January 29, 2015

Hit-men, harassment & the perils of office romance

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Harassment, Hostile Work Environment, Minnesota Human Rights Act, Office Dating, Office Romance - Dating, Sexual Harassment, Sexual Harassment, Title VII of the Civil Rights Act of 1964, Workplace Romance tagged , , , , , , , at 11:09 am by Tom Jacobson

office romanceWith Valentine’s Day just around the corner, it seems like a good time to remind everyone that office romance is generally a very bad idea. After all, it might lead to murder-for-hire plots, ugly custody fights, and the occasional sexual harassment suit.

Take the recent Stearns County, Minnesota case involving Nomad Pipeline Services CEO Robert Schueller. He was charged with orchestrating a murder-for-hire plot where it’s alleged that he tried to hire a hit man to kill the fiance’ of an employee with whom he had an affair (see MyFox9, Charges: Office affair break-up, murder-for-hire plot). Mr. Schueller ultimately pled guilty to one count of sending threatening communication (See WCCO TV, Company President Pleads Guilty in Plot Involving Employees).

Or, there’s the case that fellow blawger Eric Meyer recently noted where an office affair apparently resulted in pregnancy, a custody battle, and a sexual harassment claim.

Those are extreme examples of love gone bad, but I’ve seen office romance cases that have taken a big toll, albeit without the intrigue. Co-workers perceive favoritism toward the boss’s paramour. Jilted lovers persist in their advances, which are then perceived as hostile. Encounters that were once consensual are suddenly claimed to be unwelcome. Employees struggle to know how to end a personal relationship when they have to continue working with their former significant other. What was once romance becomes harassment that ends up in court.

Of course, there are examples where office dating blossoms into healthy relationships. However, no one can predict where a new romance will lead. To mimimize the risk that it will lead to the courthouse, see my prior article, Big Bang and the Office Dating Game.

Have you taken my poll on President Obama’s mandatory paid sick leave proposal? If not, click here. Poll closes January 30.

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

Advertisements

May 9, 2014

Legislative update: MHRA jury trials and Women’s Economic Security Act advance

Posted in Care of Relatives Leave, Court Trial, Discrimination, Domestic violence, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Jury Trial, Leaves of Absence, Nursing Mothers, Parenting Leave, Remedies, Sick Leave, Sick or Injured Child Care Leave tagged , , , , , , , , , , at 9:26 am by Tom Jacobson

Both houses of the Minnesota Legislature on May 8, 2014 took action to advance legislation which, if signed into law by Gov. Mark Dayton, will have significant impacts on Minnesota employers and employees.

First, with a 43-24 vote the Senate approved the Women’s Economic Security Act (HF2536) which, among other things, would expand parenting and sick leave rights. For more information on this bill, see Women’s Economic Security Act Passed by MN House.

Then, with a 79-51 vote the House approved the Senate’s amendment to the Minnesota Human Rights Act (MHRA) (SF 2322). This amendment would add the right to a jury trial as a remedy under the MHRA. For more information on this bill, see Minnesota Senate Adds Jury Trial Right to Minnesota Human Rights Act.

For more information about this legislation, 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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 6, 2014

MN Senate adds jury trial right to Human Rights Act

Posted in Court Trial, Discrimination, Jury Trial, Remedies tagged , , , , , , at 9:14 am by Tom Jacobson

SF 2322By changing a single sentence in the Minnesota Human Rights Act (MHRA), the Minnesota Senate on May 1, 2014 passed a bill which, if it becomes law, will significantly change the way MHRA disputes are decided in the courtroom.

Currently, the law (Minn. Stat. § 362A.33, subd. 6) provides that, “Any action brought pursuant to this chapter shall be heard and determined by a judge sitting without a jury.” However, the Senate’s version (SF 2322), which passed on a 55-0 vote, would change that sentence to read, “A person bringing a civil action seeking redress for an unfair discriminatory practice or a respondent is entitled to a jury trial.”

The change would be significant, for it would drastically change the way MDHR cases — such as claims for employment discrimination — would be litigated. Generally speaking, jury trials are far more expensive and complicated than are cases tried to a judge alone. A jury of six people can also be far more difficult to predict than a single judge. The change would, however, make state law consistent with its federal counterpart (Title VII of the Civil Rights Act of 1964), which already allows for jury trials.

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

June 13, 2013

Marital status protection trumps conflict policy, says MN Court of Appeals

Posted in Discrimination, Legitimate Business Reason for Termination or other Adverse Action, Marital Status tagged , , , , , , , , at 9:52 am by Tom Jacobson

Wedding Casual

Newlyweds, Camden State Park (August 6, 1988)

Twenty-five years ago this summer, my wife and I were married in the most beautiful outdoor ceremony at Camden State Park.  We had both worked there for several summers — she in the park office and I on the beach. We’ve never worked for the same employer since, though I’m sure we’d make a great team if we did. And, if things didn’t work out with our mutual employer such that one of us wanted to quit and go to work for a competitor, the Minnesota Court of Appeals has granted some protection to the one who stays.

