August 8, 2012

Welcome, Mike!

Posted in Uncategorized tagged , , , , , , , , , at 9:35 am by Tom Jacobson

Michael J. Cass

We are pleased to announce that attorney Michael J. Cass has joined our law firm. Mike started his legal career in the Minneapolis area as a law clerk for the Honorable Stephen C. Aldrich. He then moved into private practice where he focused primarily on estate planning, probate, guardianships and conservatorships. At our firm, Mike will continue to work with clients in those areas, and he will serve as an Assistant City Attorney for the City of Alexandria.

Originally from South Dakota, Mike is a 2007 magna cum laude graduate of the University of St. Thomas School of Law, where he was active as a senior editor for the law review and a student attorney in the law clinic. Prior to law school, Mike attended college at St. John’s University in Collegeville, MN, where he graduated in 2002 with a Bachelor of Arts degree in computer science. Mike and his wife, Katie, are busy raising their daughter, and they are excited to get involved in the Alexandria community.

Welcome, Mike!

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June 22, 2012

Poster Wars — the Saga Continues

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , , , at 2:16 pm by Tom Jacobson

The saga continues over the workplace poster requirement imposed by the National Labor Relations Board. As I have previously noted, in a lawsuit brought by the National Association of Manufacturers, the United States Court of Appeals for the District of Columbia has already issued an injunction temporarily blocking the requirement.

In a separate federal lawsuit brought by the United States and South Carolina Chambers of Commerce, another federal judge concluded that the rule is unlawful. However, the NLRB has now appealed that decision to the United States Court of Appeals for the Fourth Circuit. If the Fourth Circuit rules in favor of the NLRB, the split between the Fourth Circuit and the DC Courts of Appeal would set up the possibility of the issue ultimately being resolved by the United States Supreme Court.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, NLRB’s Posting Requirement Delayed Again, and NLRB’s Posting Requirement Blocked by Federal Court).

What you need to know: The NLRB’s rule, if eventually upheld, would require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The rule would also establish that an employer’s failure to post the notice “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the] NLRA…“. However, because of the DC Circuit’s temporary injunction, the rule is not in effect, so employers are not  required to post the notice. The Fourth Circuit appeal will also shed more light on the issue. Stay tuned.

For more information about this issue, 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 18, 2012

NLRB’s Posting Requirement Blocked by Federal Court

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , at 9:23 am by Tom Jacobson

The United States Court of Appeals for the District of Columbia issued on April 17, 2012 an injunction which temporarily blocks the posting requirement the National Labor Relations Board has been attempting to impose.  The order was issued in the National Association of Manufacturers lawsuit I noted in my previous article, NLRB’s Posting Requirement Upheld – but Weakened – by Federal Judge.  For more information about the appellate court’s injunction, see NLRB Union Poster Rule Delayed While Challenge Proceeds and Appeals court blocks National Labor Relations Board from requiring union posters at work sites.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, and NLRB’s Posting Requirement Delayed Again).

What you need to know: The NLRB’s rule would have required nearly all private-sector employers to post by April 30, 2012 a notice informing employees of their rights under the National Labor Relations Act.   However, because of this temporary injunction, those employers will not be required to post the notice, but this could change as the issue winds its way through the federal court system. Stay tuned.

For more information about this issue, 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

March 13, 2012

NLRB’s posting requirement upheld – but weakened – by federal judge

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requrements tagged , , , , , , , , , , , , at 9:05 am by Tom Jacobson

A federal judge has ruled that part of the new poster requirement imposed by the National Labor Relations Board is valid, but other parts of the rule go too far.  As noted in my previous articles (A post about posters – new workplace posting requirement imposed by NLRBNLRB’s posting requirement delayed, and NLRB’s posting requirement delayed again), the posting requirement goes into effect on April 30, 2012, and it will require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The notice can be downloaded from the NLRB’s website.

The National Association of Manufacturers has challenged the requirement in a lawsuit brought against the NLRB in the United States District Court for the District of Columbia. In a 46 page opinion issued on March 2, 2012 Judge Amy Berman Jackson ruled that the posting requirement itself is lawful.

However, Judge Berman Jackson also concluded that other parts of the NLRB’s rule went too far. Specifically, she ordered that the NLRB exceeded its authority when it tried to make any failure to post the notice an unfair labor practice (ULP). She also concluded that the NLRB’s rule went too far by tolling the statute of limitations (that is, extending the time for taking legal action) in any future ULP action involving a job site where the notice was not posted.

What you need to know: Unless is it completely overturned in court, withdrawn by the NLRB, or stopped by congressional action, this posting requirement will go into effect on April 30, 2012. Even though Judge Berman Jackson has weakened the requirement by declaring that “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice,” the NLRB can still make the case that a failure to post is a ULP if the NLRB can “make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.” To reduce that risk, post the notice.

