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

 Earlier this week the United States Supreme Court issued a decision in Kasten v. Saint-Gobain Performance Plastics Corp. holding, '[t]he scope of the statutory term “filed any complaint” includes oral, as well as written complaints.'

This case arose when Mr. Kasten was fired, he alleges, for complaining to his supervisors and human resources about the unlawful location of the time clocks at the Saint-Gobain facility. After his termination, he filed an anti-retaliation lawsuit claiming violations of the Fair Labor Standards Act of 1938. The Supreme Court did an extensive analysis of the phrase, “filed any complaint”, before holding in favor of Mr. Kasten and remanding the case for further proceedings.

Saint-Gobain argued, if oral complaints would suffice, then employers will be left in a state of uncertainty about whether an employee is making an actual complaint or perhaps just blowing off steam. The Court agreed with Saint-Gobain and stated, “the phrase “filed any complaint” contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.” But, the Court proceeded to side with Mr. Kasten.

Given how long the Fair Labor Standards Act has been in effect, it is surprising this type of case hasn’t come before the Court earlier. Now, Employers need to be pay attention to any verbal complaints raised by employees, and address them in the same manner as a more formal written complaint.

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 Yeah! Spring is on its way with summer soon to follow. Most everyone gets excited about the warmer weather and longer days. In Minnesota, we are experiencing the unique weather pattern which normally accompanies early spring. In the morning, it may still be below freezing and winter attire is necessary, but by afternoon the temperature warms to the fifties and a lighter jacket could suffice. So, now is the time employees may start “changing” over their clothes to accommodate the warmer weather.

Most businesses nowadays allow for some type of “business casual,” whether it is only on Fridays or anytime there are no meetings in the office. Now, with the changing of the seasons and the warmer weather it is a good idea for employers to remind employees about the business’s dress code policy.

Twin Cities Business Magazine had a nice article on “How to Talk to the Employee Who’s Turning Heads at the Office (But not for good reasons)”. For example, flip-flops are generally not considered appropriate for work not only because they look unprofessional, but they can also be a safety hazard, due to the potential to trip and fall. So, what should you do if you do need to speak with an employee about their attire? Twin Cities Business Magazine interviewed Ms. Julie Haltom, who has 15 years of human resources experience. Her tips: ‘Be gentle. Try to have a sense of humor about it. Send occasional company-wide e-mails reminding everyone of the dress code. Lastly, don’t embarrass an employee by singling them out in front of others, but instead talk to them privately about the issue.’

By being proactive and reminding employees about the business dress code, employers can avoid having to have an awkward conversation with an employee about their attire. If your business doesn’t have a formal dress code in the employee handbook, outlining what types of clothing is or is not appropriate, now may be the right time to develop one and share it with the employees. If your business does have a dress code policy, now maybe a good time to review and update it, if necessary.

(Photo courtesy of Steve Johnson, Valparaiso, Indiana) 

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You smell alcohol on an employee’s breath after lunch. What should you do? One of your staff is acting weird, and you suspect they may be smoking marijuana. An employee has a motor vehicle accident with a company car, and you suspect they were under the influence when they crashed. What’s an employer to do?

From experience, more and more employers are turning to drug and alcohol testing of employees as a means of screening new job applicants, and also being able to respond to chemical use and abuse of present employees. Minnesota employers can’t just act on suspicion that an employee was drinking alcohol or using drugs before coming to work. State statute governs drug and alcohol testing of employees in the workplace, outlining what, when, where, and under what circumstances an employer can test an employee for alcohol or drugs.

Before an employer asks a job applicant or an employee to submit to testing, they must have adopted a policy that fits within state guidelines, and the individual must be given a copy of the testing policy. The policy must set out:

1. the employees or job applicants subject to testing under the policy;
2.  the circumstances under which drug or alcohol testing may be requested or required;
3. the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
4. any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test;
5. the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and
6. any other appeal procedures available.

Employers are required to use certified labs which meet minimum qualifications, and follow specific protocols. For example, a positive drug or alcohol test must also be subject to a confirmatory test. A job applicant or employee must be notified about a positive test result, that they have an opportunity to explain the positive test results, and that they can request a confirmatory retest of the sample, at their own expense.

“Safety sensitive” positions can be subject to random drug testing. Random drug and alcohol testing means the employer has initiated a testing schedule, whereby a random sample of employees are tested on a monthly or quarterly basis. Most employees however, are not considered “safety sensitive” and would be subject instead to a reasonable suspicion standard.  Reasonable suspicion means there is a “…basis for forming a belief based on specific facts and rational inferences drawn from those facts.” This may mean a car accident with the company vehicle, observation of behavior and an odor of alcohol on an employee’s breath, or the employee caused harm to another employee.

If the workplace is unionized, drug and alcohol testing must be negotiated with the bargaining agent. If there is no union, the employer is free to adopt a drug and alcohol testing procedure that meets the guidelines of Minnesota state statute. Most employers incorporate the drug and alcohol testing policy in their Employee Handbook.

