February 3, 2016

“Boys are Boys” No Defense to Workplace Violence Claims

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision tagged , , , , , at 7:03 pm by Tom Jacobson

workplace violence

Reduce the risk of negligent hiring and negligent retention claims by adopting and following proper screening and workplace violence policies.

Employers can be held liable for injuries suffered by employees who are assaulted by their co-workers, the Minnesota Court of Appeals reiterated in a recent case. The decision highlights the importance of reducing the risk of workplace violence by conducting background checks of potential employees and enforcing anti-violence policies with existing employees.

The case, Hartfiel v. Allison (Jan. 25, 2016), started when an employee of T.J. Potter Trucking, Inc., Raymond Allison, hit co-worker Richard Hartfiel with a three-foot long steel bar while Hartfiel was sitting in his truck. Hartfiel suffered broken bones and other injuries and incurred over $75,000 in medical expenses.

In the resulting lawsuit, Hartfiel claimed that Potter Trucking was liable to him because it negligently hired and retained Allison. In support of his negligent hiring claim, Hartfiel pointed to the fact that Allison had a criminal history that included multiple assault convictions. He alleged that had Potter Trucking done a criminal background check and followed its own standard hiring procedures, they would have known to not hire Allison.

The court acknowledged that Minnesota employers may be held liable for negligent hiring if they fail to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public. This means that the scope of pre-employment investigations must be directly related to the severity of risk third parties are subjected to by an incompetent employee (the greater the risk, the more intensive the pre-employment screen should be). However, the court also noted that employers do not, as a matter of law, have a duty to conduct a criminal background check on prospective employees.

The court then rejected Hartfiel’s negligent hiring claim on the basis that Potter Trucking’s pre-employment inquiry was adequate:

Here, the unchallenged evidence shows that, although Allison provided Potter Trucking a release to perform a background check, Potter Trucking checks applicants’ driving records but does not conduct criminal background checks. Typically, Potter Trucking hires people on referral. Potter Trucking followed its standard procedures—it required Allison to submit an application, interviewed him, required him to submit to drug testing, obtained a release for a background check, and relied on a referral from Allison’s previous employer…. The record contains no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him.

However, the court allowed Hartfiel’s negligent retention claim to proceed. Quoting a 1993 Minnesota Supreme Court case (Yunker v Honeywell), the court defined negligent retention:

Negligent retention … occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.

Applying that standard to Hartfiel’s claim, the court noted there was evidence that after Allison was hired, he assaulted a subcontractor, but the owner minimized it “because it ‘[was not] work related’ and because ‘boys are boys.'” Other evidence suggested that when Allison thought a foreman had been rude to him, he threatened, “it’s no secret where I live, come on over there and I’ll . . . kick your ass all over the yard.” Because of that evidence, the court allowed the negligent retention claim to proceed to trial:

The previously discussed evidence of Allison’s violent behavior against a Potter Trucking subcontractor in a tavern and threatening behavior toward a Potter Trucking foreman is the type of evidence on which a jury could find that Allison had violent propensities about which Potter Trucking knew or should have known.

The Hartfiel case reminds us that when hiring, employers should conduct pre-employment background checks that are sufficient to determine whether a candidate would pose a threat if hired. The greater the risk, the more intensive the background check should be. The depth of that investigation should be set well before the hiring process begins, and it should be consistently applied.

Moreover, the case reminds us that ignoring acts of workplace violence and threats of harm will subject an employer to liability for negligent retention. Thus, employers should adopt and enforce policies against workplace violence, and they should not brush off misconduct just because they think “boys are boys.”

For more information about workplace violence or guidance on how to develop or enforce policies and procedures to address these issues, 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 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA
Advertisements

January 31, 2014

Ban the box

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Workplace Violence tagged , , , , , at 2:56 pm by Tom Jacobson

Crime Scene TapeOne of the more challenging aspects of hiring can be knowing when and how to conduct a criminal background check on a potential employee. In a previous article I noted how asking for such information during the application process is generally a good idea. However, a recent change in the law now prohibits Minnesota employers from inquiring into an applicant’s criminal history until after the candidate is selected for an interview, or if there is not an interview, after a conditional job offer has been made to the candidate. In essence, this change now bans the “Have you ever been convicted of a crime?” box on all Minnesota job applications.

Employers wishing to conduct criminal background checks on prospective employees should also familiarize themselves with the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions  Under Title VII of the Civil Rights Act of 1964. This guidance, which is based on established federal law, confirms that the use of criminal records when making employment-related decisions must be job-related and consistent with business necessity.

Despite these challenges, checking into a prospective employee’s criminal background is still a good idea. Doing so can help an employer avoid hiring an employee whose history indicates a potential threat to the company, its employees, customers, vendors or the general public. The trick is knowing what to ask and when to ask it.

