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

There is a public uproar in Minnesota about a Stearns County Deputy having received over $200,000.00 in salary and benefits, while facing 22 felony counts of criminal sexual conduct with minors. Recently his criminal trial was postponed again, and he continues in a paid status, approaching the start of his third year on paid leave.

Deciding to place an employee on paid or unpaid leave while criminal charges are pending, is not a new concept. An often over-looked 1997 U.S. Supreme Court case ruled, a public employee may be placed on unpaid leave while facing felony charges. In Gilbert v. Homar, the Court addressed the issue of a police officer facing criminal drug charges, indicating, “…[t]he State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers…We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.”

The Court identified three distinct factors to consider in their analysis. First, the private interest affected by the official action, (i.e the loss of the deputy’s paycheck); Second, the risk of an erroneous deprivation through the procedures used, (i.e. are the charges legitimate?); And finally, the Government’s interest,(i.e. the taxpayers interests.) I have no knowledge whether the Gilbert case was taken into consideration when Stearns County decided to continue the deputy in a paid status, but there are presently some compelling facts which indicate continuing the deputy in a paid status may not have been necessary. The deputy was in charge of the local Explorer Post, and at least one of the alleged victims was an Explorer Scout. Also, the beyond a reasonable doubt standard necessary to support criminal charges, is substantially higher than the clear and convincing or preponderance standards typically found in an employee discipline case before an arbitrator.

While it is true the Gilbert case involved a short suspension and not the two year time frame in Stearns County, the question remains, after consideration of the factors presented by the Court in the Gilbert case, is it fiscally responsible for a governmental entity to be paying an employee for two years to sit at home.

My law partner previously mentioned the Gilbert case in a blog about a recent arbitration case concerning a teacher facing third degree criminal assault charges. The teacher’s union filed a grievance arguing the teacher should been placed on a paid leave while the criminal charges were pending, not an unpaid leave. The arbitrator did not agree and denied the union's grievance.

The decision over whether to place an employee on paid or unpaid status while serious felony criminal charges are pending is a difficult one, and should be made only after a careful analysis of all of the facts in light of the Gilbert case. The decision should be intentional, as the cost to the taxpayers can be very high. Unpaid leave is clearly an option that should not be overlooked by employers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Recently, Arbitrator James Scoville agreed a Minnesota employer was free to terminate a Veteran because of the Veteran’s departure from the Employer’s driving principles. Under Minnesota law, a public employer cannot terminate an honorably discharged Veteran without a Veteran’s Preference Hearing. (Minn. Stat. 197.46.) A Veteran’s Preference Hearing may occur before a Veteran’s Board or Panel. Until the Board or Panel issues a decision, the Veteran remains in a paid status with full benefits.

In the case before Arbitrator Scoville, a six year employee of the Minnesota Sex Offenders Program was terminated because of two separate incidents which occurred in June 2011. Both incidents involved the Veteran’s inappropriate responses to Incident Command System Calls. In addition to the 2011 incidents, the Veteran had a discipline record of five separate disciplines in 2010 ranging from an oral reprimand to a 5-day suspension due to unauthorized absences. Arbitrator Scoville found the June 2011 incidents were radically different than the attendance issues in 2010, and the Veteran’s actions departed from the driving principles of the Minnesota Sex Offenders Program. Additionally, each incident came a day after the Veteran was coached about his job performance.

In this case, the Employer did the right thing. They tried corrective actions by coaching and counseling the employee and progressive discipline before resorting to termination. The Employer also documented their actions. Veterans deserve to be thanked for all they do for us, but they aren’t entitled to a free pass when it comes to doing their job. Arbitrator Scoville made the right call here.

Remember to thank a Veteran today!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A warehouse fork-lift operator failed a random drug test, and was terminated from employment.  He worked for a beer and soft drink distributor, who had adopted a random drug testing policy for all safety sensitive positions.  At the hearing, the employee testified he had inadvertently ingested marijuana laced brownies at a private barbecue ten days before he was selected for the random drug test.  He stated he was unaware the brownies contained marijuana and ate “five or six brownies and that he felt fine afterward.” 

The Union argued the employee had an unblemished work history and that there was no requirement to terminate an employee who failed a drug test, only to remove them from a safety sensitive position.  They argued the employee had inadvertently ingested marijuana at a private picnic, and was never under the influence at work.

The Employer conceded, while they had not terminated all first time offenders of the policy, they had previously terminated three other first time offenders of the drug policy in the past 5 years.  The Employer argued the inadvertent consumption of marijuana defense was not credible, and was concocted in an effort to obtain unemployment compensation benefits.  The arbitrator agreed and found the testimony “neither credible nor plausible,” upholding the Employer’s decision to terminate.   

