As 2010 comes to a close, 
Marylee and I would like to take this opportunity to wish all our readers a safe and wonderful New Year. We hope you have found our blog posts helpful and infomative. We look forward to continuing to share helpful information and topics to assist employers with improving their workplaces. Be sure to check in with us in 2011.
This week the EEOC filed discrimination charges against Kaplan Higher Education Corporation, alleging the use of credit checks to screen job applicants was discriminatory. Kaplan had rejected job applicants based on their credit history since at least 2008. According to EEOC, the practice had a disparate impact on black job applicants, and was not job-related or justified by business necessity.
This is actually the second recent claim against an employer who used credit checks to reject job applicants. Last month, similar charges were filed in federal court in a class action lawsuit against the University of Miami. There the job applicant had been offered a job, and quit her previous position. She was then informed she would not be hired due to her credit score.
Plaintiff’s attorneys are actively seeking class action clients who may have been rejected for a job, based on their credit score. According to the EEOC, the problem with using credit checks to screen applicants is that they are not recognized as predictors of job performance. Given the present economy many consumers have struggled with debt and their credit scores have suffered. Coupled with potential errors in credit reports, their use in making job decisions should be carefully scrutinized.
Unless an employer is hiring a CFO, or an accountant, credit scores simply do not meet the job-relatedness and business necessity tests necessary to avoid discrimination charges. Employers should rely on more reliable predictors of job performance to make their 2011 hiring decisions. This may mean different screening and hiring processes based on individual job descriptions.
The EEOC reports, “Workplace discrimination filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.” I predict this number will increase in 2011, and we will see more discrimination claims concerning the use of credit reports as well as an expansion to include other automatic job screening exclusions such as the use of criminal arrest records that don’t result in a conviction.
Each year Attorney Molly DiBianca of the Delaware Employment Law Blog prepares a list of the top 100 labor & employment law blogs worth reading. I am pleased to announce our blog was included in her 2010 list of the best labor and employment blogs. We are grateful for the acknowledgment and honored to be included among the company of some very excellent bloggers.
The list of blogs is an impressive resource for employers. Readers can either subscribe to an individual blog or add it to their RSS feeds. Keeping updated on what is happening concerning labor and employment issues is crucial to every employer. We will keep blogging and you keep reading. Merry Christmas!
It used to be that criminal charges and most certainly a criminal conviction, always led to termination from employment, especially in the public sector. This was at least in part due to a recognized sensitivity that taxpayers had a right to expect more from public employees. The trend is changing, evidenced by arbitration decisions awarding lesser discipline to employees charged, and even convicted of crimes.
Just last week a Minnesota corrections officer working at a state facility was reinstated by an arbitrator, after pleading guilty to felony terroristic threats. In a drunken off-duty incident, the corrections officer threatened to “blow off his girlfriend’s head along with her daughter.” He had 16 guns at his house, but did not make the threat with gun in hand. He was terminated for violating a Department of Corrections policy governing conduct of employees.
At the hearing, the employer argued the corrections officer was prohibited from carrying a weapon, which was sometimes required while he worked in Master Control. The employer also asserted it was untenable for an individual under criminal supervision himself, to have authority over inmates who also were under criminal supervision.
The arbitrator placed great weight on the fact the corrections officer had a spotless 20 year work record, and immediately after the incident, he checked into treatment for alcoholism, and followed all the recommendations included in his treatment plan. Even acknowledging the corrections officer was prohibited from carrying a firearm under the Supreme Court’s decision in U.S. v. Hayes, 129 S.Ct. 1079 (2009), the arbitrator reinstated the employee without backpay, to a job not requiring him to carry a firearm.
Acknowledging the case was a close call, the arbitrator found compelling the fact the employer had other employees working and supervising inmates who had DUI’s on their record. While the corrections officer pled guilty to a felony, he was sentenced as if he had committed a gross misdemeanor, the same level crime as other working employees. Coupled with the undiagnosed alcohol addiction, termination was deemed to have been too severe.
Off-duty conduct by an employee can result in discipline if there is a material, adverse nexus to the employer’s business. If the conduct is also criminal in nature, it is not guaranteed it will be found by an arbitrator to support termination of the employee. Careful review of all of the factors surrounding the employees work record, previous discipline practices in the workplace, and any mitigating facts should also be considered in deciding the appropriate level of discipline.
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George Orwell published his classic social science-fiction novel “1984” over sixty years ago. We all know the theme from high school English literature class. The world is embroiled in perpetual war, and government practices pervasive surveillance and mind-control to manage citizens. The main character, Winston Smith, is responsible for re-writing history to fit government’s ideology when he rebels against “Big Brother.”
I am not suggesting something as sinister as “Big Brother” is alive and well today. I am suggesting surveillance technology in the workplace is expanding and being used in new and different ways.
Bloomberg Businessweek reports an increase in the number of employers using the surveillance services of private detective agencies, to catch employees who abuse sick leave and play hooky from work. “Kronos, a workforce productivity firm in Chelmsford, Mass., recently found that 57 % of U.S. salaried employees take sick leave days when they are not really sick-a nearly 20 % increase from statistics gathered between 2006 and 2008.”
Detectives reportedly uncovered a teacher who fabricated an inoperable brain tumor to take an extended leave, firefighters caught attending a hockey game on-duty, and a health-care worker taking three days off for the flu, who was actually visiting Universal Studios theme park. Employees were found to use technology to cover their location, such as the employee who mailed his GPS tracker to the hotel where he was supposed to be attending a conference, while he had opted for an exotic vacation. It appears there is a thriving business for detectives, hired by employers to stop employee sick-leave abuse.
