Drug & Alcohol Testing, Employment of Minors, Quirky Question # 13
Quirky Question # 13:
I read your Quirky Question # 12 regarding sexual harassment and the issue of whether the policies need to be tailored to minors. Your question alerted me to a related issue. Like the company described in your last question, our firm also employs a number of minors under age 18. We have a pre-employment and post-accident drug and alcohol testing policy.
We are wondering whether the minors’ parents have to sign the authorization for the drug testing? Do the minors themselves? Is a drug-testing authorization signed by the parents at the start of the minors’ employment sufficient to cover all future drug and alcohol testing of the minors?
Roy’s Analysis:
Good questions. Unfortunately, the answer under Minnesota law is not clear. (Laws of other states may differ.) Your company will need a consent for this testing, but the law is vague as to whether minors can effectively consent to medical procedures.
We recommend a conservative approach. Companies want their drug testing process to be fair and reasonable, to non-minors and minors alike. In addition, companies want to eliminate the prospect that parents will object to such tests after the fact, or insist that they should have been informed in advance. Therefore, we recommend that both the minor and the parent sign the consent form. (This conservative approach is consistent with the 7th Circuit’s analysis described in QQ # 12, where the appellate court pointed out that in certain circumstances minors must act through their parents or other legal guardians.)
Of course, this can lead to another, equally important issue. Let’s assume that the parents and the minor both sign the consent form, and the test is conducted. Let’s assume further that the test results demonstrate that the minor has been ingesting drugs. Who gets the test results? The drug testing statute says that the “applicant” gets the results, and it includes a lot of privacy provisions. HIPAA issues may be implicated as well. Consequently, we recommend only providing the results of the test to the minor, unless the minor provides permission in writing to the employer to release the test results to the parents.
An even safer and more proactive approach, that would provide for complete transparency, would be to advise the minor applicant and the co-signing parent, at the time the consent form is executed, that the results only will be shared with the minor, absent a specific, written directive from the minor and parent. Without that written instruction, a parent would be hard pressed to argue that he/she should have been provided with a copy of the test results.
Finally, there is a question in Minnesota regarding whether a consent signed at the outset of employment is effective on an ongoing basis. Minnesota’s drug testing statute has a provision requiring employers to give written notice of the testing policy upon hire or adoption of the policy. See Minn. Stat. § 181.952, Subd. 2. There is a separate provision requiring the employer to give the employee/applicant a form on which to acknowledge that they have seen the policy before requesting a test. Minn. Stat. § 181.953 subd. 6(a). We are not aware of any case law discussing whether one notice can satisfy both of these requirements. Adhering, then, to the generally conservative approach described above, our recommendation is to have minors and their parents sign a separate acknowledgment at the time the minors are asked to take a drug or alcohol test not linked to the hiring process.
Lastly, as the 7th Circuit’s analysis illustrates (see QQ # 12), your company’s drug and alcohol testing policy will need to be written in a way that minors can understand. (We also recommend that you include a provision in your company’s drug and alcohol testing policy specifically stating that your company reserves the right to impose discipline, up to and including termination, upon someone who refuses to take an appropriate drug or alcohol test.)
Sexual Harassment — Employment of Minors, Quirky Question # 12
Quirky Question # 12:
Our company employs a lot of minors. We have a policy prohibiting sexual harassment. It is written for our work force as a whole and is not tailored toward the high school students we employ. A friend of mine recently told me that our policy has to be understandable by the high school students for it to be valid. Is that true? Also, we occasionally get complaints from the parents of the kids who work at our firm. I don’t pay much attention to those complaints since some of these parents are overprotective and I figure that kids will let me know if they truly have a concern. In your view, are there any problems with this approach?
Roy’s Analysis:
Although I generally believe there are risks associated with relying too heavily on legal advice from friends, here you have been provided useful guidance. Your company policies (whether sexual harassment or any other policies) should be tailored to your company’s workforce. If that workforce is predominantly teenagers, you need to consider that fact when crafting your policies. If your workforce comprises a significant number of individuals for whom English is a second language, you need to tailor your policies to that component of your workforce.