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

April 25, 2013

Register now for Employment Law Update!

Posted in Affordable Care Act, National Labor Relations Act, Training, Workplace Violence tagged , , , , , , at 10:14 am by Tom Jacobson

Registration is now open for the 2013 West Central Minnesota Employment Law Update.  The event will be held on Thursday, June 6 at Alexandria Technical and Community College. The line-up will include:

  • Hot off the Press – the latest in employment law developments, presented by yours truly
  • What employers need to know about the Affordable Care Act, presented by attorney Dorraine Larison
  • Legal implications of workplace violence & bullying,  presented by attorney Sara Gullickson McGrane
  • What all employers need to know about labor law, presented by attorney Mike Moberg
  • Panel discussion with presenter Q&A

Click here for the full agenda. Seating is limited, so click here to register early!

Some comments from prior updates:

  • Great information
  • Loved the knowledge and collaboration
  • Loved the panel discussions
  • All the professionals were “on the spot”

Continuing education credit will be available.

For more information, contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com. This will be our 10th annual update, and we hope that you can join us!

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

March 20, 2013

Save the date!

Posted in Affordable Care Act, National Labor Relations Act, Training, Workplace Violence tagged , , , , , at 9:31 am by Tom Jacobson

Save the DateThe 2013 West Central Minnesota Employment Law Update will be held on Thursday, June 6 at Alexandria Technical and Community College. The line-up will include:

  • Hot off the Press – the latest in employment law developments, presented by yours truly
  • What employers need to know about the Affordable Care Act, presented by attorney Dorraine Larison
  • Legal implications of workplace violence & bullying,  presented by attorney Sara Gullickson McGrane
  • What all employers need to know about labor law, presented by attorney Mike Moberg
  • Panel discussion with presenter Q&A

Some comments from prior updates:

  • Great information
  • Loved the knowledge and collaboration
  • Loved the panel discussions
  • All the professionals were “on the spot”

Continuing education credit will be available. Additional details and registration information will be published soon, so check back here often, or contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com for additional details. This will be our 10th annual update, and we hope that you can join us!

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 1, 2013

Family of shooting victim sues Accent Signage

Posted in Background Checking, Bullying, Firearms / Guns, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision, Physical Contact, Workplace Violence tagged , , , , , at 6:04 pm by Tom Jacobson

Kare 11 and NPR are reporting that the family of Jacob Beneke, who was shot and killed in the Sept. 27, 2012 Accent Signage shooting incident in Minneapolis, has sued the company and the estate of the shooter, Andrew Engeldinger.  The twenty-page complaint, which has been filed in the Hennepin County District Court, alleges six separate claims, including that Accent negligently supervised and/or retained Engeldinger.

Whether the Beneke family will ultimately prevail on any of its claims remains to be seen, as the case will likely take months, if not years, to work its way through the court system. Meanwhile, the case gives us a chance to take a look at what is  “negligent supervision” or “negligent retention” in the employment context.

Generally speaking, these claims arise when an employer knows or should know that an employee is violent or aggressive and might engage in conduct that would injure others. Thus, the focus in such cases is mostly on what the employer knew — or should have known — about the violent propensities of the employee who later hurts someone. If the evidence supports that element, then it can be said that the employer owed a duty to protect others from the employee’s threat of harm. If the employer had that duty, then the focus becomes whether it breached that duty by failing to take precautions to protect others and whether or not that breach caused the harm suffered by others.

The Beneke case is not the first time the Minnesota courts have grappled with a negligent supervision/retention claim in the context of a workplace shooting. In 1993 the Minnesota Court of Appeals addressed it in the case of Yunker v Honeywell, Inc., which was also a case where the family of a workplace shooting victim sued the employer (Honeywell) for negligence. There, the Court held that because there was evidence suggesting that the shooter had a history of harassing and threatening co-workers, angry confrontations, challenging co-workers to fight, and scratching “one more day and you’re dead” on a locker door, there was enough evidence to put Honeywell on notice that the employee posed a risk of harm to others. Thus, the Court said, Honeywell owed a legal duty to protect others from this employee.

What you need to know: When an employer knows or should know that an employee poses a risk of harm to others, the employer owes a duty to its other employees to take reasonable precautions to protect them. Whether that duty exists, and what precautions are needed, vary on the facts and circumstances of each situation and workplace. To be proactive, employers need to recognize the signs of potential violence and be prepared to take steps to prevent it from happening.

