December 10, 2012

Refusing a Drug Test

Posted in Drug and Alcohol Testing, Minnesota Drug and Alcohol Testing in the Workplace Act tagged , , , , , at 12:10 pm by Tom Jacobson

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The recent “legalization” of marijuana in the states of Washington and Colorado has renewed concerns about how drug and alcohol use may impact the workplace. Regardless of what may be happening elsewhere, employers still have the right to insist on a sober workplace, and for Minnesota employers one of the best tools for maintaining that environment is a drug and alcohol testing policy that conforms to the Minnesota Drug and Alcohol Testing in the Workplace Act (MDATWA). One example shows how well such a policy can work.

A Minnesota employer was concerned about drug and alcohol use by employees and applicants for employment and wanted to require them submit to drug and alcohol testing.  So, after consulting with their attorney, the employer adopted a policy that conformed to MDATWA. As required by the law, they were careful to include a clause which noted the right of an employee to refuse testing and the consequences of refusal. Specifically, the policy explained that employees who refuse to test would be subject to disciplinary action, up to and including discharge.

After adopting the policy and properly communicating it to the workforce, the employer believed they had reasonable suspicion to test an employee (as allowed by MDATWA and as spelled out in the policy), so the employee was asked to undergo a test and was advised of the consequences for refusal. Rather than take the test, the employee refused and resigned. Thus, by being proactive and implementing the policy, the company created a situation that ultimately led to a relatively clean break between it an employee who the company believed was violating the policy.

What you need to know:  A drug and alcohol testing policy is one of the best tools a Minnesota employer can use to maintain a safe and sober workplace. However, such policies (and the implementation and application of them) must strictly comply to MDATWA. Employers who violate MDATWA can be held liable for damages and attorney’s fees, and the courts may order injunctions and other relief as well. Therefore, employers wishing to adopt such policies should consult with legal counsel to make sure their policy complies with the 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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November 15, 2012

Post-election Facebook faux pas shine light on need for workplace policy

Posted in Computer Use, Discrimination, Employee Handbooks, Facebook, Internet Policies, Race, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 4:19 pm by Tom Jacobson

It’s been barely a week since the 2012 presidential election, but already we are learning of the post-election Facebook faux pas of several employees. For some, their on-line reactions to the electoral outcome have jeopardized their campaigns for continued employment.

For example, one of my readers (thanks, Jay S!) shared with me a Huffington Post report about a  South Carolina teacher who has been suspended and a Ohio teacher who is being investigated — both for their alleged post-election Facebook posts. In the South Carolina case, the teacher is said to have posted, “Congrats Obama. As one of my students sang down the hallway, ‘We get to keep our fooood stamps’…which I pay for because they can’t budget their money…and really, neither can you.” And in the Ohio case, the teacher supposedly posted, “Congrats to those dependent on government, homosexuals, potheads, JAY-Z fans, non Christians, non taxpayers, illegals, communists, Muslims, planned murder clinics, enemies of America, Satan You WON!”

The Los Angeles Times also reports that in Turlock, CA a Cold Stone Creamery employee jumped on Facebook after President Obama’s re-election and posted a racial slur about him, adding, “maybe he will get assassinated.” According to theTimes report, Cold Stone fired her and then tweeted, “The employee is no longer w/the company. We were as shocked as you were by her outrageous & completely unacceptable comments.”

Lastly, WXIA-TV of Atlanta, GA reports that a Georgia clinic worker was recently fired after supposedly posting on Facebook a post-election racial slur about President Obama .

Cases like this do not, however, mean that employers have unbridled discretion to fire employees who they believe have engaged in harmful or offensive social media behavior. There are numerous cases where employees and/or government agencies have successfully challenged employers who have taken such action. Indeed, I wouldn’t be surprised if any of the employees noted above were to challenge their employer’s actions.

What you need to know: If you are an employer, then before disciplining or discharging an employee because of his/her on-line behavior, you must understand and carefully consider the risks. To be proactive, implement and enforce legally sound social media policies. If you are an employee, think twice (or maybe three or four times!) before posting a comment that could cost you your job.

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 5, 2012

Called for Interference — off the Gridiron and in the Board Room

Posted in Application Process, Contracts, Hiring and Recruiting, Interference with Contract, Interference with Prospective Business, Non-Compete Agreements tagged , , , , , , at 8:11 am by Tom Jacobson

It’s that time of year again. The Twins’ dismal season is almost over, the Lynx are enjoying another great run, and we hope that maybe — just maybe — this will be the year the Vikings make the playoffs or the Gophers make it to a bowl game. In the meantime, we’ll have to wait and see if the replacement refs hired by the NFL during the lockout can tell the difference between good pass defense and interference.

The gridiron isn’t the only place where interference can be called, for interference can also be called on the playing field of business. Specifically, if someone improperly interferes with a contract between others, the interfering party can be held liable for the interference. Interference can also be called if someone improperly interferes with the potential business relationship between others.

