Most employers understand the importance of having a well-communicated policy that prohibits various forms of illegal harassment, including sexual harassment. Not only can such policies have the beneficial effect of reducing or eliminating the existence of such harassment in the workplace, but a documented program of addressing and correcting such problems can go a long way towards reducing or eliminating potential liability. No company can guarantee a pristine work environment, and the law does not require it. There is, however, a “reasonable care” standard that has been largely adopted by the courts so that employers who can show they have taken reasonable steps to prevent or remedy harassment cannot be held liable for it.

This is a nuanced area of the law, but a few general propositions are borne out by a decision recently issued by the Minnesota Court of Appeals,  Allen v. United Piping, Inc. In this case, the plaintiff complained that she was hearing comments of a harassing nature, suggesting that having a woman on the job was a negative. The comments were reported to the Vice-President of Construction. Executives of the employer met with most of the employees involved in the alleged harassment. They were warned that further allegations would result in the termination of their employment. All of the employers about whom the allegations were made received written reprimands in their personnel files. When the employee later reported that she believed she was continuing to experience harassment, the company instituted anti-discrimination and anti-harassment training for all employees.  The employee later complained, asserting that she felt uncomfortable during the training because she felt that people in the training room were staring at her and that the trainer was focusing remarks on her. She did not, however, ask the company to take any further action. She was later laid off and then sued for sexual harassment under the Minnesota Human Rights Act.

The Court of Appeals upheld the dismissal of her claims, noting the following types of remedial actions available to an employer:

  1. Preventive measures, including policy dissemination and the establishment of procedures for resolving complaints of harassment.
  2. Undertaking efforts to improve the conditions of the complaining employee’s terms of employment, perhaps including a transfer to a different work location; and
  3. Taking disciplinary action against the offender(s) following an investigation.

Taking these three steps, the court held, eliminated potential liability. Employers are well-advised to not only take such actions but also document that these steps have been implemented.  This can go a long way towards eliminating feelings of harassment in the workplace and avoiding liability.

Snow day office closures and calls from employees unable to shovel their cars out of their driveways cause regular headaches for Minnesota employers in the winter. Now that winter is here and these issues are likely to arise, employers should review the wage and hour laws triggered by inclement weather and also review any related company policies.

Pay obligations during inclement weather are largely dependent on a worker’s classification as exempt or nonexempt under the Fair Labor Standards Act (FLSA). Employees who are exempt from the normal minimum wage and overtime requirements of the FLSA, generally salaried employees working in an executive, administrative or professional capacity, must almost always be paid in situations of inclement weather. The only exceptions are if the business closes for an entire week and the employee does not perform any work during that week or if the business remains open during inclement weather but the employee elects to take the day off for personal reasons. If, however, the employer closes the business for a day or two due to inclement weather, full wages must be paid. If the employer opens the office a few hours late because of icy roads, for example, it also must pay exempt employees for the entire day. In contrast, nonexempt employees generally only get paid for the hours actually worked. If the employer closes the business for a few hours or the entire day, wages do not need to be paid to a nonexempt employee for hours not worked.

Allowing employees to telecommute during inclement weather may also trigger wage payment obligations. If an employer knows or has reason to know an employee is working from home on a snow day, it must pay the employee for work performed. The FLSA also requires employers to pay exempt employees a full week’s wages if any work is performed during the week, regardless of the amount of work performed. Thus, in the case of a natural disaster or some other emergency that may cause a business to be closed for a week or more, employers may want to give careful consideration on whether to allow exempt employees to put in a few hours of remote work as such work will require the payment of a full week of wages.

Inclement weather is a part of Minnesota winters and employers should take proactive steps to ensure the health and safety of employees while protecting business operations and ensuring compliance with wage and hour laws. Employers are encouraged to develop emergency and inclement weather policies so employees know what to expect when the inevitable snow day arrives. The policy should also include a clear emergency communication process to ensure all employees are notified of an office closure or other change in business operations.

In helping employers with their written employment policies, we are often asked whether it is necessary to have a policy regarding employees’ use of cell phones for work purposes while driving.  The answer, as is often the case, is “it depends.”  If your employees drive as part of their job or commonly use their cell phones for work purposes while driving, then your company should address cell phone use while driving in a written policy.  A well-written policy can not only reduce the likelihood of accidents caused or contributed to by distracted driving, it can also help reduce your company’s liability in the event of an accident caused or contributed by your company’s employee. Continue Reading Put the phone down!

Employee trade secret theft is a significant problem faced by many businesses. It is unfortunately all too common for a departing employee to take valuable confidential information from the former employer to the new workplace. An employer may use a number of legal strategies to stop the theft and misuse of its trade secrets by a former employee ranging from a cease and desist letter to restraining orders prohibiting the unlawful conduct. However, these legal strategies will be much more effective if the employer has established a standard set of practices to protect its trade secrets. These practices should cover all aspects of the employment relationship from beginning to end and should be consistently applied.

In the Beginning

Strong onboarding procedures provide businesses with the foundation for strong trade secret protections. Businesses should invest in drafting confidentiality and non-disclosure agreements that are unique to their business and should require all employees to sign those agreements at the start of employment. They should also bear in mind that a confidentiality policy stated within an employee handbook may not be sufficient. Noncompetition agreements can also prevent a departing employee from using the confidential information of its former employer at a new business. Similar to confidentiality agreements, noncompetition agreements should also be carefully drafted and tailored to each unique business to ensure the agreement will be enforced as needed. These agreements must also be provided to the employee before employment starts, preferably accompanying the initial written employment offer, to ensure enforceability.

When computers are issued at the beginning of employment, the employer should maintain inventory of what was issued and to whom. At this time all permissions and grants of access to the employer’s information should be carefully logged.

In the Middle

It’s in the middle of the relationship where many businesses fall short of protecting their confidential information. Once the employee is settled in and the typical fast pace of the business kicks in, it’s easy to forget the strategies necessary to protect the business from employee trade secret theft. At this time an employer should continue to keep inventory of any new devices issued to the employee, and also keep track of all access to confidential information granted to the employee. The employer should conduct routine audits of employee permissions and access to ensure those grants of permission remain commensurate with the employee’s job responsibilities. If an employee is promoted to a role where he or she will first have access to confidential information, the employer should consider whether a noncompetition agreement is now appropriate. If so, the employer should ensure sufficient consideration is provided to the employee in exchange for the agreement not to compete.

Businesses wanting extra protections can also use technology to track how their employees are using their information. For example, employers can install software that logs whether an employee attempts to access a restricted database, copy, transfer or print confidential information. Employers can also install anti-deletion programs to track employee activities. For example, if a soon-to-be-departing employee is forwarding confidential information to his or her personal email account and then deletes the “sent” email in an effort to hide the trail, this information can be discovered. If these additional protections are used, the employer must have a clearly stated workplace privacy policy advising its employees that their activities may be monitored.

At the End

Employers should also follow a standard protocol when they learn the employment relationship will end. Businesses should monitor email traffic and computer access for unusual activity, issue a reminder of any confidentiality obligations to the departing employee, and use a standard checklist to ensure all of the employer’s property is returned. Remote workers should be provided with detailed instructions on how to return all of the employer’s information and electronic devices. Once this property is returned, before erasing a device and issuing it to a new employee, the business may want to consider holding onto the device to ensure any evidence of trade secret theft is preserved. This is particularly the case if the employer knows the employee is going to work for a competitor or otherwise has suspicions that the employee has stolen confidential information.

Employers should also conduct exit interviews and inquire where the employee is going. Exit interviews also provide the employer with an excellent opportunity to review and remind the employee of any confidentiality or noncompetition agreements. This is also the opportunity for the employer to walk through the wide variety of ways an employee may have intentionally or mistakenly retained confidential information, for example, by transferring such information to personal devices. The employer should also obtain a certification from the departing employee that he or she has not retained any of the employer’s confidential information.

In closely-held businesses, it is common for owners to also work as employees. Often, their primary source of income is not from distributions of the business’ profit, but rather their regular salary. This is particularly true for service professions such as accountants, consultants, and medical professionals. The dual role of employee and owner can cause unexpected problems for a business when an owner-employee is terminated.

In a typical at-will employment relationship, an employer can fire an employee for any legal reason, or no reason at all. However, where employees are also owners of a closely held business, Minnesota law may give them a reasonable expectation of continued employment solely by virtue of their status as an owner. Minnesota law can impose liability on companies and majority owners for actions which violate the reasonable expectations of the owner (shareholder, member, or partner) of a closely-held business.  In these cases, an employer who terminates an employee-owner for poor performance or misconduct may face an unexpected lawsuit for breach of fiduciary duty and wrongful termination. These claims carry the risk of significant damages, are expensive to defend and are often (but not always) outside the scope of insurance coverage.

The termination of an employee-owner also raises questions about their continued ownership interest. Many businesses assume that an employee-owner who is terminated from employment will automatically have his or her ownership interest terminated, and can be excluded from management of the business. In fact, absent an agreement to the contrary, an employee-owner who is terminated will usually still have the right to remain an owner of the company, along with an ongoing right to request information about the company and vote on matters that come before the owners.  This can be particularly problematic if the terminated employee finds a new job and begins to compete with the business.

The Importance of Clear Documentation

There are solutions to this issue. Under Minnesota law, written agreements between owners are presumed to reflect the reasonable expectations of the owners concerning the matter they cover.  Thus, the employee-owner and business can enter into contracts that clearly describe the circumstances in which an employee-owner can be terminated, what impact that termination will have on ownership or management rights and (if termination of employment results in termination of ownership as well) how the ownership interest will be redeemed.

Most small businesses know that they should have these documents. They may have even exchanged drafts and participated in meetings to try to agree on terms. However, because they want to save money for growing the business, or simply don’t have time to focus on legal documentation, they leave the drafts incomplete and unsigned or fail to have the documents reviewed by an experienced attorney. Unfortunately, when the dispute ultimately comes up, an unsigned draft or an incomplete agreement may not be worth the paper it’s printed on. Experience tells us that employee-owners are rarely willing to sign legal documents that limit or waive rights once disputes are already brewing. The best time to reach an agreement about the terms of an employee-owner’s relationship with the business is at the outset of the business, or at least while all of the owners are getting along and working in the same direction.

Many business open to the public are seeing an increase in the number of service animals being brought into public businesses. There has been a lot of media attention to airline passengers who bring animals onto an airplane as service animals or to provide emotional support or therapy. The same issue can arise in the workplace.

The Equal Employment Opportunity Commission (EEOC) sued CRST Expedited, Inc., a national trucking company, last year alleging that CRST violated the Americans with Disabilities Act (ADA) when it failed to accommodate, refused to hire and retaliated against a job candidate because he used a service dog.

Service, Emotional Support and Comfort Animals

A service animal is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. In order to qualify, the task performed by the service animal must be directly related to the person’s disability. Most often a dog is used as a service animal. For example, a blind worker may use a seeing-eye dog to guide the worker in moving around or a service animal may be trained to remind an employee to take medication for diabetes or depression.

An emotional support or comfort animal is an animal which, as part of a medical treatment plan, is intended to provide comfort, reduce loneliness, and/or assist with symptoms of depression, anxiety and other mental illnesses.

A worker can request that an employer make a reasonable accommodation by allowing the worker to bring an animal into the workplace. This animal may be a service animal or a comfort animal/emotional support animal. Under the ADA, an employee who has an impairment that “substantially limits” the individual’s ability to do essential tasks has the right to request an accommodation that helps them to do their job. The ADA requires that an employer engage in an interactive dialogue with an employee requesting an accommodation, which could include the right to bring an animal into the workplace.

In the CRST case, Leon Laferriere applied for a truck driver position and signed up for a driver’s certification course offered by a CRST partner training company. Laferriere uses a trained service dog to help control anxiety and to wake him from nightmares caused by post-traumatic stress disorder resulting from his military service. Laferriere disclosed his disabilities and his use of a trained service dog. He completed the training program but was denied the opportunity to continue through the orientation program because CRST has a “no pet” policy. The EEOC alleges that using a trained service dog can be a reasonable accommodation.

Employer Response to a Request to Bring an Animal into the Workplace

When an employee requests to be allowed to bring an animal into the workplace, the employer can request medical documentation verifying the claimed disability and explaining why having an animal in the workplace would help them. The employer must engage in an interactive dialogue with the employee concerning the request and discuss alternatives if the requested accommodation is not feasible. The employer must assess the working environment and determine whether having an animal in the workplace would constitute an undue hardship, thereby legally permitting the employer to deny the request. Some workplaces are regulated by state or federal laws which would prohibit bringing in animals into the workplace (such as health care or the manufacture or sale of food).

Whether or not allowing a service, comfort or emotional support animal in the workplace constitutes an undue hardship depends on the type of workplace, cleanliness standards, whether a workplace could place an animal in danger, interferes with other employees’ abilities to do their work.

As with other reasonable accommodations, an employer must maintain confidentiality about an employee’s disability. This can become complicated when other employees will have to interact with the animal. The employer may want to ask the employee to discuss this issue with other employees. If the employee does not feel comfortable, the employer could ask the employee to provide instructions which can be given to other employees. The EEOC would allow an employer to tell coworkers that “we are emphasizing a policy of assisting any employee who encounters difficulties in the workplace.” The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer’s policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that their privacy would similarly be respected if the employee found it necessary to ask the employer for some kind of workplace change for personal reasons.

The most important thing an employer can do when faced with a request to bring a service or therapy animal into the workplace is to refrain from immediately saying no. The employer should engage in interactive dialogue and at least give serious consideration to whether bringing an animal into the workplace constitutes an undue hardship.

A common question asked by employers, particularly new and/or smaller companies, is whether they should create an employee handbook. Although companies are not legally required to have an employee handbook, there are several important reasons (legal and non-legal) why they should do so.

Communicate to Employees What is Expected of Them

Handbooks are useful to employees in several respects. They introduce new employees to the company’s history and culture, identify what makes the company unique in its industry, and highlight benefits provided to employees (and eligibility requirements for those benefits).

A well-written employee handbook will provide a clear description of the employer’s policies and employees’ responsibilities. Employees should have an understanding of what is expected of them and what they are (and are not) permitted to do. For example, if an employee has an unexpected absence, are there specific call-in procedures which must be followed? How much notice needs to be given to take vacation or paid time off? What are the policies regarding working off-the-clock or recording overtime? Many day-to-day questions raised by employees can be easily addressed in an employee handbook.

Ensure Consistent Enforcement

Workplace rules and policies are only effective if practiced and applied consistently. Inconsistent application of workplace rules can create the perception of unfair treatment and provide ammunition for discrimination claims by disgruntled employees (more on that below). A company’s failure to apply workplace rules consistently between men and women (or between members and non-members of other protected classes such as race, religion, sexual orientation, disability, etc.) can create the appearance that certain employees receive more favorable treatment. If the rules are made clearly in writing, they are more likely to be applied on a consistent basis.

Practically speaking, having the same set of rules for all employees will make life easier for business owners. When policies are clearly communicated in writing, there is less need to think about how a certain situation should be addressed – and less occasion for employees to claim ignorance of a particular rule. Of course, there will be times when no written policy squarely addresses a particular issue, but a written handbook will provide a guidepost to help employers both avoid and deal with many day-to-day issues.

Educate Managers

It is equally important for managers and supervisors to understand what is expected of the employees they supervise. Although employers should always train managers and supervisors, the reality is that many managers do not receive the necessary training and are often required to deal with matters involving discrimination and harassment complaints and other disciplinary issues. A well-written employee handbook can serve as a guide when managers and supervisors answer questions or make decisions and ensure that their answers and actions are consistent with company policies and best practices.

Ensure Compliance with State, Federal and Local Laws

Every employer is subject to various state, federal or local laws. An employee handbook will communicate and identify the legal rights and obligations of employees. It will also remind managers and supervisors of those same rights, which can help avoid violations (incidental or not) of those laws. Many laws require employers to affirmatively provide notice of certain rights and obligations and an employee handbook makes it easy to organize and provide those legally required notices in one place.

Help Defend Against Employee Claims

Lawsuits and charges of discrimination are a fact of life for most employers. Even if a company does everything right, employees may feel they’ve been wronged and take legal action. A thorough employee handbook will contain equal opportunity, anti-discrimination and anti-harassment policies and establish reporting procedures for employees to follow should they feel they were subjected to discrimination or harassment. These policies help employers resolve complaints and take appropriate action before they rise to the level of a lawsuit or a charge of discrimination. If an employee does take legal action, these policies help demonstrate that the company exercised reasonable care and can provide a legal defense to future harassment claims if the employee fails to make a report. As mentioned above, having a clear set of rules will help employers apply rules consistently and fairly, which is helpful in defending claims of discriminatory treatment. Finally, obtaining a signed acknowledgement page from each employee will show that an employee knew about and agreed to follow the employer’s workplace rules.

While creating an employee handbook may seem like a daunting task, particularly for a new or small business that is carefully managing its costs, the benefits of doing so cannot be overstated. If done correctly, the time spent creating and distributing an employee handbook will be considerably less than the time and money spent dealing with issues which would have been avoided by having a handbook in the first place.