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

January 19, 2011

Firing over false gun rumor costs Rochester, MN hotel $476,326.00

Posted in Breach of Contract, Contracts, Defamation, Firearms / Guns, Libel, Slander, Workplace Violence, Wrongful Termination tagged , , , , at 10:26 am by Tom Jacobson

Two weeks ago, I commented on the case of a Minnesota casino employee who was fired for bringing a gun to work (Packin’ heat at work:  Is it always employment misconduct? http://bit.ly/fSLNWC).  There, the Minnesota Court of Appeals upheld a determination that the employee’s actions were misconduct which disqualified him from unemployment benefits.

But what if an employer fires an employee based on the mistaken belief that he brought a gun to work and threatened to kill management, his union representative and himself if things didn’t go his way?  For the Rochester, MN Marriott hotel, the mistake was very costly, for it resulted in a $476,326.00 jury verdict in favor of a discharged bellhop, Jeff Moen.  The case was Moen v. Sunstone Hotel Properties, Inc. d/b/a Marriott Hotel.

The gun rumor started circulating in October, 2007.  When management learned of it the next day, they took immediate steps to fire Moen.  This included informing the supposedly threatened union representatives and interviewing the co-workers who had heard the rumor.  When Moen reported to work, he was frisked by a police officer, escorted to a conference room and fired.  Both the hotel and the union then sought restraining orders and barred him from the hotel and the union hall.

The problem for the hotel was that the rumor was false.  In a subsequent investigation by Moen’s attorney, the bellman who allegedly heard Moen’s gun threat denied ever hearing or repeating it.

Moen sued for breach of his union contract and defamation.  The jury awarded him $157,326.00 in lost wages, $200,000.00 for past damage to reputation and $119,000.00 for future damage to reputation.

The case points out the difficult question that arises when an employer is confronted with threats of potential workplace violence:  to what extent must the employer investigate the threat before taking action?  If the employer reacts too cautiously, and it turns out that the threat is real, the result could be disastrous.  If, as in Jeff Moen’s case, the employer reacts too aggressively, the result could be costly.  It appears that to avoid this result, Marriott should have dug a little deeper to get to the underlying source of the rumor before actually firing Moen.

For more detail about the case, see Fired bellhop gets $476K for defamation, says Olmsted County District Court, http://bit.ly/gWngAs.

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.

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.

October 6, 2010

Tyler Clementi suicide: lessons for HR – and for us all

Posted in Bullying, Discrimination, Harassment, Harassment, Sexual Orientation, Workplace Violence tagged , , , , , at 8:55 am by Tom Jacobson

Tyler Clementi took his own life last month. He was an 18 year old student at Rutgers University.  He was also gay, and after a sexual encounter between him and another man was secretly broadcast over the internet (allegedly by his roommate using a webcam), he jumped to his death from the George Washington Bridge.

When I read the reports of this tragedy, I was reminded of the question posted on a Society for Human Resource Management discussion forum, “Workplace bullying:  is it HR’s responsibility to control?”  That question was posted months ago, and to date it has generated well over 600 comments.

So what does the suicide of an 18 year old college freshman have to do with HR?  It’s quite simple.  Tyler Clementi is really no different than any employee who has suffered the humiliation of workplace bullying.  One does not have to dig too deep to find similar examples of disgruntled workers who have harmed — and even killed — themselves and others after being harassed, bullied or otherwise disrespected on the job.

What are the lessons for HR?  First, anti-harassment policies are critically important.  They need to clearly spell out the types of harassment that are prohibited in the workplace.

These policies also need to clearly describe how victims can report their concerns, and employees (especially supervisors and managers) need to be trained on what the policies mean and how they are to be applied.  Some reports on Tyler Clementi’s death indicate that after this sexual encounter was broadcast, he reported it to his resident assistant, but that process did not save Clementi.  Comparing this to HR, I wonder if Rutgers had told Clementi where he could go for help and whether the university had trained the RA on how to deal with Clementi’s concerns.

Surely, to allow bullying to exist in the workplace will expose any company to liability, especially it is based on an employee’s legally-protected characteristic.  But the lesson for us all is that regardless of our beliefs and attitudes about another’s lifestyle and traits, every person has a right to be treated with dignity and respect.

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 blog are those of the author and do not necessarily reflect those of Swenson Lervick Syverson Trosvig Jacobson, PA.

July 28, 2010

Workplace Bullying — is it really that big of a deal?

Posted in Bullying, Harassment, Workplace Violence tagged , , , , at 9:21 am by Tom Jacobson

Several months ago, the following question was posted on the Society for Human Resource Management (SHRM) discussion group on LinkedIn:  Workplace bullying:  Is this HR’s responsibility to control?  To date, the question has prompted 510 comments, far more than any other question currently circulating among the group.

Undoubtedly, stopping the workplace bully is important for any number of reasons.  Bullying diminishes productivity, hurts morale and could lead to liability under several legal theories. 

But, the SHRM discussion makes me wonder:  is workplace bullying really that big of a deal?  What do you think?

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.

%d bloggers like this: