I had a call from a client last week asking about whether there was a good format to use for drafting a disciplinary letter to give to an employee.  I advised her there was and suggested the following format:

  • Start with an accurate statement of the facts including: what happened, when it happened, etc… Make sure it is factually based and does not include opinion or judgment.  If a workplace policy or safety violation occurred, it should be referenced.
  • Describe any previous problems or issues, and what happened as a result (if anything). Be specific about dates and consequences such as you were counseled about …, or you were reprimanded, or you were retrained on this same problem etc…
  • Describe the impact the misconduct or performance problems have on the workplace.  The impact could be financial, related to staffing, safety, disruption of work production etc…  An example would be; “As a result of you being late to work, other employees needed to fill in for you until you arrived.  This meant they were not able to complete their own work.”
  • Clearly explain the expected behavior or performance that must be achieved to be successful.
  • Finally, the conclusion should state what will happen if the employee does not improve or change their conduct.  For example: “Future misconduct may result in further discipline, including termination from employment.”

A clearly drafted disciplinary letter helps to document an employee’s misconduct or performance deficiency and can help avoid future litigation claims.  It also gives clear direction to the employee about what is expected in the future and the potential consequences for failing to make the identified changes. 

Photo by: MCruz

The U.S. Court of Appeals for the 8th Circuit upheld the district court’s award of summary judgment in favor of the Minneapolis Public Schools (MPS).  Mr. Fischer was a janitor for the Minneapolis Public School from 2008-2010.  In 2010, Mr. Fischer was laid off for fiscal reasons.  In December 2011, Mr. Fischer was notified he was eligible for recall to a vacant Janitor Engineer position for the schools, if he possessed a boiler’s license and he completed a strength test.  Mr. Fischer took the strength test and received a composite score of 197.5 which was considered medium strength.  This score was below the 201 required for the medium-heavy strength designation MPS requires for its janitor engineers.

Mr. Fischer filed suit against the Minneapolis Public Schools claiming violation of the Americans with Disabilities Act (ADA) alleging MPS did not reinstate him to his former position as janitor based on the perception he was disabled.

Under the ADA, if an employer regards an employee as disabled it can be sufficient to establish a disability within the meaning of the statute if the plaintiff shows he/she was subjected to an adverse action because of the perceived physical or mental impairment.  Mr. Fischer claims MPS employees told him he was not recalled due to his back problems and his inability to pull, carry, push or lift a heavy load.  The Court found the remarks made by MPS did not lead to a reasonable inference that MPS regarded Mr. Fischer as having a physical impairment.  Instead, MPS’s belief that Mr. Fischer was capable of only performing medium strength physical labor vs. medium-heavy strength physical labor was based solely on the test results.

Employers that require job testing to fill positions should be certain the testing required correlates to job duties and functions.  A good place to start is updating job descriptions and reviewing essential functions of each position.  Testing for job elements crucial to job success provides protection from litigation. 

Employer, JAB, Inc. (a.k.a. Future Concepts Studio and Spa) hired Sara Naegle in 2007 as a stylist.  In 2010, Ms. Naegle was asked to sign a non-solicitation and confidential information agreement.  Ms. Naegle understood her only option was to sign the agreement, and she was not advised of any benefit she would receive after signing it.  The agreement stated for a period of two years after her employment ended Ms. Naegle, “… (2) would not solicit any customer or potential customer of JAB to cease doing business with JAB or to do business with former employees; …and (4) would not disclose any of JAB’s confidential information, including customer lists and customer information.”  The agreement did not mention consideration or any benefit to employees who signed it.  In March 2014, Ms. Naegle left employment with JAB, Inc. and went to another salon.  She notified some of her JAB customers where she was working.  JAB brought an action against Ms. Naegle for breach of contract, unjust enrichment, and sought a temporary restraining order.

Minnesota Statute § 513.01 (statute of frauds) requires an agreement/contract which cannot be performed within a year of its making, must include express consideration in writing either in the contract itself, or in a separate note or memorandum.  The Court of Appeals determined the non-solicitation agreement was unenforceable because it did not contain an express provision for consideration.  Additionally, the agreement included an integration clause referencing the agreement “contain(s) the entire understanding between and among the parties,” so the Court was required to look only at the four corners of the agreement.

Employers need to be cautious when they require current employees to sign any new agreements to make sure valid consideration is given.  If agreements are required prior to hiring, the consideration can be considered hiring the employee for the job.  However, it is not valid consideration to tell a current employee they will be terminated if they do not sign an agreement.

US-CourtOfAppeals-8thCircuit-SealThe ADA makes it unlawful for a covered employer to discriminate against any qualified individual on the basis of a disability.  In E.E.O.C. v. Product Fabricator, Inc., 763 F.3d 963 (8th Cir. 2014) the Equal Employment Opportunity Commission brought an action on behalf of a terminated employee indicating there was reasonable cause to believe the employee was terminated as a result of a shoulder injury and on-going shoulder problems.  Product Fabricator, Inc. (PFI) was made aware of the employee’s shoulder injury in September 2008.  From that time until his termination on September 1, 2009, PFI transferred the employee to a less physically demanding position, accommodated his work restrictions, and all medical appointments.  The employee did not schedule surgery on his injured shoulder until after his termination from employment.  The court determined the year long lapse between the employee’s shoulder injury and his subsequent termination was too long and did not support the inference of discrimination.

In Withers v. Johnson, 763 F.3d 998 (8th Cir. 2014), Mr. Withers sued Judge Johnson contending Judge Johnson discriminated against him because of his back injury, failed to accommodate his disability, and retaliated against him for requesting accommodation.  Mr. Withers worked as an assistant probation officer under Judge Johnson.  He suffered an injury at work, and was placed on medical leave in accordance with the Family Medical Leave Act.  On May 10, Mr. Withers was cleared by his doctor to return to work.  He left several voicemail messages for Judge Johnson, but did not reference his ability to return to work.  He also called the H.R. Department, but failed to mention his ability to return to work.   He did not provide a copy of his release to return to work until May 16, when he sent a copy to the H.R. Department, who then forwarded it on to Judge Johnson’s office.  The personnel policy stated, “…you are required to immediately provide a copy of the release to your supervisor to determine your return to work date.  Employees who fail to return to work as designated are considered to have resigned.”  Judge Johnson issued a letter to Mr. Withers indicating he was considered to have resigned his position with the County.  The court held there was no causal connection between Mr. Wither’s request for medical leave and his subsequent discharge, and barred his ADA claim.

Lastly, in Cody v. Prairie Ethanol, LLC, 763 F.3d 992 (8th Cir. 2014) the court determined Prairie Ethanol offered a legitimate, non-discriminatory reason for terminating Mr. Cody’s employment.  The employer cited performance-related issues resulting from Mr. Cody’s overly aggressive way of operating the plant.  While Mr. Cody established a prima facie case of disability discrimination, Prairie Ethanol offered a legitimate, non-discriminatory reason for terminating Mr. Cody, thus shifting the burden back to Mr. Cody to present evidence that Prairie Ethanol’s reasons were pretextual.  The court determined Mr. Cody failed to raise a genuine dispute whether Prairie Ethanol discharged him due to his disability rather than performance issues.

Discrimination cases are very fact specific.  Employers should be strategic and intentional, and avoid knee jerk reactions to avoid missteps.

file0001730089237 (1)The Minneapolis Star Tribune recently reported on an investigation it did into Minneapolis Public School employees’ use of district credit cards.  The Star Tribune reviewed six months of school expense records including credit card purchases totaling $1.5 million dollars.  The newspaper discovered many of the school district employees failed to follow proper expense reporting policies, including not providing receipts for purchases.  Some even made personal purchases with the school district credit cards.  The outgoing superintendent and current CEO have since repaid the school district for unauthorized purchases.

So, would this circumstance be considered employee fraud and theft?  Arguably, any time an employee is making purchases in violation of a policy it could potentially be considered theft.  The Minneapolis School District has indicated it has already made changes to its purchasing card system.  It also acknowledged other changes need to be made, such as revising the reimbursement policy regarding the amount employees who are traveling can spend on meals.  Depending on where an employee is traveling, the current amounts of $7 for breakfast, $11 for lunch and $23 for dinner may not be sufficient.

Employee fraud and theft is an important issue for all employers to be on the lookout.  My firm has found by the time fraud or theft is discovered, it has typically been happening for some time.  It is rare for an employer to discover fraud or theft on the first occurrence.  For more information on what to do if you suspect an employee is stealing from your business check, out some of our previous blog posts here and here.   

A new year means it is time to revisit hiring strategies, and implement new plans to attract and find the best candidates.  The job market is extremely competitive and good candidates are hard to find.  Reworking hiring plans now can help avoid costly hiring mistakes.  We have been advising our clients to rethink their hiring focus, and consider hiring for character. 

It used to be typical interview questions included, “Tell me about your strengths and weaknesses.”  A candidate’s response to this type of question was scripted and simply regurgitated information contained in a resume.  No new insights about the candidate were gained and valuable interview time was wasted.  Better interview questions include:

  1. Tell me about a time you handled a situation in the wrong way?  How did you handle the situation?  What did you learn from that experience?
  2. Define what you believe “doing a great job” means?
  3. What is the last commitment you failed to keep?  Why?
  4. Tell me about a situation where you went above and beyond what was expected of you?
  5. What can you do for our department (company) that someone else cannot do?
  6. What kind of things do you not like to do?

Cierra Ford at BackgroundChecks.org helped develop an infograph that is a good resource for employers considering hiring new employees this year.  My favorite suggestion for employers is to start looking for good candidates before you need them.  That is definitely not a traditional way for employers to think about hiring new employees.  In practice, this means actively recruiting college and vocational graduates, and mining a variety of other places where potential employees can be found.  It may mean starting a paid internship program to gain access to new up-coming talent. 

Creativity is the key to find future candidates who will develop into great employees. The point to remember is that if your business is not creatively approaching its hiring strategy in 2015, your competitor is, and you stand to miss out on some great candidates. 

 

Today, the United States Supreme Court will be hearing arguments in the case Young v. UPS on whether or not United Parcel Service (UPS) discriminated against Ms. Young due to her pregnancy. This case arose in 2006, when Peggy Young, a part-time UPS driver was denied light duty. She was placed on unpaid leave because of medical restrictions on how much weight she could lift. In 2006, UPS had a policy to only offer light duty to employees who were injured on the job, legally disabled, or had lost their federal driver’s certificate.

Since 2006, there have been changes made to the Americans with Disabilities Act Amendments Act (ADAAA) and the Equal Employment Opportunity Commission has issued guidance with respect to conditions resulting from pregnancy. Some suggest these changes and guidance make this case irrelevant at this time, however in 2006 only the Pregnancy Discrimination Act was applicable to Ms. Young’s circumstances.

Just this summer, Minnesota passed the Women’s Economic Security Act (WESA) which modified Minnesota Statutes regarding parenting leave, sick leave, and pregnancy accommodations as well as other economic benefits. It created a new statute, Minn. Stat. 181.9414 which provides, “An employer must provide reasonable accommodation to an employee for health conditions related to pregnancy or childbirth if she so requests…unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business.” Under the statute, an employer may not claim an undue hardship for following an accommodation of lifting restrictions for over 20 pounds. This is exactly the issue before the U.S. Supreme Court today. This statute is applicable to Minnesota employers who employ 21 or more employees.

It will be interesting to see how the U.S. Supreme Court interprets the Pregnancy Discrimination Act and if it addresses the fact changes to the ADAAA may have made this case moot. For Minnesota employers, be sure to check both state and federal law when addressing issues surrounding pregnant employees. I’ll keep you apprised of what the U.S. Supreme Court decides in Young v. UPS.

