Flipping Off The Cops Is Not A Crime!

File this one under "The stuff everyone should know in dealing with cops."  While not related to employment law or Minnesota, I think this is a story that needs to be told.

A federal court recently decided the case of a couple who were arrested for flipping a cop the bird.  While the criminal case was thrown out for procedural reasons, the couple sued the officer for stopping their vehicle without reasonable suspicion of criminal activity.  The court held that the "ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."  Therefore, the stop was unreasonable.

The best part of this story is how the court completely threw this cop under the bus for trying to sell one whopper of a lie.  The cop tried to explain that he pulled the couple over because he thought they were simply trying to flag him down for help.  The court rejected this line of BS out of hand stating that the "nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

That is about as big of a smackdown as you can receive from a federal judge.

Close Election Silver Lining? Higher Employment Rate For Lawyers!

Many people cringe at the thought of a close election.  The uncertainty.  The recounts.  The leadership vacuum.  The hanging chads.  I mean, who can forget this guy, right?

So what could be the benefit to a close election and a recount?  A dramatic increase in the number of lawyers who have a job!  The recession has been particularly hard on new and younger lawyers, so what could be better than a slew of litigation through a number of battleground states to help boost employment in a segment of the working population close to my heart!  Maybe this is all part of the candidates' clandestine lawyer stimulus bill?  We'll see...

The Minnesota Marriage Amendment And The Workplace

Minnesotans will be asked to decide at the polls whether we should amend our State Constitution to include a definition of marriage as between one man and one woman.  I appreciate that for some of us this vote raises a number of personal, political, cultural and religious issues we need to grapple with in making our decision.  And as a disclaimer, I personally plan to vote "No" on this Amendment for a number of reasons.  However, I want to expound on one of those reasons because it directly relates to the subject matter I like to blog about: Minnesota employment law.

"What does this issue have to do with employment law?" you may ask.  The answer is plenty.  At the crux of the legal analysis regarding the constitutionality of gay marriage is the fact that government - federal, state and local - provides special benefits and rights to married couples.  And many of these marriage-based government benefits relate to employment.  For example, the Family Medical Leave Act allows many employees the right to take time off of work to care for a spouse or child with a serious medical condition.  There are many employee benefits programs governed by state and federal law such as health insurance, 401(k) retirement accounts, and the right to receive workers' compensation benefits for a incapacitated or deceased spouse that relate to marriage and the ability to marry. 

The employment laws I have outlined above provide a number of benefits not just to the employees but to society in general. That is why they were passed in the first place. They allow for a smoother (and less expensive for taxpayers) transfer of wealth upon death or incapacity. They provide job security and financial stability in the event of serious illness or injury to family members. They allow for insurance coverage for medical and other costs that may otherwise not be provided to a non-family member.

Whether this Marriage Amendment passes or not, same-sex couples are going to continue to live together in committed long-term relationships.  They are going to have and raise children. They are going to be responsible for financially supporting each other and their kids.  The personal and societal benefits conferred by these laws would be equally as relevant to same-sex couples, and the benefits to society would presumably be the same as well.  Thus, from an employment law perspective, these are a few reasons why you may want to consider voting "No" to Minnesota's Marriage Amendment.

Get Out Of Work And Get Out To Vote!

November 6 is election day and everyone should exercise their right and get out to vote.  But better yet, those of us in Minnesota can get out of work to get out and vote!

Minnesota Statute 204C.04 states as follows:

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....

 

A person who violates this section is guilty of a misdemeanor, and the county attorney shall prosecute the violation.

So that jerk boss can't threaten, intimidate or coerce you into working late, taking a pay cut, using personal or vacation time or interfering in any other way with your right to vote.  If he or she has questions, have them give me a call. 

Who's Entitled to the Prevailing Wage? Not the People Doing the Work...

The Minnesota Supreme Court recently engaged in some mental gymnastics to deprive some employees doing work for the City of Minneapolis the right to have a jury decide whether they were paid the prevailing wage for their work.  The opinion in the case of Caldas v. Affordable Granite & Stone, Inc. (AGS) can be found here.

The City had hired the plaintiffs' employer, AGS, to repair some flooring in the Minneapolis Convention Center.  Per the City's requirements, the contract between AGS and the City expressly stated that AGS's employees would be paid the "prevailing wage" for the work they were doing on behalf of the city.  The 13 plaintiffs in this case argued that they were engaged in putting in the new floor, which entitled them to approximately $44 per hour which was the prevailing wage for the work.  AGS argued that the plaintiffs were engaged in janitorial work.  Two audits by the City into complaints by the plaintiffs found that they had been properly characterized as performing janitorial work.

The plaintiffs sued claiming breach of contract, among other things.  Because the plaintiffs were not parties to the contract between the City and AGS that contained the prevailing wage requirement, they had to argue that they were intended third party beneficiaries to that contract.  AGS, naturally, argued the plaintiffs were not intended beneficiaries so it could avoid paying these folks the prevailing wage.  The court's decision turned on whether these plaintiffs were intended third party beneficiaries or not. 

The test that is commonly used in Minnesota to determine if someone is a third party beneficiary states:
 
Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and ... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

So what does that legalese mean?  Essentially, when a beneficiary of a contract is not expressly named in the contract, the court can look at the circumstances surrounding the contractual provision at issue to determine who, if anyone, may have been an intended beneficiary of the contract.  If you are not an intended beneficiary, you cannot sue to enforce the contract.

So at this point you have to be asking yourself this question:  If a prevailing wage provision was not meant to benefit the employees of AGS who were going to do the work , who the heck was it intended to benefit? 

And that would be a great question.  And logic would dictate that your instincts were correct.  And you would be in good company in reaching that conclusion because the City of Minneapolis itself argued to the court that the plaintiffs were intended third party beneficiaries of the prevailing wage agreement. 

But if you were a member of the Minnesota Supreme Court, you would have ended up on the losing end of this argument.  The court held that AGS's promise to pay the prevailing wage was a "general promise to comply with the law, which does not confer upon AGS employees the right to enforce the law."  The court went on to state that the City, not the employees, had a right to enforce that provision by conducting audits or investigations into whether AGS was complying with the prevailing wage provision of the contract.  The City conducted those audits, concluded the plaintiffs were paid properly, and that was the end of it.

My feeling is that it was easy for the court to dismiss this case because the City itself had already concluded that these plaintiffs were properly classified and properly paid.  As such, they did not present a compelling case that they had suffered some type of horrendous injustice.  When the facts of a particular case do not engender some level of sympathy, it is often difficult to persuade the court that your side should win.  But the problem here was that the only issue before the court was whether these folks were intended beneficiaries.  It was a jury's job to first determine whether the provision had been breached. 

Two of the six justices who decided the case dissented.  In addressing the question of whether these plaintiffs were intended beneficiaries of the contract, they asked this question: “If Affordable Granite & Stone’s promise to pay its employees the prevailing wage for their work on the Convention Center was not meant to benefit these appellants, for whose benefit was it intended?” 

For those of us who do this for a living, we think that is a really good question.

What Constitutes A "Hostile Work Environment?"

When people call and ask for me to take their case, they often claim they have been subjected to a "hostile work environment."  We often hear the term used to describe situations where someone is being subjected to sexual harassment.  Others believe that any time a boss or coworker have it in for us and take actions we think are meant to harm us at work that we are being subjected to a hostile work environment.  However, a claim for a "hostile work environment" is not limited to situations involving sex harassment, but it does not include every negative or hurtful action taken against us in the workplace.

Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others.  Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.

The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728.  Carol LaMont was a custodian at the Elk River, MN high school.  She reported to supervisor Doug Miner.  According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace.  These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place."  Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place."  Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.

The court in this case had to grapple with two issues.  First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment.  Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?

The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons.  Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.

But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment.  Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action.  The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.

The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment.  The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances."  In sum, the court found the conduct non-actionable because it was infrequent and not severe.

Notably, two of the seven justices dissented from the opinion.  They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.

In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex.  At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment.  But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.

Social Media In The Workplace

I have previously posted about the intersection of social media and the workplace.  Prior posts are here and here.  Recently, however, there has been a lot of buzz around how employers are attempting to obtain from employees or prospective employees the username and password ("login") information relating to their social media accounts so they can snoop around and see what they are doing in their spare time.  Employers are then purportedly using this information when making hiring and other employment decisions.  Here is a good interview of a law professor that discusses many of these issues.

Whether employers can request this information and access your private accounts is unclear.  The determination of where an employer's right to gain knowledge about its employees invades an employee's right to privacy in the world of social media requires the application of existing law in a manner that was never contemplated when the law was originally passed.  This often proves very challenging for courts and lawyers. 

I have a visceral reaction to the idea of providing login information to an employer.  But why is that?  And if asked, are you required to provide your employer access to your social medial profiles?  What are the consequences if you refuse the request?

The reason providing access to your private social media is so personally offensive to us is because we come to this issue with real-life experience that informs our understanding of the employment relationship.  While it is rarely discussed or defined, there is clearly a line between the information we typically are required to disclose to our employers and the information we choose to keep private.  We generally understand that we need to provide some personal information such as our address, social security number, work history, educational background and the like in order to apply for and be considered for employment.  Past that point (let's refer to it as the "disclosure line"), the employee has generally controlled the amount and nature of personal information that is provides to the employer and coworkers. 

When posting to Facebook, we often don't think about that disclosure line.  We may post unflattering pictures or information about ourselves that we intend to only be shared with our "friends," not our employer.  So those unflattering pictures, personal posts and rants about a jerk supervisor are clearly things we would typically choose to keep private from our employer.  The thought of sharing this information with our employer feels like a massive breach of the disclosure line and explains why requests from employers for our account information seems so offensive.

Do you have to provide the information requested?  There are arguments that existing law may prohibit an employer from accessing your private social media accounts.  The stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) both arguably prohibit "unauthorized" access to electronic data.  The question then becomes, if your employer asks for your username and password and you give it to them, is their access unauthorized?  One court has held that where the employee provided the information because they feared they would suffer some type of adverse job consequence if they refused, the employer's access was unauthorized and violated the SCA.  Interestingly, the jury in that same case held that the employer DID NOT violate the employee's common law right to privacy by accessing the social media site.

Adding to the confusion, however, is the question of whose authorization is needed to "authorize" access?  Facebook has a policy prohibiting anyone other than the account owner from logging on to any particular account.  So if you authorize your employer to access your account but Facebook has not, is the access authorized or not?  This issue is unresolved.

And if you refuse your employer's request for login information because you have a good faith belief that your employer's accessing your Facebook page is illegal (say, for example, a violation of the SCA), and the employer takes some adverse employment action because of your refusal, you may have a claim under Minnesota's whistleblower statute.  The whistleblower statute prohibits an employer from retaliating against an employee who refuses to follow an order that the employee believes (in good faith) violates any law, rule or regulation.

And what if you are an applicant for employment who is asked to provide your login information?  We oftentimes put information on our social media pages that may disclose our birthdays, ethnicity, national origin, disabilities, sexual orientation, marital status, veteran status, etc.  Typically, employers are prohibited by the Minnesota Human Rights Act and other federal anti-discrimination laws from inquiring into these areas during the hiring process because employers may not consider these factors in making the hiring decision.  But by asking for your login information, are they in essence asking for this information and violating the law?  This is unresolved as well.  Some in congress are taking action to investigate this practice and put a stop to it.

There are also situations where coworkers may use social media to harass another coworker based on their sex, race or other prohibited reason.  If the employer has a credible report that social media accounts have been used to discriminate or harass in the workplace, should the employer be allowed to request access to social media sites in those situations?  Again, this issue is unresolved.
Then, of course, the employer needs to ask itself whether it is really worth all the hassle to ask for social media access in the first place? One law firm that represents employers believes the possible legal complications in requesting social media login information far outweighs any benefit the employer may receive from obtaining access to this information.  I tend to agree.

But what should you do today if your employer asks for this information?  First, ask your employer why it needs the information.  There may be a less intrusive way to get the employer what they want.

Second, ask what will happen if you choose not to provide the login information.  Will you be fired?  Is there some other negative consequence that will occur? 
Third, ask if you can consult with an attorney before making a decision.  If your employer won't let you talk to a lawyer and want an answer immediately, you need to exercise your best judgment in determining how to proceed.  If you decide to provide the information to the employer, I would be sure to communicate to them (in writing where possible) that you feel compelled to provide the information for fear of losing your job or suffering some other negative consequence.  You may also want to consider telling them that you believe what they are doing may violate the law. 
All of these decisions have consequences that cannot be predicted.  The best course of action is to try talk to a lawyer and evaluate the situation against what is in your personal best interest.