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

Daniel Schwartz with the Connecticut Employment Law Blog posted an excellent blog about the basics in filing an employment discrimination case.  Mr. Schwartz is correct, a discrimination lawsuit or any lawsuit for that matter is really only a set of allegations made by one party against another party (individual or business). Nothing has to be proven to file a lawsuit. Yet, so often when discrimination cases are filed by employees against employers, it gets reported in the media.

Don’t waste your time talking about a lawsuit which may not even be true or have any merit. Instead do as Mr. Schwartz’s suggests, “. . . the next time you hear about a lawsuit being filed, check back in a few months or years to find out what happened to the lawsuit; that's when there's really news to report.”
 

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Celebrating accomplishments is important, and this includes business events like two year anniversaries. Our law firm just celebrated 2 years of being in business with a wonderful open house for friends, business partners, and colleagues. We called it our “Grand Opening: So Grand It Was 2 Years In The Making,” thus titled by our graphic artist Cheryl Brunkow who designed the invitations.

Food was prepared by Chef Greg who developed a fabulous menu for us, including cherry wood smoked salmon with tarragon, artichoke dip with roasted tomatoes, Italian meatballs, fried eggrolls made fresh on site, and vegetable stuffed mushrooms. We went heavy on the sweet treats and served unbelievably wonderful flan with caramel sauce, old-fashioned cherry cobbler, decadent chocolate cream cheese brownies, and cheesecake with fresh strawberry or raspberry sauce.

It was a truly grand summer evening, celebrating a dream come true. Frank Sinatra and Michael Buble filled the air, along with many pleasant conversations. Business connections were made and new friendships kindled. Remember to celebrate the big and little accomplishments in your business life, and great food can really help!

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Marylee Abrams and I had the wonderful opportunity on Monday to attend the White Bear Area Chamber of Commerce’s annual golf tournament. (No, neither of us golfed, that could have been dangerous for those around us.) We did however enjoy a beautiful day at the 8th hole of the lovely Dellwood Hills Golf Club, meeting and visiting with many local area business owners, city officials and golfers.

We appreciate the opportunity to share with these individuals what our firm does and learn more about the businesses in our community. It is amazing how much business gets done on a golf course. We are already looking forward to next year’s tournament. Neither of us realized golf could be so much fun.

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Knee-jerk reactions can lead to embarrassing mistakes, and can generate a firestorm of negative press coverage. This can be seen in the recent misstep where senior employee Shirley Sherrod was condemned by the NAACP, and ousted from her job by the Secretary of Agriculture. Neither the NAACP nor the Obama Administration conducted an investigation prior to their now infamous knee-jerk reactions.

NAACP President Benjamin Todd Jealous has since retracted the organization’s previous statement about Sherrod, and claimed they were “...snookered into believing that Sherrod expressed racist sentiments at a local NAACP meeting in Georgia earlier this year.” They weren’t snookered, they jumped to conclusions without taking the time to collect and review all of the evidence. 

Similarly, the Obama Administration is reconsidering a reversal on her future employment, just hours after her forced resignation. MSNBC reports, Sherrod is not sure she would take her job back even if it was offered.

An employer’s obligation to conduct a full, fair, and thorough workplace investigation should never be compromised, or rushed to conclusion without careful review of all of the facts. Shame on both the NAACP and the Obama Administration! They were too quick to cast Ms. Sherrod’s character and integrity into the shark pool, without taking the necessary time to conduct a proper investigation.

Allegations of workplace misconduct warrant taking the necessary time and effort to determine if in fact the alleged misconduct occurred. I have blogged in the past about serious errors employers make when investigating employee misconduct, and how to avoid them. Jumping to conclusions seemed almost too simple to add to my list of employer don’ts; that is until today.

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My law partner, Marylee Abrams has blogged in the past about the importance of properly classifying your employees. Not only is it important to properly classify your employees it is also important to pay them appropriately for the actual hours they work.

An investigation by the U.S. Department of Labor Wage and Hour division at the Umatilla Chemical Depot plant determined 603 employees involved in departments including maintenance, munitions, and warehouse work, were underpaid for their time in the workplace. “In some instances, workers were not relieved for their lunch time, resulting in inappropriate pay deductions for lunch breaks that could not be taken.” These pay deficiencies are violations of federal laws including the Fair Labor Standards Act (FLSA). This investigation has resulted in a payment of more than $4.2 million dollars in back wages and additional civil monetary penalties.

The Fair Labor Standards Act provides an employee must be paid for all of the time considered to be hours worked and all time that is hours worked must be counted when determining overtime hours worked. The FLSA defines the term "employ" to include the words "suffer or permit to work". If an employer knows or has reason to believe that the employees are continuing to work when they are supposed to be on break and the employer is benefiting from the work being done, it should be compensated time.

This was a very costly error in employee compensation. I’m sure the employer is not likely to make this kind of mistake again. The U.S. Dept. of Labor will not hesitate to take action against employers who violate the law. In addition to making sure employees are properly being compensated for all hours worked, the U.S. Dept. of Labor is also investigating if employees are appropriately classified.

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I am presenting on the social media explosion and its impact on workplaces, in conjunction with popular mommy blogger Heather B. Armstrong, and twin cities IP attorney Kenneth Kunkle. The presentation is next month at the 2010 American Bar Association Annual Meeting in San Francisco.

I would love to share a variety of perspectives on how social media has impacted and is continuing to impact workplaces. I have my own opinions on how social media is affecting the employers we represent. I want to go broader than my own backyard, and would like to hear from other labor and employment attorneys, HR professionals, and social media gurus.  What are your experiences, opinions, and future projections?

Please share your thoughts with me about what you think is most important, cutting edge, or crucial. I will blog about the responses I receive, and I will share my printed materials with those who kindly contribute their thoughts.

So please weigh in, contribute, and lend your voice. I would love to hear from you. If you are in San Francisco attending the ABA Meeting, please stop by. I think the presentation will be a lot of fun.

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Last year the EEOC filed a charge of discrimination against the Hibbing Taconite Company for denying Mr. James Edstrom, a deaf individual, employment in its mine. The EEOC contends that Hibbing Taconite rejected Mr. Edstrom, who formerly worked for LTV Mining, due to his hearing impairment, in violation of the Americans with Disabilities Act as amended (ADAAA).

On March 5, 2010, Hibbing Taconite filed a motion for summary judgment alleging it was entitled to immediate judgment in its favor because there were no disputed facts and Mr. Edstrom was not qualified for the positions he applied for due to being deaf. Mr. Edstrom applied for three positions which were in the Hibbing Taconite plant and two positions in the open pit mine. The Court granted partial summary judgment to Hibbing Taconite. It agreed there were no facts in dispute and Mr. Edstrom wasn’t qualified for the positions in the plant, but the Court found there was ample evidence on which a jury could find Mr. Edstrom could have performed the jobs in the open pit mine with a reasonable accommodation.  The court stated, “The very fact that (Edstrom) successfully worked at the LTV mine pit is strong evidence that a reasonable accommodation could have been possible.”

It will now be up to a jury to decide if Hibbing Taconite discriminated against Mr. Edstrom: (1) by considering the job duties of the positions Mr. Edstrom applied for; (2) considering his disability; and (3) considering if a reasonable accommodation could be made for Mr. Edstrom. The trial is set for July 26, 2010. As a parent of a daughter with a hearing disability and a business owner in Minnesota, I will be watching this case closely and will provide an update when more is known.

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The beauty of arbitration decisions is that they provide a blueprint on what went right and what went wrong in discipline decision-making. Employers should carefully review arbitration awards, taking note of the arbitrator’s rationale to avoid making the same costly mistakes in the future.

The Minnesota Department of Natural Resources (DNR) terminated an employee, which was later overturned by an arbitrator. (Hamm v State of Minnesota) The employee was reinstated and then she filed a discrimination claim, which was recently settled when the State agreed to pay her $250,000.00.

DNR officer Cathy Hamm, had been terminated for her participation in preparing for the 2007 National DNR Conference held in Minnesota. 150 employees worked on the conference, but only Hamm was disciplined. The state alleged she had:

1. Failed to establish a time track code for work she completed on the conference, (The arbitrator ruled this was above her pay grade. Her supervisors were discussing how to accomplish this, but did not follow through.)
2. Conference fees were not set appropriately; (The arbitrator ruled that higher ups were actually responsible for setting the fees, not Hamm.)
3. She failed to report donated gifts; (The arbitrator ruled the gift policy was not applicable to the facts.)
4. Her use of state property and time in the drafting and sending of a fund-raising letter for the event was inappropriate. (The facts indicated the Commissioner of the DNR had approved the fund-raising letter via email and received copies of it as well.)

In conclusion, the arbitrator found the charges of misconduct alleged by the employer could not be supported by the results of the investigation.

So what went wrong? When we conduct investigations at our firm we make a practice of reviewing an investigation microscopically and then telescopically; up close and then stand back and take a fresh look. A fresh pair of eyes would have also been a great idea in the Hamm case, to review the investigation before making a disciplinary decision. Fresh eyes might have seen that the alleged policy violation did not actually fit the facts of alleged misconduct. Fresh eyes would have made sure the employee actually was given the job responsibilities, and not some supervisor above the employee, before alleging such misconduct. Fresh eyes would have confirmed the head of the department had actually approved a fund-raising letter, before finding misconduct on the part of an employee for sending it. Fresh eyes might have questioned why only 1 out of 150 employees was under investigation for misconduct. 

Employers should make it a habit to routinely read discipline arbitration decisions to avoid making costly mistakes.  The Minnesota Bureau of Mediation Services is a good place to start your reading.......

 

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