 

You can’t miss all the yard signs promoting candidates for mayor, city council, or state representative in my neighborhood.  Every other house seems to have at least one, and some have two.  In addition, my mailbox is over-flowing with the political advertisements saying why I should vote for “that” candidate, and of course, don’t forgot the televisions ads.  We are just one week away from 2014’s mid-term election day, and after that the yard signs will be replaced with snow and the advertisements replaced with holiday catalogs and ads.

It is a good time to remind employers about their obligations regarding employees voting rights.  Minnesota statute §204C.04 indicates, “Every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.”

This means employers must provide employees with a reasonable amount of time off work to cast their ballot on November 4.  Employers should check their policies or collective bargaining agreements, for further information about what may be required.

To insure adequate work coverage, employers may want to talk with employees prior to election day, and inquire about what time employees may be voting.  Just remember violation of the Minnesota election law by an employer is a misdemeanor.

 

Most employers provide the usual paid vacation time, paid sick time and other time off as required by law. However, some employers are trying something new to attract employees, specifically members of the millennial generation (born between 1979 and early 2000’s). Some employers are beginning to offer creative and different benefits. Currently, Brooklyn Park, Minnesota (where I live) is considering different job incentives/benefits to offer its employees and attract new employees.

The Brooklyn Park City Council is currently considering adding two weeks of paid parenting time, in hopes of attracting and retaining younger workers. If the City Council adopts the plan, the City of Brooklyn Park would be the first city in Minnesota to offer paid parenting leave. Brooklyn Park, like many other public and private sector employers recognize the challenges they will face when members of the baby boomer generation retire and members of the millennial generation are to replace them.

Studies have shown millennials are more likely to hop from job to job during their career. Additionally, millennials want more flexibility in where and how they work, whether it is from home, office, or on the road. Employers are facing the challenge and trying to figure out how to attract and retain good employees.

The City of Brooklyn Park is doing an excellent job by preparing ahead of time for the shift in employees and generations. The Council is also exploring other benefits such as tuition reimbursement and some type of leave for employees who care for aging parents. Councilmember Trepanier said, “If it helps get good work-life balance, we should do that.” The Council will be making a decision on this issue at a future Council meeting.

I’m grateful my city, is thinking outside the box when it comes to trying to find and retain the best employees. Everyone knows work-life balance is important, and now more employers are trying to help employees achieve it.

Technology is advancing in all areas at what seems to be lightening speed. You can buy a new cell phone or tablet, and within a month a new improved version is being released. Medical technology now allows surgery with lasers requiring minimal recovery time. Changes are also occurring in the workplace.

Employers are moving towards utilizing technology to track a host of employee information. The restaurant industry has been collecting data from employees for quite some time. Restaurant Guard, a product originally introduced to help restaurants track employees, orders, and inventory, and be alerted to possible employee theft, has actually resulted in increased revenue to restaurants. Servers know they are being tracked, and thus encourage customers to have an extra drink or get a dessert.

Sociometric Solutions is a new company which advises companies on human dynamics research through the use of sensor-rich employee ID badges. The sociometric ID badges are equipped with two microphones, a location sensor, and an accelerometer. The purpose is to monitor the communication behavior of individuals. Employees elect to have their data collected by Sociometric Solutions. Sociometric Solutions gathers the raw data but only provides aggregate statistics to the employers. The results of one study conducted at Bank of America call centers resulted in the company introducing a shared 15 minute coffee break. This resulted in a 10% increase in call handling productivity, and a 70% decline in employee turnover.

Utilizing digital tools for workplace monitoring can be both good and bad. The overall concern is, what is the “right” level of monitoring and why is it being done? As with any type of new monitoring/tracking technology there are concerns about privacy issues.

Workplace analytics is a new business arena that is making use of technology. The law will have to catch up and address the privacy questions raised by this type of tracking/monitoring technology in the workplace.
(Photo courteousy of ccsionline)