Wednesday, March 28, 2012
Obamacare At The Supreme Court: Get A Life
In a recent post, Adam Gillette at the Gillette-Torvik blog provides a fantastic reason we should ignore the theatrics and spin arising from the Supreme Court oral arguments on Obamacare and get out and enjoy our unseasonably warm spring.
Tuesday, March 27, 2012
Brodkorb Case, Ctd.
I was recently interviewed by Minnesota Lawyer, a weekly newspaper for Minnesota's legal community, on the Brodkorb case which I have posted on in the past here, here and here. The article in which I was quoted is here. The take away from the article is that most legal observers believe Brodkorb has a very difficult case for the reasons I have previously stated. The paper also ran an article on Brodkorb's decision to go so public with his allegations and threats of exposing other affairs in which I was also quoted. It is an interesting analysis of the pros and cons of trying your case in the press.
Monday, March 19, 2012
Minnesota's Proposed Right To Work Law: What The Heck Is This Thing?
You may have heard that the Minnesota legislature is considering passing a law or having us vote on a constitutional amendment making Minnesota a Right To Work (RTW) state. RTW laws essentially allow people to opt out of joining a union at their workplace and paying dues. Currently, workers in Minnesota can opt out of being a union member if their workplace is unionized. However, they are typically required to pay the union a "fair share" of the dues, i.e. a percentage of the dues they would pay if they were full union members. The thought is that because these non-union members get some of the benefits the union provides (such as the pay and benefits negotiated by the union) they should have to provide some compensation to the union for obtaining those benefits for the employee. RTW would allow employees to opt out of the union and not pay the union anything, including a fair share.
Like many other issues, this one is highly political. On one hand, you have Republicans and the Chamber of Commerce arguing RTW will decrease unemployment and increase wages. On the other, you have Democrats and labor unions arguing the law will not decrease unemployment and will lower wages.
I found a couple of articles that I think lay out the positions and facts on RTW. You can read them here and here. But do your own research so if you are asked to vote on this measure, you are making an informed decision.
Like many other issues, this one is highly political. On one hand, you have Republicans and the Chamber of Commerce arguing RTW will decrease unemployment and increase wages. On the other, you have Democrats and labor unions arguing the law will not decrease unemployment and will lower wages.
I found a couple of articles that I think lay out the positions and facts on RTW. You can read them here and here. But do your own research so if you are asked to vote on this measure, you are making an informed decision.
Sunday, March 18, 2012
Senate Scandal Post Script
I have one more thought about Former Minnesota Senate Communications Director Michael Brodkorb's potential legal claims against the Senate. Specifically related to the potential damages he may recover. At the end of this recent article, Brodkorb's attorney justifies the half million dollar settlement demand by stating: "His career has been irreparably damaged. He’s having a very difficult time finding new employment.”
Ask yourself this question. Has his career been damaged and is he having difficulty finding a job because he was discriminated against? Or is he experiencing these problems because he held a very public job and his voluntarily affair with the married Senate majority leader became public knowledge? Is it the alleged discrimination or the very public display of his poor decision making skills that has stunted his career?
Ask yourself this question. Has his career been damaged and is he having difficulty finding a job because he was discriminated against? Or is he experiencing these problems because he held a very public job and his voluntarily affair with the married Senate majority leader became public knowledge? Is it the alleged discrimination or the very public display of his poor decision making skills that has stunted his career?
Thursday, March 15, 2012
Update: Senate Sex Scandal
I had previously posted about the circumstances surrounding the resignation of former Senate Minority Leader Amy Koch and the termination of her staffer Michael Brodkorb. Brodkorb had previously threatened possible litigation, but it was unclear at the time what the facts were underlying his potential claim(s).
Today, Brodkorb confirmed what had long been believed - that he and Koch had an affair. The Star Tribune has a copy of a letter sent to the Minnesota Senate by Brodkorb's attorney confirming the affair and alleging that terminating Brodkorb for the affair amounted to sex discrimination in violation the Minnesota Human Rights Act. Brodkorb claims he was discriminated against because when female staffers had affairs with male legislators, they were not fired. In essence, he is claiming that he was treated differently than women who had engaged in the same behavior (affairs with legislators) and therefore was a victim of discrimination.
In what appears to be a transparent attempt to force the Senate into settling the matter, Brodkorb's attorney held a press conference in which he threatened to depose numerous legislators and their staffers about their alleged affairs to help prove Brodkorb's case. Indeed, Cal Ludeman, the Secretary of the Senate, has labeled the threat of digging up other affairs as "blackmail."
I think Brodkorb has at least three serious obstacles to succeeding on his potential claim. First, he needs to prove that the females who allegedly not fired for having affairs were "similarly situated" to Brodkorb in all material respects. That means that they had similar responsibilities, reported to the same people, etc. Brodkorb was the communications director of the Senate. I would argue that other staffers are not similarly situated to him as their duties, responsibilites and reporting responsibilities likely varied significantly from Brodkorb's. If they were not similarly situated, Brodkorb cannot prove he was treated differently and his claims fail.
