After discovering childhood photos of himself on his uncle’s Facebook page (which his uncle refused to remove), Olson filed a harassment suit in Minnesota state court.  Olson claimed that the pictures and his uncle's comments were a form of harassment because they had "a substantial adverse effect [on his] safety, security, or privacy."  Despite finding the uncle's comments to be "mean and offensive," the judge refused to issue a harassment restraining order.

On appeal, Olson took a different approach, arguing that the photos harassed him by violating his privacy.  Since Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998), Minnesota has recognized three types of invasion-of-privacy torts: “intrusion upon seclusion”, appropriation of one’s name or image, and publication of private facts.  Olson also argued that the Facebook postings constituted a fourth form of invasion of privacy that some states have recognized but Minnesota has not -- that the postings portrayed him in a “false-light.”

The Minnesota Court of Appeals quickly rejected Olson's invasion-of-privacy argument because he had not raised it in the lower court. They further stated that since the term "harassment" is already defined in a separate Minnesota statute, Olson’s attempt to prompt a new definition of the term need not be considered.

Ultimately, the court of appeals appeared to agree with the lower court’s finding that innocuous family photos "could not possibly serve as a basis for harassment."  Therefore, much to the relief of amateur photographers throughout the state, Olson’s harassment claims were dismissed.

The entire opinion can be read here: Olson v. LaBrie, 2012 WL 426585 (Minn. App. Ct. Feb. 13, 2012).

Bottom Line

While this case involved a private family dispute rather than an employment matter, the decision does seem to indicate that Minnesota courts are reluctant to rule on behavior that is simply rude or obnoxious.  Therefore, while posting awkward photos on Facebook might generate some bad feelings at the next family gathering, they probably won’t have legal consequences unless the photos truly go beyond well beyond embarrassing or awkward.

Minn. Stat. § 176.021, subd. 9, provides that injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties and picnics, do not arise out of and in the course of employment.  The exceptions typically are: (1) When an employee is ordered or assigned by the employer to participate in the program or activity; or (2) When the employer-sponsored party is intended to serve some other business objective, i.e. promoting goodwill or marketing between the employer and its customers.  In these circumstances, the injuries sustained are generally covered by the Workers’ Compensation Act.  Sometimes it can be hard to determine what is truly “voluntary” when it comes to the company holiday party.

Case in point, in Boraas v. Strand-Saboe VFW #5247, the employer would host an annual Christmas party for employees and their guests (no customers).  An employee slipped and fell while dancing with a coworker at the party and the judge found, and the appellate court agreed, that because the attendance was not “entirely voluntary,” the employee’s injury was covered under the Act.   The evidence showed that there was a notice and sign-up sheet for the party, and that the employer questioned employees who were not signed up to obtain a reason for not attending.  Further, the employees who decided not to attend, though not disciplined, were subject to sarcasm and ridicule.  At the party, there was an attendance/sign-in sheet and the employee testified at hearing about the overall importance placed upon the employee’s attendance by the employer and her belief that she was expected by the employer to attend the function.  These facts were sufficient to make the Christmas party injury compensable under the Act.

Say you want to forego the party and just give out the holiday ham or turkey – that’s safe, right?  Not necessarily.  An employee who had been on a leave and received notification that she could come to pick up her holiday turkey, and then slipped and fell in the parking lot, was held to have a compensable injury.  The court likened it to situations where an employee is injured on the employer’s premises while picking up a paycheck.  It appears that the enticement of the “turkey bonus” was an anticipated benefit on the part of the employee and attributable to the employment relationship and the injury sustained while collecting the turkey was covered under the Act.

Bottom Line

You don’t have to be like Scrooge and ban the holidays from work, just remember that when it comes to parties, do not require and police attendance – voluntary must be voluntary.  And, if you are giving your employees the holiday goose, turkey or ham, think about sending them a gift card instead.

According to Director Shiu, the OFCCP has restored hits commitment to its core values of equality, fairness and opportunity for all under the Obama Administration, and has been given the resources to engage in more in-depth compliance reviews.  Over the last two years, the OFCCP has been able to increase its staff by 35%.   In fact, the OFCCP has hired and trained roughly 200 new compliance officers since 2010, and provided the first national training for OFCCP employees in more than a decade, according to Director Shiu.

In addition to increased staff and training, the OFCCP is getting close to finalizing its revisions to its internal compliance manual, and has already announced its newest enforcement protocol, Active Case Enforcement (referred to as “ACE”), earlier this year.   Under ACE, the OFCCP has shifted its compliance reviews to a “more thorough and careful” review, according to Director Shiu.

Moreover, the OFCCP’s regulatory overhaul has just begun.  While the OFCCP is currently in the process of reviewing the public comments it received regarding its proposed regulations amending VEVRAA regulations, it is in the process of publishing a series of proposed revisions to regulations implementing Section 503 of the Rehabilitation Act of 1973 for public comment.   Moreover, according to Director Shiu, while the OFCCP continues to work on developing a new compensation data collection tool to eliminate gender and race-based compensation discrimination, the OFCCP is also in the process of overhauling its sex-discrimination guidelines, which were last revised in 1978.  According to Director Shiu, “Times have Changed, Workplaces have changed. Regulations must change, as well.”

