February 21, 2017

I’m Moving!

Posted in Uncategorized at 11:01 am by Tom Jacobson

Change ahead sign

Well, sort of.

After nearly seven years of writing this blog, I will be moving it to the Blog page of the Swenson Lervick Law Firm website, and I hope that you will continue to follow me there. To make it easy for you to continue your subscription, all you need to do is go to that page by clicking here and scrolling down the right column to

subscribe-button

 

 

 

Enter your email address, and click “subscribe.” You should receive a confirmation email (if not, please check your spam filter).

As a subscriber, you will continue to receive periodic updates on timely employment law topics, as well as updates on other legal issues ranging from family law to wills, estate planning and real estate.

If you have questions about this, please contact me at taj@alexandriamnlaw.com.

Thanks for following the Human Resource Legal Resource Blog, and I look forward to seeing you at the Swenson Lervick site!

Copyright 2017 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA.

 

November 23, 2016

New Overtime Rule BLOCKED by Texas Court

Posted in Uncategorized at 9:26 am by Tom Jacobson

With a 20-page ruling yesterday, a federal court in Texas has issued a nationwide preliminary injunction blocking the implementation of the Department of Labor’s new overtime rules, which were set to go into effect on December 1, 2016.

Those new rules would have increased the salary threshold for the “white collar” exemptions under the Fair Labor Standards Act from just over $24,000.00 per year to nearly $48,000.00 per year, but because of this preliminary injunction, those rules will not go into effect — at least for now.

The court noted that under the FLSA, whether these exemptions apply requires consideration of not only the amount the employee’s pay, but also the employee’s duties. The court reasoned that by nearly doubling the salary test, the DOL overstepped its authority and essentially supplanted the duties test with the salary test. That, the court noted, is the responsibility of Congress, not the DOL.

What this means for employers is that for now, they may continue to use the existing salary threshold ($455.00 per week; $23,660.00 per year) when evaluating whether these exemptions  apply to their employees. This does not, however, change the fact that in order to qualify for these exemptions, employees must still meet one of the “duties” tests set forth in the FLSA.

Also, it is important to note that the judge only issued a preliminary injunction, and it is subject to appeal. Therefore, it is possible that this decision could be overturned, but for the time being employers may continue to apply the current salary threshold.

For more information about these or other employment law issues, please contact me at taj@alexandriamnlaw.com.

The comments posted in this article 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 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA.

 

May 18, 2016

Long Awaited New Overtime Rules Issued

Posted in Administrative Exemption, Computer-related Occupations Exemption, Executive Exemption, Exempt/Non-Exempt Employees, Fair Labor Standards Act, Outside Sales Exemption, Overtime, Professional Exemption, Uncategorized tagged , , , , , , , at 1:15 pm by Tom Jacobson

time clockThe much-anticipated new overtime rules have been issued by the United States Department of Labor. The new rules will go into effect December 1, 2016 so employers will have until then to prepare.

The Society for Human Resource Management (SHRM) has published an excellent summary of the new rules, and I encourage you to review that. Then, contact me to discuss how to implement the new rules in your workplace.

Also, the new rules will be discussed at the 13th Annual West Central Minnesota Employment Law Update. There are still a few seats available at the seminar — click here for registration information.

For more information about these or other employment law issues, please contact me at taj@alexandriamnlaw.com.

The comments posted in this article 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 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA.

January 26, 2016

Save the Date! 13th Annual West Central MN Employment Law Update Set

Posted in Uncategorized at 12:10 pm by Tom Jacobson

The thirteenth annual West Central MN Employment Law Update will be held Thursday, June 2, 2016 at Alexandria Technical and Community College. The session will include presentations by four attorneys who practice extensively in the area of employment law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips.

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.”
  • “Very informative — loved it.”

We hope you can join us on June 2 for the 13th Annual West Central MN Employment Law Update! Stay tuned for registration, agenda and other details.

Copyright 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

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

August 26, 2015

Target Settlement Sheds Light on Disparate Impact Discrimination

Posted in Application Process, Background Checking, Disability, Discrimination, Disparate Impact, Disparate Treatment, Gender / Sex, Race, Uncategorized tagged , , , , , , , at 9:15 am by Tom Jacobson

By now, you’ve probably read or heard about Target Corporation’s agreement to pay $2.8 million to settle an EEOC discrimination charge. Unlike a “disparate treatment” case where the plaintiffs claim that an employer’s actions were motivated by discriminatory intent, this was a “disparate impact” case where the EEOC alleged that screening tests used by Target disproportionately excluded applicants on the basis of race and gender and violated the Americans with Disabilities Act. So, what’s the difference between “disparate impact” and “disparate treatment” discrimination?

