October 17, 2012

Why Honesty Is Always the Best Policy — Especially on a Job Application

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Dishonesty, Dishonesty, Misconduct, Unemployment Benefits tagged , , , , , , , at 10:54 am by Tom Jacobson

UPDATE: Due to an amendment to Minn. Stat. § 364.021 (effective Jan. 1, 2014), this article is outdated. For an update, see Ban the Box.

Years ago when I was a newly minted lawyer, a college buddy of mine was in a pickle.  He was applying for a job, and the application form asked if he’d ever been convicted of a crime.  “Remember my little run-in with the cops when they crashed that party I was at?” he asked. “Well, I got charged with a misdemeanor, but I’ve paid the fine and done the time, and it really has nothing to do with the job I’m applying for. Do I really need to disclose it?”

More recently, a number of my employer clients have asked, “May we ask about applicants’ criminal convictions, and if they disclose convictions, may we consider them in the hiring process?”

The answer to all of these questions is generally yes, and a recent Minnesota Court of Appeals case illustrates one of the reasons why.

The case involved Ryan Goebel, who in 2011 applied for a part-time job as a pizza cook at a Casey’s General Store. The application form asked if he had “ever been convicted of a crime other than a routine traffic violation.” Goebel failed to disclose his 1996 misdemeanor theft conviction or his 1997 convictions for gross misdemeanor check forgery and fifth-degree criminal sexual conduct.

Casey’s hired Goebel but later fired him after they learned about his criminal past. Goebel applied for unemployment, but his benefits were denied on the basis that his failure to disclose the convictions was misconduct that disqualified him from benefits.

Goebel appealed the decision, and in an October 15, 2012 decision the Court of Appeals affirmed the denial. In reaching its decision, the Court observed that:

[Goebel’s] theft, check forgery, and criminal sexual conduct may have been immaterial to his performance as a pizza cook, but they were not immaterial to his behavior as an employee with access to cash and inventory and contact with customers…. Casey’s had a right, arguably even a duty, to discover if prospective employees had a history of dishonest or inappropriate behavior. Thus, honesty in filling out a job application was a standard of behavior Casey’s had the right to reasonably expect, and [Goebel] violated that standard.

What you need to know: Applicants need to be honest on their applications, even if that means disclosing a prior criminal conviction. Even if a prior conviction has nothing to do with the job being applied for, the failure to disclose it may be considered misconduct because honesty on a job application is a standard of behavior employers have a right to reasonably expect. Employers have a right — and arguably a duty — to ask about an applicant’s prior criminal convictions. If such convictions are material to the job, they can — and should — be taken into account when evaluating the candidate’s application.  However, before using criminal records as a part of their hiring process, employers should familiarize themselves with the EEOC’s Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

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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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

January 5, 2011

Packin’ heat at work – is it always employment misconduct?

Posted in Employee Handbooks, Firearams / Guns, Firearms / Guns, Firearms / Guns, Misconduct, Unemployment Benefits, Workplace Violence tagged , , , , , , at 10:20 am by Tom Jacobson

After Derek Schroeder was fired for bringing a gun to work, he applied for unemployment benefits. Not surprisingly, he was denied on the basis that he had committed employment misconduct. That outcome may seem predictable, but a closer look shows that had the facts been slightly different, Schroeder may have won his case.

Schroeder worked as a full-time casino investigator for the Mille Lacs Band of Ojibwe Indians.  He also worked as a part-time police officer for the Mille Lacs Tribal Police Department. One evening, Schroeder needed to attend training for his police job after his investigator job. He was required to bring his handgun to the training. Rather than leave his gun at home or in his car, he put it in a duffel bag which he brought into the casino.  During his shift at the casino, he showed the gun to a co-worker.

The Minnesota Court of Appeals declared this to be misconduct for two reasons. First, the employer had a policy which expressly prohibited the possession of firearms in the workplace. Thus, by bringing a gun to work, the court said Schroeder committed misconduct by knowingly violating a reasonable employment policy. Second, the Court noted that by bringing the handgun to work and displaying it, Schroeder committed employment misconduct by creating a safety risk which was the reasonable basis for the employer’s no-guns policy.

Key to the Court’s decision was the fact that the employer had a policy prohibiting the possession of firearms at work. The Court also noted that Schroeder displayed the gun to a co-worker.  Had the company not had the policy, or had Schroeder kept the gun concealed in his bag, perhaps the outcome would have been different.  The case points out that well-drafted policies help define employment misconduct — even when it seems obvious.

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.

November 3, 2010

Is viewing online porn at work employment misconduct if there’s no policy prohibiting it?

Posted in Computer Use, Employee Handbooks, Employees' Privacy, Misconduct, Pornography at Work, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , , at 7:47 pm by Tom Jacobson

Blayne Brisson was a full-time utility-maintenance supervisor for the city of Hewitt, MN.  After someone complained that they had seen him using his work computer to view pornography, the city conducted an investigation which uncovered more than 150 pornographic images on his computer.  Brisson later admitted the allegations.

After the city fired Brisson, he filed for unemployment.  The unemployment law judge (ULJ) disqualifed Brisson for unemployment benefits on the basis that he had committed employment misconduct.  Brisson then appealed the ULJ’s determination to the Minnesota Court of Appeals where he argued that he did not commit employment misconduct because the city’s employee handbook did not prohibit viewing pornography on the city’s computers.

In a November 2, 2010 decision the Court of Appeals rejected Brisson’s appeal after concluding that his “use of his employer’s computer to open pornographic e-mail attachments and access pornographic websites seriously violated a standard of behavior that the employer had a right to reasonably expect of [Brisson], even though the employer had not adopted a policy that prohibited [Brisson]’s conduct.”

The court’s decision gives us some assurance that there are types of misconduct that are so obvious that no written policy is needed to prohibit them.  It also highlights the growing problem of the abuse of employers’ technologies.  Despite the court’s assurances in the Brisson case, the best practice is to develop policies that define employees’ technology rights and responsibilities.

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 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.

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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