In most such cases, the police arrived and successfully dialed back the conflict without further consequence (except perhaps for the infamy derived from having millions of people view the online videos online, publicly critique their behavior and bestow unflattering nicknames).  Some of the callers, like the one known as “Permit Patty,” now look back and regret their decisions.

Would 1 To 1 Have Been Better Than 9-1-1?

In two such incidents, however, the people calling the police ended up losing their jobs even though the incidents in question occurred during non-working time and had nothing to do with their regular employment.  In one case, a woman whom the internet has dubbed “Pool Patrol Paula” aggressively confronted an African American teenager whom she thought did not belong at the neighborhood swimming pool.  After a video of the incident went viral, skincare products company Rodan + Fields announced that the woman was no longer affiliated with their enterprise.

In another swimming pool incident, a White man serving as the neighborhood pool chairman demanded to see identification verifying that an African American family using the pool were neighborhood residents.  Within just a few days after this video was seen by more than 4 million viewers, “I.D. Adam” had lost his day job as well.  In a message posted for all to see, his former employer announced that his behavior “does not reflect the core values of our Company, and the employee involved is no longer employed by the Company in any respect.”

Neither of these incidents took place in Minnesota, but what if they had?  Can Minnesota employers fire such pool-side provocateurs or other cell phone crusaders if they conclude that such very public off-duty behavior reflects poorly upon their company? The answer in most cases is a very resounding “yes.”

Except in very specific circumstances (e.g. the use of lawfully consumable products which is protected by Minnesota statute) off duty conduct is not outside a private sector employer’s reach under either Federal or Minnesota law.  Therefore, a Minnesota employer could lawfully conclude that an employee’s off-duty altercation, or any publicity that might arise from it, is a sufficient justification for termination.

Called Out By Their Employers

Certainly there are exceptions.  For example, if the employee is covered by a collective  bargaining agreement that permits discharge only for just cause, termination may be difficult to sustain.  Most arbitrators will look to such factors as the likely absence of a relationship between the act and the work assignment, as well as the probable lack of notice that such behavior was prohibited, in finding that the termination was not for just cause.

A private agreement identifying conditions for termination would also be an exception for many of these same reasons.

Similarly, if the employee’s behavior related to a legitimate report of a violation of law, the employee might be able to claim protection under Minnesota’s whistleblower statute.  However, such protection requires that the report be made in “good faith.”  This will be difficult to prove in a situation where, as in all of these cases, the reporting individual fails to engage the object of their scorn in civil discussion or reasonable inquiry, electing instead to call the police on a child, a neighbor or just a group of people minding their own business.

Moreover, as we noted in our article So, Your Employee Was in Charlottesville Last Weekend, even if the accusers have the law on their side, it seems likely that a termination decision would still be justified if it is based on the employee’s behavior rather than upon the decision to report illegal behavior.  An employee who unreasonably initiates a conflict, or who does so in a discriminatory or aggressive manner, is not going to be shielded as an innocent whistleblower.

Employees in the public sector have greater latitude in their off-duty behavior but even so, the right to engage in Free Speech probably would not protect an employee who initiated an inflammatory confrontation ala Pool Side Paula.

Bottom Line

This article is not intended to condemn anyone for caring about what happens in their community.  After all, we constantly are urged “If you see something, say something.”  However, in this age of cellphone cameras and social media, an employee engaging in escalation and confrontation should know that the incident is likely to be recorded and posted online.  If that happens, his or her employer will get to make the final call.

The post Could a Minnesota Employer Fire Pool Patrol Paula or I.D. Adam? appeared first on Felhaber Larson.

As a rule, private sector employees do not have the right to simply leave their workplace anytime they feel that the environment is not to their liking. There is an old saying in the labor arbitration arena that employees must “obey, and then grieve.”  This means that employees are not permitted to stop what they are doing and hold up production just because they may have a bone to pick with the employer.  Instead, they must do what is asked of them and then take up the matter later in an appropriate setting.  It is a little like a football team that continues playing the game “under protest” after what they feel is an objectionable ruling by the referee.