Second, in one opinion, the Eighth Circuit Court of Appeals held that terminating an employee because they had a consensual sexual affair with a supervisor did not amount to sex discrimination. While the facts in the case are somewhat different than those presented here, the holding could make it difficult for Brodkorb to prevail.
Finally, Brodkorb's claims are based on the premise that when asked, the other staffers and legislators are going to admit that they had sex with one another. If there is one thing I have found that people lie about under oath, it is sex. Unless Brodkorb can testify that he witnessed these other people in the act, he has to rely on them testifying that these affairs occurred. I wish him luck with that.
In sum, I don't think Brodkorb's alleged claims have much merit. But what really bothers me is the behavior of his attorney. That is the type of thing that gives all lawyers a bad name.
Today, Brodkorb confirmed what had long been believed - that he and Koch had an affair. The Star Tribune has a copy of a letter sent to the Minnesota Senate by Brodkorb's attorney confirming the affair and alleging that terminating Brodkorb for the affair amounted to sex discrimination in violation the Minnesota Human Rights Act. Brodkorb claims he was discriminated against because when female staffers had affairs with male legislators, they were not fired. In essence, he is claiming that he was treated differently than women who had engaged in the same behavior (affairs with legislators) and therefore was a victim of discrimination.
In what appears to be a transparent attempt to force the Senate into settling the matter, Brodkorb's attorney held a press conference in which he threatened to depose numerous legislators and their staffers about their alleged affairs to help prove Brodkorb's case. Indeed, Cal Ludeman, the Secretary of the Senate, has labeled the threat of digging up other affairs as "blackmail."
I think Brodkorb has at least three serious obstacles to succeeding on his potential claim. First, he needs to prove that the females who allegedly not fired for having affairs were "similarly situated" to Brodkorb in all material respects. That means that they had similar responsibilities, reported to the same people, etc. Brodkorb was the communications director of the Senate. I would argue that other staffers are not similarly situated to him as their duties, responsibilites and reporting responsibilities likely varied significantly from Brodkorb's. If they were not similarly situated, Brodkorb cannot prove he was treated differently and his claims fail.
Second, in one opinion, the Eighth Circuit Court of Appeals held that terminating an employee because they had a consensual sexual affair with a supervisor did not amount to sex discrimination. While the facts in the case are somewhat different than those presented here, the holding could make it difficult for Brodkorb to prevail.
Finally, Brodkorb's claims are based on the premise that when asked, the other staffers and legislators are going to admit that they had sex with one another. If there is one thing I have found that people lie about under oath, it is sex. Unless Brodkorb can testify that he witnessed these other people in the act, he has to rely on them testifying that these affairs occurred. I wish him luck with that.
In sum, I don't think Brodkorb's alleged claims have much merit. But what really bothers me is the behavior of his attorney. That is the type of thing that gives all lawyers a bad name.
Saturday, March 3, 2012
What Do A YouTube Video, Kickboxing, The Burnsville School District And A $255,000 Settlement Have In Common?
The folks in the Burnsville-Eagan-Savage School District are up in arms over a settlement payment made to the District's departing human resources director Tania Z. Chance. As first reported, Chance was paid approximately $254,000 to leave her job, which is supposedly the balance on her two-year employment contract that the school board just approved in July 2011. Dozens of angry parents, teachers and community members confronted the school board on Thursday about such a large payout and wanted details of why such a payment was made. Many opined that because the District is looking at significant budget cuts it should have put that money into the classrooms instead. One speaker compared the affair to Watergate and urged the school board to not "cover up" what actually happened.
Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so. Moreover, Chance has a colorful background. She is a self-published author and Ph.D. in philosophy. She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera. (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further. Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement. (My views on social media and the workplace found here and here.)
The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure. It had nine lines blacked out.
On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure. Specifically, a copy of the full Agreement without the redactions was leaked to the press. It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators. As part of the Settlement Agreement Chance agreed to withdraw those complaints.
The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks. The District and Chance have remained tight lipped about the circumstances that resulted in the buyout. I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable). Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story. The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship." Really? Thanks for clarifying that for the rest of us. You've gotta love the lawyers.
The controversy doesn't end there. The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout. Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that. The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard. (I don't.)
So should the District have paid the big bucks? Are we entitled to know what happened? Has Chance booked a taxpayer financed vacation to Hawaii? I can't answer all of these questions, but let's shed as much light as we can.
The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District. Other details aren't available. We can't assess the merits of her alleged claims and we don't know what the District's response may have been.
What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky. We all have a natural inclination to be angry with people who accuse us of something we don't believe we did. And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint. I assume that Chance and Clegg were required to work closely together at the District. My wife is a teacher and is a representative on her union's negotiation team. She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances. These allegations could have created significant issues for Clegg and Chance's working relationship. But more importantly, their issues likely interfered with the smooth operation of the District.
Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings. Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave. To place her on unpaid leave because she filed a Charge would constitute illegal retaliation. So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down. By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance. On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.
The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations. If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately. The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement. That would truly be a "cover up" entitling this drama to a "-gate" type moniker. I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.
So what about the District's refusal to provide additional details? Here I have some sympathy for the District. Both Clegg and Chance were public employees. There were clearly allegations against Clegg of wrongdoing. He may be subject to an investigation and potential discipline.
The MGDPA provides conflicting requirements on the District in this situation. On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above. On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg). While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private. Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.
If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure. Whether that was the best decision from a political or public relations standpoint is different question.
I think this story is far from over. The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District. If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg. If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars. There is no happy ending for the District here.
Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so. Moreover, Chance has a colorful background. She is a self-published author and Ph.D. in philosophy. She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera. (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further. Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement. (My views on social media and the workplace found here and here.)
(Tania Z. Chance)
The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure. It had nine lines blacked out.
On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure. Specifically, a copy of the full Agreement without the redactions was leaked to the press. It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators. As part of the Settlement Agreement Chance agreed to withdraw those complaints.
The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks. The District and Chance have remained tight lipped about the circumstances that resulted in the buyout. I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable). Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story. The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship." Really? Thanks for clarifying that for the rest of us. You've gotta love the lawyers.
The controversy doesn't end there. The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout. Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that. The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard. (I don't.)
So should the District have paid the big bucks? Are we entitled to know what happened? Has Chance booked a taxpayer financed vacation to Hawaii? I can't answer all of these questions, but let's shed as much light as we can.
The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District. Other details aren't available. We can't assess the merits of her alleged claims and we don't know what the District's response may have been.
What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky. We all have a natural inclination to be angry with people who accuse us of something we don't believe we did. And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint. I assume that Chance and Clegg were required to work closely together at the District. My wife is a teacher and is a representative on her union's negotiation team. She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances. These allegations could have created significant issues for Clegg and Chance's working relationship. But more importantly, their issues likely interfered with the smooth operation of the District.
Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings. Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave. To place her on unpaid leave because she filed a Charge would constitute illegal retaliation. So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down. By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance. On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.
The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations. If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately. The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement. That would truly be a "cover up" entitling this drama to a "-gate" type moniker. I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.
So what about the District's refusal to provide additional details? Here I have some sympathy for the District. Both Clegg and Chance were public employees. There were clearly allegations against Clegg of wrongdoing. He may be subject to an investigation and potential discipline.
The MGDPA provides conflicting requirements on the District in this situation. On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above. On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg). While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private. Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.
If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure. Whether that was the best decision from a political or public relations standpoint is different question.
I think this story is far from over. The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District. If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg. If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars. There is no happy ending for the District here.
Friday, March 2, 2012
The Twin Cities Employment Market Is On The Rise
While not directly related to Minnesota Employment Law, a recent article on MinnPost.com discusses a recent study by the Met Council looking at the last 12 years of employment data for the 7 county twin cities area. The study showed some positive signs of recovery. Specifically, since the recession, the job supply in the twin cities is rising and the unemployment rate is falling. While employment levels have not returned to their peak in 2007, things appear to be trending in the right direction. Currently, the unemployment rate in the twin cities area is 5.3 %, which is well below the national average of 8.3%.
However, job growth in the twin cities has not compared well with other top 25 metropolitan markets over the last 12 years. While we have seen growth in education, health care, leisure, hospitality and finance jobs, many traditional blue collar jobs have been lost in the manufacturing, trade, utilities and construction fields. This is interesting given our relatively high rates of educational attainment, labor force participation and home ownership.
Also of note, the greatest growth in employment has been in the outer ring suburbs. During the last 12 years, the cities with the biggest gains in number of jobs include Maple Grove, 13,000 jobs; Eagan, 6,300; Richfield, 5,800; Shakopee, 5,200; Woodbury, 4,400; Golden Valley, 3,600; Lakeville, 3,500; and Blaine, 3,000. The biggest losers have been Minneapolis, 21,000 jobs lost; Bloomington, 17,000 jobs lost, and St. Paul, 13,000 jobs lost.
Hopefully the job growth trend continues so everyone can get back to work and have a good reason to follow the blog!
However, job growth in the twin cities has not compared well with other top 25 metropolitan markets over the last 12 years. While we have seen growth in education, health care, leisure, hospitality and finance jobs, many traditional blue collar jobs have been lost in the manufacturing, trade, utilities and construction fields. This is interesting given our relatively high rates of educational attainment, labor force participation and home ownership.
Also of note, the greatest growth in employment has been in the outer ring suburbs. During the last 12 years, the cities with the biggest gains in number of jobs include Maple Grove, 13,000 jobs; Eagan, 6,300; Richfield, 5,800; Shakopee, 5,200; Woodbury, 4,400; Golden Valley, 3,600; Lakeville, 3,500; and Blaine, 3,000. The biggest losers have been Minneapolis, 21,000 jobs lost; Bloomington, 17,000 jobs lost, and St. Paul, 13,000 jobs lost.
Hopefully the job growth trend continues so everyone can get back to work and have a good reason to follow the blog!
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