Throughout the decision, the arbitrator lays out facts which indicate the employer’s drug testing policy followed the requirements set out in state statute.  These include:

·         The employee had notice of the policy, having signed an acknowledgment form;

·         The employee was working in a safety sensitive position and therefore was subject to random testing;

·         The employee was provided an opportunity for a retest of the sample at his own expense; 

·         The employee was aware of the penalties which could be imposed for a failed drug test.

I have blogged in the past about how to adopt a drug testing policy which complies with state statute.  Employers who have adopted a drug testing policy according to state statute, will have a stronger case to support discipline for violations of the drug policy.  The union's brownie defense is half-baked and a travesty to chocolate confection lovers.  Shame on the union for throwing a gooey chocolate mess at the wall, to see if anything sticks.   Really, brownies are a dessert, not a defense.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many work accidents are preventable through training and actively managing employees. Accidents at work can be devastating to the public, employees, and the employer, not to mention the liability exposure and resulting loss of employee work time and productivity. The federal government maintains statistics on fatal accidents, as do most states. Most recently, the Monthly Labor Review reported on a “Survey of Occupational Injuries and Illnesses,” based on national data from state and local governments. The survey noted a higher rate of injuries and illnesses in the public sector as compared to the private sector, and a higher rate of injuries and illnesses in local government workplaces, in comparison to state government. It is estimated there are approximately 1.6 million workplace injuries each year. The data is daunting.

Workplace safety numbers are impressive, but they only tell part of the story. Behind each workplace accident or injury, is the potential for employee discipline. Employees can and should be held accountable for safety violations. This month in Minnesota, two different arbitrators ruled in favor of the Employer, in two separate cases dealing with safety violations at work.

Arbitrator Martin upheld the termination of a public works employee who failed to stop for a school bus that had its flashing lights on and stop arm out. The Anoka City employee was driving a street sweeper at the time. No accident occurred and no small children were injured, but the arbitrator still upheld the employer’s decision to terminate the public works employee. He based his decision on the careful attention the City had paid to safety matters, and the safety training and policies they had adopted. The employee had a lengthy work record which included a laundry list of at least fifteen (15) past careless acts, including some intentional acts of disregarding safety rules. The Arbitrator noted there was no formula to determine discipline in safety cases “…how many events, over how much time, with what lulls require what discipline…” He did indicate the City did not have to wait for a serious accident before terminating the public works employee.

In another safety related case, Arbitrator Beens upheld the termination of a Metro Transit bus driver who had four chargeable accidents in a three year period. Almost four pages of the arbitrator’s award discuss the safety training, policies, and rules adopted by Metro Transit. A policy was in place indicating four “responsible accidents” within a three year period would result in termination. The driver had adequate notice her three previous accidents were going into her permanent file, and she elected not to grieve any of the prior determinations by the Employer.
The union and management disagreed on the definition of a “responsible accident,” and the arbitrator ruled in favor of the Employer, agreeing that a responsible accident means a preventable accident. Despite the union arguing the driver was well-liked by bus-riders, and enjoyed her job; safety won out in the end.

Employers prevailed in both arbitration cases because they had focused a lot of time, attention, and money relaying the importance of safety to employees through training, policies, and consistent application of discipline. Accidents will happen; Employers need to make safety a priority, and hold employees accountable for safety violations.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

The economy is beginning to recover. Public and private sector employers however are still dealing with fallout from this recession. Last fall, I wrote about the impact on cities and counties of a $6 billion dollar budget shortfall facing the State of Minnesota. Our public sector clients have been taking this issue very seriously and attempting to cut budgets in all areas. Everyone knows it isn’t just the salaries paid to employees that affect an employer’s bottom line, but there are also all the benefits, like health and dental insurance, severance packages, and retiree health insurance to name a few, which all add up. More and more, employers have been attempting to get a handle on employee benefits, in order to get budgets under control.

In Minnesota, police officers are considered essential personnel and are prevented from striking. In lieu of a strike, police officers are permitted to go to interest arbitration if a new collective bargaining agreement cannot be reached through negotiations or mediation. In a recent interest arbitration decision (pdf) Arbitrator Richard Miller agreed the City could sunset the retiree health insurance benefit, in order to get a handle on future expenses.

It is a common axiom in arbitration that the party proposing a change to contract language carries the burden of proving their request is necessary and reasonable. I represented the City in this interest arbitration case. The Union’s primary argument against sun-setting the retiree health insurance language was a lack of a quid pro quo from the City. Arbitrator Miller rejected the Union’s argument and agreed with the City; sun-setting the retiree health insurance benefit was not a take-away, no current police officers were losing the benefit, and therefore a quid pro quo was not necessary.