Disparate impact discrimination cases typically arise out of pre-employment tests, medical exams, background check policies and similar assessments that are used to screen candidates for a job or advancement within a company. The theory was first recognized by the United States Supreme Court in 1971 in the case of Griggs v. Duke Power Co. In that case, the Court noted that:

[Title VII of the Civil Rights Act of 1964] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [a protected class] cannot be shown to be related to job performance, the practice is prohibited.

The Griggs Court also stressed that good intentions do not matter, for “[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

Thus, in a disparate impact case, the focus is not on evidence that the employer intended to discriminate.  Rather, the focus is on statistics. If the statistics show that the employer’s screening practice — no matter how innocuous on its face — has a substantial adverse impact on a protected group, the employer must show that the practice is job-related for the position in question and consistent with business necessity. The employer might still lose the case if there is evidence that the company refused to adopt an alternative employment practice that would have served the employer’s legitimate interests without creating a disparate impact on a protected class.

In contrast, in a disparate treatment case, the focus is on evidence of the employer’s intent. If the evidence shows that the employer intentionally discriminated against an employee or applicant on the basis of a protected classification, the employer will be held liable for unlawful employment discrimination based on the disparate treatment theory.

In addition to paying nearly $3 million to settle the EEOC case, Target also agreed to several non-monetary terms, such as:

  • Not using the assessments again as part of its exempt-level employment selection procedures;
  • Changing its applicant tracking systems to ensure that the collection of data is sufficient to assess adverse impact;
  • Performing a predictive validity study for all exempt assessments currently in use and any new assessments the company expects to use;
  • Monitoring its assessments for exempt-level professional positions for adverse impact based on race, ethnicity and gender; and
  • Annually providing the EEOC with a detailed summary of the studies and the adverse impact analysis conducted.

As the Target case shows, even seemingly innocent employment screening practices can violate Title VII and other anti-discrimination laws. Therefore, employers who use such devices should carefully evaluate their potential adverse impacts before using or continuing them.

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 Cass, PA

January 16, 2015

Poll: Obama’s push for mandatory paid sick leave is not a good idea

Posted in Family and Medical Leave Act (FMLA), Leaves of Absence, Sick Leave, Uncategorized tagged , , , , at 1:08 am by Tom Jacobson

paid sick leavePresident Barack Obama has recently pushed for mandatory paid sick leave for American workers. He asked for federal, state and local measures that would allow workers to earn up to a week of paid sick time annually. His proposals include a request for more than $2 billion in new spending to urge states to create paid family and medical leave programs.

For more details on his proposal, see reports by the Washington Post, USA Today, Baltimore Sun, Fox News and numerous other media outlets.

I asked my readers what think about this idea. Their response? They don’t like it:

Mandatory Paid Sick Leave Poll Results

Only time and politics will tell whether their views are reflected in Washington.

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

January 5, 2015

MDHR Mediation — a Cautionary Tale

Posted in Alternative Dispute Resolution, Discrimination, MDHR Mediation, Mediation, Minnesota Human Rights Act, Uncategorized tagged , , , at 11:33 am by Tom Jacobson

Mediated Settlement AgreementI am a strong advocate for mediation as a form of alternative dispute resolution (“ADR”). However, a recent Minnesota Department of Human Rights (“MDHR”) case should cause anyone with charges pending before that agency to think twice before participating in MDHR mediation.

For the uninitiated, mediation is an ADR process where someone trained as a neutral (usually an attorney) is hired to meet with the parties and facilitate a discussion which, in the majority of cases, results in settlement of the dispute. It is a highly effective form of ADR.

When employment discrimination charges are filed with MDHR, the agency will often offer to mediate the dispute. Parties who agree to MDHR mediation hope for the same outcomes to be achieved as in private mediation; that is, saving the expense and delay of litigation, fashioning their own relief, maintaining a level of confidentiality, and avoiding the risk of a judge or jury publicly deciding their fate. An additional benefit of MDHR mediation is that the agency provides the mediator at no cost to the parties, whereas the parties typically share the cost of a privately retained mediator.

