January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 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

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July 18, 2012

Is your at-will employment policy at risk?

Posted in Acknowledgment, At-will Employment, Collective Bargaining, Contracts, Disclaimers, Disclaimers, Employee Handbooks, National Labor Relations Act, Protected Concerted Activity tagged , , , , , , , , at 10:39 am by Tom Jacobson

At-will employment is perceived as a sacred cow for most employers, but in a pair of recent cases the National Labor Relations Board (NLRB) has successfully challenged the at-will employment policies of two U.S. employers.

Generally speaking, at-will employment is the concept that employees are employed for no particular duration. This means that either the at-will employee or his/her employer may end their employment relationship at any time, with or without notice, and with or without cause. The vast majority of Minnesota employees are at-will employees. The polar opposite of at-will employment is employment subject to contractual terms, such as a union contract.

When improperly written, employee handbooks and similar written policies can be interpreted as contracts which, contrary to the at-will concept, give employees the right to continued employment, pre-termination disciplinary actions and/or other protections. Thus, to preserve the at-will relationship, astute employers include in their employee handbooks and other policy documentation language disclaiming any contractual relationship and confirming the at-will status.

These types of disclaimers were recently challenged by the NLRB in the cases of Hyatt Hotels Corporation and American Red Cross Arizona Blood Services Region. The Hyatt case involved an acknowledgment form which indicated that the employees’ at-will status could not be altered except by a written statement signed by the employee and specified company executives. Similarly, the American Red Cross case involved a disclaimer which stated that the employees’ at-will status could not be amended, modified or altered in any way.

The NLRB argued that these limitations on how the employees’ at-will status could be changed were unlawful interference with the employees’ rights to engage in protected concerted activity, such as collective bargaining. The Hyatt case was settled when Hyatt agreed, among other things, to discontinue using the challenged language in its acknowledgment form. The American Red Cross case resulted in the NLRB issuing an order compelling the employer to cease and desist from using the disputed language in its forms.

What you need to know: To preserve the at-will employment relationship, employee handbooks and related policy documentation must include appropriate disclaimers.  However, to reduce the risk of a legal challenge, those disclaimers must be carefully written so as to not interfere with employees’ rights under the National Labor Relations Act. Existing disclaimers should be reviewed by legal counsel for compliance in light of these recent NLRB cases. 

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

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

September 24, 2010

HR policy development, part 2 of 3: policy violations as “misconduct” in unemployment cases

Posted in Breaks, Employee Handbooks, Misconduct, Smoking, Unemployment Benefits tagged , , , , , , at 9:24 am by Tom Jacobson

In the first of this three-part series, I highlighted the case of Cross v. Prairie Meadows (http://bit.ly/bDzdNt) where the employer’s well-written policies were a key reason why the court threw out a sexual harassment lawsuit against the company. In this installment, the issue is how well-written policies can help show that an employee committed employment misconduct which disqualifies him/her from unemployment benefits; the case is Gaustad v. Minnesota Department of Employment and Economic Devlopment (http://bit.ly/9uLFWY).

In the Gaustad case, Jon Gaustad worked for Innova Industries, Inc.  Innova had a very clear work break policy; breaks were strictly regulated in order to manage work flow.  Innova also had a strict no-smoking policy inside its plant and a clear designation of where smoking was permitted outside the plant.  Both policies were plainly stated in the company’s employee handbook.  The smoking policy, which had been adopted after a discarded cigarette butt caused a serious plant fire, was also posted in the employee break room, and it had been handed out to employees.

After two prior warnings about violating the company’s smoking and break policies, Gaustad was fired for a third violation.  Gaustad filed for unemployment.  His claim made its way to the Minnesota Court of Appeals, and the court ultimately rejected it. 

The court initially noted that when an employee refuses to abide by an employer’s reasonable policies, the employee commits employment misconduct and is disqualified from unemployment benefits.  The court also noted that an employer’s policies are reasonable when the employer can articulate or identify purposes which further a legitimate employer interest.

In this case, the court concluded that Innova’s policies were indeed reasonable because the break policy was needed to aid the manufacturing process, and the smoking policy was needed due to the prior fire.  Because Gaustad deliberately and knowingly violated those policies, the court determined that his actions were misconduct.

Just as Cross v. Prairie Meadows highlights the importance of having a well-written sexual harassment policy, Gaustad v. Minnesota Department of Employment and Economic Devlopment points out that reasonable personnel policies (that is, policies that  further a legitimate employer interest) can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.

Next in this series:  leave policies under the FMLA and USERRA.

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.

September 21, 2010

The importance of HR policy development, part 1 of 3: sexual harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Sexual Harassment tagged , , , , , , at 7:59 am by Tom Jacobson

Occasionally the courts decide a series of cases which, though based on completely different facts and laws, share a common thread.  When tied together, the cases teach a valuable lesson that applies across the board.  So it is with sexual harassment, unemployment, USERRA and FMLA cases decided over the last several weeks.  Their common thread:  developing and applying effective employment policies is crucial to business success.

In the first of this three-part series, the topic is sexual harassment; the case is Cross v. Prairie Meadows Racetrack and Casino, Inc.  In this case, Lucy Cross alleged that she was sexually harassed while working as a parking valet for Prairie Meadows.  She described a work environment where, among other things, there was horseplay directed at her, an incident of inappropriate touching, and at least one sexually graphic conversation.

Prairie Meadows had zero tolerance for sexual harassment, and its policy listed various ways that employees could seek help if they experienced harassing or violent behavior.  The remedies included talking to a supervisor or directly contacting the human resources department.  The policy also provided that if an employee was unhappy with the resolution of her complaint, s/he could address his/her concerns to upper level management and the company CEO.

Cross read the policy and testified that she was aware that there were multiple effective avenues for reporting harassment.  Cross reported some of her concerns to the company, and the company followed up on them.  Despite the company’s policies which provided many other avenues for obtaining relief, Cross did not pursue them.

The court threw out Cross’s case because the company had followed its policy and responded appropriately to Cross’s complaints while Cross herself did not take reasonable steps to prevent the harassment or lessen the harm.  The court specifically noted that when an employer’s sexual harassment policy provides multiple effective avenues for reporting misconduct, a reasonable employee, after realizing that her initial complaints were ineffective, would then seek another remedy.

Cross vs. Prairie Meadows stresses that having and following a well-written sexual harassment policy can provide an effective defense to sexual harassment claims.  This will help satisfy the employer’s obligation to take prompt remedial action designed to end the harassment.  Moreover, it stresses that an important element of an effective sexual harassment policy is providing multiple avenues of relief for the aggrieved emploee.

Next in this series:  how strong personnel policies impact eligibility for unemployment benefits.

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.

June 16, 2010

Contractual Disclaimer in Employee Handbook Defeats Lund Boat Employees’ Claims

Posted in Contracts, Disclaimers, Employee Handbooks, Vacation Policies tagged , , , , at 10:49 am by Tom Jacobson

In a June 15, 2010 decision the Minnesota Court of Appeals has re-affirmed the importance of contractual disclaimers in employee handbooks.

The case, Roberts v. Brunswick Corp., involved a change in the vacation policy at the Lund Boat Company which is owned by Brunswick. After Brunswick acquired Lund, it implemented a new vacation policy. Several Lund employees were unhappy with the change because they preferred the old policy, and they believed Brunswick was contractually obligated to follow it. The employees also felt that Brunswick breached that contract by refusing to honor a promise to credit them with earned vacation pay.

In the employees’ ensuing class-action lawsuit, the trial court sided with the employees. The trial court concluded that the company’s employee handbook, which included the old vacation policy, created a unilateral employment contract because it referred to vacation pay in the context of a general benefit.

Brunswick appealed, and the Minnesota Court of Appeals reversed the trial court’s decision on the handbook-as-a-contract issue. Crucial to the appellate court’s decision was the fact that the handbook included a disclaimer establishing that the handbook did not created a contract. Because it did not create a contract, Brunswick was free to modify its vacation policy, and doing so was not, therefore, a breach of contract.

The case stresses the importance of including a properly drafted contractual disclaimer in employee handbooks for Minnesota employers who do not want to be contractually bound to policies and procedures stated in their employee handbooks and policy manuals.

You can read the entire opinion at http://bit.ly/bQT99q.

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.

June 9, 2010

When “may” means “must” in a progressive discipline policy, according to the Minnesota Court of Appeals

Posted in Contracts, Disclaimers, Employee Handbooks, Misconduct, Progressive Discipline, Unemployment Benefits tagged , , , , , at 11:19 am by Tom Jacobson

In a rare reversal of an unemployment law judge’s decision, the Minnesota Court of Appeals has ruled that despite an employee’s “ongoing attendance problems” which had resulted in warnings and a suspension, the employee did not commit employment misconduct, and he is, therefore, eligible for unemployment benefits.

At issue was the employer’s progressive discipline policy which said that for attendance problems, the employee “may” be disciplined in accordance with a schedule that progressed from an oral warning, to a written warning, to 3 and 10 day suspensions, and finally, termination.  The Court of Appeals rejected the argument that by using the word “may” in the policy, the employer retained the discretion to skip certain steps.  The Court reasoned that the employer’s only discretion was whether or not to discipline at all and that once it decided to discipline for the attendance problem, it had to follow each progressive step.  Because the employer in this case skipped the 10 day suspension and fired the employee, the Court ruled that the employee’s absenteeism was not employment misconduct.

The Court also rejected the argument that the employer’s obligation to follow the progressive discipline was nullified by a contractual disclaimer.  The Court noted that this argument might have been successful, but there was no evidence of any such disclaimer in the record.

The case, Stagg v. Vintage Place, Inc., highlights the importance of making sure that when employers want to maintain an at-will workforce, their employee handbooks must contain language that properly disclaims any contractual obligations and maintains the employer’s discretion regarding discipline and discharge policies and procedures.  It also points out how important it is to make sure that critical evidence is part of the record before an unemployment decision is appealed.

You can read this unpublished decision at http://www.lawlibrary.state.mn.us/archive/ctapun/1006/opa090949-0601.pdf.

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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