The protection was granted in the case of Aase v. Wapiti Meadows Community Technologies and Services, Inc., which involved a situation where a husband and wife (April and Mark Aase) both worked for Wapiti Meadows, d/b/a Community Technologies and Services (CTS). Mr. Aase resigned and accepted a position with a competitor of CTS. CTS then fired Mrs. Aase and claimed that it did so because Mrs. Aase failed to cooperate with the company’s efforts to mitigate the potential conflict of interest. However, other evidence suggested that CTS fired Mrs. Aase because of her husband’s work for the competitor.

Mrs. Aase sued, claiming her termination violated the marital status discrimination provisions of the Minnesota Human Rights Act (MHRA), which makes it an unfair employment practice for an employer to discharge an employee because of marital status. This includes protection against discrimination on the basis of identity, situation, actions, or beliefs of a spouse or former spouse. The trial court dismissed the case based in part on its conclusion that it was legitimate and non-discriminatory for the company to fire Mrs. Aase because she would violate the company’s conflict of interest policy if her husband worked for the competitor.

Mrs. Aase appealed that decision to the Court of Appeals, which then had to decide whether the conflict of interest was a legitimate reason for firing Mrs. Aase. The court said no, “It was not a legitimate, nondiscriminatory act for CTS to discharge Aase solely based on the actions of her husband, even if CTS believed those actions violated the conflict-of-interest policy.” The appellate court then remanded the case for a trial where the trial court will need to decide whether CTS fired Mrs. Aase due to the conflict of interest involving her husband or for some other legitimate non-discriminatory reason.

What you need to know: Minnesota law prohibits employers from discriminating against employees due to their marital status. This includes the identity, situation, actions and beliefs of a spouse. Employers may, however discharge employees for legitimate non-discriminatory reasons. Based on the Wapiti Meadows case, the conflict that may exist when an employee’s spouse works for a competitor is not a legitimate non-discriminatory reason for discharging an employee.

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

February 27, 2013

Questions — and answers — about “legitimate business reasons”

Posted in At-will Employment, Discrimination, Legitimate business reason, Legitimate Business Reason for Termination or other Adverse Action, Wrongful Termination tagged , , , , , at 1:46 pm by Tom Jacobson

Questions, I’ve got some questions
I want to know you
But what if  I could ask you only one thing
Only this one time, what would you tell me?

— Jack Johnson, Questions (2006)

In the song Questions, Jack Johnson ponders the myriad of questions swirling around in his head about a new relationship. What are your intentions, suggestions and impressions? Will you try?

When we’re thinking about something new and exciting, our main curiosity is this: where will this lead? Our hope is that it will lead to a good place.

When bad things happen, we also have questions.  Most often the question is, “Why?”

So it is when an employer must discipline or discharge an employee. When that happens, the question swirling around in the employee’s head is often, “Why?” If the employer cannot offer legitimate business reasons for its actions, not only is the employee left scratching his or her head and wondering why, but the employer may struggle to defend the ensuing lawsuit when the employee claims the answer to “Why?” is discrimination or some other legal wrong.

The importance of having legitimate business reasons for an employment decision was recently reiterated in the case of Wood v. SatCom Marketing, LLC. In this case, Jenna Wood sued her former employer, SatCom, alleging violations of the Minnesota Whistleblower Act, Minnesota Human Rights Act, common law of wrongful termination, and the Fair Labor Standards Act. The case made its way to the United States Court of Appeals for the Eighth Circuit where the court rejected Woods’ claims after noting that while there was some evidence to support Wood’s claim, SatCom presented evidence of its legitimate business reasons for suspending and then dismissing Wood.

Specifically, the Court credited SatCom’s evidence that Wood severely neglected a data entry assignment, was late for work and failed to submit a required schedule. This, the Court said, supported the company’s decision to suspend Wood. The Court also noted that following her suspension, Wood disregarded a company directive by failing to return to work with a signed copy of an action plan and then twice violated the plan itself. Therefore, the Court held, SatCom had legitimate non-discriminatory reasons for its decision to discharge Wood. Further, the Court ruled that Wood did not present any evidence that SatCom’s stated reasons were a pretext for any unlawful discrimination. Thus, the Court affirmed the trial court’s decision to dismiss the case.

What you need to know: When employees challenge the adverse actions taken against them, employers have a much easier time defending the claims when they can present evidence of the legitimate non-discriminatory business reasons for their actions. Moreover, when those reasons are made clear to an employee before the adverse action, the employee may be less likely to challenge the employer’s decision because he or she will already have the answer to the question: s/he will already know why. 

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

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

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

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

July 7, 2011

Mean guys finish last: temperament as a job qualification

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , , , at 9:10 am by Tom Jacobson

Bad temperament during the application process can be used as the reason to reject a candidate, according to the United States Court of Appeals for the Eighth Circuit.

Last August I commented the case of Amini v. City of Minneapolis.  The case centers around Hamid Amini, who was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing, background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the city did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

Last summer, the United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

Amini appealed his case to the Eighth Circuit Court of Appeals, and in a July 5, 2011 decision authored by Circuit Judge Roger Wollman, the appellate court affirmed Judge Frank’s decision.

While the Amini case reinforces the principle that an employee’s or applicant’s temperament can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  Indeed, Judge Wollman cautioned against the use of subjective criteria because they can be easily fabricated.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.  However, in situations where candidates’ objective qualifications are comparable, the mere use of subjective criteria, such as temperament, does not create an inference of discrimination.

For more information 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

May 9, 2011

Until death parts us: marriage, work, and the Minnesota Human Rights Act

Posted in Discrimination, Marital Status tagged , , , , at 4:11 pm by Tom Jacobson

Managing married co-workers presents a unique challenge for any employer, especially if one spouse separates from employment on bad terms.  Some employers may be tempted to divorce themselves from the remaining employee.  That’s a temptation that must be avoided, the Minnesota Supreme Court said on April 13, 2011 in Taylor v. LSI Corp., http://bit.ly/iWaJTY.

In the Taylor case, LeeAnn and Gary Taylor were married, and they both worked for LSI.  He was the company’s president; she was its sales and marketing coordinator.  After Mr. Taylor offered a “forced” resignation, but before that resignation took effect, LSI fired Mrs. Taylor.  According to the Taylors, LSI fired her because the company believed she would feel uncomfortable or awkward staying with the company after Mr. Taylor’s departure.  Mrs. Taylor also claimed to have been told that, “due to her husband‟s situation . . . and the fact that it was likely [the Taylors] were going to have to relocate, [LSI] was eliminating [her] position.”  The company claimed to have legitimate business reasons for dismissing Mrs. Taylor.

Mrs. Taylor then sued LSI, claiming that her termination violated the marital discrimination provisions of the Minnesota Human Rights Act (MHRA), http://bit.ly/la9EWA. A key issue in the case was whether or not Mrs. Taylor had a legitimate claim when LSI’s actions were not “directed at the institution of marriage.”  Marital discrimination has long been prohibited by the MHRA, but in 1984 the Minnesota Supreme Court ruled in another case that in order for a marital status discrimination claim to exist under the MHRA, there had to  be evidence that the employer’s actions were “directed at the institution of marriage,”  not just evidence that one spouse was treated adversely because of the other spouse’s situation.

However, in the Taylor case, the court noted that since its 1984 decision, the legislature amended the MHRA to provide broader protections for marital status discrimination.  The legislature did this by re-defining “marital status” to include “protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.”  Based on this new definition, the court specifically rejected the notion that the MHRA still requires a showing that the employer’s actions were directed at the institution of marriage.  Thus, because Mrs. Taylor’s claim fit within the new definition, the court allowed her claim to proceed.

Employing married co-workers presents special challenges, including how to treat the remaining employee after his/her spouse is fired or otherwise separates from employment.  As tempting as it may be to try to avoid discomfort and awkwardness by dismissing the remaining spouse, the Taylor case makes it clear that doing so would likely violate the MHRA.

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

January 12, 2011

EEOC reports “unprecedented” number of charges in 2010

Posted in Discrimination, Race, Retaliation tagged , , , , at 10:53 am by Tom Jacobson

The Equal Employment Opportunity Commission has released its discrimination charge statistics for fiscal year 2010. Its report shows that private sector job bias claims reached the unprecedented level of 99,992 charges for the year ending September 30, 2010. The EEOC also reports that “Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers — the highest level of monetary relief ever obtained by the Commission through the administrative process — to promote inclusive and discrimination-free workplaces. EEOC Reports Job Bias Charges Hit Record High of Nearly 100,000 in Fiscal Year 2010, http://bit.ly/gpKA4w).

Although the number of charges increased in all categories, FY 2010 was the first year in which retaliation (36,258 claims) surpassed race (35,890 claims) as the most frequently alleged violation. Also according to the EEOC, its mediation program set a record of 9,370 cases resolved through mediation (a ten percent increase).

Some analysts suggest that the surge in job bias claims has been fueled by a bad economy which motivates displaced or disgruntled employees to litigate. Dismal Job Market Fuels Job Bias Claims, http://on.today.com/gIFYoG.  Other contributing factors include the increasingly diverse workforce and the EEOC’s own efforts to spread the word about workplace discrimination. The EEOC reports that in FY 2010 it delivered its public outreach message to 250,000 people.

Regardless of the reasons for the increased number of charges, the EEOC’s statistics stand as a vivid reminder that unlawful discrimination persists in the U.S. workforce. Employers who take a pro-active approach at eliminating job-bias and taking prompt remedial action when issues arise will be in the best position to defend those claims should they arise in their workplace.

The EEOC’s FY 2010 statistics can be found at http://bit.ly/hr87vj.

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.

Next page

%d bloggers like this: