Tuesday, July 31, 2012

Cellphones and Accidents – The Connection Should be Obvious



Okay, I couldn’t resist the headline. The Star-Tribune recently ran an article with the headline: "Pedestrians distracted by electronic devices stumble into danger, raising safety concerns." As a lifelong klutz, I just had to read the article. Sure enough, statistics show a rise in the number of injuries sustained by those walking while using a cellphone or other electronic device. People are running into telephone poles, falling off subway platforms, falling into ditches, falling off curbs, and being clipped by cars while focusing on their electronic devices.  Some of the stories are funny, like the one about a woman who fell into a large fountain at a mall while she was texting. She wasn't injured. Some stories, however, are about serious injuries, and some people have died.

We have heard a lot about the problems related to the use of cellphones while driving. As a result, we know that employers can face liability when damage or injury results from an employee's cellphone use while driving on company business. Many companies have policies prohibiting or limiting such use. In addition, several states and the federal government have enacted laws limiting the use of cellphones while driving. 

While that may be old news, I’m not so sure that we have thought enough about the need for policies and procedures limiting the use of cellphones at other times. Should employers restrict their use on production floors and in hallways or stairwells? Should cellphones be banned around heavy machinery? In parking lots? I know we cannot warn about every potential threat (after all, there will always be a few klutzes like me out there), but policies which discourage the use of electronic devices in certain settings may help to prevent accidents and injuries and may decrease an employer's potential liability for those injuries.

Monday, July 30, 2012

Forgetting to Turn Off Auto Email Delete Function Could be Very Costly in Litigation

While reading a recent article in the Wall Street Journal, I was reminded how important it is for companies to be sure that the right people within their organization are informed of new and ongoing litigation and of the company’s obligation to preserve potential evidence. When a lawsuit commences, your attorney should send you a “litigation hold” letter, informing your company of its obligation to preserve documents that may be relevant to the lawsuit. Most people understand that this means that they can’t go shred a bunch of documents that might be relevant. What not everyone appreciates, however, is that the duty to preserve information goes well beyond that. Among other things, it requires companies to turn off their auto delete functions and to stop overwriting computer backup tapes that might contain relevant information.
In a current lawsuit between Apple and Samsung, the court learned that Samsung failed to turn off its email auto delete function when the lawsuit started. Emails continued to be automatically deleted and, of course, could not be produced in response to discovery requests. The court found that failing to turn off the auto delete function was a failure on Samsung’s part to satisfy its obligation to preserve evidence – something the court takes very seriously. Apple asked the court for an “adverse jury instruction,” and the court agreed. The jury will be told that the evidence Samsung failed to preserve should be assumed to be evidence that supports Apple’s position and undercuts Samsung’s position in the lawsuit.
Although this type of destruction of evidence is often inadvertent, courts are generally unforgiving and hold companies to exacting standards for the preservation of evidence. Employment litigation often involves email correspondence, sometimes going back years and sometimes critical to the outcome. If your company has been sued and you haven’t been instructed about evidence preservation, start asking questions!

Friday, July 27, 2012

Week in Review

Reason number 999 why employers don't want their employees texting at work: it may lead to a very large fire. That is what happened when a New Hampshire civilian worker got an upsetting text from his ex-girlfriend while at work. He wanted to leave early, so he decided to set the dock of a nuclear-powered Navy submarine on fire. No one was injured, and no damage was done to the submarine -- this time. But, because he admitted to setting an earlier $400-million-submarine fire, he is now facing two counts of arson and the possibility of life in prison. Looks like he may be getting more time off from work than he bargained for.

In brighter news, the Olympics kick off tonight with the opening ceremony. With the advent of social media, live streaming, and mobile apps, you don't have to miss a thing. Check out the links below to find the best ways to follow your favorite events.

Technology and the Workplace
Employee Admits to Setting Navy Sub Fire to Get Out of Work Early (NPR) (Fox)
Greek Athlete Suspended from Olympic Team for Offensive Twitter Remark (CNN)
Hipmunk's "Spite" Feature Lets Users Book Agonizing Travel Itineraries for Bosses (CBS)
Teacher Was Not "Without Authorization" When He Read Co-Worker's Emails (DE Employment Law Blog)

Technology and the Law
No Contempt Charges Against Sex Assault Victim Whose Tweets Revealed Names of Juvenile Defendants (ABA Journal)
CA Attorney General Announces Privacy Enforcement and Protection Unit (CA DOJ) (Above the Law)
Changes Reportedly Make Skype Chats More Accessible to Police (ABA Journal) (CNN)
Senate to Consider Long-Delayed Cybersecurity Act (CBS)
World Leaders Take To Twitter, But New "Twiplomacy" Has Limits (Washington Post)

There's an App for That
How to Follow the London Olympics Online (CNN)
Twitter Partners With NBC for Olympics Event Page (CBS)
Separating Personal and Professional: There's an App for That (DE Employment Law Blog) (Chip Chick)
Never Have Trouble Jean Shopping Again (CNN)
Powerful Tools to Learn a Language, or Several (NY Times)
How All of Your iPhone Apps Could Be Hacked At Once (CNN)

Thursday, July 26, 2012

FOCUS ON BENEFITS: Health Care Reform is Constitutional… What Do We Do Now?

You’ve heard a lot of buzz about the individual mandate, the tax, and the expansion of Medicaid. (If somehow you haven’t heard enough, you can read the Supreme Court opinion here.) And you’ll be hearing plenty more about the political battle over the future of the health care reform law. We have no predictions about that. But whatever you hope will happen to health care reform politically, you know there are a lot of deadlines for the beginning of 2014. And you’re wise enough to know you need to gear up for the law’s requirements.
The constitutionality of the individual mandate was the biggest piece of the Supreme Court’s decision. How does that affect employers? Well, you’re not directly responsible for making sure your employees get health insurance, but the “employer shared responsibility” rules might make you feel like you are. We’ll start there because that’s what worries employers most. Stay tuned in the coming weeks to The Modern Workplace for grandfathers, Cadillacs, and other fun health care reform topics—today we’ll start with…
PAY or PLAY
This is the part of the law that might impose penalty taxes on employers. (Is it a tax? or a penalty?  We’ll leave that for the Supreme Court watchers to decide. Either way, it’s a potential expense you don’t want to get surprised by. We’ll use “tax” and “penalty” interchangeably here.) We’re waiting for regulations on the details, but the basic idea is that if you’re a large employer and you don’t have a health plan, you’re not playing, so you have to pay. You’re also not playing if you have a plan but it’s not affordable. Here’s how it works:
  • Are you a large employer?  If you have 50 or more full-time employees, this will apply to you.  If you have fewer than 50, it might still apply, depending on what your part-time work force is like. (More on part-time workers later…)
  • What’s it going to cost me?  There are two kinds of penalties—one for employers who don’t offer coverage, and another for employers who offer coverage that’s not affordable.
    •  No coverage offered: If you have at least one full-time employee who gets coverage on the exchange and gets government assistance with that coverage, you will have a penalty of $2,000 per year for each full-time employee you have, not counting the first 30.  It doesn’t matter that only one employee is actually getting government assistance.
    •  Coverage not affordable: If the coverage you offer costs more than 9.5% of an employee’s household income, or your plan doesn’t cover at least 60% of health care costs, you will have a penalty of $250 per month for each employee who gets government assistance with coverage on the exchange. This one just counts employees actually getting government assistance.  There’s a cap on the tax—it’s the amount of the penalty for not offering coverage (see above).
As you can see, these two ways of figuring penalties raise as many questions as they answer.
  • Who counts as a full-time employee?  Generally speaking, someone who works 30 hours per week is full-time.  The IRS and other agencies are considering some safe harbors that would allow you to determine whether someone is a full-time employee for any particular month by looking back at the previous year.  They’re also working on how to treat new employees.
  • How do I know what my employee’s household income is unless his/her spouse works for me?  You can’t, of course. The IRS is signaling that employers can use the employee’s W-2 income to make affordability determinations. We’re also expecting a safe harbor providing that if the cost of single coverage isn’t greater than 9.5% of the employee’s income, the plan is affordable.
  •  How do I know whether our plan covers 60% of health costs?  The IRS is considering some different approaches to making the calculation. If you have a standard plan, you might be able to use a “minimum value” calculator or a safe harbor checklist. If your plan is unusual, you might need an actuarial certification.
  • What government assistance can my employees get if they buy health insurance on the exchange?  There are two kinds of assistance available—assistance paying premiums, and assistance with cost-sharing (co-pays and so forth). Remember, your employee can’t get assistance if your plan is affordable.
  • How do I know whether my employees are getting government assistance to buy coverage on an exchange?  The exchange will notify you if your coverage is determined to be unaffordable and your employee is eligible for assistance. You can appeal that decision.
  • Can I just keep all, or most, of my employees at less than 30 hours a week, and avoid being a large employer?  Even part-time employee hours count towards deciding whether you’re a large employer. All of the part-time employee hours for a month will be aggregated and divided by 120 to get the number of your company’s full-time equivalents. The full-time equivalents will be added to the full-time employees in your count. Even if the numbers work for you to stay below the 50-employee threshold, you need to consider whether you might be inadvertently discriminating against any class of employees that are protected under federal or state law, or interfering with any employee rights under your current benefit structure.
  •  I’m afraid I’ll have an employee go out and get coverage on the exchange even though I’m offering coverage—I don’t want to pay for insurance and pay the penalty too.  If you offer coverage and it’s affordable (see above), then your employee can’t get government assistance on the exchange, which means you can’t be assessed a penalty.

