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

Advertisements

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

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.

%d bloggers like this: