October 17, 2012

Why Honesty Is Always the Best Policy — Especially on a Job Application

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Dishonesty, Dishonesty, Misconduct, Unemployment Benefits tagged , , , , , , , at 10:54 am by Tom Jacobson

UPDATE: Due to an amendment to Minn. Stat. § 364.021 (effective Jan. 1, 2014), this article is outdated. For an update, see Ban the Box.

Years ago when I was a newly minted lawyer, a college buddy of mine was in a pickle.  He was applying for a job, and the application form asked if he’d ever been convicted of a crime.  “Remember my little run-in with the cops when they crashed that party I was at?” he asked. “Well, I got charged with a misdemeanor, but I’ve paid the fine and done the time, and it really has nothing to do with the job I’m applying for. Do I really need to disclose it?”

More recently, a number of my employer clients have asked, “May we ask about applicants’ criminal convictions, and if they disclose convictions, may we consider them in the hiring process?”

The answer to all of these questions is generally yes, and a recent Minnesota Court of Appeals case illustrates one of the reasons why.

The case involved Ryan Goebel, who in 2011 applied for a part-time job as a pizza cook at a Casey’s General Store. The application form asked if he had “ever been convicted of a crime other than a routine traffic violation.” Goebel failed to disclose his 1996 misdemeanor theft conviction or his 1997 convictions for gross misdemeanor check forgery and fifth-degree criminal sexual conduct.

Casey’s hired Goebel but later fired him after they learned about his criminal past. Goebel applied for unemployment, but his benefits were denied on the basis that his failure to disclose the convictions was misconduct that disqualified him from benefits.

Goebel appealed the decision, and in an October 15, 2012 decision the Court of Appeals affirmed the denial. In reaching its decision, the Court observed that:

[Goebel’s] theft, check forgery, and criminal sexual conduct may have been immaterial to his performance as a pizza cook, but they were not immaterial to his behavior as an employee with access to cash and inventory and contact with customers…. Casey’s had a right, arguably even a duty, to discover if prospective employees had a history of dishonest or inappropriate behavior. Thus, honesty in filling out a job application was a standard of behavior Casey’s had the right to reasonably expect, and [Goebel] violated that standard.

What you need to know: Applicants need to be honest on their applications, even if that means disclosing a prior criminal conviction. Even if a prior conviction has nothing to do with the job being applied for, the failure to disclose it may be considered misconduct because honesty on a job application is a standard of behavior employers have a right to reasonably expect. Employers have a right — and arguably a duty — to ask about an applicant’s prior criminal convictions. If such convictions are material to the job, they can — and should — be taken into account when evaluating the candidate’s application.  However, before using criminal records as a part of their hiring process, employers should familiarize themselves with the EEOC’s Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

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

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October 12, 2011

What does your tech policy say?

Posted in Employee Handbooks, Facebook, Internet Policies, Misconduct, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , at 8:27 am by Tom Jacobson

Facebook.  LinkedIn.  E-mail.  The web.  Smart phones.  We all know that the latest and greatest technology advances have become indispensable tools for business and personal use, but when personal use interferes with business, the troubles at work start to brew.   Employers with well-drafted technology use policies can keep those troubles to a minimum.

Washington County (MN) recently benefited from its own “acceptable use” policy in case decided by the Minnesota Court of Appeals (Misenor v. County of Washington). The case involved Lori Misenor, who was fired after the county discovered that over 25 workdays, Misenor sent 342 personal e-mails from her county e-mail account during business hours.  Moreover, her personal e-mails often contained information about her husband, children, finances, extramarital affair or affairs, critiques of her job and coworkers, her search for a new job, and racially insensitive material.  The Court of Appeals concluded that this was misconduct which disqualified Misenor from unemployment benefits.