Employers need to look at all avenues available for reducing expenses and controlling budgets. Just because a benefit has previously been provided to employees doesn’t mean it must continue. Public employers must get control of future costs to avoid what some are considering the next major economic tsunami – the bankruptcy of state and local governments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Commander of the USS Enterprise (the US Navy sailing ship, not Captain Kirk’s star fleet battleship), ran into rough seas over lewd videos he made while on-duty, and then aired for the crew of his aircraft carrier. Capt. Owen Honors has been temporarily relieved of duty, while the Navy is conducting a formal investigation.

The videos shot in 2006 and 2007 included gay slurs, suggestive shower scenes, and simulated sexual acts. Capt. Honors characterized the videos as an effort to blow off steam and boost morale on the ship, which was not well-received by the Navy. The videos, ”…were not acceptable then and are not acceptable in today’s Navy.” Navy Cmdr. Chris Smith stated, executive officers and other leaders “… are charged to lead by example and are held accountable for setting the proper tone and upholding the standards of honor, courage, and commitment that we expect sailors to exemplify.” Capt. Honors will have rough sailing ahead, and no doubt discipline will follow.

Goofing around with video doesn’t just happen on naval ships out at sea. A local Minnesota police department experienced similar poor judgment when several of its officers, including a supervisor, shot an anti-management video concerning on-going labor negotiations. The officers made a Star Wars parody while on-duty, with costumes and dialogue. The video was edited to include a rolling text screen like the original Star Wars films, a musical score, and credits. Management was portrayed as the evil empire, and the final scene included a picture of a City Council member with a voice over of the evil emperor.

The department conducted an investigation concerning the Star Wars video, which also uncovered that the employees had made other videos while on- duty. The investigation resulted in discipline of the involved officers. I represented the city at arbitration where Arbitrator Beens upheld a five day suspension of one of the officers, and Arbitrator Moeller reduced a ten day suspension of another officer to a seven day suspension. (pdf) Another case is still pending. 

The union argued the videos were part of team-building and stress-relief at work, but neither arbitrator was convinced. I think it is safe to say creating videos on-duty, unless it is part of a legitimate training function, is very problematic. It is activity which will surely lead to an investigation, and more than likely serious workplace ramifications for employees.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.......

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Class action grievances permit a group of individuals who are similarly situated to arbitrate claims together under one umbrella case. Previously, if a labor contract or arbitration agreement was silent on class action grievances, they were generally allowed by most arbitrators. However, according to the U.S. Supreme Court that is no longer the case.

In April, the U.S. Supreme Court ruled “[A] party may not be compelled under the FAA (Federal Arbitration Act) to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen v. Animal Feeds Intl’ Corp. This means unless an arbitration agreement specifically permits class action arbitrations, none will be allowed.

But wait, in May the Minnesota legislature passed legislation overhauling the Minnesota Uniform Arbitration Act. In the overhaul there is a provision for consolidating separate arbitration proceedings if some or all of the claims are between the same parties, the claims arise in substantial part from the same transaction or series of related transactions, there is a common issue of law which creates the possibility of conflicting decisions, and the prejudice for failing to consolidate claims is not outweighed by the risk of delay or prejudice to the party opposing consolidation. In essence, the law provides a vehicle to combine grievances, much like a class action grievance.

What the U.S. Supreme Court had put asunder, the Minnesota legislature now has put together….
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The United States Supreme Court has agreed to hear a case regarding the arbitrability of race discrimination and retaliatory termination claims made by an employee who has alleged the arbitration agreement with his employer was unconscionable.

Gavin Craig, Minnesota attorney and publisher of Twin Cities Business Litigation Blog, warns about courts rewriting contracts.

“This is an odd case. If you accept the premise that the arbitration Agreement is a contract, and that the parties are bound by their contracts, the Ninth Circuit is wrong. The court is essentially re-writing the contract and deleting a provision. That is not right. Courts are not supposed to rewrite contracts. But that is the effect of the Ninth Circuit ruling. (pdf)"

The United States Supreme Court will now be deciding if a district court is required to determine the unconscionability of an arbitration agreement, even when the parties to the agreement have clearly and unmistakenly assigned this “gateway” issue to the arbitrator for decision?

The U.S. Supreme Court’s decision may have a far reaching impact on arbitration agreements between employers and employees, but for now we will have to wait and see.

• Email This
• Print
• Comments
• Trackbacks
• Share Link