Bottom Line

Employers should be aware that Minnesota Paid Leave is now fully funded by premiums rather than the initial startup funding provided in the 2023 legislation.   Under the MPL statutes, the premium rate is set annually by July 31 for the following year, based on historical program experience and independent actuarial analysis.  Although the news for 2027 may be considered positive, a full year of Minnesota-specific program data will not be available for study until next year.   In other words, don’t bank on another zero increase just yet.

The post Minnesota Paid Leave Premium Rate Holds Steady for 2027 appeared first on Felhaber Larson.

If finalized, the rule would create a single nationwide standard and, according to the DOL, bring “greater uniformity and consistency” to enforcement. The same framework would apply under the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), both of which rely on the FLSA’s definition of “employ.” It would not extend to other federal laws, such as the National Labor Relations Act.

Two Types of Joint Employment

The proposal outlines two joint employment scenarios. The first is vertical joint employment, where a worker is employed by one entity (such as a staffing agency) but another entity also benefits from, and may control, some aspects of that work. The key question is whether that second entity is also an employer.

The second is horizontal joint employment, where an employee works separate hours for two or more related entities during the same workweek, and those entities are sufficiently associated in their control of the employee. If joint employment exists, hours worked for each entity must be combined for overtime purposes.

The Four-Factor Test for Vertical Joint Employment

For vertical joint employment, the proposed rule adopts the same four-factor test used in the 2020 rule. It looks at whether the potential joint employer (1) hires or fires the employee, (2) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree, (3) determines the employee’s rate and method of payment, and (4) maintains the employee’s employment records.

That said, the proposal makes some meaningful shifts. Most notably, “reserved control” is back in play. The 2020 rule focused only on control actually exercised in practice. The new proposal would also consider control that exists on paper, such as contractual rights to direct work, approve pay rates, or influence employment decisions, even if those rights are never used. As a result, how relationships are structured contractually may carry as much weight as day-to-day operations.

The rule also reintroduces economic dependence as a secondary consideration. While these factors carry less weight than the core four, they mark a departure from the 2020 rule, which explicitly excluded them. The DOL also reserves the ability to consider additional factors beyond the main four, though the primary factors remain the most important.

If all four factors point toward joint employment, there is a “substantial likelihood” that a joint employment relationship exists. If they all point the other way, the opposite is true.

Horizontal Joint Employment and Exclusions

Horizontal joint employment turns on whether entities are “sufficiently associated” in employing the worker. This may include situations where they share the employee’s services, one acts in the interest of the other, or they share or exercise common control.

As in the 2020 rule, the proposal clarifies that certain common business arrangements, standing alone, do not make joint employment more or less likely. These include franchising, brand-and-supply relationships, requiring compliance with legal or safety standards, enforcing quality control measures, and offering model policies or benefit plans.

One notable omission: the 2020 rule’s explicit carve-out for allowing another business to operate on one’s premises, such as “store within a store” arrangements, does not appear in the current proposal.

Different Statutes, Different Consequences

Although the test is consistent across statutes, the consequences of a joint employer finding vary.

Under the FLSA, joint employers may be jointly liable for minimum wage and overtime violations, and an employee’s hours across entities may need to be aggregated. This is particularly significant where employees split time between related businesses.

Under the FMLA, joint employment affects coverage, eligibility, and which entity is considered the “primary” employer. The primary employer is generally responsible for providing notices, maintaining health benefits, and restoring employees after leave, even if another entity supervises the day-to-day work.

Under the MSPA, which governs migrant and seasonal agricultural workers, joint employment can extend liability for wages, disclosures, housing, and transportation to entities that effectively control the work, including those higher up the supply chain.

Bottom Line

The proposed rule signals a return to a broader, more flexible approach to joint employment that emphasizes practical realities over formal labels.

Notably, the DOL is accepting comments on the proposed rule through June 22.   To the extent the proposed rule may impact your business, one way or the other, you might consider submitting comments.

Questions on how this new joint employer standard might affect your business? Reach out to your trusted Felhaber attorney for guidance.

The post DOL Proposes New Joint Employer Rule: What Employers Need to Know appeared first on Felhaber Larson.

The Case

The case started when a United States Post Office employee was unwilling to work on Sundays as he believed, for religious reasons, that Sunday should be devoted to worship and rest. When USPS began delivering packages on Sundays , the employee remained unwilling to work. Throughout this time, the employee received progressive discipline for failing to work on Sundays and eventually resigned in lieu of his expected termination. A few months after resigning, he sued USPS under Title VII, claiming that USPS could have accommodated his request not to work Sundays “without undue hardship” and therefore USPS violated Title VII when it refused to do so. The District Court granted summary judgment to USPS, which was affirmed by the Third Circuit. Both courts felt bound by the Hardison decision, a former Supreme Court decision that was widely construed to mean that an undue hardship is found, and employers are not required to provide a religious accommodation, when granting the accommodation would make an employer bear more than a de minimis cost.

The Supreme Court, in its Thursday ruling, upended that widely held definition of “undue hardship” that required an employer to bear no more than a de minimis cost in providing religious accommodations. Writing for the Court in its unanimous ruling, Justice Alito clarified the standard to mean that “undue hardship” is shown “when a burden is substantial in the overall context of an employer’s business” and is a fact specific inquiry. The case was remanded to lower courts to determine whether the employee’s requested accommodation fit into this newly clarified definition.

What Employers Need to Know

When evaluating religious accommodations, employers need to be mindful of this heightened definition of “undue hardship.” Undue hardship is unlikely to be found by the imposition of temporary costs, occasional shift swapping, or administrative costs. The Court says a hardship that is attributable to other employees’ animosity to religion in general, a particular religion, or the notion of accommodating religion, will not be considered sufficiently substantial to deny the requested accommodation. Faced with an accommodation request that does constitute undue hardship, an employer must also take into consideration other options that may not be as burdensome. What is most important is that undue hardship needs to be considered in the overall context of an employer’s business and must be substantial, not merely a de minimis cost.

Bottom line

When evaluating a religious accommodation request, “undue hardship” is found when the burden is substantial in the overall context of an employer’s business, not merely more than a de minimis cost. This is a heightened standard that employers must be mindful of when evaluating requests for religious accommodations.

Special thanks to our summer law clerk, Marina Cruz, for her work in drafting this blog post.

The post The Supreme Court Heightens Standard for Employers Denying Religious Accommodations appeared first on Felhaber Larson.

Breana and Matthew Borth were previously married. Before their divorce, Breana sent Matthew a partially-nude photo on the social media platform, Snapchat. Snapchat allows you to send pictures and videos that automatically disappear 10 seconds after the recipient views the message but with the caveat that the recipient may take a screenshot of the picture if s/he wants to hold on to the image for later viewing. That is what happened here. Matthew sent a screenshot of the picture to Breana’s current significant other and used it to attempt to blackmail Breana into a custody arrangement.

Breana filed a petition for a harassment restraining order (“HRO”) which was initially granted ex parte. After a full hearing, however, the district court dismissed Breana’s petition, holding the petition lacked the requisite intent required for a harassment restraining order under Minnesota law.

Minnesota’s law governing harassment restraining orders permits for orders to be granted on a “single incident of nonconsensual dissemination of private sexual images,” or for “repeated incidents of intrusive or unwanted acts, words or gestures.” Minn. Stat. sec. 609.748(1)(a).   But the question here is whether qualifying language later in the statute (only if “intended to have a substantial adverse effect on the safety, security or privacy of another”) applied to the first phrase, the second phrase, or both.  The district court acknowledged that sending a private sexual image to a third-party could serve as a basis for an HRO, but the court interpreted the statute to require that the dissemination “has to be done with the intention of having a substantial effect on the safety, security, or privacy of another.”

Breana appealed the court’s denial of the HRO. The crux for analysis on appeal turned on whether the language “that have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target” applied only to the “repeated incidents” language, or whether it also modified the “single incident” language found in subdivision 1(a)(1).

Breana argued the “substantial adverse effect” language does not modify the “single incident” conduct – just the “repeated incidents.” Citing to the rules of grammar from The Chicago Manual of Style, the court agreed with Breana, reasoning that since the types of conduct are separated by the disjunctive conjunction “or,” the qualifying phrase cannot be interpreted to modify the “single incident” phrase, only the “repeated incidents” (plural phrase) thereafter. In simpler terms, “or” is used in the statute as a function word to indicate mutually exclusive alternatives.

Bottom Line

The holding in this harassment case demonstrates that grammar matters, just maybe not for the reasons you thought.  A good reminder that policies, contracts and other legal documents need to be properly drafted while remembering our disjunctive “or.”

The post Conjunction Junction What’s Your Function? Apparently Deciding Harassment Cases appeared first on Felhaber Larson.

According to the complaint, Plaintiff initially rebuffed Alberterio’s advances, but after he began ignoring her, she feared she would lose her job.  Plaintiff eventually gave into Alberterio’s advances, and Alberterio sexually assaulted her multiple times.  Plaintiff alleges that, not only did the other managers fail to step in to protect her, but the managers also knew or suspected what was going on between Plaintiff and Alberterio.

While the outcome of this case is far from certain, there are several reminders for any company, including those employing minor children.

1. Adopt harassment policies that include a clear channel for employees to file complaint of harassment.  The harassment policy adopted by Hyder Investments allegedly provided a hotline for employees to report harassment, but the telephone number provided in the policy was XXX-XXX-XXXX, a telephone number made up of entirely Xs.  It is best practice to provide multiple channels for employees to file a report, including to someone other than their direct supervisor.
2. Provide meaningful, annual training on harassment policies with a special training for managers.  The training should be required for all employees and should, at a minimum, clearly explain all actions constituting harassment, including sexual harassment, include examples of behavior that constitutes sexual harassment, and describe, in detail, the employer’s complaint process.  Manager training should explain the additional reporting responsibilities imposed on managers.  Employers should note that several states require employee sexual harassment training, and a few require that the training be interactive.
3. Investigate all allegations, as well as suspected allegation, of sexual harassment.  Failure to take seriously and investigate all complaints can give rise to the types of lawsuits Hyder Investments is facing.  Had Hyder Investments investigated Alberterio and taken appropriate disciplinary action, it is likely the company would not be facing this lawsuit.
4. Companies employing minors should take additional precautions to ensure they are properly supervised.  This not only protects minors from harassment, but also ensures other laws relating to scheduling and prohibited job duties, are followed.  Companies should also regularly check in with their minor employees.  Ideally, companies should complete these check-ins quarterly, and they should be done by someone other than their direct supervisor.  It should be someone the employee feels comfortable speaking with and with whom they will share any concerns—like HR.

Bottom Line

All companies, especially those employing minors, owe a duty to their employees to provide a workplace that is safe and free from sexual harassment.  Establishing appropriate anti-harassment policies, training employees and managers, investigating all complaints, and ensuring minors are appropriately supervised will go a long way in keeping the workplace free from sexual harassment, and likely, lawsuits.

The post Lawsuit Against Fast Food Chain Provides Critical Lessons for Businesses Employing Minors appeared first on Felhaber Larson.

Santa’s biggest headache at the moment is that the Food and Drug Administration (FDA) has not yet approved any of the available vaccines for elves.  With his entire production crew unable to comply with the workshop’s vaccination mandate, Santa wondered how he would ever have presents for everyone on the nice list.

The Subcontracting Option

Just then, Santa received a call from the Grinch who offered to provide all of the gifts that Santa would need on Christmas Eve.  Santa asked the Grinch how he planned to do this with so little time left. “You don’t need to worry about that” replied the Grinch “And it’s best if you don’t.  Let’s just say I have a very specialized method for procuring Christmas presents.”  After negotiating a very modest price for the Grinch’s services, Santa asked him how he could afford to be so generous.  “I guess I just have a big heart” said the Grinch with a creepy sort of a laugh as he hung up the phone.