Key to the Court’s decision was the fact that Washington County had an “acceptable use” policy regarding its information technology resources. Regarding this policy, the Court noted:

In this case, the county has a policy that limits the amount of personal use of the county’s e-mail system and also prohibits e-mail messages with material that is ‘obscene, pornographic, [or] racially or sexually harassing or explicit.’  This is a reasonable policy that establishes a standard of behavior that the county has the right to reasonably expect of its employees…. Despite this policy, Misenor sent 342 personal e-mails over a 25-workday period. Many of the e-mails are lengthy, indicating that Misenor took considerable time away from her duties to engage in e-mail correspondence. In addition, some of her e-mails contained racially insensitive and sexually explicit material. Misenor’s repeated violations of the county’s policy display a serious violation of the standards of behavior that the county has the right to reasonably expect of her.

Information technology policies are important for many other reasons.  Well-drafted policies set the standards of behavior that employers can expect, so they can provide the basis for disciplinary action and a defense to many legal claims. However, poorly drafted use polices have been held to violate the National Labor Relations Act (see NLRB challenges Facebook firingFacebook firings revisited – NLRB extends its reachFacebook firing case settled).

For more information about how to craft an effective technology use policy, 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 Schultz, PA

September 14, 2011

A poke is no joke

Posted in Misconduct, Physical Contact, Single Incident, Unemployment Benefits, Workplace Violence tagged , , , at 10:01 am by Tom Jacobson

In a case involving a workplace “poking” incident, the Minnesota Court of Appeals has ruled that there is no “single incident” exception to employment misconduct under the Minnesota Unemployment Insurance Law.

The case, Potter v. Northern Empire Pizza, Inc., involved Roger Potter and his coworker, Dylan Kaste, both of whom were employed as Domino’s Pizza delivery drivers in the Fargo-Moorhead area.  While on the job, Kaste grabbed Potter’s keys (which were lying near a delivery bag), yelled at Potter, then “threw” the keys onto a desk.   Potter got upset, and later in their shift, he poked Kaste in the side as Kaste passed by.  Kaste “spun around” and yelled, “you suck.” The company discharged Potter the next evening and suspended Kaste. The only reason for Potter’s termination was the single poking incident.

Potter began collecting unemployment benefits, but the Minnesota Department of Employment and Economic Development (DEED), later determined he was ineligible for benefits and ordered him to repay the benefits he had received. An Unemployment Law Judge (ULJ) agreed with DEED’s decision, and Potter appealed his case to the Minnesota Court of Appeals.

The main issue before the Court was whether the single poking incident was misconduct that disqualified Potter from eligibility for unemployment benefits. The Court first summarized the “rise and fall” of the “single incident exception” under the Minnesota Unemployment Insurance Law and ultimately concluded that the exception no longer exists:

The former single-incident or hothead-incident exception to the definition of employment misconduct no longer exists and employers may reasonably expect employees to refrain from engaging in even single acts of combative physical contact. The single incident of Potter intentionally poking his coworker in the ribcage constitutes employment misconduct. Because no exception to Potter’s employment misconduct applies, we affirm the ULJ’s determination that Potter is ineligible to receive unemployment benefits.

However, the Court also noted that although there is no “single incident exception,” the law still requires a ULJ to consider whether a discharge was for “only a single incident” when determining whether misconduct occurred.

For employers and employees and employers alike, the lesson is that when at work, a poke is no joke:  even if it is a single combative act, it can be misconduct under the Minnesota Unemployment Insurance Law.

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 Schultz, PA

August 31, 2011

Better late than never? Employee wins unemployment claim after two month absence

Posted in Absenteeism, Absenteeism, Attendance, Leaves of Absence, Misconduct, Unemployment Benefits, Unexcused Absence tagged , , , at 9:29 am by Tom Jacobson

In a case that proves that things are not always as they seem, a Minnesota employee has been awarded unemployment benefits despite her failure to report to work for two months.

The case, Genemo v. Donatelle Plastics, Inc., involves Hawi Genemo who was employed by Donatelle Plastics, Inc.  After learning that her mother was seriously ill in a remote area of Africa, Genemo requested and was granted a leave of absence to visit and care for her mother.  The leave was to run from April 21 to May 19, 2010, and she was also told she could request additional time off if needed.

Unfortunately, while in Africa Genemo encountered civil unrest and a lack of mail, electricity, phone service and Internet. Thus, she was unable to contact Donatelle about her situation.  Because of the lack of contact, Donatelle discharged her effective May 27, 2010.  Genemo returned in July, 2010.