Stay tuned for more information.

The Proposed Regulations revise regulations implementing Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.  The current regulations protect covered veterans by protecting them from discrimination, and by requiring federal contractors and subcontractors to maintain an affirmative action plan.  They also require federal contractors and subcontractors to engage in general outreach efforts to increase employment of veterans, and to provide job applicants and new hires an opportunity to voluntarily identify themselves as a covered veteran.

The proposed regulations add to and create additional obligations for federal contractors and subcontractors.  The proposed regulations, among other things, drastically increase data collection and retention obligations, require contractors and subcontractors to develop yearly hiring benchmarks for protected veterans by engaging in a multi-factor analysis studying the contractor’s or subcontractor’s workforce as well as the applicable civilian labor force, mandate that contractors and subcontractors engage in at least three outreach efforts each year for protected-veteran applicants, modify the current protocol for the self-identification process, and require contractors and subcontractors to provide the state employment service their job openings as well as additional information.

The OFCCP will likely issue final regulations within the next few months.  Although it is possible that public comment will persuade the OFCCP to lessen the burden presented by the proposed regulations, drastic revisions to the proposed regulations is highly unlikely. 

Stay tuned for more information.

Why Are These Workers Losing Their Jobs?

These businesses had been asked by the Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations to supply documentation of their workers’ eligibility to work in the United States.  Workers were fired when they couldn’t supply these documents.  These audits are a result of the strategy that ICE announced in 2009 to crack down on the number of illegal workers in order to protect the jobs of workers who are legally authorized to work.

Although there were no reported stories of criminal or civil penalties associated with the audits, other employers have received media attention due to irregularities in their I-9 procedures.  In September, 2010, a $1,047,110 settlement was reached with Abercrombie & Fitch for violations of the Immigration and Nationality Act due to deficiencies its I-9 process even though there were no instances involving the knowing hiring of illegal workers.

On November 1, 2010, a $257,000 settlement was reached with Catholic HealthCare West to resolve allegations that it discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9.

What Is the Common Theme?

Many employers underestimate the importance and complexity of completing and retaining I-9 Forms.  Too often, the task is delegated to an individual who lacks the training and resources necessary to comply with the technical requirements.  Employers don’t take the time to audit the forms and processes to identify deficiencies.  This lack of oversight can lead to sizeable fines, criminal penalties, media attention and disruption to the workforce.  Employers who seek technical assistance may consult the Employer’s Handbook for Completing Form I-9.

It is important for employers to take a moment to review the new law's requirements and understand your obligations.

Expansion of the "Right to Be Absent from Work"

In 2010, the Minnesota Legislature expanded employees' opportunity to be absent from work without penalty to vote.  Legislators removed the provision that had previously allowed such absences only in the morning of Election Day.

Every employee who is eligible to vote has the right to be absent without penalty or loss of salary or wages.  Under the new law, employees have 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.”

Employers or "other persons" may not either directly or indirectly refuse or otherwise interfere with an employee’s right to take the time to vote on Election Day.  Violations of the statute are guilty of a misdemeanor.

Answers to Unanswered Questions

Other than prohibiting "penalties" or "wage and salary deductions," the Minnesota Election Day Law provides little guidance to employers.  Employers often ask very specific questions that are simply not addressed by the statute.

• Can I require an employee to provide advanced notice?

Probably.  While the statute does not directly address this issue, an employee would be hard pressed to argue that providing notice to his employer (at least at the time his or her shift starts) somehow interferes with the employee's right to be absent from work to vote and lack of notice is not a valid basis for taking disciplinary action.

• Can I limit the amount of time the employee is absent from work?

Yes, although this will be difficult to enforce.  The statute provides that the employee must be given time off for the time necessary to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work. It does not provide for time off to stop at McDonalds on the way. It may be difficult, however, to determine whether an employee who seems to be taking a long time to return to work is doing anything other than simply waiting in a long line at the polling place.

It is important to note that the statute makes it clear that the employee should be given sufficient time to vote at the "employee's polling place."  Therefore, employees who travel great distances to get to work must be given enough time to travel to their polling place and back. 

• Can I require the employee to use accrued vacation or paid time off (PTO) to make up the difference?

Probably not.  While the statute does not address this question, deducting an employee's accrued leave or PTO may be viewed as a prohibited deduction or penalty.

• Can I coordinate an employee's time off with other employees who request time off to vote?

Probably.  Again, the statute does not address whether an employer may coordinate the employees’ time away to vote in order to minimize disruption or ensure proper staffing, it is likely that an employer can do so as long as the employer gives the employee sufficient time off to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work.

Take-away

Minnesota employers must provide employees time off with pay on election day (including state primaries).  The amount of time must be sufficient to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work.