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

April 28, 2010 was Workers Memorial Day. U.S. Secretary of Labor Hilda L. Solis issued a nice statement in honor of the memory of workers killed on the job. Employees are the life blood of most businesses. They are who get the work done and keep a business going.

Employees are injured on a daily basis in workplace accidents. When this happens it affects a business operations and finances. It causes employees to lose time from work to recover, it diverts the attention of other employees to cover the work of the injured employee, and it will affect an employer’s worker’s compensation rating.

What can you do to prevent workplace injuries?

• Make sure your employees have the proper safety equipment.
• Make sure employees have the proper training.
• Make sure employees keep their work areas clean.

If you provide a safe work environment, and train your employees, you won’t have workplace injuries affecting your company’s bottom line.

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Late in the day on April 15 or Tax Day as many of us generally think of it, President Obama signed a bill extending the COBRA subsidy to May 31, 2010. The new bill is again retroactive, covering any employees who were terminated or laid off between April 1-April 15. Daniel Schwartz from the Connecticut Employment Law blog, discusses the President’s actions in more detail.

If you terminated or laid-off any employees between April 1 and April 15, those employees now fall under the COBRA subsidy and you will need to revisit the information you provided to the former employees and issue an updated COBRA notice.

This is the second time the COBRA subsidy has been extended and there is a chance it could be extended again, so it is important to speak with your legal counsel and obtain the most updated information about COBRA before terminating or laying off employees.

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I had the pleasure of speaking yesterday at the 2010 North Central National Association of Theater Owners Convention in Minnetonka, Minnesota. I was asked to speak on the topic of Employee Fraud and Theft in the Workplace. This is a topic my law partner, Marylee Abrams, and I have blogged about in the past. In my preparation for this presentation, I discovered over a 9 month period, there have been more than 24 news stories in Minnesota about employees charged with workplace theft or fraud. In fact, in March alone, there were 9 news stories on this topic. Clearly, this is a serious issue which needs to be addressed by employers.

One of the other presenters was Gary Kissinger with the Motion Picture Association of America, who spoke on new developments in the fight against film piracy. He spoke about the problem of film piracy for theater owners and the vigilance required to stop people from pirating motion pictures. Efforts may include sting operations, surveillance cameras in the theaters and undercover officers to stop someone from illegally recording a motion picture for sale.

I would like to thank the North Central NATO association for inviting me to attend and present at their convention. It was a wonderful convention with a lot of interesting information.

Coming up: If you are interested in learning more about employee fraud/theft, Marylee and I are presenting Employee Fraud/Theft – The Enemy Within Your Business: How to Identify and Address This Important Workplace Problem” on April 28, 2010 at the Vadnais Heights City Hall. It is free to attend and lunch will be provided. Please see this flyer (pdf) for additional information and how to RSVP. We hope you will be able to join us to learn more about how to deal with employee fraud/theft and how to prevent it from happening to your business.
 

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I just finished speaking at the Minnesota Chiefs of Police Executive Training Institute in St. Cloud Minnesota. The Conference theme was “Troubled Waters-Bridging the Gap” and I was asked to present on the top ten problems with internal workplace investigations. I previously blogged about the same topic outlining 10 workplace investigation snafus and fubars.

Even Chiefs of Police struggle with workplace investigations of employee misconduct, despite being instrumental in conducting so many investigations into criminal conduct as part of their policing duties. Investigating criminals is seen as just part of the job, while investigating a fellow employee is a completely different animal. Employees in a workplace are part of a group, sometimes viewed much like a family. Investigating a “family member” is difficult for any employer, including Chiefs of Police.

Conducting a full, fair, neutral investigation is crucial not only to the suspect employee, but also to other employees in the department, the morale in the workplace, and the integrity of the department. Workplace investigations require time and planning to be done right. There are no short-cuts to a well-planned and executed workplace investigation.

Internal workplace investigations can cause troubled water for a law enforcement agency, but the quality of the investigation will serve to bridge the gap.
 

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Words are very important to attorneys. It is how we make our living, reading words, writing words, and speaking words. We are hired because we know how to put words together to make arguments, draft contracts, and obtain settlements. We aren’t doctors or engineers, we don’t use scalpels or major mathematical equations. We use words.

How important are words? The Minnesota Court of Appeals will tell you every word counts. In the unpublished decision, Carley Foundry, Inc. et al. v. CBIZ BVKT, LLC, et al, No. 62-CV-08-9791 (Minn. Ct. App. April 6, 2010) (pdf) the Court addressed the issue of multiple settlement releases. In previous litigation over erroneous tax advice, two releases were executed as part of the settlement process between the parties. The first release was a Pierringer release executed between Carley and Mr. Barton and CBIZ BVKT LLC. It included broad release terms regarding potential future claims. A second settlement release with language narrower in scope with respect to future claims was subsequently executed between Carley and the remaining parties to the litigation. Mr. Barton and CBIZ BVKT LLC, were also mentioned in the second release, but only Mr. Barton signed it.

The present case arose out of tax advice Carley sought from Mr. Barton and CBIZ BVKT LLC, concerning settlement proceeds from the previous litigation. The advice given was ultimately erroneous and Carley bought forth the current action where Mr. Barton and CBIZ BVKT LLC, requested dismissal based on the Pierringer release executed during the previous litigation.

The Court reviews extensively the language of the two releases and the intent of the parties. Additionally, one of the arguments raised by the Appellants was that the district court erroneously “adopted an interpretation of the phrase ‘and/or’ to mean ‘the one or the other or both.’” The Court did not need to address this argument because it had already decided the Pierringer release was not superseded by the second settlement release, but the Court determined the language still warranted comment on the art of drafting.

The Court stated,

"The phrase “and/or” is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive. Laypersons often use the phrase and, surprisingly, lawyers resort to it from time to time. It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive. It is a totally avoidable problem if the drafter would simply define the “and” and the “or” in the context of the subject matter. Or the drafter could express a series of items as, “A, B, C, and D together, or any combination together, or any one of them alone.” If used to refer to a material topic, as here, the expression “and/or” creates an instant ambiguity. Furthermore, as one legal-writing authority noted, a bad-faith reader of a document can pick whichever one suits him-the “and” or the “or.” Bryan A. Garner, Looking for Words to Kill? Start with These, Student Law., Sept. 2006, at 12-14. At the very least, this sloppy expression can lead to disputes; at the worst to expensive litigation."

What can we learn from this case? We have to be careful with the words we choose to use. The crux of this case involved slightly varying language in two settlement releases. Every word has meaning and when used in a business contract, employee handbook or litigation, the meaning will be scrutinized. The Court went out of its of way to discuss a phrase, which ultimately had no bearing on its decision, just because it wanted to stress the importance of using clear and concise words to convey the parties intentions. Don’t let the Court make an example out of the words you use.

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All workplaces should have a social media policy in place which outlines behavioral expectations for employees. This includes non-profits, governmental agencies, as well as private sector businesses. It is pretty difficult to discipline an employee for spending too much time on Ebay or Facebook, or for sharing corporate news through Twitter, without specific guidelines in place.

I previously blogged about the need for social media polices in your workplace. Employers should consider the scope of their social media policy and make sure the policy fits their business model. Do you want employees to be sharing business information on social media? How does social media use by employees fit into your business public relations plan? Is it necessary to limit an employee’s use of social media? What are potential business advantages and disadvantages as a result of employees using social media? Should you exercise some type of control over social media and funnel it through one source?

If you are still not convinced you need a social media policy, the Federal Trade Commission recently posted its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."   It indicates employers could be liable for false statements about their  buisness/products made by employees through social media, and that employees are required to disclose their employment relationship to your buisness when making any endorsements.

Social media policies should address your unique business needs. Many model policies are available on-line, however one size does not fit all.  You don’t need to recreate the wheel while drafting your own social media policy, you just need to tailor it to fit the needs of your business.

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Anyone engaged in business wants to increase profits, streamline efficiency, and save money. This is true if you are running a manufacturing plant, designing buildings, or installing high end fiber optics. Following good solid business practices and practicing fiscal management are key principles to business success.

The soft side to a successful business is often underestimated. I am talking about “employees” or “talent.” While employee wages and benefits can be one of the most expensive line items in a business budget, the non-cash, human element of employing workers can be grossly underestimated.

Depending on which survey you believe, worker dissatisfaction seems to be a problem for many workplaces to some degree. This may be attributable to a variety of factors including the economy, increased pressures at work and home, or generational differences between workers and supervisors. A general restlessness amongst employees is not good for any business. To determine if you have a problem in your business, the first step is to assess your employees current level of satisfaction.

The opposite of employee dissatisfaction is what every business owner should want, that is loyalty from its employees. Harvey Mackay, author of “Outswimming the Sharks,” is on the circuit promoting his new book about job search secrets. He identifies a common theme among job hunters as, “It’s not all about the money.” He suggests four things can breed loyalty of employees to a business or organization:

• Professional development: Employees who are challenged and learn new skills stick around longer. Mentoring is a tool to keep employees growing professionally.

• Coaching and feedback: Employees like to hear how they are doing and that their contributions matter.

• Positive work environment: Surroundings and co-workers make a difference in job satisfaction, and a little fun helps too.

• Good bosses: People don’t leave jobs, they leave bosses.

All of these will lead to increased profits, streamlined efficiency, and saving money. Loyal employees enjoy being at work, experience less absenteeism, are more productive, and they are less likely to engage in litigation against their employers.

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