In a very recent federal appellate court decision, EEOC vs. V & J Foods, Inc., No. 07-1009 (7th Cir. November 7, 2007), the court addressed a number of issues relevant to your inquiry. In the V & J case, a 16-year-old girl was employed by Burger King. She was sexually harassed in a variety of ways by the 35-year-old male manager of the restaurant (propositions, offers to pay her for sex, unwelcome touching, etc.). She made efforts to complain about his conduct, which resulted in her being fired by the store manager on pretextual reasons. She was rehired soon afterwards but the problems persisted. Her mother then attempted to intercede on her behalf by registering complaints with the Assistant Manager of the restaurant. This was promptly reported to the Manager, who fired the employee a second time in response.
The EEOC sued on the employee’s behalf, claiming both hostile work environment sexual harassment and retaliation. Somewhat surprisingly, the District Court granted the employer summary judgment, dismissing the EEOC’s case. The lower court found that the young employee had failed to avail herself of the reporting mechanism provided by the employer and that she could not bring a retaliation claim based on the actions of her mother. The appellate court reversed.
There are at least four important principles addressed in the 7th Circuit opinion, each relevant to the questions you’ve posed. First, the appellate court stated emphatically that the trial court’s analysis misconstrued the Faragher/Ellerth affirmative defense requirement. That affirmative defense only is available to employers when the employee has not suffered “tangible economic harm.” In this case, the employee was fired (twice). In a context involving actions by a supervisor, resulting in tangible economic harm, there is strict liability.
Second, to the extent the employee was seeking damages corresponding to the time period when she was still employed, the appellate court found that the affirmative defense could apply. The court, however, rejected its application because the sexual harassment policy and its reporting mechanism were not reasonable. While recognizing that an employer “is not required to tailor its complaint procedures to the competence of each individual employee,” the court emphasized that “[k]nowing it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.” The court found that the “known vulnerability of a protected class has legal significance.” Applying this analysis to the facts of the V & J case, the court found numerous deficiencies with the mechanism set forth in the company’s Employee Handbook with regard to reporting sexual harassment problems.
Third, the court reiterated the well-recognized principle that “[a] policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law.” V & J’s policy did not create a mechanism that would allow its employees to circumvent the harasser, when that harasser was the store manager.
Fourth, the appellate court rejected the district court’s analysis of the retaliation issue. The appeals court found that the employee’s mother was acting as her agent. The court noted that minors “must act through agents in any legal matter, and their agents are their parents or guardians.” Comparing the mother’s action to that of an attorney acting on a client’s behalf, the court found that the employee’s mother was “opposing a practice” prohibited by law. The manager’s decision to terminate the employee as a result of the mother’s complaints were, therefore, retaliatory.
As you can see, this analysis applies directly to your situation. Given that your company employs “a lot of minors,” you need to be sure that your policies, including your sexual harassment policy, are written in a way they can understand. Ensure that you avoid the problems encountered by V & J. The policy must be clear. It must be easily understood. It must identify the individuals to whom a complaint can be brought if a problem arises. The policy must not compel the employee to report the problem to the harasser himself. If you are sensitive to these common sense steps, you should not encounter problems.
As for complaints by a parent, take them seriously. Recognize that in this context, the parent is acting as an agent for his/her child. You certainly need to avoid any punitive action toward the minor employee based on the parent’s behavior, especially when the parent is trying to alert you to conduct that he/she considers unlawful. If you take punitive action against the employee, you risk a legitimate retaliation lawsuit.
Restrictive Covenants; Interference with Contract: Quirky Question # 11
Our firm uses non-competition agreements for a number of our key employees. The non-competition agreement was drafted by our outside counsel who tells us that it is enforceable. One of our managers who had signed such an agreement recently resigned. We just learned that she will be starting employment at our primary competitor, in a role nearly identical to that which she performed for our company. If I contact her new employer to inform it of our manager’s non-compete, and her new employer withdrew her job offer, could she sue us for interfering with her prospective employment relationship?
As a preliminary matter, you should understand that non-competition agreements, which constitute one type of “post-employment restrictive covenant,” are governed by state law. There is no federal statute dictating whether non-competes are enforceable. Rather, state law determines the enforceability of non-competes. Some states enforce them; some states enforce them but only in limited circumstances; some states largely repudiate them. In short, the first issue you need to resolve is whether the state where this dispute has arisen is one that will enforce a properly crafted non-compete.
Moreover, as the last sentence implied, even jurisdictions that recognize the validity of non-competes will evaluate whether they are crafted properly. Typically, courts will assess the substantive, geographic, and temporal scope of the non-competes when evaluating their legitimacy. There are other issues regarding non-competes upon which courts will focus but they are beyond the scope of my observations here. Essentially, however, courts attempt to balance the employer’s legitimate business interests with the employee’s needs for job mobility and income.
Although there is a legal theory for “tortious interference with contractual relations,” and although the action you are proposing could result in your former employee losing her new job, I do not believe those facts should deter you from taking the action you outline. Even if your actions resulted in a change in the new employer’s perception of your former manager, your actions would not be “tortious.”
Like non-compete law, the law of tortious interference with contractual relations is dependent upon the common law of the relevant state. Though there are differences in the various states’ approaches to this legal theory, in most jurisdictions, an element of the tort involves some type of “wrongful” conduct. Some times that conduct is described as “malicious,” other times the element is described as “acting improperly,” and in some instances the element is described somewhat circularly as “wrongful” or “tortious.” All of these formulations of the legal theory, however, encompass the notion that there has been some type of inappropriate or improper conduct or motive that caused the interference.
In the context you describe (enforceable non-compete, designed to protect your company’s legitimate interests), it is perfectly appropriate for you to notify both your ex-employee and her new employer that she would be in violation of her contractual agreements with your company were she to take a job with your competitor. Your company has the right to do so, and can take this action without undue anxiety of potential litigation. Indeed, if your company failed to take this step, your manager later might argue your company knowingly waived its right to enforce its contract with her. Such inaction could have implications not just for the specific employee who recently left your employment but for your other employees who signed identical restrictive covenants.
If you wish to insulate your company further against the risk of litigation, you may want to have the communication to your former manager and her new employer drafted and sent by counsel. Communications by counsel in anticipation of or in connection with litigation are, at a minimum, qualifiedly privileged. Many of these communications are deemed absolutely privileged. Therefore, by relying on counsel to convey this message, you reduce the already slim likelihood that your manager will ever be able to assert legitimate claims against your firm.
In addition, your manager’s new employer may well appreciate being apprised of her contractual breach. Who knows what your former manager stated to the new employer. Perhaps she represented that she had no restrictions on her employment. If so, the new employer may be quite pleased to learn, early in the employment relationship, that it had been deceived.
Moreover, if the company retains her with knowledge of her pre-existing, post-employment restrictive covenants, it may be confronting increased risks of liability it would prefer to avoid. On the other hand, the new employer may be fully cognizant of the non-compete and may have made the determination that it is willing to litigate the issue (or at least attempt to resolve the problem through negotiation) because of its interest in hiring your former manager.
As to the issue of whether your ex-employee ‘could’ sue you, my observation is simple. There is always a risk of litigation when actions taken by a company have an adverse impact upon individuals, whether current or former employees, or members of the public. It is critically important to distinguish, however, between a risk of “litigation” and a risk of “liability.” Here, although your former employee may threaten suit, or possibly even initiate litigation, based on the limited facts you described, your risks of “liability” are not significant.
That does not mean a lawsuit will be cost free. If the matter is litigated, you will incur attorneys’ fees and your management team will be distracted by the litigation. But, both the fees and the distraction may well be justified by the important principle at issue in the lawsuit – enforcing your company’s legitimate non-competition agreements. This principle may have ramifications far beyond the specific situation of your recently departed manager. For that reason, you may wish to modify your analysis from your defensive posture (do we risk litigation by our former employee?) to a more aggressive stance. Assuming you have a legitimate, enforceable non-compete, and that your employee has joined a competitor where she will be fulfilling the same job responsibilities she performed for your company, you may want to be the plaintiff and bring an action to enforce your contractual rights. Again, such litigation may have benefits that extend well beyond your dispute with your recently departed employee.