For more information about this issue, 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

February 8, 2012

Love … it’s a burning thing

Posted in Discrimination, Employee Handbooks, Office Romance - Dating, Sexual Harassment tagged , , , , , , at 10:34 am by Tom Jacobson

“Love. It’s a burning thing
And it makes a fiery ring.
Bound by wild desire,
I fell into a ring of fire.”

Johnny Cash, Ring of Fire

Valentine’s Day is next week.  At the risk of seeming to shoot Cupid out of the sky, I think that makes it a good time to consider the consequences of office romance.

Consensual relationships which are, or have the potential of becoming intimate, sexual or romantic in nature sometimes develop between employees. Because such relationships may make other employees and those involved in the relationship uncomfortable, they can increase an employer’s risk of liability for sexual harassment and other claims.

What you need to know:  Yes, love truly is a burning thing.  But, if an employer does not properly handle office romances, it is the company that can get burned. Therefore, employers should discourage those relationships, particularly those between a supervisor and subordinate and those in which differences in age, background, or other characteristics of the two individuals compromise the ability of either one to make an informed decision about participating in the relationship.  Employers should also adopt policies which clearly describe their employees’ obligations, rights and options when workplace romance ignites … or burns out.

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 18, 2012

Pepsi popped for $3.1M in background check case

Posted in Application Process, Color, Race tagged , , , , , , at 12:24 pm by Tom Jacobson

Background checks are very important tools during the hiring process, but as Pepsi Beverages (formerly Pepsi Bottling Group) recently learned, asking the wrong questions can be discriminatory — and expensive.  In a January 11, 2012 press release the EEOC reported that Pepsi has agreed to pay $3.13 million to settle a case challenging its former background checking policy.

At issue was Pepsi’s policy which rejected applicants who had been arrested and were pending prosecution.  The policy also denied employment to applicants who had been arrested or convicted of certain minor offenses.  According to the EEOC, this policy disproportionately excluded black applicants from permanent employment and that it therefore violated Title VII of the Civil Rights Act of 1964.

In addition to the monetary settlement, Pepsi also changed is background checking policy, and it agreed to offer employment opportunities to victims of its former policy, supply the EEOC with regular reports on its hiring practices, and conduct Title VII training for its hiring personnel and managers.

Although using arrest and conviction records to screen applicants is not per se illegal under Title VII, it can be when it is not relevant to the job. Therefore, employers are urged to use them cautiously.

According to Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII.” Schmid added, “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

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 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

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 4, 2012

NLRB’s posting requirement delayed – again

Posted in Posting & Notice Requirements tagged , , , , , , , at 1:08 am by Tom Jacobson

The National Labor Relations Board has again delayed the effective date of its new employee-rights posting requirement.  The requirement, which initially was to have gone into effect on November 14, 2011 was postponed until January 31, 2012.  Now, the NLRB has delayed the mandate again, and the posters will not be required until April 30, 2012.

In a statement issued December 23, 2011 the NRLB said that it has agreed to postpone the effective date at the request of a Washington, DC federal court which is hearing a legal challenge to the rule. According to the NRLB, “[I]t has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”

If the requirement ultimately withstands the pending legal challenges and goes into effect, most private sector employees will be required to post the notice which can be downloaded from the NLRB’s website.

For more information about this issue, please see my previous articles, A post about posters – new workplace posting requirement imposed by NLRB and NLRB’s posting requirement delayed, 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 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, 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

February 28, 2011

The specialist

Posted in Uncategorized tagged , , , , , , , , at 10:02 pm by Tom Jacobson

I am pleased to announce that the Minnesota State Bar Association has certified me as a Labor and Employment Law Specialist.  The certified specialist designation is earned by leading attorneys who have completed a rigorous approval process, including an examination in the specialty area, peer review, and documented experience. Certified attorneys have demonstrated superior knowledge, skill and integrity in their specific field and can use the designation of specialist to advertise their credentials.

This Certification program is administered by the MSBA and has been approved by the State Board of Legal Certification.  The MSBA has been accredited as an independent professional organization for certifying attorneys as Criminal Law Specialists, Real Property Law Specialists, Civil Trial Law Specialists and Labor and Employment Law Specialists. This achievement has been earned by fewer than 3% of all licensed Minnesota attorneys.   More information about Certified Legal Specialists is at http://www2.mnbar.org/certify.

With over 16,000 members, the MSBA is the state’s largest and most influential voluntary organization of attorneys, providing continuing legal education and public service opportunities for lawyers, and assistance to the legal system.

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