Genemo was initially disqualified from unemployment benefits on the basis that her failure to keep in contact with her employer was employment misconduct. The Minnesota Court of Appeals disagreed.  Relying on Minn. Stat. § 268.095, Subd. 6(b)(8), the court noted that it is not employment misconduct when an employee is absent “with proper notice to the employer, in order to provide necessary care because of the illness, injury, or disability of an immediate family member of the applicant.”  Because the initial notice was proper and because further notice was deemed “impractical if not impossible,” the court ruled that even though Donatelle’s decision was reasonable, Genemo’s absence and failure to contact Donatelle was not employment misconduct, so she was deemed eligible for unemployment benefits.

The case reminds us that things are not always as they seem.  Here, the employee’s unique circumstances fit within a narrow exception in Minnesota’s unemployment statute.  The lesson is that jumping to conclusions about an employee’s situation can lead to costly litigation.

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

July 27, 2011

When it quacks like a duck, it’s a duck: why independent contractor titles don’t matter much

Posted in Discrimination, Fair Labor Standards Act, Independent Contractors, Independent Contractors, Leaves of Absence, Personnel Records, Unemployment Benefits tagged , , at 10:29 am by Tom Jacobson

I often hear employers and employees describe their relationship as an “independent contractor” arrangement, as opposed to an employer/employee relationship.  When I ask why they believe that, a typical response is that they have agreed to call it that.  A recent Minnesota Court of Appeals decision re-affirms that when it comes to independent contractor status, titles don’t matter much.

The case is Haugtvedt v. FJF Enterprises of Ramsey, Inc.  FJF is a tax preparation and accounting services firm, and Cara Haugtvedt was a CPA for the firm from 2005 until 2009.  At the beginning of their relationship Haugtvedt and FJF agreed that she would be considered an independent contractor.  Haugtvedt was terminated when negotiations for her to buy the business failed.  Haugtvedt applied for unemployment benefits.  The Minnesota Department of Employment and Economic Development (DEED) then performed and audit of FJF and concluded that despite her “independent contractor” title, Haugtvedt was an employee of FJF, and an unemployment law judge (ULJ) ultimately awarded unemployment benefits to Haugtvedt.

FJF appealed the ULJ’s decision to the Minnesota Court of Appeals, which affirmed the ULJ’s decision.  In its review of the ULJ’s decision, the appellate court went through a detailed analysis of the actual working relationship between FJF and Haugtvedt.  The court specifically reiterated that “The nature of the relationship of the parties is to be determined from the consequences which the law attaches to their arrangement and conduct rather than the label they might place on it.”  The court then applied the following five factors to the FJF/Haugtvedt relationship:  (1) FJF’s right to control the means and manner of Haugtvedt’s performance; (2) the mode of payment; (3) FJF’s furnishing of materials or tools; (4) FJF’s control over the premises where Haugtvedt’s work was done; and (5) FJF’s right to discharge Haugtvedt.  The court also applied a laundry list of other criteria found in the Minnesota rules for unemployment claims.  After applying all of these factors, the court agreed that despite her independent contractor title, Haugtvedt was indeed an employee of FJF.

This problem is not limited to claims for unemployment.  A misclassification of an employee as an independent contractor can also result in claims for unpaid wages, overtime, and taxes.  It can also mean that the worker is protected by other laws such as the multitude of laws that provide for leaves of absence, reasonable accommodations for disabilities, maintaining of personnel records, etc.

The Haugtvedt case is another reminder that when it comes to employer/employee relationships, if it quacks like a duck, it’s a duck, even if you call it a goose.  So, make sure you know your ducks from your geese.

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 21, 2011

“May” may mean “may” after all

Posted in Absenteeism, Attendance, Misconduct, Progressive Discipline, Unemployment Benefits tagged , , , , , at 12:13 pm by Tom Jacobson

The Minnesota Supreme Court rarely considers claims for unemployment benefits.  That is because most unemployment claims are resolved at the administrative level or by the Minnesota Court of Appeals.  So, when the Supreme Court decides an unemployment case, it’s worth noting.  The Court did so on April 20, 2011, and the decision relates to my post last June regarding Stagg v. Vintage Place, Inc. (When “may” means “must” in a progressive discipline policy, according to the Minnesota Court of Appeals).