But like in football, where there is a difference between good pass defense and pass interference, there is a difference between good old-fashioned business competition and wrongful interference. To prove improper interference with a contract, a plaintiff must prove that s/he had a contract with another, that the defendant knew about the contract, that the defendant intentionally caused a breach of the contract without justification, and that the plaintiff suffered damage because of the interference.

For example, if a company hires a great employee who once worked for a competitor, that’s just good old-fashioned competition. But, if that company knowingly hires an employee who should not work there because of a non-compete agreement with a former employer, the former employer may have a valid claim for contractual interference against the new employer.

What you need to know:  As a part of the hiring process, employers should develop a protocol for asking applicants if they are subject to any non-compete agreements, confidentiality agreements, or similar contracts that may restrict their ability to work for the new company.  This is particularly true for executive and management-level hires and all hires in highly competitive and technical industries where non-compete and confidentiality / non-disclosure agreements are relatively common.

Figuring out and playing by the rules in the business play book can be difficult. When you need help understanding or enforcing them, stop in, call, 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2012

Seagate IV – the Final Chapter?

Posted in Fraud and Misrepresentation, Hiring and Recruiting, Minnesota Statute 181.64, Minnesota Statute 181.65 tagged , , , , , at 5:28 pm by Tom Jacobson

Chandramouli Vaidyanathan’s $2.4 million award for damages and attorney’s fees has been thrown out.

As you may recall, Vaidyanathan was awarded $1.9 million in damages and another half million in attorney’s fees after a Minnesota jury found that his former employer, Bloomington-based Seagate US, LLC, misrepresented the job for which he was recruited. For more details on the case, see my previous articles, Bloomington-based Seagate Hit with $1.9m Verdict for Misrepresenting Job to Recruit, Seagate’s Liability to Duped Recruit Jumps to $2.4 Million, and Seagate III – the Saga Continues.

Seagate appealed the case, and the Eighth Circuit Court of Appeals today reversed the trial court outcome. The appellate court’s decision was based on its conclusion that the trial court had improperly instructed the jury about what it takes to prove misrepresentation under the applicable statute, Minnesota Statute § 181.64. Specifically, the court ruled that “The jury should have been instructed that it could hold Seagate liable if Seagate knew that its representations were false.” Because the jury was not properly instructed, the court threw out the verdict and the attorney’s fee award as well.

But this may not be the end of the story, for the court also ordered a new trial. Stay tuned.

What you need to know: By requiring proof of actual knowledge, the Eighth Circuit Court of Appeals has raised the bar for employees who want to prove misrepresentation under Minnesota Statute § 181.64.

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

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!

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

June 29, 2012

Obamacare Decision as Baseball: the Runner is Safe, so Now What?

Posted in Affordable Care Act, Benefits, Health Insurance tagged , , , at 11:22 am by Tom Jacobson

My favorite play in baseball is the second base steal. In the play, the base runner watches the pitch, and at just the right moment, he sprints toward second. The catcher snatches the pitch, springs up and rockets the ball to the second baseman who snags it and tries to tag the runner as he slides into the base. As the dust clears, all eyes are on the second base umpire who, in a split second, calls the runner safe or out. When the play is over, the players dust themselves off, and the game goes on.

Some on the field may disagree with the umpire’s call.  However, the umpire’s decision is final, and arguing can get you ejected. To stay in the game, great teams simply adjust their strategy based on the umpire’s call.

So it is with the United States Supreme Court’s Obamacare ruling. Although it took much longer than a split second to render a decision after months of dramatic build-up and political rhetoric over this landmark legislation, the nation’s highest court has called the runner safe. Many side with the four dissenting justices, but the fact of the matter is that the other five have declared the law to be constitutional. Therefore, it is, for the time being, the law of the land.

As with our reaction to an umpire’s call on a second base steal, we now have two options. We can argue over whether or not the Court made a bad call, or we can dust ourselves off and adjust our strategy. Because arguing won’t change the outcome, making adjustments is the only productive option.

Sometimes making adjustments means changing the rules. So if you don’t like the rules, the best way to change them is with the ballot box in November.

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.  Also, the views expressed in this commentary are those of the author and do not necessarily reflect the views of Swenson Lervick Syverson Trosvig Jacobson Schultz, PA.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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 20, 2012

Register now for the Ninth Annual West Central MN Employment Law Update!

Posted in Application Process, Harassment, Social Media in the Workplace, Social Networking, Training tagged , , , , at 7:55 am by Tom Jacobson

Registration is now open for the Ninth Annual West Central Minnesota Employment Law Update and Employee Relations Training to be held May 31 at Alexandria Technical and Community College in Alexandria. This year’s topics include:

The seminar will also include the ever-popular panel discussion where the attorney faculty will answer your questions about the morning sessions and other timely topics. HRCI credits are pending approval.

Here’s what some of last year’s participants had to say about our 2011 event:

  • A necessity!
  • Informative!
  • Great Info!
  • Amazing!
  • Excellent!
  • Love it!
  • Real life problems, real life answers!

To register, please complete the Registration Form and submit it to Pat Kalina at the Alexandria Area Economic Development Commission. I hope you can join us on May 31 in Alexandria.

For more information about the seminar, please contact me at taj@alexandriamnlaw.com.

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

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