Though a bit unnerved by this exchange, Santa decided he should not look a gift horse in the mouth.  With his sourcing problems now suddenly resolved, Santa asked Frosty the Snowman to come to his office.

“Frosty, I understand you are claiming a medical exemption from our vaccine mandate?”

“That’s right” said Frosty.  “They have to store those vaccines at an extremely cold temperature but every time they warm it up and give it to me, it immediately freezes back up again. My doctor says my body just can’t handle the vaccine so I can’t get the shot.”

Santa gave an understanding nod but reminded Frosty that he would have to wear a mask and face shield in order to work.  “But I’ve got a button nose and two eyes made out of coal.  How would I ever catch this virus?” asked Frosty.  “Sorry” replied Santa.  “Rules are rules.”

Let’s Be Real

After Frosty left, Santa turned his attention to his delivery woes.  With 4 of the reindeer out with COVID, he had posted an opening for some temps to help pull the sleigh.  Santa and Mrs. Claus studied the list of recent applicants:

“Hmm, here’s a flying squirrel named Rocky – that could work” mused Santa.  “And Dumbo the flying elephant says he has the whole day off from the circus so he can help out.  Do you see any other good candidates?”  Mrs. Claus replied “Nothing here but I’ve seen pictures of a dog named Snoopy flying around on his doghouse like a fighter pilot.  If he can do that, I bet he can fly a sleigh too.”

Santa chuckled and replied “I don’t think Snoopy is real.  I mean, whoever heard of a flying dog – that’s ridiculous.  Let’s just stay in the real world, shall we?” Santa said with an amused little smile.

Santa decided that he had enough “horsepower” to pull the sleigh and turned his attention to trying to work through all the international travel restrictions that might impact the big night.

Just then, Rudolph popped his glowing head into the office and said “Hey Boss, I just got an email saying that our candy canes and sugar plums are on back-order until January.  Also, we are only going to get about 20% of our coal delivery on time.  Looks like there will be a lot of empty stockings this year.”

Santa sighed “If we manage to get presents to everyone this year, it will be a true Christmas miracle.”

The Minnesota Employment Law Report wishes all of our loyal readers a very joyous holiday.

*Dennis Merley is our retired partner and friend, and we are thrilled that he agreed to write the annual “Santa Blog.” We hope it brings you as much holiday cheer as it did us when reading it. Thank you Dennis!

The post Staffing Shortages and Supply Chain Woes at Santa’s Workshop appeared first on Felhaber Larson.

Videos have been posted of people from all over the country who stormed the Capitol to protest the election results. As usual, social media was buzzing with attempts to identify the demonstrators, and with astonishing speed several people who breached the Capitol have been identified by name, hometown, and in some cases, their place of employment (including a former employee who was wearing his employee name tag). A number of these protesters have been publicly fired by their employers. A Chicago news station reported that a Chicago real estate company fired a realtor following her social media post which said she participated in “storming the Capitol.”  An insurance company similarly parted ways with an in-house attorney who livestreamed his activities outside the Capitol.

Hey, what about Free Speech?

As more of the rally rioters are “outted” (or “doxed”), we likely will see more efforts to urge and/or publicly shame their employers to fire them.  Would such terminations be legal?  We think that terminating employees who participated in the Capitol violence is permitted under the law.

The starting point in such matters is the First Amendment of the Constitution, and this argument can be dispensed with rather quickly. While participating in the Save America Rally is likely political speech, most employees (more about that below) in the private sector do not have a constitutionally protected right of free speech with respect to their employment because the First Amendment only protects against the government’s enactment of laws abridging free speech. For public employers, the result could be different (absent any violence) since they are in fact impacted by constitutional restrictions.

Who and what could be protected?

Many states have laws which protects employees from discrimination and retaliation for voting, serving in public office, or attempting to influence an employee’s right to vote. In addition, many states protect employees for off-duty conduct. Similarly, some states treat an employee’s political beliefs like other protected classes. For example, in Washington DC, political belief is a protected class. In New York, employers may not discriminate against employees based on their support for any political party or for off-duty conduct including political activities. Could these state statutes protect employees who participated in the Save America Rally?

These state statutes would likely protect employees who peacefully participated in the rally, but what is not protected under the First Amendment or state statutes is any criminal activity which occurs as a result of a political belief. The employees who have been doxed on social media and publicly terminated were terminated for the violence associated with storming the Capitol, not for the employee’s political belief.

Private employers are not prohibited from basing termination decisions or other adverse employment actions on an employee’s expression of political beliefs if the political belief resulted in criminal activity like storming the Capitol.

What about Social Media Posts?

What can an employer do (or not do as the case may be) if you have an employee who publicly supports the rioters? Or what about the employee whose social media posts contains hate speech, profanity, or are supportive of the Proud Boys or a similar group?

We know that if you are a private employer the First Amendment does not apply to an employee’s political speech. But this begs the question, can a private employer terminate an employee for engaging in this behavior? The answer is yes, with some caveats.

First, if you are outside Minnesota, make sure that your state statute does not protect employees who engage in lawful off-duty political conduct. If you live in a state that does protect off-duty political conduct (California, Colorado, Louisiana, New York, and North Dakota), be careful in your decision. For example, it is likely that you could not terminate an employee who simply “liked” the post of an attendee at the Save America Rally, but there could  be a different result for an employee who “liked” the post and encouraged continuing efforts to destroy federal property.

If you do not live in a state that protects off-duty political conduct you could terminate your employees for public support of the rioters or hate-speech. Our advice, however, is to be careful and judicious in your decision-making. First, make sure that you have an updated and thorough social media policy. Second, make sure that you have fully considered all the facts surrounding the employee’s post – What did the employee say? Did the employee encourage violence or other unlawful action? Who is the audience and what was its reach? Does the post implicate other protected classes such as race, religion, or gender? Does the post support political-related violence? Does it endorse a perspective that encourages discrimination based on race, color, or creed? Finally, and most importantly, make sure you have your facts straight (as you should in all terminations).

For all of the reports which identify employees who stormed the Capitol, there have also been reports of participants having been wrongfully identified.  Terminating an employee for the mistaken belief that the individual participated in storming the Capitol or who made a white nationalist post could result in a defamation or other wrongful discharge claim.

Bottom Line

In the absence of a state statute which protects an employee’s political beliefs, private employers are not prohibited from basing termination decisions or other adverse employment actions on an employee’s expression of political beliefs if the political belief resulted in criminal activity like storming the Capitol.  However, as with any employment decisions, make sure you have all of the facts (and not “alternative facts”).

The post Can I fire an employee who attempts to overthrow the Government? Yes you can. appeared first on Felhaber Larson.

With production still in full swing, Santa decided to drop in on Safety Director Clark Griswold to review the facility’s coronavirus safety program.

“Everything looks great, I must say” said Clark.  “I met with the reindeer this morning and they are good to go.  In fact, considering how they are positioned as they fly, most of them actually are pleased about wearing masks and wondered why they never thought of that before.”

“What about Rudolph”, Santa asked.  “We might need him if the weather doesn’t cooperate.”

“No problem, sir.” Clark responded.  “We have a clear face shield for him.”

Workers Distance Thems-elves

“Excellent.  What’s new on the production floor?”

“We are on schedule but it has been a little tense down there” Clark responded. “The social distancing thing is hard on the Elves because six feet is a lot of space to cover with those little legs.  They also don’t like the fact that we banned singing carols while they work due to concerns about spreading the virus.”

“No loss there since most of them have such scratchy little voices anyway.  Except that one guy with the swivelly hips and the snarly lips – what’s his name?”

“You mean Elfis?” asked Clark.  “Yes, that’s the one” said Santa.  “Oh well, they may have a Blue Christmas with no carols but at least we are keeping them safe.”

Santa then asked Clark how their newest employee, Frosty the Snowman, is working out. “Pretty good, I guess” ventured Clark. “Although in the last couple of weeks, he has been complaining about body aches and a sore throat, and he says he lost his sense of smell.  Of course, with that little button for a nose, I don’t know how he can smell anything anyway.”

“Don’t you think that might be a problem?” asked Santa.  “Nope” replied Clark.  “We take his temperature every morning and he’s always nice and cool so I think we are OK.”

Santa nodded approvingly and asked “Is that everything?”

An Unexpected Furlough

“Well, there is one more issue” said Clark. “Mrs. Claus stopped by a while ago to say she is concerned about you.  Given your age and weight, you are in the prime vulnerability category for the virus.  Even though we have a totally contactless delivery process, she doesn’t want you going out this Christmas Eve.”

“Really? Then who is going to drive the sleigh and pass out all the toys?“ asked Santa.

Clark replied, “We originally offered the job to the Grinch but he didn’t pass the physical because his heart is two sizes too small.  Now, we think we may subcontract the work to the Easter Bunny.  He seems to have the logistics and delivery system in place to get the job done, and as far as we know, rabbits can’t get COVID.”

“Oh dear” thought Santa. “I never would have thought that I’ll be home for Christmas.”

This is the last article from Editor Dennis Merley, who is retiring after 38 years with Felhaber Larson.  He thanks you for reading the Minnesota Employment Law Report, and wishes everyone the very best in the years to come.  The blog will continue in the very capable hands of Laura Bernstein.

Happy Holidays everyone!

The post Santa’s Workshop Continues to Deal with COVID-19 Protocols appeared first on Felhaber Larson.

Not surprisingly, we then heard from representatives of a number of other industries asking “What about us?  Can we require our employees to be vaccinated?”  For the reasons stated in yesterday’s article, the answer appears to be “Yes” but not before the following two conditions are met:

1. The Food and Drug Administration (FDA) officiallyapproves the vaccines; and
2. The vaccines are available to workers in that industry.

We expect FDA approval within the next week or two so no issue there.  However, access to COVID-19 vaccination may not be possible for a large segment of workers for many, many months.  Current planning anticipates that essential employees (e.g., those in public safety, utilities, education) may be next in line, followed by persons considered high risk due to age and/or underlying medical issues.  Only then will other people be eligible for vaccination and as such, as a very practical matter, employers really cannot require their workforce to be vaccinated until vaccination is available to their employees.

Bear in mind too that for employers with a unionized workforce, the imposition of a required vaccination policy is a mandatory subject of bargaining under the National Labor Relations Act. Therefore, employers may need to give the union representing any affected employees notice and an opportunity to bargain over the implementation of any newly implemented vaccination policy, unless, of course, the existing labor contract provides that management may implement such a policy unilaterally.

For more information on mandated vaccination, read our very informative article referenced above.

Other Considerations

–  If a vaccination is made mandatory and carries side effects which result in injury or illness to the employee, the injury could be considered a work-related injury covered by workers’ compensation. However, if the vaccine was simply suggested, but not required as a condition of employment, any injury resulting from the vaccine would likely not be covered by workers’ compensation.

–  From an employee relations standpoint, it may be prudent to consider whether there are any effective solutions other than a flat mandate. For example, a strong recommendation of vaccination combined with other safety precautions, such as requiring masks/other social distancing measures, could result in a very high compliance rate. With respect to the influenza vaccine, policies requiring employees to “opt-out” by affirmatively explaining why they do not wish to receive the vaccine have been shown to have high participation rates, despite not being mandatory.

–  Not mandating the vaccine may especially be prudent given the novel nature of the virus and the public’s general lack of trust for the safety/efficacy of the COVID-19 vaccine (due in part to its unprecedented development speed). Indeed, in a Gallup poll conducted from October 19, 2020 through November 1, 2020, only 58% of those surveyed said they would receive a COVID-19 vaccination (although it is likely that this percentage will increase if a vaccine eventually receives full FDA approval). In fact, as more people receive the vaccine and show little or no side-effects, voluntary vaccination may increase, thereby minimizing the need for a policy mandating it.

Bottom Line

Employers outside the health-care industry likely have the ability to mandate vaccination of their workforce once the FDA approves one or more of the vaccines.  However, the need to do so may be relatively distant given the current predictions of when the vaccines will be available to the general population.

The post Yes, Non-Health Care Employers Can Require Vaccination But May Not Need To Do So For A While appeared first on Felhaber Larson.

At this time, however, the COVID-19 vaccine has not been approved (or licensed) by the FDA.  Even though no COVID-19 vaccine has been approved by the FDA, two vaccine candidates are presently being considered by the FDA for “Emergency Use Authorization” (EUA). The FDA will consider Pfizer’s EUA request on December 10 and Moderna’s EUA request on December 17.  An EUA is not the same as FDA licensure.  The FDA may issue an EUA, when, among other things, the agency determines that based on all of the available scientific evidence, the known and potential benefits of the vaccine outweigh the known and potential risks.  The FDA also has the authority revoke or revise an EUA at any time.

Even if the FDA grants an EUA for Pfizer’s vaccine on December 10 and Moderna’s vaccine on December 17, there are legal and practical reasons for employers to wait before making the receipt of either COVID-19 vaccine a condition of employment.

FDA Approval is Needed

The FD&C Act expressly provides that, in setting forth the conditions for EUA, the Secretary of HHS will “establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including . . . the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”

The Minnesota Department of Health (MDH) has similarly opined that, if the COVID-19 is authorized for EUA only, the vaccine cannot be mandated.

When it comes to employer-mandates, there is an important distinction to make: in making a vaccine mandatory, an employer is not forcing an employee to become vaccinated against their will; an employer is simply requiring the employee to be vaccinated in order to keep working.  Obviously, however, without further guidance from the Secretary of HHS, the FDA, or the MDH, whether the EAU applies only to government mandates or whether it applies more broadly to any mandate for the vaccine is uncertain.

Accommodation Concerns Await

Under the assumption that an employer may be able to mandate a COVID vaccine once it’s FDA approved, there are two significant employment considerations to keep in mind moving forward.  Even if an employer has a mandatory vaccination requirement, employees are able to seek an exemption from the mandate as a reasonable accommodation for a disability. Employers will have an obligation to consider whether an employee can be exempted from being required to get the vaccination. An employer’s obligation to provide a reasonable accommodation, however, is not unlimited; an employer does not need to provide an accommodation if doing so creates an undue hardship on the employer (i.e. creates a significant difficulty or expense), or if the accommodation poses a “direct threat” to the health and safety of others.

For traditional vaccination requirements, potential accommodations typically take the form of telework (assuming the employee’s job can be performed remotely), masking in the workplace, or altering the employee’s duties, if possible, to lower the risk of contact with patients or their coworkers. Of course, it is unclear whether these accommodations will be feasible in the context of COVID-19. For example, if the employee wearing a mask in the workplace still creates a direct threat to the health and safety of others (given the fact that masks are not 100% effective in reducing COVID-19 transmission), such an accommodation may not be reasonable. Ultimately, employers are still required to engage in a case by case analysis of the employee’s accommodation request to determine if there are any reasonable alternatives available which allow the employee to safely perform the functions of their position.

In addition to accommodation of disabilities, an employer will have to consider whether to grant employees a religious exemption from a mandatory COVID vaccine. Under Title VII of the Civil Rights Act, employers have an obligation to grant a religious accommodation from a vaccination requirement based upon an employee’s sincerely held religious practice or beliefs. Title VII requires employers to grant accommodations from complying with an employment policy which conflicts with an employee’s sincerely held religious belief. In the context of vaccines, courts have held that a simple non-religious opposition to vaccination (for example, thinking vaccines are generally “unhealthy”) is not protected.

Moreover, an employer is not obligated to accommodate an employee’s religious beliefs if doing so imposes an undue hardship. In the religious accommodation context the undue hardship standard is a lower bar for employers to meet than an undue hardship under the ADA. For the purposes of religious accommodation, an undue hardship is defined as an accommodation imposing “more than a minimal burden on [the] operation of the business.” As it relates to religious accommodations to other mandatory vaccinations in the healthcare field, courts have noted that an increased risk of transmitting a disease to vulnerable patients poses an undue hardship for the employer and therefore does not require an accommodation for a religious belief. It is likely that a COVID-19 vaccination would be analyzed similarly.

Don’t forget that if you have any unionized employees, employers will likely need to bargain with the union over the implementation of a mandatory vaccine.

Bottom Line

This is a critical juncture in the battle against COVID-19 and there are many legal issues to be resolved.  Nevertheless, it is exciting to think about how these vaccines will help get us back to a more normal workplace.

The post Health Care Employers Should Be Able to Mandate Inoculation Once FDA Approves Vaccine appeared first on Felhaber Larson.

This law has been passed in seven states and a number of municipalities to ban discrimination based on hair styles

Answer:  What is the CROWN Act?

As we reported in our article entitled Hairstyle Discrimination Laws May Be the Coming Wave, hairstyle discrimination may be on the cutting edge of discrimination law.  Thus far, seven states (California, Colorado, Maryland, New York, New Jersey, Virginia, and Washington) have passed the CROWN (Create a Respectful and Open Workplace for Natural Hair) Act, a uniform law designed to address discrimination based on particular hairstyles.  This new law defines “race”, for purposes of anti-discrimination laws, to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” This new definition explicitly includes “braids, locks, and twists.”

In short, this law asserts that hairstyles are intrinsically associated with race or ethnicity and that treating them differently because they do not meet the employer’s view of what is “neat” or “professional” constitutes discrimination under Title VII.  The House of Representatives passed this bill in September but no vote has yet been scheduled in the Senate. We expect this to be a fast-growing area discrimination law.

This guarantee of a basic payment to which Minnesota workers are entitled beyond the requirements of federal law increases on Jan. 1.

Answer:  What is Minnesota’s minimum wage?

Effective Jan.1, 2021, non-exempt workers for a large employer (defined as “any enterprise with annual gross revenues of $500,000 or more”) are entitled to a guaranteed minimum wage of $10.08 per hour.  This is higher than the federally mandated minimum of $7.25 per hour so those Minnesota enterprises meeting the “large employer” definition should not be lured into thinking that they are legally compliant just because they satisfy the federal standard.

Recent Supreme Court Decisions Have Prompted the EEOC to Revise its Compliance Manual on this important equal employment concept.

Answer: What is Religious Discrimination?

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public input on its updated Compliance Manual on Religious Discrimination.  This is intended to address the increasing protections that recent US Supreme Court decisions have afforded to both employees and employers regarding their religious beliefs.

Although Guidances like this do not have the force of law, they are important in revealing how the agency will pursue (or not pursue) claims invoking religious beliefs.  The Guidance:

–  Emphasizes the employer’s obligation to accommodate an employee’s religious beliefs;

– Encourages the interactive process when considering accommodation;

– Promotes a balance between an employee’s religious obligation to proselytize with a co-worker’s right to be free from unwelcomed intrusions based on religion;

– Explains the factors evaluated to determine if an employer is a religious institution and therefore exempt from Title VII’s general prohibition against discrimination because of religion; and

– Outlines the application of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, which clarified the ministerial exception to claims under discrimination laws for employment decisions affecting employees that perform critical religious duties.

The new Guidance could be in for some additional revision in a Biden administration so the precise contours of the final version will be very interesting to see.

Employers around the country are likely to engage in this practice to adjust to the eventual return to the “new normal” 

Answer: What is “Post-COVID layoff”?

Minnesota industrial giant 3M recently announced that they are laying off approximately 2,900 people due to the pandemic having “advanced the pace of change and disrupted end markets around the world, increasing the need for companies to adapt faster.”  In other words, things have really changed.

As employers begin to eye a return to more complete operations, they will surely find (if they have not already done so) that their workforce should not look the same as it did before for reasons relating to:

– Industry change.  The altered state of retail, for example, has led consumers to discover that most of what they used to buy in stores is readily available through online shopping. Fewer brick-and-mortar stores means fewer people staffing them;

– Job redundancy. Many employers are learning that certain jobs that existed pre-pandemic simply do not need to be filled.  In some cases, the duties of furloughed employees were absorbed effectively enough by other workers that there just is no reason to restore the furloughed worker.  In other cases, revised business strategies and streamlined operations mean that the temporary layoffs instituted during the pandemic should become permanent.

– Telecommuting.  The change in workforce location has brought about a revised idea of how a great many jobs should be constructed and how productivity will be monitored and ensured.

As businesses continue to open back up, it will be wise to review and seek counsel on the interplay of federal and state leave laws, collective bargaining agreements, unemployment compensation statutes and other legal frameworks.

Bottom Line

Yes, 2020 has been quite the year but don’t let your guard down; 2021 will be full of interesting answers and questions.

The post What Jeopardy Awaits Employers in 2021? appeared first on Felhaber Larson.

According to recent reports, the owners of a local drywall company were convicted of theft by swindle for mischaracterizing their employees as independent contractors and pocketing over $300,000 of unpaid workers compensation premiums in  just one year.  They now must serve six months of house arrest, perform community service, pay $30,000 in fines and repay over $300,000 to their insurance provider.  Charges of insurance fraud appear to have been dropped under a plea agreement that allowed the company owners to avoid jail time.

The conviction and sentencing in this case brought cheers from representatives of the building trades, who noted that practices like this create unfair competition for jobs between those who follow their legal obligations and those who do not.

It is what it is

It bears repeating that whether a worker is an employee or independent contractor is not typically determined just by what the employer wants or what the parties agree to.  This is a legal determination made according to the multi-factor tests that the courts and government agencies use to resolve these questions.  While the tests might vary a bit, they generally revolve around the question of who controls the conditions under which the job will be performed (e.g. who sets the schedule, who pays for the materials, is the worker paid hourly or by a set job price, etc.).

Recently, some courts have espoused what is called the “Economic Realities Test” that culls down the multi-factor approaches to two essential factors:

• The nature and degree of the employer’s control over the work; and
• The worker’s opportunity for profit or loss based on personal initiative or investment.

The Department of Labor recently suggested that they would utilize this test as well, although the results of the recent presidential election may scuttle this proposal before it even gets off the ground.

Regardless of the test that is utilized, it is clear that what the parties want plays a relatively small role in determining how the worker is to be classified.  Thus, as with the drywall company mentioned above, huge trouble awaits the employer who decides that workers are independent contractors even though the facts and the law say otherwise.

Monetary Costs

Misclassifying workers as independent contractors rather than employees, even if done without wrongful intent, can have a dramatic economic impact on the employer in a variety of ways, including:

– Employers could be on the hook for unpaid minimum wage and/or overtime to such workers.  This could result in substantial back pay owing to employees if the employer erroneously misclassifies a particular job classification held by a large number of employees;

– Employers may be liable to misclassified workers for the value of benefit plan contributions that should have been made had the workers been properly classified as employees;

– Workers could sue for the costs that they incurred when they were sick or injured and were not able to utilize the employer’s group health insurance plan that would have covered them but for the misclassification.

– IRS penalties may be assessed for failure to withhold taxes properly from payments to workers.

If it can be determined that the hiring entity purposefully misclassified the workers in order to avoid paying insurance carriers and/or deprive workers of coverage to which they are entitled, it seems that criminal prosecution for theft by swindle, insurance fraud and other similar crimes may now be waiting in the wings.

Bottom line

Intentionality may very well be a key to whether criminal prosecution might arise from misclassification.  Indeed, the criminal complaint in the case of the drywall company asserted that one of the owners “stated that he was aware that workers at construction sites have been injured and been told not to file claims.”  As such, their wrongful intent to profit from misclassification seems to have played a key role here.

Still, the possibility of such prosecution, combined with the stiff monetary disincentive, should be enough to persuade any reasonable employer to check with knowledgeable legal counsel before making a questionable classification decision.

The post Misclassifying Employees as Independent Contractors Can Land You in Jail appeared first on Felhaber Larson.

Bear in mind, however, that with a divided Congress for at least the next two years, change may come slowly, especially if we see a continued deemphasis on compromise as we have seen in Washington for many years.

Government Contracting

One of the first orders of business may well be the rescission of President Trump’s “Executive Order on Combating Race and Sex Stereotyping” that limits the federal government and its contractors from conducting certain kinds of diversity training.  This restriction certainly seems contrary to the principles espoused in the standard platform of the Democratic party and is unlikely to survive in a new administration.

For more on what that order requires, please see our article entitled Executive Order Bans Training on Privilege and Systemic Bias for Government Contractors

Immigration

Just as President Trump focused so keenly on immigration, a Biden administration probably will also pay particular attention to such matters, if only to undo policies and limitations that President Trump championed.  Therefore, expect a loosening of employment-related visas and more exemptions from visa limits in the STEM (science, technology, engineering, and math) areas.

For a summary of expectations in the area of immigration generally, please see the article entitled Seven Important Changes to Immigration Policy That We Can Expect From a Biden Presidency from the Felhaber Immigration Law Bulletin.

Independent Contractors

As we wrote in Labor Department Proposes New Employer-Friendly Rule on Independent Contractors, the Department of Labor (DOL) just issued a proposed rule revising and simplifying when someone is to be considered an independent contractor.  A Biden administration is expected to withdraw this proposal in the interest of continuing the Obama-era emphasis on increasing the number of workers who should be classified as employees instead of contractors.

Minimum Wage

Joe Biden has previously supported efforts to increase the minimum wage in various states, and his website advocates a $15.00 minimum nationally. With a Republican majority likely in the Senate, however, this could be difficult to achieve. There may also be a move toward increasing the salary threshold for overtime exemption back to the levels proposed at the end of the Obama presidency, although this may be a lower priority since the salary requirement did increase at the beginning of 2020.

Paid Leave

Biden advocates transforming the 12 weeks of job-protected, unpaid leave under the Family and Medical Leave Act (FMLA) to a paid leave concept.  This could be a difficult task, however, with a divided congress.

National Labor Relations Board (NLRB)

This is an area that often poses a dizzying back-and-forth for employers based on the political leanings of the new administration and the members of the National Labor Relations Board (NLRB) whom they appoint.  This is likely to continue as Biden has a very ambitious agenda in this arena and he likely will be able to appoint a majority of the NLRB.

While opposition from a likely majority of Republican senators can be anticipated, Biden is nevertheless expected to seek passage of a bill entitled the “Protecting the Right to Organize (PRO) Act.”  This bill seeks to strengthen labor unions by such means as:

• banning mandatory “captive audience” meetings with employee groups;
• overriding state “right to work” laws;
• requiring binding interest arbitration for disputed contract terms;
• increased penalties for unfair labor practices; and
• liability for unfair labor practices for corporate directors and officers.

With a majority of democratic-leaning members, we also are likely to see the NLRB overrule many of the rulings and policies of the last four years, such as shepherding back the “quickie election” procedures that favored the ability of unions to prevail in representation elections.

Occupational Safety

Given that Biden has already formed his new Coronavirus Task Force, it is likely that the pandemic will occupy much of the attention in the early days of a new administration.  Thus, it is expected that the government will get much more actively involved in establishing and enforcing COVID-19 related safety protocols in the workplace.

It is also anticipated that OSHA will again seek detailed electronic reporting of injury and illness information that will then be publicly available online – this initiative was in the works at the end of the Obama administration but was subsequently derailed.

Increases in inspections, and penalties resulting from them, are also likely.

Restrictive Covenants

A bipartisan bill seeking to limit the use and application of noncompete agreements was introduced into the Senate last year and we expect to see more effort placed on passage of this legislation.  In addition, Biden’s website professes the intent to eliminate all but a few non-compete agreements and to end all “non-poaching” arrangements.

Bottom Line

There obviously will be much more to come in the next several months.  We will do our best to stay on top of it for you.

The post We Aren’t Calling a Winner, But if Biden Becomes President… appeared first on Felhaber Larson.

As our presidential thrill ride reaches new heights (or perhaps depths?) many of us have reached our breaking point on election coverage and political talk.

While we can turn off the television and dodge political talk at (properly distanced) social gatherings, it’s different at work. Employees often cannot leave their workstations to escape a heated political debate or a co-worker who is deridin’ Biden or wants to dump on Trump to a captive audience.

What might seem like simple shop talk can quickly escalate into an unlawfully hostile or harassing work environment under applicable discrimination laws.  Employers therefore should develop a plan to intervene effectively when political talk oversteps the limits of ordinary workplace give-and-take.

What’s at Stake?

Political talk distracts employees, but probably not more than other routine debates such as Vikings v. Packers or who makes the best Juicy Lucy.  Ordinary workplace rules designed to limit workplace distractions should be sufficient for this issue.

The bigger concern is that the current political spotlight shines brightly on hot-button issues of race, religion and ethnicity, which are all protected characteristics under Federal and Minnesota discrimination laws. Offending remarks on these topics, if sufficiently severe and frequent, can trigger legal protections even when intent to offend is absent.

Consider how foreign-born employees might take offense when a co-worker echoes a candidate’s call for a ban on immigration. Those who side with law enforcement after controversial police shootings may feel bullied when co-workers brand them as racists.  A workplace debate on transgender issues could spur both sides to seek redress, with one employee claiming sexual orientation harassment and the other feeling attacked because of religion or creed (a separate but still undefined set of religious beliefs protected by the discrimination laws of a handful of states, including Minnesota).

The risk posed by political talk is even greater when a supervisor or manager is involved. A Muslim employee receiving a warning or demotion shortly after opposing a supervisor’s pronouncements on terrorism might perceive retaliation even if those decisions are otherwise well-deserved. Perceptions of the supervisor’s objectivity going forward may now be compromised.

If political discussions devolve into violence, Minnesota courts recognize claims for negligent retention, which holds employers liable for failing to terminate an employee whom they knew posed a risk of physical harm to others.

No Mute Buttons at Work

Despite the risks, banning all political talk is probably not the answer.  For one thing, it prevents respectful discussions among co-workers that might bridge differences, build teamwork and invigorate the workplace. In addition, public employers are prohibited from enacting rules that unnecessarily impede their employees from exercising their First Amendment right of free speech.

Private sector employers are not constrained by the Constitution but must observe the National Labor Relations Act, which protects employees’ right to engage in “concerted activities” for their mutual aid and benefit. This might not cover all political topics but it certainly could apply to discussions regarding critical campaign issues such as jobs, wages, health care and any other subject that touches on the workplace.

Employer Sets the Rules

While “blanket” policies banning all speech may not be the answer, employers definitely may regulate offensive or harmful speech in their workplace. Courts recognize that a public employer’s need for efficiency and a disruption-free work environment normally outweigh free speech interests. In both the private and public sectors, discrimination laws demand that employees be protected from harassment motivated by race, religion and other statutorily-designated characteristics.

Employers should consider issuing a pronouncement that all employees are entitled to be treated with dignity and respect regardless of political affiliations or beliefs. Tell employees that they are free to engage in reasonable discussions of political issues but also will be supported if they choose not to participate. It might also help to remind them that working time is for work and that political discussions should be largely be confined to breaks and meal periods.

Employers should be certain that their policies on harassment and workplace behavior adequately address issues that might arise if political talk gets out of hand. Consider reissuing the policy or otherwise bringing it to the employees’ attention in an appropriate manner.

Supervisors and managers should be directed not to participate in any political conversations and to monitor such discussions among co-workers.  If the discussion is becoming confrontational or begins to touch on discrimination issues, the supervisor should intervene and re-direct the dialogue.

Finally, if an employee complains that political talk has crossed the line into harassment, do not ignore or minimize the complaint. Follow your harassment policy which presumably calls for an investigation and appropriate corrective action if a violation is found.

Bottom Line

It is tempting to think that election day will bring relief from our discordant political climate but recent history and current political events suggest otherwise. Employers should therefore continue monitoring and controlling political talk at work to ensure that ordinary and reasonable conversations do not escalate into serious workplace conflict.

The post Red Hot and Blue: Controlling Political Talk at Work appeared first on Felhaber Larson.

Despite some misgivings about safety amidst the coronavirus, most of the athletes seem happy about returning.  However, they often talk about “getting back to work” and just wanting to “do their jobs”, which makes us wonder if they have a good handle on what life is really like in the working world.

So, the following is an examination of a few ways in which the job of a professional athlete might seem more desirable than the ordinary 9 to 5 working world, as well as a couple of examples of where the rest of us actually have it better than they do.

The Good

Here are a few reasons why we look at professional sports and say “nice work if you can get it”:

Money for Games

Let’s start with the obvious – male professional athletes in the “major sports” earn enormous sums of money just playing a game. Not all of them earn the amazing salaries we read about in the news reports, but many do and all of them have that potential.

And they do so while playing games. This is not to denigrate the athletes’ dedication to their craft or the  skill, effort and drive that it takes to excel at the highest levels of sport.  Nevertheless, if offered the opportunity to accumulate a lifetime’s earnings in just one year of hitting/throwing/shooting a ball, a great many of us likely would ask “Where do I sign up?”

This brings to mind the (apocryphal?) story of the legendary Babe Ruth in his salary negotiations with the New York Yankees during the Depression.  When told that he was demanding a higher salary than what even the President of the United States made, Ruth supposedly responded “Well, I had a better year than he did.”

Work Schedule

The work day of a professional athlete is about 3-4 hours, for anywhere between 6-9 months a year depending upon whether their team makes the playoffs. Yes, they may work out or do some running at other times (just like a lot of us do when we are not working) but time spent plying their actual trade is about half of a standard workday, or even less.

In fact, certain athletes – starting pitchers in Major League Baseball – would view even that limited schedule as downright onerous.  These fellows are usually part of a 5-person rotation, meaning they work only every fifth day. With an ordinary (non-COVID) 162-game schedule, starting pitchers will work only 32-33 times in the regular season. For the rest of us, that’s the equivalent of working about 52 days, and only a few hours in each of those days.

This may be why, when a pitcher is removed from the rotation and sent to the bullpen, they talk so much about wanting to get back into the starting rotation.

Work Location

For those who do not follow the National Basketball Association, they are resuming their season by having the teams live, practice and play in Disneyworld.  Let that sink in.  In addition to making all that money just playing games a few hours a night, this league dominated by players in their late teens-early 20’s gets to live in Disneyworld for the next three months.

Jiminy Cricket was right – dreams really can come true.

The Bad

On the other hand, here are some reasons why we might be just as happy not to be working in the public eye like the athletes:

Working Conditions

This is definitely an area where we have it better than the athletes.  Not many of us have to endure plying our trade every day while our customers get to swear at us, call us bums (or worse) and scream all sorts of unflattering remarks about our performance, our appearance and other aspects of our personal lives. Could this be the reason that most athletes do not seem to mind resuming their seasons this year without fans in the stands?

Public Performance Assessments

Most of us do not have our job performance subject to review and critique every day in the newspapers, internet and everywhere else. We also probably do not have Facebook pages and internet sites devoted solely to the question of whether we are overrated.

(Editor’s note – since this is an employment law blog, we feel obligated to say that you should not consider starting up these sorts of Facebook pages and internet sites about your employees.  Ever.)

The Different

Here is one circumstance where the work of an athlete is just very different from ours:

The National Anthem

The National Anthem generally is not played at the beginning of our work day.  Thus, we are not faced with the “kneel for social justice” v. “stand to respect our flag” debate.

In our world, if we see co-workers kneeling in their offices, it is likely that they either dropped their cell phones or are suffering some sort of medical episode.  In either event, it is considered good co-worker etiquette to step in and help.

Bottom Line

Regardless of how we feel about the job of a professional athlete, those of us who enjoy sports are almost certainly looking forward to the resumption of the games.

The post Pro Athletes Will Be Back on the Job, But is it Work? appeared first on Felhaber Larson.

Freedom of Speech, Not Freedom from Consequences

At the outset, most people now recognize that private sector employees do not have a “free speech” right that allows them to post whatever they want on social media without repercussions. The First Amendment only protects against the government’s enactment of laws abridging free speech.

A few states (e.g. California) have enacted laws protecting employees from discrimination based on political affiliations and activities, and others (e.g. New York) prohibit employers from making job decisions based on an employee’s legal off-duty conduct.  Minnesota, however, does not regulate off-duty social media activity and therefore, employers in our state generally have the right to discipline or terminate their workers for expressing political opinions online.

#DontGetSued

Despite having wide latitude to take employment action against employees’ off-duty online activity, Minnesota employers must still be aware of a variety of legal pitfalls when doing so.

For example, disciplining employees for posting something critical of the Black Lives Matter movement or the ongoing #JusticeforGeorge protests, but not for other similar “political” postings might imply bias since those two movements are so closely aligned with issues of race.   Indeed, in a 2018 case from Indiana, a court ruled that an employee who had been fired after criticizing the Black Lives Matter movement online had alleged sufficient circumstances to raise an actionable claim of “reverse race discrimination.”

Online speech may also be protected under the National Labor Relations Act (“NLRA”), which applies to employees engaging in protected concerted activities relating to their terms and conditions of employment. Speech outside the workplace, including posts on social media, may be protected if it has a sufficient nexus to the workplace. For example, an employee simply posting support for the Black Lives Matter movement likely would not be protected under the NLRA. However, if that employee posts a statement along the lines of “my employer only promotes white employees, that’s why my coworkers and I support #BLM,” this statement may be protected. In fact, in an August 2018 Advice Memorandum, the National Labor Relations Board’s General Counsel reached a similar conclusion, finding that Latino employees who skipped work to attend a “Day Without Immigrants” rally were protected when the employees had previously complained of mistreatment to management and linked those complaints to the protest.

Click Here to Unsubscribe From Your Job

Absent these specific protections, employees may be surprised to learn that while they may exercise a right of “free speech,” their employer may correspondingly exercise their right to impose consequences for such speech in the form of adverse job action based upon legitimate business concerns.

So, for example, if an employee tweets that “all protesters should be shot,” their employer may be justified in disciplining or terminating them. This is especially true if the employee’s posts negatively affect their coworkers, such as when a colleague complains to management about feeling unsafe or being specifically targeted by the posts, thereby implicating the company’s anti-harassment policy.

Discipline for off-duty posting may be especially justified if they are causing a negative impact on the employer’s public image. In the labor arbitration context, multiple arbitrators have found that posting racist or inappropriate things online constitutes “just cause” for discipline when the posts “had the potential to undermine the Employer’s relations with its clients and the community at large.”

Don’t Jump to Conclusions

Finally, it is imperative to conduct a thorough investigation before taking any action against an employee for allegedly engaging in inappropriate online conduct. For example, if an employer receives a “tip” about an employee posting something inappropriate online, the following basic steps should be taken before making a decision regarding what action, if any, to take.

1. Confirm the existence of the post itself, and confirm that it was actually written by the employee in question. This is especially prudent with social media posts, which may be “faked,” or may not actually be posted by their listed author.
2. Consider how the post came to the employer’s attention, for example, if complaints were received from coworkers or customers. This information could help establish the necessary nexus to the workplace, and could also establish a legitimate reason to take adverse employment action, for example, if members of the public are complaining about the employee’s comments, undermining the company’s relationship with customers.
3. Confirm that the contents of the post are objectively inappropriate or offensive.
4. Interview the employee in question in order to try and understand the context of their post. There could be an explanation to the post which may not be apparent if not viewed in the context of the entire “thread.”

Bottom Line

When determining whether to take action against an employee for their social media conduct, it is critical to consider the content of the posts and the nature of the company’s business on a case by case basis before making any employment decisions. Not only may firing an employee for posting an innocuous “#BLM” post reflect possible bias should the employee challenge their termination, the optics of taking such action may invite criticism from the public.

However, the opposite is true as well, not disciplining employees who post incendiary of “trolling” posts regarding the current political situation may invite the ire of the public for the employer’s lack of action.

As with all things in this arena, these are complex issues.

The post What Can You Do About an Employee’s Off-Duty Social Media Posts? appeared first on Felhaber Larson.

Then, late Monday, the House passed a resolution purporting to “correct” portions of Friday’s bill. As outlined below, these so-called “corrections” made significant modifications to the paid leave portions of the bill.  The Senate has also signed off so the bill awaits signature by the president.  The leave provisions of the bill will go into effect 15 days after the president signs.

Emergency FMLA Leave

As a reminder, the FFCRA would amend the Family and Medical Leave Act (“FMLA”) to provide employees with 12 weeks of Emergency FMLA Leave. The leave is still available to any employees who have worked for at least “30 calendar days” for an employer with “fewer than 500 employees.” The leave must be made available 15 days after the bill is signed into law, but only until December 31, 2020.

Nevertheless, the so-called “corrections” bill made several significant changes, the highlights of which are:

• Reasons for Leave Limited to Caring for Child Whose School or Daycare Is Closed — Unlike the previous bill, which would have allowed employees to take leave if they were exposed to COVID-19 and ordered to stay home, the revised bill allows leave only if “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

• Paid Leave Begins after 10 Days — Unlike the previous bill, which provided for paid leave after 14 days, the amended bill provides that paid leave begins after 10 days. Employees can still use their 80 hours of Emergency PSL (or other accrued and unused time) to cover any missed time for their first 10 days.

• Payout is Capped at $200 Per Day and $10,000 in Total Payout — Paid leave under the revised bill is still paid at a rate of two-thirds of the employee’s “regular rate of pay.” Unlike the original bill, however, the revised bill caps the payout to no more than $200 per day and $10,000 in the aggregate. This aligns with tax credits that are available to employers. This means that employers are not required to pay out more in benefits than they can obtain back from the government in terms of refundable tax credits.

• Exemption for “Health Care Providers” and “Emergency Responders” — The so-called “corrections” bill also included a provision allowing employers to elect to exclude “Health Care Providers” and “Emergency Responders” from the Emergency FMLA Leave requirements. The DOL is directed to issue regulations relating to this provision.

Emergency Paid Sick Leave

As we previously reported, the Emergency PSL provisions of the bill still require all employers with fewer than 500 employees to create a bank of 80 hours Emergency PSL for full-time employees. Part-time employees may receive a prorated balance. The leave must be immediately available 15 days after the bill’s passage and must be used on or before December 31, 2020. The employer cannot utilize other sick leave or PTO balances in order to comply.

• Uses of Emergency PSL — The revised bill provides that Emergency PSL may be used for any of the following purposes:

– The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

– The employee has been advised by a health care provider to self-quarantine because of COVID-19;

– The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

– The employee is caring for an individual subject or advised to quarantine or isolation;

– The employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or

– The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

• Coordination with Existing Paid Leave Policies — The revised bill removed a provision that required Emergency PSL to be provided “in addition to” any other paid sick leave provided by the employer “on the day before the enactment of the Act.” By removing this provision, it may be possible for an employer to comply with the law by providing Emergency PSL before the law is passed. A more difficult question is whether the employer can satisfy the Emergency PSL requirement by providing the leave via an existing PTO or sick leave policy that meets or exceeds the minimum requirements of the revised bill.

• Emergency Paid Sick Leave — Unlike the prior bill, the revised bill caps an employer’s payout of Emergency PSL to $511 per day ($5,110 in the aggregate) where leave is taken for an employee’s own illness or quarantine and $200 per day ($2,000 in the aggregate) where leave is taken for the care for others or school closures. Again, this aligns the employer’s payments with the caps on available tax credits.

• Exemption for “Health Care Providers” and “Emergency Responders” — Like Emergency FMLA, the “corrections” bill also included a provision allowing employers to elect to exclude “Health Care Providers” and “Emergency Responders” from the Emergency PSL. Again, the DOL is directed to issue regulations relating to this provision.

Bottom Line

The revised bill is now before the Senate. While a quick passage was not possible last night, news reports suggest that the Senate could pass the bill as early as today

We will continue to monitor this situation as it develops.

The post Congress Passes Amended COVID-19 Paid Leave Bill With Critical Changes appeared first on Felhaber Larson.

When Does WARN Apply?

Under the federal Worker Adjustment and Retraining Notification Act (“WARN Act”), a covered employer must generally provide at least 60-days’ notice prior to a plant closing or mass layoff. “Mass layoff” is defined as any reduction in force that is not the result of a plant closure that results in “employment loss” at a single site of employment during a 30-day period for (a) 500 or more employees or (b) between 50 and 499 employees when they make up at least 33 percent of the employees. Part-time employees are excluded from this calculation. Under the WARN Act, a part-time employee is an employee who averages less than 20 hours per week or who has been employed for fewer than six of the previous twelve months.

Importantly, in the context of a mass layoff, “employment loss” includes layoffs of more than six months or reduction in hours of work by more than 50% during each month of any 6-month period. Thus, if the mass layoff does not last more than six months, no notice is required under the WARN Act. However, if a mass layoff extends more than six months, it will constitute employment loss, triggering the notice requirements under the WARN Act. Of course, as indicated above, employers also need to be attentive to any forced reductions in its employees’ hours during this time. If the reduction rises above the 50% level during each month for six months, the reduction in hours will constitute employment loss, triggering the notice requirements under the WARN Act.

But We Didn’t Get 60 Days Notice of COVID-19?

Notably, there are circumstances when the full 60-day advance notice under the WARN Act is not required. For instance, when a mass layoff is caused by “business circumstances that were not reasonably foreseeable as of the time that notice would have been required,” the full 60-day notice is not required. If this occurs, the employer must still provide “as much notice as is practicable.” Similarly, the full 60-day advance notice is not required if the layoff was precipitated by any form of natural disaster—e.g., floods, earthquake, or drought.

While it is unclear whether these exceptions apply to pandemics similar to the current COVID-19 pandemic, it is likely reasonable to conclude that the impact of the COVID-19 pandemic was not reasonably foreseeable. That said, employers still need to be mindful of their WARN Act (and state mini-WARN Act) obligations for notice purposes if, for instance, extended layoffs become reasonably foreseeable, or separate layoffs due to financial concerns, for instance, are contemplated.

Remember too that Minnesota and several other states have enacted mini-WARN Acts that are similar to (but not the same as) the WARN Act. These state laws often impose additional obligations on employers. Furthermore, they often define terms differently. For instance, Minnesota’s mini-WARN Act does not exclude employees who have been employed for fewer than six of the previous twelve months in determining employment loss for a plant closing. Consequently, employers always need to analyze any applicable mini WARN Acts in addition to the WARN Act in determining their notice obligations.

Bottom Line 

If you have been or are soon forced into the situation where you must layoff part, or all, or your workforce because of the COVID-19 pandemic, there are a number of factors to consider to determine whether and, if so, when you need to provide the requisite notices under the WARN Act and/or any applicable state mini-WARN Acts. Though, for many employers, the temporary nature of the layoffs associated with temporary business closures will not trigger notice obligations, employers must always understand and be mindful of the obligations imposed under the WARN Act and all applicable mini-WARN Acts to ensure affected employees and others receive required notices.

The post The WARN Act and COVID-19 appeared first on Felhaber Larson.

Below are some frequently asked questions from employers considering these options.

We have decided to close for the next two weeks in response to COVID-19.  Do I still have to pay my employees?

Generally speaking, you need to distinguish between (a) exempt employees (i.e., paid a fixed salary and performing exempt duties) and (b) non-exempt (i.e., paid hourly) employees.

• Non-exempt (or “hourly”) Employees—Non-exempt employees need to be paid only for the hours that they work.  If your business is closed, then you don’t need to pay them if they’re not working.  Obviously, if a non-exempt employee is working (even if from home), then you’ll need to pay them for any work.  You also can allow them to use PTO or vacation during this time (to make up the pay).
• Exempt Employees—Exempt employees must be paid their full salary for any week in which they perform any work (or you risk losing the FLSA exemption).  If your business is closed for an entire week and the exempt employee performs no work (onsite or remotely), then you don’t need to pay the salary for that week.  For any partial weeks, you can reduce any sick leave or vacation balance for the days that there was no work.  If an employee does not have paid time off available, you could allow the employee to “go into the negative” for any partial week, so that the employee receives his or her full pay for the week.

Can we force an employee to use PTO during a period of mandatory closure or furlough?

Generally, yes, but the answer is going to depend on the terms of your PTO policy or collective bargaining agreement (“CBA”).  Most policies and CBAs do not address the issue, but, if the issue is addressed, you will need to follow your policy or CBA.  If your PTO policy or CBA is silent on the issue and an employee objects, you should seek legal advice regarding the specific situation and your policy.

Some employers have asked whether it is possible to prevent an employee from using accrued and unused leave during a mandatory furlough or closure.  This is a more difficult question.  Generally speaking, employees do not have a right to use sick leave or PTO for absences if they don’t have a scheduled shift.  However, depending on the terms of your policy, employees could argue that they have a contractual right to use their paid time off.  Certainly, a union would make a similar argument under the terms of a CBA and likely file a grievance.  Finally, from an employee relations standpoint, it creates additional stresses to your already stressed workforce.  Thus, we generally recommend against it.

Can I do a furlough or a mandatory closure if my employees are subject to a CBA?

The process and procedure for any furlough or closure will depend on your individual CBA.  Questions of whether you can shut down individual departments or whether you need to do furloughs via seniority are too individualized for general guidance.  For example, many CBAs provide that the union and employees are entitled to a certain amount of advanced notice prior to a layoff or pay in lieu thereof.  Further, while the decision to implement these cost-cutting measures is typically reserved only to management, you will likely need to notify the union of your decision and give them the opportunity to bargain over the effects.

Are furloughed employees eligible for unemployment?

Generally speaking, an employee who is furloughed without pay will be eligible for unemployment benefits. As the law currently stands, those eligible for benefits must wait one week (“waiting week”) before they can receive benefits.

Employees are not eligible for unemployment benefits if they are receiving pay (via PTO or other payment) or if they choose not to work while work is available.  Obviously, that would change if the employer closed (i.e., work is not available) or if the employee no longer receives pay (e.g., exhausting available paid leave).

Given the current situation, Minnesota’s Unemployment Insurance Office is seeking to amend the unemployment statute in order to eliminate the “waiting week” and make other changes maximizing payments to employees and minimizing costs to employers.  For more information on this, check out their COVID-19 web page.  At present, we are not aware of any proposed legislation on this issue, but we will keep you updated as we know more.

Bottom Line

We will continue to monitor this situation as it develops.

The post Furloughs, Mandatory Time Off, and Other Cost-Cutting Measures Due To COVID-19 appeared first on Felhaber Larson.

Do I have to pay employees if I send them home?

You should apply your regular paid time off policies (sick leave, vacation, PTO) to employees who are staying home because they are ill. Employees exempt from overtime under the Fair Labor Standards Act (FLSA) generally must be paid their full salary for any week in which they perform any work, although you may deduct any absences from their existing leave bank.  The FLSA does permit deductions from salary for exempt employees for absences of one or more full days occasioned by sickness if the deduction is made pursuant to a bona fide sick leave plan.  Employers should proceed cautiously in this regard and should review their salary deduction practices with legal counsel to be sure that they meet the standards of this limited exception.  Exempt employees who perform no work during a particular work week need not be paid.

Non-exempt employees only need to be paid for their hours worked, but some employers are examining whether strict compliance with this practice might end up undermining their overall COVID-19 prevention plan by incenting their workers to come to work if they are out of sick leave.

Do my pay practices change if we implement a quarantine?

No, your ordinary pay practices apply.  Interestingly, Minnesota law includes a general quarantine statute to protect employees in the event that they are required to isolate or quarantine. Under the provisions of the statute, an employer is prohibited from discharging, disciplining, threatening, or penalizing any qualifying employee, or otherwise discriminating against them with respect to their work, terms, conditions, location, or privileges of employment because that employee has been in isolation or quarantine. This usually only applies when an employee is in isolation or quarantine by virtue of:

– a directive from the Commissioner of Health and Human Services;

– an order of a federal quarantine officer;

– a state or federal court order; or

– written recommendation of the commissioner or designee that the person enter isolation or quarantine.

The statute specifically states, though, that nothing within it is intended to alter sick leave or sick pay.

Do I have to provide Family and Medical Leave Act leave to employees who are sick with COVID-19?

It depends. The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of job-protected leave each year in the event of a serious health condition.  A serious health condition is one requiring one day of inpatient treatment or incapacity from work for more than three consecutive days with a continuing course of medical treatment. While influenza and mild cases of COVID-19 probably do not rise to the level of a serious health conditions under FMLA, more serious cases (especially those requiring a stay in the hospital) or cases involving complications might meet this definition. If so, it triggers the employer’s responsibility to provide FMLA leave.

FMLA also covers situations where the employee must miss work due to serious health condition of a spouse, child or parent.  The same test applies as to whether the medical issue of that spouse, child or parent constitutes a FMLA-recognized serious health condition.

What if employees need to stay home because their children’s school has closed?

This is not a FMLA event since it does not involve a serious health condition on the part of the employee or their spouse, child or parent.  It also would not likely trigger an obligation to pay sick leave under a typical sick leave policy.

However employers subject to the Minneapolis or St. Paul Sick and Safe Time Ordinances do have to allow employees to use their sick time under these circumstances since those ordinances cover absences caused by “emergency closure of school or place of care” (Minneapolis) or “need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to…[a] public health emergency.” Although there is some room for interpretation, it seems likely that an official order to close the schools would be considered the type of emergency closure triggering the obligation to pay sick leave in both of the Twin Cities.

For non-Minneapolis or St. Paul employers that offer paid sick leave, the Minnesota Paid Sick Leave Statute requires you to permit employees to use available “personal sick leave benefits” for absences due to an “illness of or injury to” the employee’s child, adult child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.  Absences due to school or daycare closures would not necessarily be covered, but nothing would prevent an employer from making an exception given the exigencies of the current situation.

If an employee suggests that the Minnesota School Conferences and Activities Leave statute applies, just tell them that it does not (and try not to roll your eyes).

Bottom Line

Watch for our next installment where we examine work-at-home issues, the privacy implications of COVID-19 and the legal considerations surrounding employees who refuse to come to work out of fear of contagion.

The post The Workplace Coronavirus Guide – Part 2 appeared first on Felhaber Larson.

To assist employers in navigating these difficult issues, the U.S. Department of Labor has now released a very helpful Guidance for employers, which is available here.

We want to dive a little deeper while also highlighting issues peculiar to Minnesota law.  However, we want to avoid the information overload that we are all experiencing so we are offering a series of shorter summaries of various aspects of the employer’s response to COVID-19.  Let’s start with the health and safety concerns.

What do I do with an employee who is coughing violently, seems very ill and is making others uncomfortable?

Send that employee home.  Of course, make those judgements on a nondiscriminatory basis – do not distinguish with respect to the employee’s race, sex, age, national origin, disability (including perceived disability) or other protected classification.

Tell the employee to remain home until they feel better.  To encourage employees to comply, you may even want to consider providing additional paid sick leave or allowing employees to work from home during this time.

Can I require sick employees to be tested for COVID-19?

Not at this time, although this may change as things develop and CDC/EEOC guidance changes.  Generally speaking, the Americans with Disabilities Act (ADA) prevents employers from requiring medical examinations or conducting medical inquiries unless they are “job-related and consistent with business necessity” or if the employee poses a “direct threat” to the workplace.  Nevertheless, you can still ask the sick employee to go home until symptoms alleviate and/or ask the employee to stay home for a 14-day period.

According to 2009 Guidance from the EEOC, an employer may be justified in measuring employees’ body temperatures if state or local health authorities or the CDC determine that an outbreak is severe.  The EEOC noted, however, that requiring testing of asymptomatic employees would violate the ADA: “making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA.”

In the end, because it is neither a medical exam nor a medical inquiry, an employer is free to advise employees to check their own temperatures and advising employees to stay home if they have a fever.

Should I require employees to wear face masks?

There is no requirement for employees to wear respirators or other types of personal protective equipment (“PPE”) while at work.  In fact, the CDC recently stated that it does not yet recommend wearing face masks or any other PPE by the general public at this time.

For healthcare employers, the Centers for Disease Control (CDC) has a resource page dedicated to PPE,

What can we do to prepare for the unfortunate event that one of our employees is exposed, or if the virus emerges in our area?

Time is critical here. Thus, it is important to have a plan in place prior to any event and to respond efficiently and effectively to any issue that may arise relating to COVID-19.

If you suspect any of your employees may have been exposed to COVID-19, or has recently traveled to an area where the virus is active, suggest asking the individual to either work from home (if possible) or self-quarantine for a two-week period after returning.

If an employee is absent because of COVID-19 diagnosis, “an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work.”

What if an employee came into work sick with COVID-19 and potentially exposed numerous other employees and/or clients?

If this occurs:

– Investigate and send home any employee who may have been exposed. You may even want to consider temporarily suspending your operations while investigating the breadth of the exposure.

– Contact federal and state authorities, including the CDC and the local Department of Health to alert them of what happened. They will then work with you on what to do.

– If an employee is diagnosed at a hospital, the hospital will also likely report to the CDC and/or the local Department of Health and they will intervene to help you investigate and potentially sanitize your workspace.

Bottom Line

The issues arising out of COVID-19 seem to change at a moment’s notice so be sure to stay updated.

Our next article will focus on the pay and benefits issues that employers might face.  Stay tuned.

The post The Workplace Coronavirus Guide – Part 1 appeared first on Felhaber Larson.

Employers are required by the Occupational Safety and Health Administration (OSHA) to maintain a safe working environment.  COVID-19 may offer a challenge in that regard unlike anything we have seen to date.  Fortunately, the Centers for Disease Control just issued an interim guidance to help employers prevent workplace exposure and minimize risk posed by COVID-19.

CDC’s Recommendations

The guidance is an excellent resource containing a number of practical measures such as the following:

– Actively encourage sick employees to stay home until they are free of symptoms for at least 24 hours.

– Send employees home if they demonstrate symptoms while at work

– Emphasize coughing/sneezing etiquette and hand hygiene, and provide tissues, soap and water, and alcohol-based hand rubs.

– Perform routine environmental cleaning of all frequently touched surfaces and provide disposable wipes so that commonly used surfaces can be wiped down before use.

– Advise employees who might be traveling to guidance as to the particular country they will be visiting, check for symptoms before departing and, if they get sick while traveling, to inform the employer and contact a health care provider.

– If an employee has been exposed:

-Employees who have a sick family member at home with COVID-19 should notify their supervisor.

-If an employee is confirmed to have COVID-19, the employer should inform fellow employees of their possible exposure but maintain confidentiality.

There is much, much more in the CDC’s guidance and every employer should take time ASAP to review it and consider implementing their advice regarding prevention and policies.

Legal Considerations

Naturally, any workplace concern must be addressed within the confines of the complex web of federal and state laws that govern the workplace.  Since the full extent of the impact of COVID-19 upon employers is far from known, the legalities of employer actions will almost certainly be a matter of significant evolution.

At present, here are some primary considerations:

– Avoid discrimination.  Do not single out any particular group, e.g. people from countries where COVID-19 is more prevalent, for greater scrutiny.  Also be mindful of protections under the Americans with Disabilities Act (ADA) for people with disabilities or those who are perceived to have them.

– Review what is required under the Family and Medical Leave Act, as well as state law requirements covering leaves of absence and the use of sick leave.

– Confirm your obligations under any internal policies, collective bargaining agreements and/or employment contracts regarding time off and paid versus unpaid leave.

– Protect employee privacy in regard to medical information.

Bottom Line

While we hope that our fears of wide-spread impact from COVID-19 prove to be unwarranted, we are in the early days yet.  Employers should begin taking the necessary steps to minimize risk and must stay alert to signs of possible infection.

In the meantime, we will watch for and report on significant developments as they arise.

The post CDC Offers Employers Help For Coronavirus Planning appeared first on Felhaber Larson.

After meeting last week with the accountants at Snowden & Frost, Santa realized there was no avoiding it – he was going to have to lay off some staff.

Santa opened his office door and motioned for Rudolph to come in. Rudolph’s nose was glowing particularly bright, as if he knew something was up.

Rudolph the Hard-Nosed Reindeer

“Rudolph” Santa said wistfully, “we are going to have to let you go.  Now that we have GPS in the sleigh, we are eliminating your ‘Foggy Evening Navigation Specialist’ position.”

Rudolph responded angrily “I can still pull a sleigh with the best of them.  You are just singling me out because I look different and because I complained about being frozen out of all the reindeer games.  That’s discrimination.”

Santa tried to keep things calm:

Now Rudolph, it’s not just you.  I’m letting the two new guys go too.  Fitbit won’t fly; he just wants to walk from house to house, and we’ve had to ground Flasher ever since that incident over Central Park two years ago.  We are just cutting back, that’s all.

Rudolph turned to leave but sneered “When I’m done suing you for everything you have, I’ll go down in history.”

Santa & Friends?

As the red glow of Rudolph’s nose faded in the distance, Santa called in Eddie Cousins, whom he had hired last year to launch the new Santa Channel on Cable TV.  Santa got right to the point:

Eddie, this just hasn’t worked out the way we hoped.  I mean – ELF News?  What were you thinking?

Eddie replied:

Hey – FOX News is the biggest thing on cable TV.  If people tune in to hear about foxes 24/7, you would think they would love to watch our elves all day long. But don’t go all Grinchy on me, Big Guy.  We have some exciting original dramas that people are going to binge watch like crazy.

We have a great show about a kindly rich widow who each week helps a different family pay off their monthly debts – real human interest stuff.  I call it “Carol of the Bills.”

Santa said he didn’t think much of that idea and suggested that maybe Eddie should just leave, but Eddie was undaunted:

“How about a show revolving around the first female matador in Spain – Carol of the Bulls.”

“Please go” said Santa.

“Wait, I saved the best for last” said Eddie. “Ceramicist by Day, Crime Fighter by Night – Carol of the Bowls!”

“GET OUT” roared Santa, and Eddie dashed out the door like the down of a thistle.

Look at Frosty Go

Santa then called for Frosty the Snowman to take a seat.

Frosty, you know we love you here but we didn’t really do things right after you showed up.  No background check, no I-9 – and that’s just the tip of the iceberg. Now, we hear ICE is on the way and we could get in a lot of trouble if we let you stay.

“Ice?” Frosty replied.  “Ice is no problem for a guy like me.”

Santa said “No, it’s something different than that.  I wish we had some sort of magic hat that could make everything right but we don’t. I’m sorry but you can’t work here right now.”

Frosty began to cry (which isn’t easy when you have two eyes made out of coal).  “Where will I go?” Frosty asked.  “What will I do?”

Santa tried to be reassuring:

Don’t you cry.  You’ll be back again some day once we get our act together here.  Meanwhile, remember Buddy the Elf? He didn’t fit in here but now he’s a big shot in the New York publishing scene.  You should catch him if you can.

Frosty waved goodbye and hurried on his way, leaving a puddle (of tears, Santa hoped) behind.

Addressing the Bottom Line

Santa was relieved to be done with those conversations so he could turn his attention to rolling out his boldest new cost-saving initiative.

“What’s the best way to tell everyone we are cutting back from 12 Days of Christmas to 9?” he wondered aloud.

The Minnesota Employment Law Report wishes all of our loyal readers a very joyous holiday. We will be back after New Year’s Day.

The post Layoffs Are In Store For Santa’s Workshop appeared first on Felhaber Larson.

In reality (can that word properly be used in the context of this show?) the quest to sit on the Iron Throne was very much akin to an extended job interview for a chief executive position.  As the series unfolded over eight seasons, the leading candidates answered many questions about their views on leadership.  They also demonstrated their management skills in a variety of challenging scenarios.  Overall, they revealed much about their character and suitability for a senior leadership spot.

If this was an interview for Chief Executive Officer, let’s review the candidates and see if the right person got the job:

(****SPOILER ALERT**** If you are that one person on the face of the earth who has followed the show but does not yet know how it ended, stop reading right now!)

Daenerys Targaryen

As the show progressed, Daenerys emerged as the odds-on favorite.  She spoke commendably of enabling her workers and breaking the chains that inhibited them from reaching their full potential.  She sought unity and inspired loyalty. Ultimately, however, her scorched earth methods of rebuilding organizations proved too divisive for a chief executive.  A careful evaluation of her background would have revealed a troubling pattern of destructive behavior such that the best decision would be not to allow her candidacy to drag on any further.

Jon Snow

His candidacy for the top job was dead at one point but was subsequently revived to place him in the role of a top contender.  Indeed, it seemed as if he was born for the role of chief executive, yet he frequently protested “I don’t want the job.” Hiring someone for a job they do not want is almost always a bad decision so it was best that he not be hired in this instance.  Still, he would have proved useful in some other management position, especially given his adeptness for handling difficult terminations.

Tyrion Lannister

A worthy candidate who overcame a difficult family background and used his keen intellect to ascend to a position of authority and respect. However, his response to stressful circumstances was almost always to ask “Where is the wine?” There is nothing wrong with drinking wine but a chief executive who never allows himself to be out of reach of a full cask probably is not a good look for any organization.

Cersei Lannister

Not collaborative.  Big on nepotism.  More interested in having power than in using that power to benefit others.  Cersei’s aggressively top-down leadership style probably would not be a good fit in most modern organizations.

Bran Stark

Probably the most controversial candidate.  Some would see him saw him as a visionary for whom people would go (quite literally) to the ends of the earth.  Others might suggest that he is “that guy” – the one who does none of the work in a group project but takes all of the credit.  The one who does nothing but roll his eyes when anyone talks.  The one who always thinks he knows more than anyone else in the room.  Would you gamble on hiring him knowing that the perceptions of the latter group might be accurate?

Sansa Stark

Our choice for the best candidate.  She overcame adversity (so much adversity!) and grew stronger, wiser and more insightful with each passing year.  Sansa was a great problem-solver, understood people’s motivations better than anyone on the show and inspired loyalty and admiration from those she led. If Game of Thrones was a job interview for a Chief Executive Officer, we think these qualities made her the clear choice.

Bottom Line

Once you got past the dragons, the beheadings and the breathtaking ruthlessness, Game of Thrones offered useful insights on a variety of workplace-related issues like leadership, loyalty and conflict resolution.

Feel free to contact Dennis Merley if you have a different view on who should have been hired in the C-suite on Game of Thrones.

The post From an HR Perspective, Did Game of Thrones Make the Right Leadership Choice? appeared first on Felhaber Larson.

Viewing the upcoming contests through an employment law filter (as we typically do), we note an interesting parallel between challenges facing each of the remaining teams and human resources issues that employers often encounter.

Auburn University

The Auburn Tigers were leading in their Sweet 16 game against a higher-ranked opponent when star player Chuma Okeke suffered a serious season-ending knee injury. Despite this crushing blow, Coach Bruce Pearl kept his players sufficiently on task and focused, helping them win the game and then go on to defeat another higher ranked team to reach the Final Four.

Managers and supervisors frequently have to deal with the loss of a key team member when that person goes out on FMLA/medical leave or requires significant accommodation for a disability. A manager in this instance must find an effective way to replace the contributions of the absent team member while also guiding the rest of the team to remain productive in a positive and collaborative way.  This can be a difficult task as employees sometimes resent being asked to do more or simply are not able to fill in adequately for their missing comrade.  Keeping their employees motivated and with their eyes on the prize can be a challenge, especially when the prize is not quite as glittery as a victory at the end of March Madness.

Michigan State University

The Michigan State Spartans are back for their 6^th appearance in the Final Four under Coach Tom Izzo.  Coach Izzo is a member of the Basketball Hall of Fame and his reputation as a coach offers him a shot every year at recruiting the top high school players in the country.

Unfortunately, Coach Izzo also has a reputation for throwing tantrums and berating his players. It happened earlier in this tournament when he screamed at a player during a break in the game, leading two other players to restrain the coach and deescalate the confrontation.

Coach Izzo is generally unapologetic, saying that his players are family and that they know he is only trying to build character, teach them life lessons and bring out their best  Many of his former players are quick to endorse Coach Izzo, professing affection for him personally and appreciation for how much he helped them. It is not easy to find public expression to the contrary but it seems reasonable to wonder whether all of the players who have come to play for Coach Izzo (especially those who transferred during their career) appreciated this sort of relationship.

We often hear about that supervisor who is tough but fair – some are even referred to as “equal opportunity harassers.” Some of them do indeed garner the respect and affection of their supervisees because the goodness of their character and the absence of ill intent shine through.  In other cases, they are merely tolerated until a new supervisor comes along (or a new job).  Often, however, they breed resentment, dysfunction and lawsuits.

Employers should be on guard against overly aggressive managers and supervisors.  It may work for Tom Izzo and the Spartans’ quest for a national title but employees in the modern workplace eventually will cry foul on this behavior.  Sitting on a witness stand trying to defend this supervisor will definitely not be your One Shining Moment.

University of Virginia

The University of Virginia Cavaliers earned the dubious distinction last year of being the first #1 seed in the history of the tournament to lose their opening game.  Coach Tony Bennett (not the legendary crooner) had quite a task ahead of him this year in trying to build his team back up after such an epic loss.  Given their appearance in this year’s Final Four, it would seem that he succeeded.

When businesses have a bad year or continue to struggle, it is tough on the workforce.  Their pay maybe frozen, their benefits may get reduced and, as their co-workers get laid off, they may wonder if they are going to be next.

It takes a skilled manager to maintain productivity under such circumstances, and an unusually credible leader to rally the troops into believing that things will get better.  Congratulations to Coach Bennett for an incredible job this year.

Texas Tech University

The Texas Tech Red Raiders hail from Lubbock, the 11^th most populous city in Texas. Though the campus looks very pretty and the city’s residents are undoubtedly lovely people, Coach Chris Beard has to compete for players against the big Texas schools and those schools located in more geographically appealing locations.  He also has to battle the school’s identity as a football school in a state that is mad for their high school and college football.