Wednesday, July 25, 2012

In the Employment Discrimination Context, Can Two Wrongs Make a Right?

I remember being told as a child that “two wrongs do not make a right.” This was the common response I got if I tried to justify bad behavior by saying that I’d been provoked or that others had done the same thing. I imagine that, like me, parents all over the world still commonly use the phrase “two wrongs don’t make a right” in encouraging children to do the right thing. The lawsuit filed earlier this week by former Minnesota Senate aide Michael Brodkorb should, however, serve as a reminder to employers that this childhood lesson doesn’t always apply in the employment discrimination context.
In the discrimination context, an employer cannot assume that an employee’s misconduct will always legally justify discipline or termination. Liability for discrimination turns on proof that an employer treated someone differently based on race, gender, religion, or some other legally protected class status. As a result, courts have held that an employee can establish discrimination--even when he or she admittedly engaged in wrongdoing--if others who are similarly situated engaged in the same behavior but were treated less harshly based on a protected class status.
Consistent with this line of authority, Michael Brodkorb’s lawsuit against the state of Minnesota asserts a gender discrimination claim. Mr. Brodkorb’s lawsuit stems from his termination last December from his Senate aide position after having an affair with then-Senate Majority Leader Amy Koch. In his lawsuit, Mr. Brodkorb claims that his firing constitutes discrimination against him because of his gender, because similarly situated female legislative employees have not been fired despite having intimate relationships with male legislators. The Minnesota legislature has denied Mr. Brodkorb’s allegations, maintaining he was an at-will employee and was lawfully fired.
It remains to be seen whether Mr. Brodkorb will be able to establish that female legislative employees were, in fact, “similarly situated” to him in all relevant respects, or that he was subject to gender discrimination. Whatever the outcome of the lawsuit, however, it is sure to be an expensive and public battle for the state of Minnesota. To minimize the risk, distraction, and potential expense of this kind of a discrimination claim, employers should do the following before disciplining or terminating an employee for misconduct or poor performance:
  • Thoroughly investigate the situation and ensure the misconduct or poor performance, in fact, occurred and can be proved.
  •  Assess whether individuals who might be seen as “similarly situated” have engaged in the same or similar conduct but faced different employment consequences. Of course, circumstances may differ and may justify different courses of action for different employees. Before acting, however, an employer should carefully consider whether, if faced with a discrimination claim, it will be able to sufficiently articulate and prove its reasons for treating similarly situated employees differently.
  • Consider how to handle any future instances of similar misconduct or poor performance. If the employer is not prepared to discipline or terminate employees consistently in the future, it could face a discrimination claim if the disciplined or terminated employee learns of future inconsistencies in the employer’s actions.

Friday, July 20, 2012

Week in Review

What do you get when you combine leaked photos, disgruntled employees, and a judge who is alleged to be watching porn? The answer: one heck of a Week in Review and a tale of multiple firings.

The leaked photo, which captured an employee of a Burger King restaurant standing in the restaurant's lettuce bins, appeared on the internet with the caption: "This is the lettuce you eat at Burger King." The employees involved were quickly fired once the franchisee that owned the restaurant was identified and contacted.

Two disgruntled Texas EMTs were also fired because they were involved in a Facebook conversation about their desire to slap or kick some of their patients. One is striking back, though, in a suit that claims his employer invaded his privacy by finding the posts.

As for the judge who is alleged to watch porn, there's an investigation underway.  He's facing an ethics review because of claims that the judge used his pre- and post-trial time in chambers to access sexually explicit Web sites. Pending a hearing, he could face termination as well.

So there you have it: technology-related trouble does not discriminate based on occupation. If you're not careful, your online activities could cost you your job.

Technology in the Workplace
EMT Fired for Facebook Comment About Wanting to Kick Patient in the Head, Now Suing Employer for Intrusion Upon Seclusion (Employer Handbook)
Feet-in-Lettuce Photo Hits Internet, Gets Burger King Employees Fired (NBC News)
Employees Who Work at Home May Pay the Price in Raises and Promotions (ABA Journal)
Judge Watched Porn on Courthouse Computer, Investigation Alleges (Chicago Sun-Times)
Treasury Employees Cited for Violations, Including Soliciting Prostitutes From Work Via Craigslist (NY Daily news)

Technology and the Law
Facebook Monitors Your Posts and Chats to Catch Sexual Predators (Slate) (Reuters)
Mistrial Declared in First-Degree Murder Case Over Juror's Facebook Comments (ABA Journal) (CBS)
Witnesses to the Dark Knight Rises Shooting Share News on Twitter (CBS)
President Urges Cyber Bill Passage to Protect Critical Infrastructure From Hackers (Huffington Post)
Drones Have U.S. Lawmakers Worried Over Privacy (CBS)
Cameras Act as "Black Boxes" When Cars and Cyclists Collide, Help Solve Hit-and-Runs (NY Times)

There's an App for That
DOL App Helps Employees Independently Keep Track of Wages (The Full 360)
WA Becomes the First State With Voter Registration on Facebook (CBS)
Pay by Voice? So Long, Wallet (NY Times)
A Photo App That Pays You (NY Times)
Yellow Jacket: An iPhone Case With a Stun Gun for Self-Defense (Huffington Post)
Raindropping App Delivers Hyper-Local Rain Forecast to Your Phone (LA Times)

Thursday, July 19, 2012

To Monitor or Not to Monitor Employee Emails?

For as long as I can remember, I have advised employers that they have a right to monitor employee electronic communications, including emails, if the emails are sent or received on company equipment or company time. I ask the client about whether or not they have a clear policy putting employees on notice that they have no expectation of privacy in emails or other online activity done at work or on work equipment. If such a policy is in place, the employer is generally free to monitor employee activities, with or without other advance notice. This can be important when investigations into employee misconduct or wrongdoing are necessary. 
A recent New York Times article about employer email monitoring caused me to pause and reconsider my advice about this practice. According to the article, the federal Food and Drug Administration engaged in secret email monitoring and surveillance because it suspected that some of its own scientists were leaking confidential and proprietary information belonging to private companies to outside parties, including the media. The FDA used so-called spy software which tracked employee keystrokes, intercepted their personal emails, copied the documents on their personal thumb drives and even followed their messages line by line as they were being drafted. The agency also used a private document handling contractor to help with the surveillance operations, and this private vendor mistakenly posted more than 80,000 pages of confidential information gathered during the surveillance on a public website. 
The agency defended its action, saying the operation was limited to five scientists suspected of leaking confidential information about the safety and design of medical devices, and pointing to its policies allowing monitoring, including a “click through” notice screen that the scientists saw each time they logged into work emails.  
A group of scientists targeted for this surveillance have filed a lawsuit against the FDA challenging the surveillance practices and claiming retaliation for reporting claims of mismanagement and safety abuses in the agency’s medical review process. The law regarding online privacy rights is unsettled, and there are legal risks for employers, including possible claims for invasion of privacy. Public employers like the FDA are also subject to the Fourth Amendment of the United States Constitution, which protects public employees from unreasonable searches and seizures, and this prohibition extends to electronic information. 
The end result of my “pause and consider” moment? Monitoring employee work emails and online activity may involve some risk of legal claims, but it is an appropriate and lawful action if an employer is using best practices. In addition to having good policies in place, employers who want to minimize the risk of legal claims related to surveillance and monitoring should ensure that this activity is:  
  • done with a legitimate business interest or purpose in mind (such as investigating claims of harassment or alleged breaches of confidentiality agreements);
  • limited in terms of scope, time, and people involved;carefully managed by supervisors with an understanding of the risks involved;
  • if possible, conducted under the guidance and direction of legal counsel.  

Friday, July 13, 2012

Week in Review

This week, it's all about Facebook again. Except for the news about the Yahoo hack, you'll be hard pressed to find a technological tale that doesn't involve the social media giant. So here it is: the good, the bad, and the ugly of Facebook, all in one convenient location.

The good: the site continues to create useful apps. There is an anti-bullying tool tailored to help teens report harassing behavior, a price alert app that notifies you when items you Like go on sale, and a plan to launch a job posting board. With apps like these, who says time on Facebook is unproductive?

The bad: a yoga instructor teaching a class at Facebook was fired for glaring at a Facebook employee who was texting in the middle of the yoga session. The instructor wanted to enforce a no-cellphone policy, but found out the hard way that the freedom to text is an inalienable right for Facebook employees.

And the ugly: workers continue to post inappropriate things on their Facebook pages. The latest examples of posts that can get you into trouble at work include pictures simulating a prison rape and comments likening one of your students to an orangutan.

Check out the links below for these and other dos and don'ts of Facebook and technology in general.

Technology and the Workplace
Yoga Teacher Fired for Banning Cellphones in Class (ABC) (San Francisco Chronicle)
Brooklyn ADA Faces Internal Investigation for Old Facebook Photos (Gothamist)
Teacher Could Lose License for Comparing Student to Orangutan on Facebook (MSNBC)
PA to Require Public-Works Contractors and Subcontractors to Use E-Verify (Employer Handbook)
Facebook to Launch Job Posting Board (WSJ) (CNN)
Want a Job? Check the Spelling on Your Facebook Profile (LA Times) (MSNBC)

Technology and the Law
Man Arrested for Violating a No Contact Order After He Commented on His Own Facebook Photo (Eastern Iowa News Now)
Congressional Inquiry Reveals "Explosion in Cellphone Surveillance" (ABA Journal)
Yes, the Cops Can Text You From Your Drug Dealer's iPhone to Bust You (Forbes)
Federal Cameras Are Snapping Time-Stamped Pictures of License Plates in Four Border States (ABA Journal)
Yahoo Confirms 400,000 Accounts Hacked, Some Passwords Stolen (CBS)

There's an App for That
TheFind Introduces Price Alerts Facebook App (LA Times)
eHarmony App Helps You Lie to Your Date (MSNBC)
NBC Launches Olympics Live-Stream App for Tablets and Phones (CNN)
Smartphone Displays May Aid Eye Diagnoses (MSNBC)
Facebook Adds New Anti-Bullying Tools (CNN)
Facebook Groups Now Show You Who Saw Your Posts, Who Didn't (CNET)

What Can the Freeh Report Teach Employers about Workplace Culture and Investigations?

Yesterday investigators, led by former FBI Director Louis Freeh, published their independent report concerning Penn State’s response to reports of suspected child abuse by former football coach Jerry Sandusky. Sandusky was arrested in 2011 and convicted last month of 45 counts of sexual abuse involving 10 boys over a 15-year period. 

Freeh’s 267-page report is scathing in its criticism of the University and its leaders. Freeh said in a statement that “[t]he most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized. Messrs. Spanier [Graham Spanier, former school president], Schultz [Gary Schultz, university vice president, now retired], Paterno [legendary football coach, Joe Paterno, who died in January] and Curley [Tim Curley, athletic director] never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky's victims until after Sandusky's arrest.” 

According to the report, Spanier, Schultz, Paterno, and Curley were aware of a 1998 criminal investigation of Sandusky relating to suspected sexual misconduct with a young boy in a Penn State football locker room shower. They did nothing to restrict Sandusky’s access to the facilities, and failed to address the situation internally. They again did nothing when an assistant football coach reported in February 2001 that he observed Sandusky sexually abusing a young boy in the football locker room shower. “Written correspondence”—emails from 2001—uncovered by the investigators revealed that school leaders initially planned to report these allegations to authorities, but changed course and decided not to. These failures violated the Clery Act, which applies to higher education institutions, as well as applicable child protection laws (not to mention a duty of conscience to protect vulnerable people like the kids Sandusky was abusing).

Not every employer has occasion to worry about minors on its premises and only institutions of higher educations are subject to the Clery Act. But the sobering revelations of the Freeh Report have applications for all employers.

First, CULTURE. According to Freeh’s statement, “Penn State’s ‘Tone at the Top’ for transparency, compliance, police reporting and child protection was completely wrong.” The report reveals that janitors at the school observed what is described as a “horrific” sexual assault of a child in the shower, but did not report it because they were afraid of being fired for reporting a powerful football coach. We often recommend that employers maintain an “open door” policy assuring that all employees have access to company leaders to express concerns, as well as a whistleblower policy offering protection from retaliation so that employees can come forward with troubling information. It’s possible (even probable) that Penn State had such policies. But policies aren’t worth the paper they’re written on if employees don’t believe in them, and employees won’t believe in them if senior leaders don’t follow them. Culture and practice often matter more than what is written in a handbook. Employers can take a peek at their handbooks to make sure that they have they the right things written down, but they should also take a good hard look at their practices to make sure the policies mean something.

Related to culture is OVERSIGHT. Although there was no evidence that the Board of Trustees of Penn State was aware of the allegations against Sandusky in 1998 and 2001, the report blasts the Board for failing in its duties of care and oversight. “[T]he Board – despite its duties of care and oversight of the University and its Officers – failed to create an environment which held the University’s most senior leaders accountable to it.” Sometimes organizations allow different standards to apply to individuals who are valuable to the bottom line. The events at Penn State leave little doubt that failing to hold everyone in an organization equally accountable can have catastrophic consequences.

Finally, PERSPECTIVE. The Freeh report concludes that leaders at Penn State concealed critical facts relating to Sandusky’s child abuse in order to avoid bad publicity. We wrote previously about whether an employer could be held legally responsible for harm that could have been prevented if the employer had used its access to employees’ electronic communications to identify dangerous conduct. We assumed that a situation like the one Penn State now finds itself in, where key leaders were aware of allegations of serious misconduct, and yet did nothing, would be likely to create liability for the employer. Emails recovered by the investigators of Penn State demonstrate that school leaders knew of the 2001 report and chose not to inform child protective services, choosing instead to tell Sandusky not to bring children to football locker room. According to the emails, “the only downside for us is if the message isnĘąt ‘heard’ and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed.” Do you have counsel who can help you appropriately assess the risks associated with a course of action—or inaction?

The scandal at Penn State is more than just a cloud on the reputation of an institution. The inaction of school leaders gave a criminal an opportunity to victimize kids. The inaction of managers and supervisors can provide an opportunity for unlawful conduct in the workplace. Employers are wise to heed the lessons of the Freeh report and examine their culture, policies, and practices to make sure that inappropriate conduct is not tolerated.

Friday, July 6, 2012

Week in Review

As America turns another year older this week, the government, just like its citizens, struggle to keep up with technological change. While the Executive branch and its agencies are embracing the crime-fighting advantages technology has to offer, the other two branches are pushing back. Legislatures in Delaware and Pennsylvania are working to protect the privacy rights of their citizens by enacting new social media laws. In New York, a judge showed that social media sites are not above the law by ordering Twitter to turn over subpoenaed Tweets of an Occupy Wall Street protester. With the different branches disagreeing on where the line should be drawn between technology and the law, perhaps we are seeing separation of powers at its best. Just one more reason to celebrate America this patriotic season.

Technology and the Workplace
Resigned WI Principal Sent Flirty Emails to Employee (La Crosse Tribune)
Ex-Employee Fired After Reporting Receipt of Pornographic Emails is Now Suing For Wrongful Discharge (Tampa Bay Times)
Employees Fired For "Harassing" Facebook Post, NLRB Found Protected Concerted Activity (Slate)
Vacation? Leave Your Email at the Office (CBS)

Technology and the Law
TX Principal Accused of Planting Camera in Locker Room (ABC)
Student Social Media Privacy Bill Passes DE Legislature (LA Times)
Social Media Privacy Protection Act Pending in PA (Lawffice Space)
Twitter Must Turn Over Information on Protester's Posts (Bloomberg) (Atlantic Wire)
Is the U.S. Government Reading Email Without a Warrant? (MSNBC)

There's an App for That
Facebook Adds Same-Sex Marriage Status and Icons (ABC)
Hotel Replaces Printed Bibles with Kindles (CNN)
In Traffic? Next Time, Use an App (NTY)
Biological Clock Ticking? There's an App for That (Huffington Post)

Thursday, July 5, 2012

New Minnesota Unemployment Provision Takes Effect, But What Effect Will That Be?

A new provision of the Minnesota unemployment statute became effective July 1. Enacted by the 2012 legislature, the new language could have an impact on Minnesota employers and employees, but just what that effect might be is not -- to be charitable -- entirely clear.

It is not unusual for an employer to enter into an agreement with the departing employee under which the employee releases potential claims against the employer. To make such an agreement enforceable in a court of law, the employer must provide the departing employee something of value that, without the agreement, the employee would not get. One such valuable item, which is often requested by the departing employees (and their representatives) and granted by employers, is the employer's promise not to oppose any claim for unemployment benefits that the employee might make.

 The new statutory provision may alter the law in Minnesota with respect to agreeing to such requests. Specifically, the amendment adds a subdivision, 1a., to Section 268.192, which reads:

         Subd. 1a. Agreements not allowed. An employer may not make an agreement that in exchange for the employer agreeing not to contest the payment of unemployment benefits, including agreeing not to provide information to the department, an employee will:

                       (1) quit the employment;

                       (2) take a leave of absence;

                       (3) leave the employment temporarily or permanently;

                       (4) withdraw a grievance or appeal of a termination.

           An agreement that violates this subdivision has no effect under this chapter.

It's hard to predict what the effect of this amendment will be, or even to understand the intent of the new language.

There are several situations in which an agreement not to contest unemployment might come up. The employer might wish to induce a problem employee to leave voluntarily, but a voluntary departure reported to the Department of Employment and Economic Development (DEED) usually prevents the employee from being eligible to receive unemployment benefits. The employee doesn't want an involuntarily termination to show up in the employer's personnel records, but also doesn't want a voluntary departure reported to DEED. If no one tells DEED the departure was voluntary, the thinking goes, then both of the employee's goals are met and the employer's only cost is the cost associated with paying its share of unemployment benefits.

Perhaps it's that kind of deal that this amendment seeks to eliminate. The legislative thinking may have been that agreements of this type cause people who really don't qualify to be paid unemployment benefits.

Or maybe not. The new provision amends existing Section 268.192 of the Minnesota Statutes, a section entirely focused on preventing employers from obtaining waivers or other agreements from employees that would interfere with employees' receipt of unemployment benefits. Perhaps the amendment, like the rest of the section, is concerned with protecting unemployment benefits instead of limiting them. If so, it might apply to circumstances where the employer seeks to avoid being accountable for benefits.

It remains to be seen how DEED will handle issues that might arise over this new provision, and how the courts will interpret the new statutory language. Some employers and employees may now be wary of agreements that touch the subject of unemployment benefits, regardless of how mutually beneficial they might be. Others might well conclude that such agreements are still viable. We should all keep an eye out for further guidance.