A different kind of surveillance is being used by the Burnsville, Minnesota, Police Department, which allows police officers to record citizen contacts with the help of body cameras. They are the first police agency in the state to purchase and equip its officers with this new technology, which includes a camera worn on their hat, and a portable computer where recordings are stored. The department reports, “The cameras will cut down on officers working overtime to testify in court because the video will speak for them in many cases. And there will be a lot fewer personnel hours spent investigating complaints against officers.”
As new technology is developed, employers will have to intentionally review their potential use and determine how it fits into their workplace philosophy. To the extent employers notify employees about core values and workplace expectations, and advise employees that misconduct will not be tolerated, then surveillance may not be viewed as “Big Brother” watching over their shoulders. Instead, it will be viewed as a means of holding employees accountable.
Coworkers at the Marriott Hotel in Rochester, Minnesota started a false rumor that a 22 year veteran bellhop, Jeff Moen, brought a .357 Magnum to work with him. The rumor claimed Moen intended to use the gun at a meeting with management, and intended to “blow everyone away, including himself.”
According to reports, Marriott took immediate steps to fire Moen and notified the union. They also contacted a security firm from California, who recommended they obtain statements from employees. The hotel manager interviewed employees and made notes. Upon returning to work, Moen was met by a police officer who escorted him into a conference room where he was terminated from employment.
Moen’s attorney, Mark Stephenson, conducted his own investigation and determined the rumors were much like the old children’s game of telephone, where a story is embellished and expands with each telling. The false rumors probably started when Moen commented he had bought a gun as he was an avid hunter. It then expanded to “he brought a gun” to “he brought a gun to the meeting” and finally to “he brought a gun to the meeting and intended on blowing everyone away including himself.” Moen sued for wrongful termination including breach of his union contract and defamation, and alleged the employer had conducted a faulty investigation. The jury awarded $476,326.00 representing lost wages, and past and future damage to his reputation. It appears an appeal may be on the way.
Failure to adequately investigate allegations of employee misconduct can be very costly to employers. A gun report at work must be taken seriously, but it appears here the employer jumped to conclusions which were simply not supported by facts or evidence. There is a window of opportunity to take statements and proceed methodically. Unfortunately, the facts and evidence were not discovered until trial, resulting in a very costly mistake for Marriott.
Earlier this week, Marylee and I had the pleasure of attending the Association of Minnesota Counties 2010 Annual Conference and Vendor Fair. This is the third time we have attended this event and we always enjoy our time there. We had a wonderful time chatting with all the County Commissioners (new and retiring), County Coordinators and other County employees about what is happening in their counties. The theme of the conference was “Think Possible” and focused on bold ideas, creating new options, and finding better solutions in these challenging times. My firm’s mission is to provide creative, clear, and innovative legal services to public and private sector employers. As usual, the conference was extremely well organized and we are already looking forward to visiting with everyone again at next year’s conference.
Our blog just turned 1. It is hard to believe it has already been a year since Marylee and I started writing this blog. Boy, does time fly by. We wanted to take a brief moment to thank some people who have assisted us along the blogging path. These include: Kevin O’Keefe and the staff at LexBlog without whose help and guidance we would not have embarked on this new and creative outlet; Attorney Susan Minsberg who is always telling people about our blog and has been generous enough to offer suggestions on topics we should write about; our other attorney friends and colleagues who allowed us to bounce ideas off them and offered us their wonderful insight; lastly, you the readers for your trust and interest in what we have to say.
Our goal is to provide helpful information to public and private sector employers about labor and employment issues to assist them in making their workplaces better and keeping themselves and their businesses out of legal trouble. If you have a topic you would like us to write about, just let us know. We love feedback from readers.
Again thank you and we hope you continue to enjoy reading the blog, as much as we enjoy writing it.
When employees blur the line between their private life and professional life, it can be problematic for employers. In two recent Minnesota arbitration decisions, the issue of romantic relationships was central to employment consequences for two police officers. Both cases were heard by neutral arbitrators, and the actions taken by the employer were affirmed.
Fraternization: A romantic relationship which developed between a City of Champlin Police Sergeant and a patrol officer, eventually lead to the Sergeant’s demotion. The romantic relationship developed over a period of time, which led the City to give the Sergeant the option to resign his supervisory position or end the relationship. The Sergeant declined either option. The City subsequently adopted a formal Fraternization Policy. As a result of the new policy, the Sergeant was involuntarily demoted.
At arbitration, the Employer successfully argued the romantic relationship could lead to “…lawsuits, claims of preferential treatment, morale problems and safety problems in the department.” The Union claimed the Employer was prohibited from retroactively applying the Fraternization Policy. The arbitrator dismissed the Union’s argument stating, “All new policies have to have a starting point and the Fraternization Policy was enacted for safety, liability, and morale concerns, which are justifiable reasons for ‘retroactively’ applying the Policy to the Grievant’s romantic relationship, which caused the Policy to be promulgated in the first place.” As a result of the arbitrator’s decision, the Sergeant exchanged his supervisory stripes for romance.
Love Gone Bad: In another arbitration decision, a patrol officer for the City of Prior Lake was terminated from employment for his actions surrounding a failed romantic relationship. The officer had recently broken up with his fiancée, when he returned to her residence in uniform and on-duty. He used a key he still had to let himself in the house, and then broke down a bedroom door where his former fiancée was hiding with another man. The officer left the residence, and offered to pay for the broken door. He was convicted of two misdemeanors and terminated from employment. The arbitrator noted the conduct of the officer “…undercuts the mission and trust in a police department when an officer on duty violates the law and shows bad judgment resulting in abuse of authority and a failure to exercise discretion.”
Generally, when romance and work collide, the case concerns off-duty conduct. These two arbitration cases clearly indicate romance at work, or romance which leads to conduct during work, can have significant employment consequences. Employers clearly have a right and an obligation to consider the impact of romances on workplaces.
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