From the news reports, Laureano seems to accept that consequences are heading his way, and the Orchestra appears to have responded in a way that reflects respect for the sincerity of Laureano’s motivations.

Are there situations where employees are protected against discipline for walking off the job?   In the private sector, the answer is no, unless the departure constitutes concerted protected activity, is a right granted by a contract or collective bargaining agreement, or is protected under some state or federal law.  In the public sector, free speech issues might also add a layer of protection.

Here are the most significant areas of protection:

Job Safety

The federal Occupational Safety and Health Administration (OSHA) has issued regulations permitting employees to refuse to work in a hazardous task if they meet all of the following four tests:

• Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so;
• The refusal to work was in good faith
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

It is important to note that while the employee is held only to the subjective standard of “good faith,” the employer is protected against whimsical or overly sensitive reactions to difficult work by the “reasonable person” standard in the third bullet point. In addition, the unsafe condition must be severe enough to pose a risk of “death or serious injury.”

The National Labor Relations Act also protects employees refusing to perform hazardous work in certain circumstances. In this case, the work need not be a threat of death or serious injury, as in the case under the OSHA example. The employee just has to have a reasonable good faith belief that the work is abnormally hazardous.  However, the refusal must take place as a “concerted” activity – i.e., involving or undertaken in the interest of two or more employees since that is the bedrock of NLRA coverage.

Depending on the circumstances, a single employee’s unilateral action may be deemed by the NLRB to be “concerted,” where it grows out of group activity, is intended to initiate group activity, is an attempt to enforce a contractual right, or where it seeks to protect a group interest.   However, whether a Board decision finding unilateral activity to be “concerted” activity protected by the NLRA will be enforced by a federal court is uncertain.  In addition, the refusal must not be in violation of a valid “No Strike” clause in a collective bargaining agreement.

Public Policy

Minnesota law has for many years protected employees who refuse to perform assigned tasks that they believe are in violation of public policy. This concept first arose in a case where the Minnesota Supreme Court affirmed protection for a gas station attendant (remember those?) who refused to pump leaded fuel into a car calling for unleaded gas only.  Minnesota lawmakers subsequently codified this protection for anyone who

refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.

Similar to the OSHA protections, an employee is not protected merely for a good faith belief but rather, there must be some objective basis for that belief, e.g. having read that the directive was illegal or having been advised of such by a knowledgeable person. In addition, the claim cannot be an afterthought; it must be asserted at the time that the directive is refused.

Concerted Activity

Even in the absence of a safety hazard, the NLRA protects two or more employees who engage in a work stoppage for reasons relating to wages, benefits, working conditions, or for other mutual aid and protection.  In such cases, however, barring the presence of employer unfair labor practices, the employer is permitted to treat such stoppage as a strike and may bring in replacements for the striking workers.  If those replacements are hired on a permanent basis, the striking employees retain recall rights but the employer is not obligated to release the replacements or immediately return them to work.  Thus, the “protection” afforded by the NLRA can be rather hollow in many cases.

BOTTOM LINE

In the absence of a contractual right to refuse to perform, employees who walk off their jobs in protest have very little job protection and may find the door locked when they seek to return.

The post When Employees Walk Off the Job, Can They Walk Back On? appeared first on Felhaber Larson.

This is a major concern for Minnesota employers because the decision seems to serve up a chance for anyone to file a wrongful discharge lawsuit whenever the Minnesota Fair Labor Standards Act (MFLSA) is on the menu of alleged wrongs.

Fair or Not Fair, Employee Won’t Share

Minnesota’s tip sharing law bars employers from “requir[ing]” an employee to share a gratuity received by the employee with other employees or to contribute to a tip-sharing pool. Tips can be shared voluntarily as long as this is done through agreement among the employees without any “employer coercion.”  If the employer violates this provision, the law says that the employee may obtain restitution in the amount of the tips wrongfully diverted..  The law is silent, however, on whether an employee may be fired for refusing to share tips, and whether an employee may sue for wrongful discharge if terminated as a result of such refusal.

The case involved a bartender who sued Bunny’s Bar & Grill claiming that they fired him after he declined to share his tips with the employees who bus the tables.  Among their various defenses, Bunny’s argued that the Minnesota tip-sharing statute does not prohibit an employer for terminating an employee for refusing to share tips, nor does it permit anyone to sue for wrongful discharge in such a situation.  They asserted that Minnesota is an “at will” state and that, absent express statutory language to the contrary, an employer may terminate an employee for any reason.

Court Adds Wrongful Discharge to the Menu

After the trial court ruled for the employer, the terminated employee appealed to the Minnesota Court of Appeals, which reversed and ruled for the employee. The case then went up to the Minnesota Supreme Court, which in a split decision affirmed the previous decision favoring the employee. The majority of the Court first ruled that terminating an employee for refusing to do what the statute prohibits (in this case, requiring an employee to share tips) is tantamount to requiring the employee to share tips, which violates the statute.

The majority then decided, notwithstanding the statute’s silence on the issue of wrongful discharge, that an employee may indeed sue for wrongful discharge in such a situation. They observed that the MFLSA (which encompasses the tip-sharing statute) contains a clause allowing an employee to “seek damages and other appropriate relief” for all violations of the law.  According to the Court, this ability to pursue “damages and other appropriate relief” indicated that the Legislature had expressly abrogated the “at will” doctrine in these instances and had created a wrongful-discharge claim for any termination accompanying an alleged violation of the MFLSA.

The dissent argued that the Legislature clearly had not intended to alter the “at will” doctrine. The dissent noted that the Legislature had explicitly created a wrongful discharge claim in many other statutes so it knew how to do so if they wished.  As the Legislature did not do so here, according to the dissent, it must not have intended to create such a cause of action and alter the “at will” doctrine.

BOTTOM LINE

This decision is likely to be highlighted by every employee claiming to have been fired in violation of any provision of the MFLSA.  While the Legislature can certainly amend the statute to clarify their intentions, in the meantime wrongful discharge lawsuits probably will increase by about 15%, or perhaps up to 20% if you are feeling generous.

The post Minnesota Tip Sharing Decision Sets the Table For More Wrongful Discharge Claims appeared first on Felhaber Larson.

What if Employees Leave Without Permission?

Undoubtedly you have already had some employees call in sick and a few others are likely in the next couple of hours to leave due to sudden “illness” (we’ll call it “sun stroke”). If so, it is best not to overreact and just apply your ordinary rules.  Has the employee followed the call-in procedure?  Have they provided adequate notice?

If you deviate from your ordinary practice and insist on a doctor’s note for such an absence when you would not do so otherwise, the employee very well may find a basis (e.g. race, age, gender) for claiming that you are singling them out for discriminatory reasons.

Are We Liable if We Host a Viewing Party and Someone Gets Hurt?

While everybody should now be aware of the potential for eye injury from viewing the eclipse directly, it would be best to remind your employees of that danger. Refer them to appropriate government or news websites that explain how to view – and not to view – the eclipse. If you have “eclipse glasses” available, make sure they are the proper type (e.g. NASA approved) and encourage employees to share.

This can be a fun team-building experience and can help control against stragglers who will want to go out on their own and may not find their way back very quickly after the big event.  Still, be sure that employees behave safely and appropriately.

Can Someone Claim a Religious Basis for Missing Work?

There is a possibility that employees will claim that they require a religious accommodation to be off for the eclipse. This is more than merely being a well-tanned “sun worshipper” – many religion incorporate the properties and particularities of the sun into their belief systems and observances.

Religion is a protected class under both federal law (Title VII) and Minnesota law (The Minnesota Human Rights Act). The prohibition against religious discrimination includes an obligation to afford reasonable accommodation to an employee’s religious practices.  This obligation is not as extensive as its counterpart under the Americans with Disabilities Act (ADA) and requires only a minimal response.  Still, the obligation exists.

