a former employer, the former employer may have a valid claim for contractual interference against the new employer.

What you need to know:  As a part of the hiring process, employers should develop a protocol for asking applicants if they are subject to any non-compete agreements, confidentiality agreements, or similar contracts that may restrict their ability to work for the new company.  This is particularly true for executive and management-level hires and all hires in highly competitive and technical industries where non-compete and confidentiality / non-disclosure agreements are relatively common.

Figuring out and playing by the rules in the business play book can be difficult. When you need help understanding or enforcing them, stop in, call, 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2012

Seagate IV – the Final Chapter?

Posted in Fraud and Misrepresentation, Hiring and Recruiting, Minnesota Statute 181.64, Minnesota Statute 181.65 tagged , , , , , at 5:28 pm by Tom Jacobson

Chandramouli Vaidyanathan’s $2.4 million award for damages and attorney’s fees has been thrown out.

As you may recall, Vaidyanathan was awarded $1.9 million in damages and another half million in attorney’s fees after a Minnesota jury found that his former employer, Bloomington-based Seagate US, LLC, misrepresented the job for which he was recruited. For more details on the case, see my previous articles, Bloomington-based Seagate Hit with $1.9m Verdict for Misrepresenting Job to Recruit, Seagate’s Liability to Duped Recruit Jumps to $2.4 Million, and Seagate III – the Saga Continues.

Seagate appealed the case, and the Eighth Circuit Court of Appeals today reversed the trial court outcome. The appellate court’s decision was based on its conclusion that the trial court had improperly instructed the jury about what it takes to prove misrepresentation under the applicable statute, Minnesota Statute § 181.64. Specifically, the court ruled that “The jury should have been instructed that it could hold Seagate liable if Seagate knew that its representations were false.” Because the jury was not properly instructed, the court threw out the verdict and the attorney’s fee award as well.

But this may not be the end of the story, for the court also ordered a new trial. Stay tuned.

What you need to know: By requiring proof of actual knowledge, the Eighth Circuit Court of Appeals has raised the bar for employees who want to prove misrepresentation under Minnesota Statute § 181.64.

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

April 27, 2012

Use of Criminal Records in Employment Decision-making Clarified by EEOC

Posted in Arrest records, Background Checking, Conviction Records, Criminal History, Hiring and Recruiting tagged , , , , , at 8:58 am by Tom Jacobson

The Equal Employment Opportunity Commission on April 25, 2012 issued a new Enforcement Guidance, titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

While Title VII does not expressly prohibit the use of such records when making employment decisions, the use of those records will be unlawful discrimination if it disproportionately impacts classes of individuals who are protected by Title VII. One example of this is a recent case where Pepsi agreed to pay $3.13 million to settle a case challenging its former background checking policy (see Pepsi Popped for 3.1M in Background Check Case).

According to EEOC Chair Jacqueline A. Berrien, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”  To that end, the EEOC reports that the Enforcement Guidance addresses:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

What you need to know:  The use of arrest and conviction records is technically not a violation of Title VII.  However, Title VII will be violated if an employer’s practices disproportionately impact protected classes of individuals, and other laws may restrict or regulate an employer’s use of such records.  Therefore, before arrest and conviction records are used, employers must thoroughly understand the proper way of using them; reviewing the EEOC’s new Enforcement Guidance will be a step in the right direction.

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 1, 2011

Seagate III – the saga continues

Posted in Attorney's Fees, Fraud and Misrepresentation, Hiring and Recruiting, Minnesota Statute 181.64, Minnesota Statute 181.65 tagged , at 6:41 pm by Tom Jacobson

Chandramouli Vaidyanathan’s lawsuit against Seagate Technologies continues to wind its way through the court system – at even greater cost to Seagate.  First, a jury awarded Vaidyanathan nearly $2 million after they determined that Seagate had misled him about the job they hired him to do (see  Bloomington-based Seagate Hit with $1.9m Verdict for Misrepresenting Job to Recruit).

After the jury’s award, both sides brought various post-trial motions.  The presiding judge, the Hon. Donovan Frank, upheld the jury’s verdict, and he awarded Vaidyanathan another $517,352.50 for attorney’s fees and court costs (see Seagate’s Liability to Duped Recruit Jumps to $2.4 Million).

After that award, Vaidyanathan brought another motion seeking an additional $97,655.00 in attorney’s fees incurred after the judgment was entered and through the previous post trial motions.  Judge Frank has now granted Vaidyanathan’s request, but he reduced the fee award to $63,733.75 after finding that the fees sought were “excessive in light of the tasks accomplished.”

Stay tuned.  Seagate IV may just be an appeal waiting to be filed.