One recent MDHR case highlights the potential for unintended consequences of MDHR mediation. The case involved discrimination charges filed against Alexandria Light and Power (“ALP”) by an employee who had resigned. The case was settled through MDHR mediation with an agreement for the claimant to paid $65,000.00 by ALP’s insurer and with no admission of liability or findings of wrongdoing by ALP. This part of the process seemed to accomplish the parties’ goals of saving costs and minimizing risk.

However, after the settlement was reached, MDHR publicized the outcome with a press release that was posted on its website and then re-distributed by local and statewide media. The problem with the MDHR press release was that it did not accurately describe the case or the settlement. Consequently, ALP issued its own statement to correct the misinformation.

Because ALP is a municipally owned utility, state law required that the settlement be public information; therefore, the parties did not expect the settlement to remain confidential. However, having the settlement inaccurately described in an MDHR press release was an unexpected twist.

Thus, parties facing MDHR charges should bear in mind the possibility of the agency publicizing the outcome of a settlement. To minimize that risk, consider using a private mediator, include confidentiality clauses (to the extent allowed by law), and if utilizing MDHR mediation, discuss beforehand with the agency any publicity limits that may be imposed.

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

September 24, 2014

Dazed and confused: medical marijuana and the workplace

Posted in Drug and Alcohol Testing, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act, Uncategorized tagged , , at 5:05 pm by Tom Jacobson

Marijuana-leaf_620x414Minnesota’s legalization of medical marijuana is intended to provide relief for patients suffering from a narrow list of qualifying medical conditions. Minnesota employers may, however, feel a bit dazed and confused about its workplace implications. Let’s try to clear that purple haze.

The main thing employers need to know is that the law prohibits them from discriminating in two distinct ways.  First, employers must not discriminate in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s enrollment in the state’s medical marijuana registry program. In other words, employers cannot take adverse action against someone just because he or she is a patient enrolled in the program.

Second, employers must not discriminate against someone who tests positive for cannabis unless the person used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Thus, being on the registry is not permission to show up stoned or light up at work.

It’s important to note that under this new law, these two forms of discrimination are actually permitted if not discriminating would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations. Because of this exception, employers need to take a close look at whether or not they are subject to any federal laws or regulations or licensing restrictions regarding their employees’ marijuana use.

The law also allows a person to present, as part of his or her explanation of a positive test under Minnesota’s Drug and Alcohol Testing in the Workplace Act, verification of his/her enrollment in the state’s patient registry. Although the verification might help explain the positive test, the law does not say that such a verification justifies using, possessing or being impaired by cannabis at the workplace or during work hours. Thus, employers with MDATWA-compliant drug and alcohol testing policies will need to be prepared to address such explanations if provided.

Finally, although the law passed on May 29, 2014, the workplace implications of medical marijuana will not hit until mid-2015. According to the Minnesota Department of Health, patient registrations will not be accepted until May or June of next year, and medical cannabis will not be available until July 1, 2015. Nevertheless, employers should prepare for this by adopting or modifying workplace drug and alcohol policies, including MDATWA-compliant testing policies, to address these issues.

Still confused? Try a bit of Jimi at Woodstock. Then 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

July 28, 2014

Minimum wage hike takes effect Friday

Posted in Minimum Wage, Uncategorized tagged at 11:28 am by Tom Jacobson

Minnesota_State_Capitol_5The first phase of Minnesota’s minimum wage increases will take effect this Friday, August 1, 2014. Starting then, small employers must pay at least $6.50 per hour, and large employers must pay at least $8.00 per hour.

The law also allows for a 90-day training wage and a youth wage, both of which mirror the small employer minimum wage rates. It also includes automatic increases on August 1, 2015 and August 1, 2016, and it allows for inflationary increases starting in 2018.

For minimum wage purposes, state law defines a large employer as any enterprise with an annual gross dollar volume of sales made or business done of $500,000.00 or more. A small employer is any enterprise with an annual gross volume of sales made or business done of less than $500,000.00.

For more information about this article, please see the Minnesota Department of Labor and Industry’s fact sheet on minimum wage rates, the DOLI’s related Employer Fact Sheet, 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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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