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Disparaging Comments on Web, Quirky Question # 14
Posted by Roy Ginsburg on December 24, 2007 · Leave a Comment
Quirky Question # 14:
One of our employees discovered fortuitously (by Googling his own name) that a co-worker down the hall has been posting messages to a Web-blog, in which he identified the employee by name and made graphic, negative sexual observations about him. Not surprisingly, the two employees are not friends. The subject of the comments had no idea that this conduct was going on and is worried about how these comments already have or will affect his reputation (both within the company and outside of it).
We intend to terminate the employee who placed the comments on the Blog. Are there any risks associated with that discharge? We also wonder what actions, if any, the company should take vis-’a-vis the employee about whom the comments were made? Does that employee have any legal rights that could be asserted against either the company or the employee we expect to terminate?
Roy’s Analysis:
Your questions illustrate how changing technology, and the introduction of that technology into the workplace, generate new and unusual questions for the human resources professional.
First, I recommend that every employer, including your firm, have in place a written policy governing your employees’ use of your computer network and use of the Internet. Three essential provisions of such a policy are: a) your company owns the computer equipment to which your employees are provided access and/or which they are furnished to perform their job responsibilities; b) your employees should have no expectation of privacy in anything they send or receive via the company’s computer systems, and that your company reserves the right and sole discretion to monitor, with or without notice to the employees, everything they send and receive; and c) certain uses are prohibited – e.g. sending anything that is sexually explicit, offensive, or defamatory, or that reveals confidential, proprietary or trade secret information belonging to your company or its customers. Especially with such a policy in place, there should be little risk associated with terminating the employee who disregards these proscriptions.
Second, even if your company does not (yet) have such a policy governing computer use, you have legitimate bases for discharging the employee. Although you have not disclosed the precise comments that were included in the Web-blog, I’ll assume that it was both sexually explicit and offensive. As such, I have little doubt that the statements violate your sexual harassment policy. In my view, the fact that the statements were made on the Web, rather than in the office itself, makes little difference. Indeed, one could make the argument that publicizing the statements on the Web is far worse than making the statements to a few colleagues in the office.
Third, even without the sexual harassment angle, your firm has a sound basis for terminating the employee. Consider how your company would have reacted had the comments been expressed in a company meeting, posted on a company bulletin board, or communicated to a small group of co-workers. The fact that the offending employee chose to use a modern telecommunications medium should not alter the analysis. The comments not only are guaranteed to create an awkward (if not unworkable) situation between the two employees, they also may poison the offending employee’s ability to work with others. Who, for example, will want to work with the employee who posted the comments if they are fearful that he might treat them in the same way? Even if they were not concerned that he will make comparable comments about them, you have the “creep” factor to consider. Will anyone want to work with a co-worker who has posted graphic sexual information about another one of your employees?
Fourth, as for the unwilling subject of the Blog, I would express sympathy for his plight. I also would apprise him of the company’s decision to terminate the offending employee (following an appropriate investigation). You might even take advantage of these circumstances to remind all of your employees of your company’s policy regarding use of your company’s computer systems, explaining that disregard of the policies may result in termination. You also might offer to provide any assistance to the employee in efforts he makes to have the information removed from the Web-blog.
Beyond those steps, however, I would be circumspect about taking other actions, at least not without the input and express approval of the adversely affected employee. For example, if the specific circumstances were addressed publicly within your company, this might simply draw more attention to the information set forth on the Blog and cause your remaining employee further discomfort or embarrassment.
Finally, you have inquired about whether the person about whom the Blog was written might have legal recourse against his co-worker. He may. Many states, including Minnesota, have recognized causes of action for invasion of privacy, which includes the concept of “publication of private facts.” This legal theory is grounded on the notion that certain private information about an individual deserves to remain private. Your employee also may have a claim for defamation, depending on the nature, content and falsity of the statements made. Lastly, your employee may have rights under state telecommunications laws.
I would not recommend that the company become involved in providing advice to this employee on his legal options against his co-worker. If he wishes to pursue that avenue, he can do so with the help and guidance of private counsel.
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