The term “religion” is broadly defined under Title VII and covers a wide variety of religious beliefs and practices.  This includes not only the more commonly-known and so-called “major religions” but also, according to the U.S. Equal Employment Opportunity Commission (EEOC) “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”

Of course, the protection only exists if the employee is guided by beliefs that are truly religious in nature and are “sincerely held.” if the employer has a bona fide doubt about the basis for the accommodation request, a limited inquiry is permitted into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious.  For example:

– Has the employee behaved in the past in a manner markedly inconsistent manner with what is being professed now?

– Is the timing or nature of the request suspect, e.g. did the employee originally request the time off for reasons other than religion?

– Are you hearing from other employees that this is not a sincere request?

Remember, however, that people can change over time and it is possible that employees have in fact incorporated a new belief system into their lives.

In dealing with a request for accommodation to take time off for religious observance of the eclipse, conduct a reasoned analysis of the request and do not assume an ill-conceived motive just because the request sounds a bit strange.

Bottom Line

This is a once in a lifetime experience but good, ordinary human resource rules still apply.  Use good sense, make nondiscriminatory decisions and do not jump to conclusions without a fair and thorough review of the facts.

The post Don’t Let the Solar Eclipse Block Out Good Sense appeared first on Felhaber Larson.

After video was posted of the violent confrontation between demonstrators and counter protesters, social media was buzzing with attempts to identify the demonstrators. With astonishing speed, a number of rally participants were identified by name, hometown and in some cases, their place of employment. Almost immediately thereafter, one of the demonstrators was out of a job following a resignation where there was probably more to the story that what has been published.

Free Speech?

As more of the rally demonstrators are “outted”, we likely will see more efforts to urge and/or publicly shame their employers to fire them.  Would such terminations be legal?  We think so.

The starting point in such matters is the First Amendment of the Constitution, an argument that can be dispensed with rather quickly. While participating in the “Unite the Right” march could be seen as political speech, employees in the private sector do not have a constitutionally protected right of free speech. The First Amendment only protects against government’s enactment of laws abridging free speech.

Therefore, private employers would not be prohibited from basing termination decisions or other adverse employment actions on an employee’s expression of political beliefs, even those made outside the workforce. For public employers, the result would likely be very different since they are in fact impacted by constitutional restrictions.

Religious Discrimination?

What about Title VII and corresponding state laws that protect against discrimination based on race, color, creed, sex, religion, national origin, age, disability, etc.? In the wake of the Charlottesville events, some people are advancing the idea that terminating a Unite the Right demonstrator would be discrimination based on the employee’s religious beliefs.

This argument actually was addressed and rejected in the courts many years ago. In the heyday of the Civil Rights movement, an employee sued his employer alleging that his termination based on membership in the Ku Klux Klan was discrimination based on religion. The federal Fourth Circuit Court of Appeals rejected the claim, concluding that the KKK was not a religious organization but rather, an organization with a belief system whose “proclaimed racist and anti-semitic ideology” was “inconsistent with the meaning of ‘religion’” under Title VII.

Therefore, a court would probably rule that regardless of how sincerely the demonstrators believed in the cause of White Nationalism (or White Supremacy, the Alt-Right, or other labels that have been applied to the demonstrators’ philosophies), their cause did not rise to the level of a religious belief system and they therefore would not be protected under Title VII.

Moreover, even if the demonstrators’ political idea were protected, it seems plausible that the employer could still take legitimate action against an employee who engaged in violence at the event. The termination would be based on the employee’s behavior and not on religious beliefs or expression of those beliefs.

But Be Careful

Of course, even if termination is lawful, an employer must be careful that they have their facts straight (as you should in all terminations).

There have been reports of participants in the demonstration having been wrongfully identified.  Terminating an employee for the mistaken belief that the individual participated in White Nationalist activities could result in a defamation claim.

Bottom Line

The enormous power of social media has been marshalled in pursuit of making last weekend’s Unite the Right demonstrators suffer employment-related consequences for their actions. If that effort is successful, it is likely that the demonstrators will not have much legal recourse.

The post So, Your Employee Was In Charlottesville Last Weekend appeared first on Felhaber Larson.

The Federal Eighth Circuit Court of Appeals has upheld the dismissal of a lawsuit filed by the former Chief Deputy Clerk of Saline County, AK, who claimed that her termination based on political affiliation violated her First Amendment right of free expression.

It Was Nothing Personal, Just Politics

The Chief Deputy Clerk is appointed by the Circuit Clerk, an elected official.  Patricia DePriest had been Chief Deputy Clerk since 2002 and supported the incumbent Circuit Clerk, Doug Kidd, in the latest election.  However, Kidd lost to Dennis Milligan, who then decided to hire a political operative to replace DePriest because he wanted to transition the Chief Deputy Clerk position from its administrative role to more of a chief-of-staff.  DePriest sued for violation of the First Amendment and for sex discrimination under Title VII.

The Appeals Court explained that in public employment, termination based on political affiliation is permissible where it can be shown that political affiliation is an appropriate requirement.  The Court then ruled: “In general, personal loyalty is ‘an appropriate requirement’ where the individual ‘reports directly to the [chief executive] and his duties include public relations and responsibility for long-range planning.”  Since Milligan wanted his Chief Deputy Clerk to provide advice, to be available at all times, and to speak on Milligan’s behalf at public events, it was appropriate for him to require personal and political loyalty in that job.  As such, it was appropriate to consider political affiliation in filling DePriest’s job and the First Amendment claim was therefore dismissed.

You Can’t Lose If You Don’t Play

The sex discrimination claim was based on the contention that as a twenty-year employee, DePriest was better qualified for the position than the man that Milligan selected.  Therefore, it must have been sex discrimination when she was ousted from the Chief Deputy Clerk position, not offered another position in the office and not selected for a newly vacant position some time later.  The Appeals Court disagreed and dismissed the discrimination claim, noting first that there was no evidence that her dismissal from the Chief Deputy Clerk position was gender-based.  They then explained that DePriest could not have been discriminatorily denied the other vacancies since she had not actually applied for any of those jobs.

Bottom Line

Public officials can appoint their own team where loyalty and political affiliation are important to the job. Depending on what happens in the November elections, we may see this principle in action quite a bit in the next year or so.

The post Politics Matter in Political Employment appeared first on Felhaber Larson.

The case involved the Lyon County personnel manual, which had been altered numerous times over the years.  In 1985, the manual guaranteed retiring employees certain benefits.  In 1991, the manual was amended to include a provision stating that the county reserved the right “to change any of these policies, after notice to and input from employees.” In 1995, the county added a clause on the front of the manual in large, bold-face capital letters stating, “THIS POLICY MANUAL IS NOT AN EMPLOYMENT CONTRACT.”

In 1999, the manual was amended yet again to cut off the retirement benefit for employees hired after May 1, 1997.  Finally, in 2009, another change to the manual capped the retirement benefit for all employees, including those hired before May 1, 1997.

Several current and former employees who lost benefits as a result of the amendments brought suit based on the theory of promissory estoppel, which is a legal term meaning “detrimental reliance.”  To succeed with such a claim, the employees needed to show that (1) the county made a “clear and definite promise”; (2) the county intended to induce the employees to rely on the promise; (3) the employees reasonably relied on the promise to their detriment; and (4) the promise must be enforced to prevent injustice.

Like the district court, the appellate court ruled against the employees, finding that their reliance on the pre-2009 versions of the manual was unreasonable because of the disclaimer.  The court further rejected the employees’ argument that they could rely on oral promises made by county representatives.  The court reasoned that “any reliance on oral promises that contradicted provisions in the policy manual was, as a matter of law, unreasonable” because such representations explicitly contradicted the manual’s disclaimer.

Bottom Line

The Barker decision appears to be the first published decision arising from Minnesota’s state courts declaring that it is unreasonable as a matter of law for an employee to rely on a provision contained in an employee handbook where the handbook contains a disclaimer warning it can be changed at any time.  If you haven’t already, employers should consider adding a similar disclaimer to their handbooks and manuals.

The post Minnesota Court Confirms that Handbook Disclaimer Trumps Contract Claim appeared first on Felhaber Larson.

These ex-employees will almost certainly seek unemployment benefits, which leads us to wonder what would happen if a similar claim was filed here in Minnesota, where claimants are generally  entitled to benefits unless they were terminated for “employment misconduct.”  Generally, one-time offenses  are usually not considered severe enough to be viewed as “employment misconduct.”  However, a recent case from the Minnesota Court of Appeals suggests that violating a zero-tolerance policy for improper accessing of confidential health information would meet this test and would result in a rejection of a claim for unemployment benefits.

In Bingham v. Allina Health System, A10-872 (Minn. Ct. App. Jan. 11, 2011), Allina had a “no-tolerance” policy prohibiting its employees from “inappropriate access or sharing of patient information.”  Nevertheless, Bingham helped a co-worker access her daughter’s lab test results.  Despite her clear violation of the policy, the Unemployment Law Judge (“ULJ”) found no misconduct because Bingham “reasonably believed” the co-worker was entitled to the information, and she “did not otherwise make inappropriate use of the information obtained.”

The Minnesota Court of Appeals reversed, explaining,

We conclude that the ULJ’s misconduct determination is contrary to both [Allina’s] policy and case law involving disclosure of medical information . . . .  The ULJ committed an error of law by concluding that [Bingham’s] accessing patient information did not amount to misconduct.

Bottom Line

This case seems to recognize the legitimacy of zero-tolerance policies as a tool for health care employers in their compliance with patient confidentiality obligations imposed by to state and federal medical privacy statutes, such as HIPAA.  Employers should be mindful, however, that this standard just relates to whether terminated employees are entitled to unemployment benefits.  The actual termination decision will likely be judged according to different standards, especially in a Union setting where “just cause” principles typically apply.

The post Employees Fired for Accessing Patient Data Won’t Get Unemployment Benefits appeared first on Felhaber Larson.

The New (Old) “Problem Employee”

In October, the Minnesota Vikings completed a trade bringing back wide receiver Randy Moss, who starred for the Purple for seven years before being traded in 2005.  The move was widely praised and Moss was hailed by many as the potential savior for Minnesota’s struggling offense.

Moss has always balanced unparalleled speed and skill on the field with maddeningly erratic and selfish behavior off the field.  His most recent stint with the Vikings featured mostly the latter, including allegations that he loafed through parts of games, influenced younger players into bad practice habits, and ranted mercilessly about the team’s buffet lunch.  His most outlandish act was a bizarre televised post-game press conference where he asked and answered his own questions, criticized Vikings coach Brad Childress and heaped praise on the coach and team that had just beaten them (which just happened to be the team that had just traded him to the Vikes).  A day later, Coach Childress cut Moss from the team.

Swift Action is Effective Action

The effectiveness of Childress’s coaching has been debated substantially throughout the season. His decisiveness in dismissing Moss only a month after obtaining him, however, is a good lesson for other Minnesota employers.

We have every reason to expect new employees (or returning ones, for that matter) to put their best foot forward in their early days with the employer.  We should anticipate that they will want to show us how happy they are to have joined our organization and how committed they are to our success.  If in those first few weeks or months a new employee doesn’t hustle, or if they criticize management or embarrass the employer publicly, the situation is not likely to improve with time, and swift action is necessary.

Bottom Line

Don’t make the mistake of thinking that the employee will “grow up” or “settle down.”  Certainly we might expect some learning time regarding new skills and job tasks, but negative attitudes, critical comments and poor work habits do not bode well for the future.

If your organization has a probationary period in a union contract or employee handbook, put them to good use by quickly identifying and dismissing your Randy Moss.  Even in the absence of such policies, you can move decisively by determining that a new employee displaying unacceptable work habits or a difficult demeanor should not be allowed to remain on the team and bring everybody down with them.

The post Lessons in Purple: Employment Law Advice from the Minnesota Vikings appeared first on Felhaber Larson.

In a nutshell, that is the story of Steven Slater, the JetBlue flight attendant whose antics seem to have elevated him to the role of folk hero in the media and the blogosphere.  He appears to have tapped a large reserve of anti-employer sentiment while playing out a “take this job and shove it” fantasy that seems to resonate with large numbers of people.

Why do so many people view Slater as some sort of spokesman for the common man (see the ABC News story  entitled Criminal or Folk Hero)?  Why has his rude and public temper tantrum become an anthem for disaffected employees?  The answer may be nothing more than the fact that many people just don’t like their jobs and would rather be doing something else.

Employers need to remember that an employee’s job dissatisfaction may not be rational or justified.  In today’s economy, when so many people should appreciate the efforts that their employers are making to preserve their jobs, workers are still going to feel frustrated, bored, unhappy or various other negative feelings when it comes to their jobs.

In fact, CNN reported a Conference Board survey showing that 45% of employees were dissatisfied with their job–the lowest level since recordkeeping began 22 years ago.  You might even call this a case of the “JetBlues.”

Right or wrong, employers have to deal with this and the potential fallout that might result   It won’t be good for business if one of your employees (or ex-employees) is vested with folk hero or martyr status over their experiences at your company.  Therefore, even if you know you have a great working environment, expect some dissatisfaction and think of what you can do to minimize it and address it.

Considerations include:

• Do employees in monotonous jobs ever get to rotate to different assignments?
• Can the “culture” of the workplace be reshaped or enhanced in some way?
• Is an Employee Assistance Program (EAP) available to help employees find more satisfaction on the job and more success outside of it?

A little prevention may go a long way in smoothing out a bumpy ride for employees.

The post The Plane Truth About the JetBlue Flight Attendant. appeared first on Felhaber Larson.

Upon being named head men’s basketball coach in 2007 for the University of Minnesota, Tubby Smith contacted Jimmy Williams, assistant coach at Oklahoma State University, and former Gophers assistant coach in the 1970’s and 80’s.  After a personal interview and a follow-up telephone call with Smith, Williams quit at Oklahoma State, put his house on the market and got ready to return to Minnesota.

The next day, Athletic Director Joel Maturi told Smith not to hire Williams because of his involvement in 15 major NCAA rule violations as a Gophers coach.  Smith informed Williams, who was then left without a job at either school.  He eventually sued the University and Coach Smith for promissory estoppel, which addresses the following circumstances:

1. Party One makes a promise which should reasonably be expected to induce reliance by Party Two;
2. Party Two actually relies on the promise; and
3. Injustice can be avoided only by enforcing the promise.

Coach Smith claimed he knew nothing about the violations and was disappointed that Williams had not disclosed them.  In addition, both he and Maturi denied that an offer was made since Maturi had the final say.  Williams countered that it was customary in the coaching industry for the head coach to have full authority to hire assistants.  Thus, Williams reasonably relied on Coach Smith’s offer.

The jury decided that Smith did not fairly represent the extent of his hiring authority.

They found that it was reasonable for Williams to rely on Smith’s representations, and that such reliance caused harm requiring $1.25 million in damages.    Not surprisingly, the University is considering an appeal.

Despite the big time college athletics setting, all Minnesota employers can learn these lessons:

1.  Be precise when communicating a job offer, disclosing any limitations or contingencies (e.g. background check, drug test);
2. Send an offer letter or document the proposal in some other fashion to be sure that there is no misunderstanding about the terms.
3. Finally, know the limits of your authority.  Don’t promise more than you can deliver and anticipate that applicants will rely on what you say.

The post Spurned Coach Slam Dunks Gopher Basketball Program appeared first on Felhaber Larson.