Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Following up on my recent post on the issue of workplace blogging, I had the opportunity to speak with Colin O'Keefe of LXBN TV regarding Ann Curry's departure from The Today Show. In the interview, I explain the hostile environment she faced, whether or not it constituted workplace bullying, and what lessons employers can learn from the story. 

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The media storm continues about the bullying suffered by former NBC Today show host, Ann Curry, at the hands of fellow co-workers and producers of the morning television show. It sounds as if there was a conspiracy to oust her, or in the alternative, make work so miserable she chose to quit.

Ms. Curry described her treatment at NBC to the New York Times as a “form of professional torture.“  A three part plan was allegedly hatched by Today show producer Jerry Bell titled Operation Bambi. It included Step 1) persuade Matt Lauer to extend his expiring contract; Step 2) oust Curry; Step 3) replace her with Savannah Gutherie. Mr. Bell is also alleged to have commissioned a blooper reel of Curry’s on-air gaffes, boxes of her personal belongings ended up in a coat closet prior to her being terminated, and of course, there is the Big Bird dress picture. Apparently, Ms. Curry wore a bright yellow dress on-air, and the control booth photo-shopped a picture of Big Bird next to her and wrote, “Who wore it best?”

It is interesting I haven’t seen any news reports labeling the workplace behavior as sexual harassment, but it sounds a lot like that to me. As an employer side labor and employment attorney, the facts smell bad. There apparently were enough details for author, Brian Stetler to write the book Top of the Morning: Inside the Cutthroat World of Morning TV.

For years, my personal choice had been the Today show for a quick peek at the news and weather for the day. I loyally hung on through the Pauley-Norville debacle, Matt Lauer’s mean emails about Willard Scott, and I even remember the replacement of news anchor Frank Blair. Enough is enough. After years of loyally supporting the Today Show, I am now trying out GMA, and the Early Show for my morning weather and news. NBC and Today have some work to do to win back this former fan.

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On March 8, 2013, the Federal government issued a new Form I-9 to be used by employers. The purpose of a Form I-9 is to verify employment eligibility, and helps employers confirm an employee’s identity and employment authorization to work in the U.S. All employers must complete and retain Form I-9s for every employee hired on or after November 6, 1986, and a Form I-9 must be on file for every person on the employer’s payroll.

The Form I-9 has three sections. The first section has to be completed by the employee no later than the first day of paid work. The second section must be completed by the employer no later than the third business day after the employee begins work. Section three is only required when an employee is rehired, or their employment authorization requires re-verification.

Form I-9’s need to be retained even after an employee leaves employment. Employers need to keep Form I-9’s either one year after the date employment is terminated, or three years after the date the employee was hired, whichever date is later.

Employers need to start using the new Form I-9 for employees hired on or after May 7, 2013. It’s time to get the updated forms in place for your summer hires.

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Driving to the office today in the slush and snow brought to mind the recent media storm about telecommuting. Yahoo CEO Marissa Mayer defended her decision to bring all telecommuters back to the office as an effort to kickstart the floundering media giant. Best Buy had  followed suit right after Yahoo, bringing their telecommuting employees back into the office fold. The thinking behind reversing the wave of telecommuting workplaces lies with the recognition there is a certain natural innovative synergy created by employees who work in the same location, which doesn’t develop via technology. Simply put there is a difference between connecting through technology, and really communicating with another human being.

Telecommuting sure looked good this morning and would have been a great option, had I not had a fully scheduled day and needed to start the day at the office. Too often cultural changes in the workplace swing like the proverbial pendulum. First one way, and then instead of a slight adjustment or modification, the pendulum swings 180 degrees in the opposite direction. This seems to be true of the telecommuting trend. 

A little flexibility might be the right medicine here. Bad weather days would be good days for telecommuting at least in Minnesota. The option to telecommute on a day like today would help avoid the stress and delay of traffic jams, increase employee job satisfaction and morale, and provide some diversity in the work schedule.  It might also just be an example of good old-fashioned common sense.

