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

Many job postings for entry level positions require a job applicant have a high school diploma or an equivalent GED. It sounds simple enough, but in some circumstances it may actually run afoul of the EEOC.

Last fall the EEOC published an informal letter on the topic, giving guidance on when requiring a high school diploma is permissible. A qualification standard “…such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

In plain English this means if an employer adopts a high school diploma requirement for a specific job, and the requirement “screens out” individuals who are unable to “…graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma. “  At this point, "...the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process."

Don’t panic. The EEOC letter clearly indicates employers are not prohibited from adopting a high school diploma job requirement, and no changes will be necessary in the vast majority of cases. However, employers must use caution, and carefully consider the legitimacy of the diploma requirement in light of the job duties, and respond appropriately to an applicant who indicates they were unable to achieve a high school diploma due to a learning disability.   

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Last summer I blogged about the inappropriate Facebook posts of a University of Minnesota mortuary science student. She had posted comments about cadavers, descriptions of embalming as cathartic, made threats to stab someone in the throat, and she nicknamed a cadaver “Bernie” from the classic comedy film “Weekend at Bernie’s.” As a result of her Facebook posts she received academic sanctions. She subsequently filed a court action arguing she had a constitutional right to free speech in her Facebook posts. The Court of Appeals ruled against the student, indicating her “…posts to a social networking website materially and substantially disrupt[ed] the work and discipline of the university.” The mortuary science student has spoken out once again by appealing the decision to the Minnesota Supreme Court, who heard oral arguments in the case last week.

According to Pioneer Press reporter Emily Gurnon, the student’s attorney argued she was “…off campus when she posted the comments, she didn’t identify the cadaver by name, and she didn’t describe the dissection procedure in detail, which student rules forbid.” Gurnon appeared to have been present for the oral arguments, quoting Jordan Kushner, the student’s attorney, in response to Justice Paul H. Anderson’s question about deference to the University’s sanctions and the need to provide for the safety of students. Attorney Kushner responded “there were no specific threats…That would be a different situation.” Kushner also quoted his client as saying, “She needs to joke and express humor, or she’d be the most miserable person on the planet.”

The right to free speech does not give students or employees carte blanche to say whatever they want. In this case the mortuary student’s remarks were stupid, immature, and disrespectful. Like the saying goes, “Say it, forget it. Write it, regret it.” I am hopeful the Minnesota Supreme Court will give us some guidance and clear up the cultural blur between personal and professional use of social media. 
 

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At-will employment is believed by many employers to allow them the ability to terminate an employee for any reason or no-reason at all, except for a discriminatory reason. We advise our clients to make “at-will” employment status very clear in job offers and in employee handbooks. This prevents an “at-will” employee from believing a contract has been established which guarantees continued employment.

The fallacy of “at-will” employment is that if employers do terminate an employee without notifying them of the legitimate reasons for termination, the employee is free to make-up a reason. This may be in the form of a discrimination claim, sexual harassment claim, wage and hour claim etc.

Truth and honesty with employees is always the best course of action for any employer. Additionally, using good business practices which include accurate performance evaluations, coaching, counseling, fair and reasonable discipline, and providing training opportunities to employees is important. Clear communication of employee expectations is also essential for every employer, as is documenting an employee’s work record. It has been my experience that employees who have been put on notice of work expectations, been treated fairly, and given an opportunity to make necessary changes, are less likely to challenge termination decisions.

The notion of at-will employment is really deceptive. A better course of action for employers is to follow the golden rule, “Treat others, like you want to be treated yourself.” It is one way to reduce legal bills, and avoid some of the costly challenges to employment termination decisions.

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Our public employer clients often express frustration with employees who have a pattern of acting badly at work. How much longer do they have to put up with a problem employee? What options do they have? Two recent arbitration decisions underscore the point public employers are able to terminate employees who act badly at work. Both termination cases involved hospital workers, and were decided by two different experienced arbitrators.

Arbitrator Jacobs upheld the termination of a 30 year employee, who had a pattern of disciplinary problems, culminating in a verbal altercation with a fellow employee. The employee had a documented pattern of problems dating back to 2007 including attendance issues, insubordination, poor workplace demeanor, and attitude problems towards co-workers. Arbitrator Jacobs stated, “She has demonstrated an unwillingness and/or inability to change her workplace behavior or performance as the Employer wants. Keep in mind that the Employer gets to call the shots here in terms of what it expects from its employees. That someone has been doing it in a particular way for years does not carry the day. The question is whether they are doing it the way the Employer wants it done now. Here the grievant has a demonstrable problem doing that.”

Arbitrator Fogelberg upheld the termination of a hospital worker who also had a pattern of bad behavior. The final straw was a loud verbal altercation with another employee, which was interpreted as threatening and abusive. “[H]is disruptive behavior toward his fellow workers proved to have an adverse effect on morale and detracted from the Clinic’s ability to focus on its patients. Moreover, the steps taken by Management demonstrate little of the desired result was achieved.”

Crucial in both arbitration awards is the extraordinary efforts the employers had taken to advise the employee about work expectations. These efforts included documenting performance issues, coaching, counseling, training, and progressive discipline. While any one of the individual incidents may not have been termination worthy, the cumulative nature of the documented misconduct sustained the termination decisions.

All employers should read “document, document, document,” between the lines in both arbitration decisions. Train, transfer, try, and if the employee is still acting badly, then termination may be the appropriate action.

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Last week, NLRB Acting General Counsel Lafe Solomon issued a second Operations Management Memo (OMM), covering 14 new employment cases concerning employee use of Facebook. It took me until now to read the 35 page memo, and synthesize the information for a blog. My first impression of the new cases is shock over the general decline in civility of employees, and the lack of boundaries they exhibit when they use Facebook to vent about work, co-workers, and supervisors. The cases read like employees gone wild, with vulgar, obscene rants aimed at their employers.

Seven of the new cases involved questions about the employer’s social media policies being too broad, and therefore unlawful. In 5 of the cases, the employer’s social media policy was determined to be overly broad and restrictive of employee rights.

Seven of the cases concerned employee use of Facebook. Specifically, employees made disparaging posts about work issues including complaining about not being promoted, poor management attitudes, and irritating, lazy co-workers. In 4 of those cases, the NLRB ruled the employee’s disparaging comments were protected concerted activity under Section 7 of the NLRA.

Notes to the Operations Management Memo underscore two main points: 

"Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees." 

I have blogged in the past about other NLRB decisions and the previous OMM issued in August, 2011. Actions Employers should take right now:

1. Conduct an immediate review of workplace social media policies to make sure the policies are not overbroad.
2. Managers should be trained on employee use of social media. Businesses are held responsible for the actions of their managers should they threaten or discipline employees for rants on social media sites.
3. Don’t panic. The social media cases are very fact-specific. Review facts and make intentional decisions in light of the guidance offered in the OMM.
4. Get legal advice early. It could be very cost-effective in the long- run.
    

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