October 16, 2014

Workplace bullying: on the job with Scut Farkus

Posted in Bullying, Bullying, Cyber Bullying, Discrimination, Harassment, Harassment, Hostile Work Environment, Workplace Violence tagged , , , , at 10:30 am by Tom Jacobson

Scut Farkus

Scut Farkus – future workplace bully?

In the holiday classic A Christmas Story, playground bully Scut Farkus torments Ralphie Parker until Ralphie pummels Scut after one too many snowballs to the face. We cheer for Ralphie because he’s the good kid who takes a stand against Scut’s relentless bullying. But what happens when Scut gets a job? What is the law on workplace bullying?

I recently attended a community conversation about workplace bullying. The discussion confirmed that there is much confusion about the topic. The debate is no doubt fueled by recent media attention and legislative attempts to regulate bullying.

Those efforts have been partially successful in the school setting. For example, the State of Minnesota earlier this year passed the Safe and Supportive Schools Act. This new law defines and regulates bullying in the state’s public and charter schools. However, workplace bullying is neither defined nor prohibited by any state or federal law.

Even if the conduct creates a hostile work environment, bullying alone is not unlawful unless the behavior violates some other established law. Recent court decisions emphasize how difficult it is to turn garden-variety bullying into a legal claim.

For example, in Johnson v City University of New York, an employee claimed that a co-worker’s bullying violated Title VII. The judge last month threw out the case, saying:

Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.

The Minnesota Court of Appeals last year overturned a $270,000.00 Ramsey County jury verdict in favor of an employee who reported being bullied by his boss (see Absey v. Dish Network, LLC). Because Minnesota has no anti-workplace bullying law, the plaintiff’s legal theory was actually based on Minnesota’s whistle-blower law, Minn. Stat. § 181.932. In reversing the jury’s verdict, the Court of Appeals ruled that the plaintiff failed to prove that the employer’s adverse action against him was because he complained about his boss.

Bullied employees have found some limited success in the courts. In one Indiana case, Raess v. Doescher, an employee won a lawsuit based on his employer’s behavior, which the court described as “aggressively and rapidly advanc[ing] on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” This conduct could certainly be characterized as “bullying,” but the plaintiff won his case not because he was “bullied” but because the jury found the employer’s conduct to be an assault under Indiana law.

These cases underscore the current reality that when employees are confronted by a Scut Farkus-like co-worker, there are no laws specifically defining or prohibiting workplace bullying. However, if the bully’s conduct is egregious enough, there already exist other legal claims that could provide recourse. In addition to assault and whistle-blower claims, it is conceivable that under the right set of facts, bullied employees could successfully sue for intentional infliction of emotional distress, negligence or other wrongs based on another employee’s bullying behaviors. And, when bullying is based on employees’ protected class status, they may have viable claims under Title VII and/or comparable laws.

But rather than litigation and legislation, perhaps the better solution is to curb such behaviors through better employment policies and practices that encourage and model respectful working relationships.

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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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April 24, 2014

Women’s Economic Security Act Passed by MN House

Posted in Care of Relatives Leave, Caregiver Leave, Discrimination, Domestic violence, Employee Handbooks, Equal Pay, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Gender / Sex, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, Nursing Mothers, Pregnancy, Reasonable Accommodation, Workplace Violence tagged , , , , , , , , , at 11:32 am by Tom Jacobson

The Minnesota House of Representatives on April 9, 2014 passed the Women’s Economic Security Act (HF 2536) by a 106-24 vote. The companion Senate bill (SF 2050) awaits action in the Senate.

According to the Senate’s bill summary, the law will:

  • Allow mothers to stay in the workplace by expanding family leave and providing minor, reasonable accommodations for pregnant and nursing employees;
  • Decrease the gender pay gap through the participation of women in high-wage, high-demand nontraditional work;
  • Reduce the gender pay gap through increased enforcement of equal pay laws for state contractors and by allowing employees to discuss pay inequities;
  • Address economic consequences of domestic violence, stalking, and sexual assault;
  • Enhance retirement security by considering a state retirement savings plan for those without an employer-provided option
  • Expand grandparent care-giving options.

The law would also allow employers to reduce the period of leave it may require by the amount of any paid leave or leave required by the Family and Medical Leave Act (FMLA), so that the total time off does not exceed 12 weeks. The new law would clarify that only 12 weeks of leave are required even if the employee is eligible for both state and federal leave.

What you need to know: If enacted into law, this legislation will require most Minnesota employers to take a close look at their existing policies and procedures and to make any changes necessary to bring them into compliance.

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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 31, 2014

Ban the box

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Workplace Violence tagged , , , , , at 2:56 pm by Tom Jacobson

Crime Scene TapeOne of the more challenging aspects of hiring can be knowing when and how to conduct a criminal background check on a potential employee. In a previous article I noted how asking for such information during the application process is generally a good idea. However, a recent change in the law now prohibits Minnesota employers from inquiring into an applicant’s criminal history until after the candidate is selected for an interview, or if there is not an interview, after a conditional job offer has been made to the candidate. In essence, this change now bans the “Have you ever been convicted of a crime?” box on all Minnesota job applications.

Employers wishing to conduct criminal background checks on prospective employees should also familiarize themselves with the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions  Under Title VII of the Civil Rights Act of 1964. This guidance, which is based on established federal law, confirms that the use of criminal records when making employment-related decisions must be job-related and consistent with business necessity.

Despite these challenges, checking into a prospective employee’s criminal background is still a good idea. Doing so can help an employer avoid hiring an employee whose history indicates a potential threat to the company, its employees, customers, vendors or the general public. The trick is knowing what to ask and when to ask it.

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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 25, 2013

Register now for Employment Law Update!

Posted in Affordable Care Act, National Labor Relations Act, Training, Workplace Violence tagged , , , , , , at 10:14 am by Tom Jacobson

Registration is now open for the 2013 West Central Minnesota Employment Law Update.  The event will be held on Thursday, June 6 at Alexandria Technical and Community College. The line-up will include:

  • Hot off the Press – the latest in employment law developments, presented by yours truly
  • What employers need to know about the Affordable Care Act, presented by attorney Dorraine Larison
  • Legal implications of workplace violence & bullying,  presented by attorney Sara Gullickson McGrane
  • What all employers need to know about labor law, presented by attorney Mike Moberg
  • Panel discussion with presenter Q&A

Click here for the full agenda. Seating is limited, so click here to register early!

Some comments from prior updates:

  • Great information
  • Loved the knowledge and collaboration
  • Loved the panel discussions
  • All the professionals were “on the spot”

Continuing education credit will be available.

For more information, contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com. This will be our 10th annual update, and we hope that you can join us!

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

March 20, 2013

Save the date!

Posted in Affordable Care Act, National Labor Relations Act, Training, Workplace Violence tagged , , , , , at 9:31 am by Tom Jacobson

Save the DateThe 2013 West Central Minnesota Employment Law Update will be held on Thursday, June 6 at Alexandria Technical and Community College. The line-up will include:

  • Hot off the Press – the latest in employment law developments, presented by yours truly
  • What employers need to know about the Affordable Care Act, presented by attorney Dorraine Larison
  • Legal implications of workplace violence & bullying,  presented by attorney Sara Gullickson McGrane
  • What all employers need to know about labor law, presented by attorney Mike Moberg
  • Panel discussion with presenter Q&A

Some comments from prior updates:

  • Great information
  • Loved the knowledge and collaboration
  • Loved the panel discussions
  • All the professionals were “on the spot”

Continuing education credit will be available. Additional details and registration information will be published soon, so check back here often, or contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com for additional details. This will be our 10th annual update, and we hope that you can join us!

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

February 1, 2013

Family of shooting victim sues Accent Signage

Posted in Background Checking, Bullying, Firearms / Guns, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision, Physical Contact, Workplace Violence tagged , , , , , at 6:04 pm by Tom Jacobson

Kare 11 and NPR are reporting that the family of Jacob Beneke, who was shot and killed in the Sept. 27, 2012 Accent Signage shooting incident in Minneapolis, has sued the company and the estate of the shooter, Andrew Engeldinger.  The twenty-page complaint, which has been filed in the Hennepin County District Court, alleges six separate claims, including that Accent negligently supervised and/or retained Engeldinger.

Whether the Beneke family will ultimately prevail on any of its claims remains to be seen, as the case will likely take months, if not years, to work its way through the court system. Meanwhile, the case gives us a chance to take a look at what is  “negligent supervision” or “negligent retention” in the employment context.

Generally speaking, these claims arise when an employer knows or should know that an employee is violent or aggressive and might engage in conduct that would injure others. Thus, the focus in such cases is mostly on what the employer knew — or should have known — about the violent propensities of the employee who later hurts someone. If the evidence supports that element, then it can be said that the employer owed a duty to protect others from the employee’s threat of harm. If the employer had that duty, then the focus becomes whether it breached that duty by failing to take precautions to protect others and whether or not that breach caused the harm suffered by others.

The Beneke case is not the first time the Minnesota courts have grappled with a negligent supervision/retention claim in the context of a workplace shooting. In 1993 the Minnesota Court of Appeals addressed it in the case of Yunker v Honeywell, Inc., which was also a case where the family of a workplace shooting victim sued the employer (Honeywell) for negligence. There, the Court held that because there was evidence suggesting that the shooter had a history of harassing and threatening co-workers, angry confrontations, challenging co-workers to fight, and scratching “one more day and you’re dead” on a locker door, there was enough evidence to put Honeywell on notice that the employee posed a risk of harm to others. Thus, the Court said, Honeywell owed a legal duty to protect others from this employee.

What you need to know: When an employer knows or should know that an employee poses a risk of harm to others, the employer owes a duty to its other employees to take reasonable precautions to protect them. Whether that duty exists, and what precautions are needed, vary on the facts and circumstances of each situation and workplace. To be proactive, employers need to recognize the signs of potential violence and be prepared to take steps to prevent it from happening.

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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

September 28, 2012

Simple Steps DO Make a Difference in Preventing Workplace Violence

Posted in Firearms / Guns, Workplace Violence tagged , , , at 10:14 am by Tom Jacobson

Yesterday’s heinous shootings at Accent Signage in Minneapolis are another sad reminder that workplace violence happens all too often. According to the Occupational Safety and Health Administration, there were 506 workplace homicides in the U.S. in 2010, and nearly two million Americans report being victims of workplace violence each year.

Sometimes we’re NIMBY’s about this.  We naively insist that these things only happen elsewhere and Never In My Back Yard. And, even though we may acknowledge the risk, we decide that prevention is too complicated or too expensive, so we do nothing more than cross our fingers and hope the worst never happens.  Two recent real-life examples from my own community show that this is simply not true.

A few weeks ago, a  person entered a neighborhood business and asked the receptionist to use the restroom. The receptionist had no idea of who the individual was or what he was up to. Following company policy, the receptionist simply asked him to sign in as a “visitor” before using the restroom. This was enough to spook the guy into leaving the building. Police officers, who were already in the area looking for suspects in an alleged home-intrusion case that had happened nearby earlier that day, apprehended the guy shortly thereafter. Of course, we’ll never know what might have happened had the guy made his way into the facility, but we do know that this business avoided what could have been a very ugly situation.

Another example is a local business that realized an intruder entered their building through an unlocked back door and then wandered about the unoccupied space in the same building. That problem was solved by simply locking the back door and restricting public access to the front door only.

What you need to know: Sadly, workplace violence is a reality, regardless of how big the business or small the community. Acknowledging the risk is the first step toward eliminating it. The next step is implementing preventative strategies which, depending on the business setting, may include measures as simple as locking doors or requiring a visitor sign-in log. OSHA also offers numerous resources, such as information on risk factors, prevention programs and training resources.

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

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

January 19, 2011

Firing over false gun rumor costs Rochester, MN hotel $476,326.00

Posted in Breach of Contract, Contracts, Defamation, Firearms / Guns, Libel, Slander, Workplace Violence, Wrongful Termination tagged , , , , at 10:26 am by Tom Jacobson

Two weeks ago, I commented on the case of a Minnesota casino employee who was fired for bringing a gun to work (Packin’ heat at work:  Is it always employment misconduct? http://bit.ly/fSLNWC).  There, the Minnesota Court of Appeals upheld a determination that the employee’s actions were misconduct which disqualified him from unemployment benefits.

But what if an employer fires an employee based on the mistaken belief that he brought a gun to work and threatened to kill management, his union representative and himself if things didn’t go his way?  For the Rochester, MN Marriott hotel, the mistake was very costly, for it resulted in a $476,326.00 jury verdict in favor of a discharged bellhop, Jeff Moen.  The case was Moen v. Sunstone Hotel Properties, Inc. d/b/a Marriott Hotel.

The gun rumor started circulating in October, 2007.  When management learned of it the next day, they took immediate steps to fire Moen.  This included informing the supposedly threatened union representatives and interviewing the co-workers who had heard the rumor.  When Moen reported to work, he was frisked by a police officer, escorted to a conference room and fired.  Both the hotel and the union then sought restraining orders and barred him from the hotel and the union hall.

The problem for the hotel was that the rumor was false.  In a subsequent investigation by Moen’s attorney, the bellman who allegedly heard Moen’s gun threat denied ever hearing or repeating it.

Moen sued for breach of his union contract and defamation.  The jury awarded him $157,326.00 in lost wages, $200,000.00 for past damage to reputation and $119,000.00 for future damage to reputation.

The case points out the difficult question that arises when an employer is confronted with threats of potential workplace violence:  to what extent must the employer investigate the threat before taking action?  If the employer reacts too cautiously, and it turns out that the threat is real, the result could be disastrous.  If, as in Jeff Moen’s case, the employer reacts too aggressively, the result could be costly.  It appears that to avoid this result, Marriott should have dug a little deeper to get to the underlying source of the rumor before actually firing Moen.

For more detail about the case, see Fired bellhop gets $476K for defamation, says Olmsted County District Court, http://bit.ly/gWngAs.

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.

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.

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