I appreciate Ms. Mayer’s take charge approach, and recognition of the corporate value of innovation resulting from human interaction, missing at Yahoo. No one complained when she gave every employee an IPad, or decided to make all the food in the Company cafeteria free. Not much was written about the other not so visible changes she must be making at Yahoo. Weighing the value to the employees against the value to the Company meant changes had to be made.

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Last week, CareerBuilder.com released the results of a survey it conducted between February 11, – March 6, 2013 of 3,690 workers asking “What is the strangest thing your boss has asked you to do?” 23% of workers reported their bosses asked them to perform tasks outside of their usual job duties. Some of the unusual requests workers received from their bosses include:

1) Boss asked employee to be a surrogate mother for her (more than once);
2) Boss asked employee to buy a rifle for him, and he would reimburse the employee;
3) Boss asked employee if she knew of anyone who could “hook him up” with illegal substances;
4) Boss asked employee to go online and post false good comments about him;
5) Boss asked employee to come up with a science fair project for her daughter;
6) Boss asked employee to remove her stitches;
7) Boss asked employee to clip her dog’s nails.

My personal favorite was the boss who asked the employee to fire the boss’s brother. Common sense should prevail here, and these types of requests are clearly out of line in the workplace. The best resource for appropriate requests of employees’ is to look at professionally worded job descriptions.

Job descriptions don’t need to be all inclusive, but they do define a person’s work role and accountability.  Does that mean an Employer can’t ask an employee to do something that isn’t listed on the job description; no of course not, but the requests the bosses made in the CareerBuilder.com survey were clearly over the line and outside of reasonable or standard job duties. A boss should not ask a worker to run personal errands or do things which are illegal. Take this opportunity to make sure your workplace job descriptions are current.
 

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Everyone needs a little humor in their life, and what better day to do something funny than today, the national day for practical jokers!  According to a survey on CareerBuilder.com, 32% of workers have either initiated or been on the receiving end of an April Fools’ joke. The Internet is full of stories right now that are certain to be April Fools’ jokes.  Google has announced that YouTube will be shutdown?  Twitter has announced to use vowels on its service will cost $5 per month. I can’t imagine Google really cancelling YouTube, or Twitter charging for vowels like on Wheel of Fortune. These remind me of some past April Fools’ jokes, like when Taco Bell purchased the Liberty Bell, and Burger King came out with the left-handed Whopper.

Employers what kind of workplace do you have? Is it one that allows some practical jokes on a day like today, or is it solely work-focused? If you allow April Fools’ jokes, be sure your employees understand it is not a standard occurrence, but is done for fun, and should be in keeping with a good-spirited joke. Check out this article for work-appropriate April Fools’ jokes.
 

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I heard attorney Susan Minsberg speak to a group of business owners regarding how to stay out of legal trouble. I was so impressed by her common-sense suggestions, I asked her to be our first guest blogger. Susan is an experienced litigator in both business matters and family law. She has a unique perspective on preventing litigation as she has litigated and tried many cases. Susan is a passionate advocate for her clients, and I asked her to share some of her tips with you.

Susan Minsberg: Sometimes people are reluctant to get a lawyer when they enter into an agreement. Typically, they are worried about the cost or somehow blowing the deal. The truth is, this is the precise point when people are most vulnerable and need legal help. The old adage is true, “An ounce of prevention is worth a pound of cure.” So here are 5 tips.

1. Consult a lawyer before you sign a contract or any other legal document. Problems are very expensive to address and very difficult to fix after the fact.
2. Remember contracts don’t have to be in writing to be enforceable. Oral contracts are more difficult to prove, but they are equally valid.
3. Negotiate agreements with the assumption the terms will not be followed. For each term, think about the “what if”. People generally enter into agreements with the belief everything will work out. Unfortunately, that is not always the case.
4. Don’t use forms from the Internet (or anywhere else), and assume they are good and will work for you. Every situation is unique. Forms can come back to haunt you.
5. If you are sued, remember the following: You probably will not be able to recover your attorney’s fees. (There are limited exceptions, such as including a fee provision in your contract.) Also, never, ever ignore a lawsuit.

When businesses spend more time up-front thinking about potential problems, they are better equipped to prevent them. Unfortunately, our society has become so litigious you need to protect yourself and your business from lawsuits. Be prospective, not reactive. You will be glad you did!

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The annual NCAA March Madness tournament started this week. Are your employees being as productive as normal? According to an annual study conducted by Challenger, Gray & Christmas, Inc., a global outplacement company, it is estimated American companies will lose at least $134 million in wages over just the first two days of the spring tournament because an estimated 3 million employees are spending time following the basketball games instead of working. In another survey, MSN and Impulse Research found 66% of workers will follow March Madness during work hours. It is not just watching the games that cause loss of productivity, but it is that some employees will be coordinating office pools and spending time researching teams during the work day.

The NCAA is encouraging workers to watch the games during work hours by offering free streaming on all internet-connected devices for pay-TV subscribers. Even worse, the NCAA March Madness Live website has a “Boss Button” an employee can click on to disguise their computer screen so it looks like the employee is reading e-mails, if the boss comes by.

What can Employers do to prepare for the predicted decrease in employee productivity over the next few weeks? Look at the culture of your Company, and determine ahead of time how you want to address the March Madness tournament. Remind employees of Company policies regarding absenteeism and abuse of sick leave. Supervise the employees and confirm they are getting their work accomplished. If the work is getting done, then maybe it isn’t the end of the world if they check out the scores online. However, if you find employees spending more time following the basketball games, than working, it is important to counsel them, they are there to work, and are being paid for doing a good job. If they continue, then discipline might be necessary. What is important though, is the Company sends a clear message and treats all employees the same.

This year the University of Minnesota squeaked into the tournament. Even though I’m not a U of M alum, or a huge basketball fan, I will be rooting for the Gophers, and will likely check out how they are doing online at least once.
 

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Almost everyone has one these days; in fact some people have more than one. What you ask, an e-mail address, of course. Most businesses/employers provide employees with a work e-mail address as a matter of convenience to assist with getting work done. Maybe it is obvious to some employees who the owner of the business e-mail address is, but I guess not to everyone.

Yesterday, administrators at Harvard University issued an apology to 16 resident deans whose official e-mail accounts were secretly searched over the weekend in an attempt to identify the source of a leaked document relating to a student cheating scandal discovered on campus last year. The University was conducting an investigation to determine how a confidential document which was sent to the resident deans ended up in the hands of the college paper. Many faculty members at Harvard see the Administration’s actions as a breach of privacy. From an employer perspective, what Harvard Administration did was completely reasonable, and I don’t think Harvard Administrators needed to apologize for their actions.

When conducting an investigation, especially into a computer/technology issue you don’t want to give an employee the opportunity to delete or alter evidence, so the search should be done discreetly. Additionally, Harvard first invited the deans to come forward with information about what happened, and this yielded no insights into the matter. The next step was to have the IT department conduct a narrow, careful, and precise search of the subject field of e-mails to determine who forwarded the e-mail with the confidential document. Prior to proceeding with the search of the e-mails, Harvard administrators consulted with Dean Evelynn Hammonds and legal counsel, Robert Iuliano, both of whom approved the limited e-mail search. At the conclusion of its investigation, Harvard determined the release of the confidential document was inadvertent.

Employees need to be aware it is the Employer who owns work e-mail addresses, and therefore any e-mails generated from a work e-mail address. We advise our Employer clients to have a technology use policy which notifies employees they are not entitled to privacy on any e-mails or communications they send or receive on the Employer’s technology. I have blogged in the past about who is the “owner” of business social media accounts. Here Harvard University conducted a limited investigation into the professional e-mail accounts of a select group of employees. Harvard has no reason to apologize.

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