In the Stagg case, an employee was fired because of his attendance problems.  The employer’s policies said that for attendance issues, the employee “may” be subjected to progressive discipline.  When it considered the case, the Court of Appeals ruled that despite the word “may” in the policy, the employer could not skip steps.  The appellate court reasoned that the employer’s only discretion was whether to discipline at all, and once the employer decided to discipline for the attendance problem, the employer had to follow each progressive step.  Because Stagg’s employer skipped a step and fired the employee, the court ruled that the employee’s absenteeism was not employment misconduct.

The Minnesota Supreme Court has now reversed the Court of Appeals (see Stagg v. Vintage Place, Inc., http://1.usa.gov/eJF7gk).  The Supreme Court held that when the issue in an unemployment benefits case is employee misconduct, the focus is on the employee’s conduct, not on the employer’s progressive discipline policies.  Specifically, the court stated, “[W]hether an employer follows the procedures in its employee manual says nothing about whether the employee has violated the employer’s standards of behavior. Put another way, an employee’s expectation that the employer will follow its disciplinary procedures has no bearing on whether the employee’s conduct violated the standards the employer has a reasonable right to expect or whether any such violation is serious.”  Because this employer’s attendance policies were clearly stated and communicated to the employee, the court said the employee’s violations were misconduct even though the employer skipped a step in its process.

However, the Supreme Court stopped short of interpreting “may” in this employer’s progressive discipline policy.  The court said that whether or not that language created a contract and whether such a contract was breached would be relevant in a breach of contract case brought by the employee against the employer, but they are not the standard for deciding “misconduct” for the purposes of deciding eligibility for unemployment benefits.

While the Supreme Court’s decision helps employers by clarifying the standard for determining “misconduct” in unemployment benefits cases, the meaning of “may” in a policy such as the one in the Staggcase remains unclear.  Thus, if an at-will employer wishes to retain as much flexibility as possible in its discipline policy, the policy should be written in a way that retains the employer’s discretion over not only when to discipline, but also over how to discipline.

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

March 4, 2011

Liar liar, time to fire?

Posted in Dishonesty, Misconduct, Unemployment Benefits tagged , , , , , , , , at 8:50 am by Tom Jacobson

“You can’t handle the truth!”  (Jack Nicholson, as Col. Nathan R. Jessep, in  A Few Good Men, 1992 http://www.youtube.com/watch?v=8hGvQtumNAY).  It must be that some job applicants believe their potential employers can’t handle it, either.

The Huffington Post recently ran a story about Ruth Lyons’ struggle to find a job (Big Retail Companies Require Job Applicants to Disclose Their Age, http://huff.to/gczZGx).  The story describes how several large companies require applicants to disclose their age on job applications.  As noted in the story, although the practice is technically lawful, it would likely raise a red flag in any age discrimination case.

But a more interesting aspect of the story is how Lyons handled her job search:  she lied.  According to the story, after she was rejected for several jobs where she had listed her true birth date (April 28, 1951), Lyons started listing her birthday as April 28, 1969.  One company, which had never responded to her application when she used her correct birthdate, hired her after she re-applied using her fake age.

Though Lyons’ approach may have landed her a job, it raises another question: What are the employer’s rights when an employee lies on a job application or during an interview?  Resume’ puffing is nothing new, but what about outright lies during the application process?

The Minnesota Court of Appeals recently grappled with this in the case of Santillana v. Central Minnesota Council on Aging (http://bit.ly/gIZt3o).  In that case, Krista Santillana was fired by one employer for theft, but when she later applied for a job with Central Minnesota Council on Aging, she told them she had left the previous job because she was interested in part time work.  When CMCA found out about her history, they fired her.  Santillana applied for unemployment, and the Court of Appeals eventually ruled that by lying during the application process, she failed to disclose a fact that was material to her job.  Therefore, the court held that Santillana committed misconduct that disqualified her from unemployment benefits. 

The Santillana case should not, however, be interpreted to mean that an applicant’s dishonesty gives an employer a free pass for discipline or discharge.  The case was about a lie that was material to the applicant’s job, and the legal issue was the impact of that lie on the employee’s claim for unemployment benefits.  Furthermore, in other cases courts have ruled that an employee’s lie during the application process does not provide an employer with an automatic defense to certain discrimination claims. 

Nevertheless, a lie by an applicant should certainly give any employer a good reason to question that person’s future as an employee.  Providing notices about the importance of honesty and full disclosure during the application process would certainly help the employer if a lie is discovered post-hire.  And, diligent follow-through with reference and background checking will help ferret out the applicants who lack the integrity expected of any employee.

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

January 5, 2011

Packin’ heat at work – is it always employment misconduct?

Posted in Employee Handbooks, Firearams / Guns, Firearms / Guns, Firearms / Guns, Misconduct, Unemployment Benefits, Workplace Violence tagged , , , , , , at 10:20 am by Tom Jacobson

After Derek Schroeder was fired for bringing a gun to work, he applied for unemployment benefits. Not surprisingly, he was denied on the basis that he had committed employment misconduct. That outcome may seem predictable, but a closer look shows that had the facts been slightly different, Schroeder may have won his case.

Schroeder worked as a full-time casino investigator for the Mille Lacs Band of Ojibwe Indians.  He also worked as a part-time police officer for the Mille Lacs Tribal Police Department. One evening, Schroeder needed to attend training for his police job after his investigator job. He was required to bring his handgun to the training. Rather than leave his gun at home or in his car, he put it in a duffel bag which he brought into the casino.  During his shift at the casino, he showed the gun to a co-worker.

The Minnesota Court of Appeals declared this to be misconduct for two reasons. First, the employer had a policy which expressly prohibited the possession of firearms in the workplace. Thus, by bringing a gun to work, the court said Schroeder committed misconduct by knowingly violating a reasonable employment policy. Second, the Court noted that by bringing the handgun to work and displaying it, Schroeder committed employment misconduct by creating a safety risk which was the reasonable basis for the employer’s no-guns policy.

Key to the Court’s decision was the fact that the employer had a policy prohibiting the possession of firearms at work. The Court also noted that Schroeder displayed the gun to a co-worker.  Had the company not had the policy, or had Schroeder kept the gun concealed in his bag, perhaps the outcome would have been different.  The case points out that well-drafted policies help define employment misconduct — even when it seems obvious.

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.

November 3, 2010

Is viewing online porn at work employment misconduct if there’s no policy prohibiting it?

Posted in Computer Use, Employee Handbooks, Employees' Privacy, Misconduct, Pornography at Work, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , , at 7:47 pm by Tom Jacobson

Blayne Brisson was a full-time utility-maintenance supervisor for the city of Hewitt, MN.  After someone complained that they had seen him using his work computer to view pornography, the city conducted an investigation which uncovered more than 150 pornographic images on his computer.  Brisson later admitted the allegations.

After the city fired Brisson, he filed for unemployment.  The unemployment law judge (ULJ) disqualifed Brisson for unemployment benefits on the basis that he had committed employment misconduct.  Brisson then appealed the ULJ’s determination to the Minnesota Court of Appeals where he argued that he did not commit employment misconduct because the city’s employee handbook did not prohibit viewing pornography on the city’s computers.

In a November 2, 2010 decision the Court of Appeals rejected Brisson’s appeal after concluding that his “use of his employer’s computer to open pornographic e-mail attachments and access pornographic websites seriously violated a standard of behavior that the employer had a right to reasonably expect of [Brisson], even though the employer had not adopted a policy that prohibited [Brisson]’s conduct.”

The court’s decision gives us some assurance that there are types of misconduct that are so obvious that no written policy is needed to prohibit them.  It also highlights the growing problem of the abuse of employers’ technologies.  Despite the court’s assurances in the Brisson case, the best practice is to develop policies that define employees’ technology 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.

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