To test or not to test, that is the question? If the answer is to test- then state statute needs to be followed.

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I have to commend the unions on their campaign to get their message out in Madison, Wisconsin. The media has been lapping up the union’s propaganda for days, with very little input or rebuttle from management. So much for balanced reporting! Instead, all of the focus has been on the circus at the State Capitol, not the scope of the financial crisis; on the chants and placards of the crowds, instead of the actual legislative proposals offered by Governor Walker.

I previously represented union members, and now only represent management. I know both sides of the table, and have seen the best and the worst of both labor and management. After years of working in public sector labor relations, I have concluded unions don’t usually ask, “How can I help you?” More often they ask, “How can I benefit?” This leads to workplaces that breed mediocrity and reject innovation and flexibility, where change is feared and rejected at all costs.

I agree with Dr. John Sullivan, former consultant to public-sector unions, and now a college professor of management at San Francisco State University. He outlined 18 reasons why public-sector managers resist union actions, all of which seem to apply to the events in Madison. He states, “You seldom hear the word innovation in the context of government, in part because rigid work rules make it nearly impossible.” Fear serves to keep unions rigidly stuck in the past, holding on for dear life to the good old days. Case in point: our unionized school districts who have avoided change in our classrooms at the expense of the quality of our education system. There is a huge price for maintaining the status quo. It is called obsolescence. If the unions hold to their current position, they will lose their value and credibility. If management remains silent throughout the present media barrage in Madison, the full-story will not get out, and there is little chance of a creative resolution.

New ideas and change should not be a source for fear and timidity by either labor or management. New ideas and change should be viewed as progress. Creative problem-solving beats arguing over why public employers are facing financial crisis, or finger-pointing at each other. The sooner both sides can accept the fact this is a new day and a new economy, the sooner they can get down to jointly solving the financial crisis, and create a new form of constructive, realistic labor relations.

This is not the time for business as usual, this is the time to get on with business in a new way!  

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Last week, the United States Supreme Court ruled in favor of an employee who had alleged he was terminated from his job as a technician at a hospital, due to his military service.  Staub v. Proctor Hospital. The employee claimed he had been discriminated against in violation of the Uniformed Services Employment and Re-employment Rights Act (USERRA).

Mr. Staub argued that the anti-military hostility of two supervisors had wrongly influenced the final decision-maker, who made the decision to terminate his employment.  The case is troubling because there was no proof the decision-maker was aware of the supervisors' hostility towards Mr. Staub’s military service, or even that she shared in the supervisors’ hostility towards military obligations.   The Court stated, “We therefore hold that if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if the act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”   The Court aggregated the supervisors’ military hostility and attributed it to the decision maker and her decision to terminate Mr. Staub.  The Court remanded the case to the Seventh Circuit to determine if a new trial was warranted.

Mr. Staub’s legal argument of the case is known as a "cat's paw" theory.  The theory stems from a 1600’s fable by Jean de la Fontaine, where a monkey induces a cat through flattery, to extract roasting chestnuts from a fire.  After the cat has removed the chestnuts, burning his paws in the process, the monkey runs off with the chestnuts and leaves the cat with nothing but his burned hands.  Translated to employment law, an employer can be held liable for discrimination when it can be established the final decision-maker was influenced to take an adverse employment action against an employee (such as termination in the Staub case) through the actions of a lower-level employee who has discriminatory motives.

The difficulty in the case, lies in determining what was the motivating factor of the employer in deciding to terminate Mr. Staub’s employment. The lower court noted, the internal investigation conducted by the employer could have been “more robust.”  This means there were skimpy facts on the record to support that the termination was for any other reason, but for the actions taken by the supervisors who had exhibited military hostility.  This affords a small nugget for employers to take away from the case, when assessing termination decisions in the future. 

Employers should:

• Make sure their workplace investigations are independent and thorough.  This is especially true if an investigation concerns allegations of discrimination against a supervisor.
• Accurately document work performance issues and conduct annual performance evaluations of both employees and supervisors.
• Review and update workplace complaint procedures and make sure everyone is aware of them.
• Document all employee complaints and be sure to include documentation regarding the outcome of the complaint.
• Train supervisors on USERRA.

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There are many different types of employee misconduct from insubordination to abuse of sick leave. Some employee misconduct is obvious. Insubordination is easy to uncover, because it doesn’t involve deceit, it involves an employee intentionally disobeying a superior.

Earlier this year, Britain’s Home Office UK Border Agency fired an immigration officer who used his security access to add his wife’s name to Britian’s ‘no fly’ database. The most interesting part of this story was the fact the immigration officer put his wife’s name on the list more than three years ago, after the wife flew to Pakistan to visit family, thus preventing her from being able to return to Britain. The immigration officer’s actions were finally discovered when he applied for a promotion and an updated background check was required. It revealed he was married to someone on a terrorist watch list. When confronted, he admitted he tampered with the list.

When you discover misconduct, even if it happened in the past, it is still important to act and investigate the misconduct.

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