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

April 5, 2011

Seagate’s liability to duped recruit jumps to $2.4 million

Posted in Application Process, Attorney's Fees, Fraud and Misrepresentation, Hiring and Recruiting, Job Descriptions, Minnesota Statute 181.64, Minnesota Statute 181.65 tagged , , , , at 7:42 pm by Tom Jacobson

Last December, I posted an article about how Minnesota’s Seagate Technologies was socked with a $1.9 million jury verdict for misrepresenting a job to a recruit the company hired (see Bloomington-based Seagate hit with $1.9M verdict for misrepresenting job to recruit).  Not surprisingly, lawyers for both sides filed post-trial motions after the verdict was delivered.  Seagate recently lost both motions, and one of them added over a half million dollars to the recruit’s judgment.

In the first post-trial motion, Seagate challenged the outcome of the trial.  Seagate argued that the evidence was not sufficient to support the jury’s verdict and that the company should get a new trial.  In the alternative, Seagate argued that the verdict was excessive and should be reduced.  The federal district court judge who presided over the case, the Hon. Donovan Frank, rejected all of Seagate’s arguments and allowed the verdict to stand (Vaidyanathan v. Seagate US, LLC, http://bit.ly/hMptiM).

At the same time, Vaidyanathan asked the court to award him the attorney’s fees he incurred while litigating against Seagate.  Vaidyanathan’s argument was based on a seldom-used Minnesota statute, Section 181.65 (http://bit.ly/foPuhF), which allows the recovery of fees in cases such as his.  After considering the issues in the case, the amount of time spent by Vaidyanathan’s attorneys on the case (nearly 2050 hours), and the rates charged by his attorneys (ranging from $50.00 per hour for a law clerk to $495.00 per hour for the lead attorney), Judge Frank awarded Vaidyanathan an additional $517,352.50 for his attorney’s fees (see Vaidyanathan v. Seagate US, LLC, http://bit.ly/dS6K9t).  This brings Seagate’s liability to Vaidyanathan to more than $2.4 million.  If Seagate’s own attorney’s fees were roughly the same as Vaidyanathan’s, the company’s overall cost in this case could be approaching $3.0 million.

The case emphasizes the high cost of employment-related litigation, for there are many laws which allow successful employee-plaintiffs to recover their attorney’s fees in addition to their other damages.  Depending on the legal basis for an employee’s claims, those damages can include lost past and future wages and a myriad of other items.  And, employers are rarely awarded their attorney’s fees when they win.  To minimize the risk of getting involved in such high-stakes litigation, employers should regularly consult with legal counsel regarding their employment practices.

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

December 22, 2010

Bloomington-based Seagate hit with $1.9M verdict for misrepresenting job to recruit

Posted in Fraud and Misrepresentation, Hiring and Recruiting, Interviewing, Job Descriptions, Minnesota Statute 181.64 tagged , , , , at 10:45 am by Tom Jacobson

 

 

When Chandramouli Vaidyanathan accepted a job with Bloomington, MN-based Seagate Technologies, he thought he would be leading the company’s yield engineering team. The job was not what Vaidyanathan expected, so after he was transferred to a different position within the company and later dismissed along with 100 other employees during a lay-off, he sued Seagate. On November 18, 2010 a jury awarded Vaidyanathan $1.9 million.

One of Vaidyanathan’s legal theories was that Seagate had violated section 181.64 of the Minnesota Statutes (http://bit.ly/gzdFuI). This law makes it unlawful for a Minnesota employer to knowingly make false representations to induce a job recruit to relocate to accept a job offer. Employers who violate this law can be ordered to pay the employee’s damages and attorneys’ fees.

A violation of this law is also a misdemeanor, so an employer who breaks this law could be punished with a fine of up to $1,000.00 and/or ninety days in jail.

In Vaidyanathan’s case, the evidence established that Seagate made a clear and definite promise to Vaidyanathan that his job would be to lead the company’s yield engineering team. According to the Court, Seagate’s promise was, however, “made, in part, out of ignorance and a lack of sufficient information,” and Vaidyanathan testified that he never did any yield engineering work for Seagate.

After a seven-day trial, the jury concluded that Seagate knowingly made false representations to Vaidyanathan about the kind and character of his work and that Seagate’s misrepresentation induced him to take the job and move to Minnesota from Texas. The jury then awarded Vaidyanathan, whose starting salary had been $126,048.00, $1.9 million in damages. The jury’s Special Verdict can be read at http://bit.ly/grjREY.

Claims under Section 181.64 are rarely litigated, and when they are, they are often dismissed. Nevertheless, Vaidyanathan’s case stands as a vivid reminder of the importance of accurately describing a job to recruits.

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.

 

%d bloggers like this: