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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- RESTRICTION ON E-MAIL COMMUNICATIONS
- RELEASE SIGNED UNDER DURESS
- EMPLOYER UNEMPLOYMENT COMPENSATION VICTORIES
- TIP OF THE MONTH
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RESTRICTION ON E-MAIL COMMUNICATIONS
The National Labor Relations Board recently provided a favorable ruling to employers who allow certain types of solicitations or personal e-mails, but restrict employees from sending union messages. The recent ruling allows distinctions between:
- Charitable solicitations, such as the United Way, and non-charitable solicitations, for example, union solicitations, sale of household goods and solicitations for commercial sale of products (such as Mary Kay).
- Invitations of a personal nature and invitations from an organization.
Such distinctions are permissible so long as they are not evidence that the employer is operating in an anti-union manner, with examples set out in the ruling:
- Allowing solicitations by any outside organizations (not just charitable), but not allowing employees to solicit support for a union.
- Allowing one union to use the e-mail and not another.
- Allowing solicitation by anti-union workers but not by union organizers.
The Guard Publishing Co. , 351 NLRP 70 (2007). Whether this ruling will be modified may depend on any change in administration.
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RELEASE SIGNED UNDER DURESS
The Age Discrimination and Employment Act was amended a number of years ago to require that agreements need to include very specific terms to be enforceable. Among those terms is that the employee must be given 21 days to decide whether to sign an agreement and, in cases of a reduction of force, 45 days. In a recent Minnesota case, an employee signed an agreement that required him to acknowledge that he understood he had 21 days to decide. However, in this case, the employees were told of the termination, provided packets, and the HR Department stood at the door and collected the forms as persons left. The Court did not have a difficult time determining that the signatures were not voluntary, without regard to what was included in the specific terms of the agreement. Peterson, et al. v. Seagate, (D.C. Minn. 2007).
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EMPLOYER UNEMPLOYMENT COMPENSATION VICTORIES
Several recent Minnesota Court of Appeals decisions affirmed administrative hearing decisions that an employee had voluntarily quit or had been terminated for misconduct. There is still some hope that employers can win unemployment compensation cases. In one case, an employee was working at a group home and had some doctor restrictions on activities, but failed to communicate to the employer in an appropriate way that she had to work outside of her restrictions. She therefore did not give the employer an opportunity to correct the situation, and therefore had not quit for good reason. In another case, an employee had released confidential information to an individual outside of the company on one occasion, but had also lied about doing so. Although this was a single incident, the court found that the employer appropriately lost trust in the employee, and the termination was for misconduct. In a third case, an employee had failed to report to work on two scheduled days and thereafter made a request for an extended leave. The employer informed the claimant that if she did not come to work for a couple of weeks, she would be treated as she no longer worked for the employer. Her failure to then contact the employer exhibited lack of concern for her job and substantial disregard for the standard of behavior that an employer can expect. Therefore, her termination was for misconduct.
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TIP OF THE MONTH: Do not be too fearful that employees who are recovering alcoholics will use the Americans with Disabilities Act as a shield. If you employ a recovering alcoholic, he or she has a disability, but this does not prevent you from requiring such employee to maintain the same behavioral standards as other employees. This includes not only refraining from use of alcohol at work or working under the influence, but also adhering to absenteeism or tardiness policies applicable to all employees. Darst v. Interstate Brands (7th Cir. 2008).
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Tom Torgerson, Rob Merritt, Scott Witty and Richard Burns.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2008 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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