Nevertheless, the Red Raiders are an excellent team that competes with intensity, as evidenced by their top rated defense in all of Division 1 basketball this year. Coach Beard overcame his recruiting obstacles with a positive message that hard work and team play will pay off.  He is not able to recruit the best players but he sure did recruit a great team.

Staffing is tough and competitive in most markets.  However, emphasizing the positive aspects of your organization and sending the right message can overcome a number of disadvantages.  Just ask Coach Beard.

Bottom Line

The Final Four is always exciting but particularly so this year since it is in taking place in our backyard.  Hopefully, this added perspective will help you enjoy the event just a little more.

The post Men’s Final Four Teams Face Issues Common in Many Workplaces appeared first on Felhaber Larson.

Here’s how this gritty courtroom drama unfolded.

Setting the Scene

Novato Healthcare Center challenged the NLRB’s finding that they unlawfully fired four union supporters just two days before a union election. The validity of their challenge rested on the credibility of their supervisor’s testimony that she spotted the four sleeping on the job.

Employees on the night shift at Novato’s long term care facility are allowed to sleep during their 10-minute breaks and also during their 30 minute meal breaks.  Supervisor Teresa Gilman testified that she arrived for work one morning between 3:50 and 4:00 a.m. (long after meal breaks were taken) and began making the rounds of the nursing stations. She said she visited each of the three stations two or three times and found the four employees sleeping continuously.  She even took a photo of two of them that was timestamped at 4:21 a.m.

Based on Gilman’s findings, the facility terminated all four employees. The union filed unfair labor practice charges with the NLRB, claiming that the four employees were known supporters of the union and had been targeted because of it.  The NLRB found against the company, leading Novato to appeal to the US Court of Appeals for the D.C. Circuit.

Action! 

Cut to “My Cousin Vinny,” a 1992 film about 2 young men from New Jersey standing trial in a small town Alabama courtroom for murder.  Attorney Vinny Gambini (played by Joe Pesci) was cross-examining witness Bill Tipton on how much time had passed from the time that he saw Vinny’s nephew Bill enter the Sac-O-Suds convenience store and the time he heard a gunshot. Tipton had testified that it was only five minutes because he saw Bill enter the store as Tipton was beginning to make himself a breakfast of eggs and grits and that he heard the gun shot just 5 minutes later, leading to the following exchange:

Q. Well, how much time was they in the store?
A. Five minutes.
Q. Five minutes? Are you sure, did you look at your watch?
A. No.
Q. Oh, oh, I’m sorry, you testified earlier that the boys went into the store, and you had just begun to make breakfast, you were just ready to eat, and you heard a gunshot. So obviously it takes you five minutes to make breakfast.
A. That’s right. . . .
Q. Do you remember what you had?
A. Eggs and grits.
Q. Eggs and grits. I like grits too. How do you cook your grits? You like ‘em regular, creamy, or al dente?
A. Just regular, I guess.
Q. Regular. Instant grits?
A. No self-respecting Southerner uses instant grits. I take pride in my grits.
Q. So, Mr. Tipton, how could it take you five minutes to cook your grits, when it takes the entire grit-eating world twenty minutes?
A. I don’t know. I’m a fast cook I guess.
Q. I’m sorry. Are we to believe that boiling water soaks into a grit faster in your kitchen than in any place on the face of the earth?
A. I don’t know.
Q. Well, perhaps the laws of physics cease to exist on your stove? Were these magic grits? . .
Q. Are you sure about that five minutes? . . .
A. I may have been mistaken.

Take Two

Back to Gilman, who testified that while driving to work, she stopped at a stop sign and saw a clock reading 3:50 a.m.  She arrived shortly thereafter, made her rounds and saw the four sleeping employees.  On cross examination, the NLRB’s attorney asked Gilman what she did after looking at the clock at 3:50 and learned that she:

• drove three more blocks to the facility, stopping at another stop sign along the way;
• parked her car and walked into the facility;
• walked to her office where she logged on to her computer and checked her emails
• walked to the kitchen where she checked the temperature logs for a refrigerator, a walk-in refrigerator and a walk-in freezer; then checked all the labels and dates of the items in the refrigerators;
• walked to and through the break room, where she used the restroom and then collected some union-opposition campaign flyers;
• walked back to her office and read the flyers;
• walked down the hallway toward Nursing Station 4, peeking in rooms along the way; and
• finally arrived at Station 4 where she first encountered the sleeping employees.

The union’s attorney then got her shot and, summoning up her “inner Vinny”, engaged in the following cross examination of Gilman:

Q.  So it’s your testimony that it only took [10] minutes to drive from the 7-Eleven [near the first stop sign], park, to go into your office,
to log onto your computer, to check your email, go to the bathroom, use the restroom, clean up the break room a little bit of these flyers,
and go through all the procedures that [you] went through . . . in your kitchen.

A. [S]o roughly I would still say about five — it wasn’t that long, you know.

Q. It wasn’t that long. . . .So I’m trying to figure out from that time, driving, going through another stop sign, parking, getting in,
unlocking your door, putting everything down, everything you did between there and when you first saw people sleeping,
are you sure it was only ten minutes or less?  Or could it have been 15 or 20 minutes?

A. No, it could not have been 15 or 20 minutes . . . .

Q. Isn’t it true you’re just not sure how long it took you to get from the stop sign to [] Station 4?

A. Well, to me it seemed like everything that I was doing, it seemed like about 10 minutes had passed.

Q. But you never looked at a clock to make sure that’s correct?

A. Correct.

While not quite as dramatic as Vinny’s grits-related ambush, it was enough for the Appeals Court to explicitly cite the critical cinematic exchange set forth above and then concur with the earlier ruling that Gilman’s testimony about the timing of her activities was “unlikely and unbelievable due to the length of time she allocated to each task she completed” before happening upon the sleeping employees.

The Court therefore upheld the determination that the company had failed to prove that they were not motivated by anti-union animus in firing these four employees.

Bottom Line

We learn three very important lessons from this case:

1.  Employers need to do a quality investigation of all alleged wrongdoing that might lead to discipline and termination;

2. Employers should think very critically about how their evidence will hold up to intense scrutiny; and

3. “My Cousin Vinny” remains a delightful movie that is well worth watching again.

The post Lessons in Employment Law (and Cooking Grits) From “My Cousin Vinny” appeared first on Felhaber Larson.

Voluntary v. Mandatory Attendance

While it is tempting to tell everyone to join in the fun, mandatory attendance at an office function may require the employer to consider the time as “hours worked” under the Fair Labor Standards Act (FLSA).  This means that non-exempt employees would have to be paid and that the time spent at the party would count in determining whether an employee is entitled to overtime for working more than 40 hours in the week.  The same is true for employees who are told they must come early to set up or stay late to clean up.

Mandatory attendance may also contribute to a finding that injuries suffered at the event are covered under workers compensation and that accidents caused by employees having left the party are attributable to the company.

If you do make attendance voluntary, do not “guilt” people into coming or suggest they might be sorry if they do not attend.  Also, do not conduct any business or worked-related activities (e.g. training, announcements, distribution of bonuses) at the party – this might transform the event into a work function.

Alcohol

What could go wrong with office mates drinking too much alcohol while wearing identity-concealing masks or costumes? As with all workplace events, controlling the effects of alcohol should be a priority.  If you are not going to ban alcohol altogether, consider the following:

– Limiting the drinks to beer and wine. Serving spirits makes it easier to over imbibe.

– Limiting the number of drinks through a ticket system or a cash bar.

– Having plenty of non-alcoholic options available, as well as lots of food.

– Planning activities, games or other diversions so that drinking is not the primary social activity.

– Hiring independent 3rd party bartenders to monitor and control usage.

– Provide transportation for those who might need it.

Costumes and Decorations

Costumes can be a great deal of fun but they can also interfere with everyone’s good time:

– Overtly political costumes should be prohibited. Given the divisive nature of our current political environment, no good can come from allowing people to come dressed as Donald Trump, Bernie Sanders, etc.  The same should be true in regard to polarizing or antagonistic historical figures.

– Costumes depicting religious figures, or those that stereotype certain races, nationalities or other protected characteristics, also should not be permitted.

– Overly gory or violent imagery also should be discouraged. Halloween can still be fun without depictions of hangings, decapitations or graveyards causing distress to certain partiers.

– Halloween seems to be a time when people want to dress and act more provocatively than usual. The office party is probably not a good place for someone to dress as “The Sexy Office Manager” or to come to the party in a Harvey Weinstein costume.

– Make sure that everyone wears a costume that is safe in the workplace. Employees should not wear overly cumbersome costumes or masks that restrict their vision.

Religious Beliefs

Remember that Halloween has a religious context and those who wish either to observe the holiday more seriously or avoid celebrating it altogether should be accommodated.  This is why attendance should be optional – those who wish to observe Halloween in a particular manner or not observe it at all should not be forced to attend a function that offends them.

Bottom Line

Parents are often heard to say “It’s all fun until someone gets hurt.” This applies equally to office holiday parties. With a little advance planning, everyone can have a safe and enjoyable time.

The post Office Halloween Parties That Won’t Scare Your Lawyer appeared first on Felhaber Larson.

Jimmy Butler Demands Trade From the Timberwolves

The Minnesota Timberwolves face the question of whether to comply with star player Jimmy Butler’s demand to be traded.  Until a decision is made, Butler is not practicing with the team.

This situation almost certainly is negatively affecting the team.  Butler’s desire to leave reportedly stems from his dislike for the team’s other top players (Karl Anthony Towns and Andrew Wiggins), which obviously impedes the teamwork needed for success on the court.   Moreover, his absence strips the team of one of their top performers, and if he is traded, the Wolves will have to overcome the disruption caused by incorporating new players into the team’s style of play.

What can Minnesota employers do with employees publicly criticizing their co-workers and announcing their desire to leave the organization?  You could help them achieve their goals by terminating their employment.  Minnesota law in general does not prohibit termination of employees for negativity or for expressing a desire to leave.  Quite simply, you can tell them “You obviously aren’t happy here, so it is time for you to go.”

Of course there are some potential obstacles.  For example, where a collective bargaining agreement or individual employment contract limits the employer to termination only for cause, an employee’s dissatisfaction with their job may not rise to that level.  In such instances, the employer could still meet their burden by demonstrating the negative impact that the employee’s behavior has had on the work and/or their co-workers. This would be particularly effective if you had previously counseled the employee to refrain from such behavior during working time

Similarly, termination would not be a good option if the employee is expressing the intent to leave because of discrimination, harassment or some infringement on their protected rights or activity.  Perhaps, if the behavior is unduly disruptive, and you would terminate for similar behavior not related to protected activity, a termination might still be warranted.  Tread carefully in such instances, however, and get good legal counsel before you make the decision.

Everson Griffen Suspended By the Vikings For Violent Off-Duty Incident

In the days leading up to their next game, Vikings defensive lineman Everson Griffen was involved in a violent episode at a local hotel where allegedly threatened to “shoot someone” if he was not allowed into his room.  This followed several days, or even weeks, of troubling behavior on Griffen’s part.

This is not the first time that Griffen’s off-the-field conduct has created issues, and the Vikings appear to be aware that Griffen’s behavior may be related to mental health concerns.  This then raises issues under the Americans with Disabilities Act (ADA) and its state law counterpart the Minnesota Human Rights Act because Griffen appears to have a medical condition that affects his ability to perform the essential function of his job – sacking quarterbacks.

In such matters, the ADA requires employers to consider whether and to what extent a reasonable accommodation might be afforded to permit the employee to perform the essential functions of the job. Allowing Griffen to take time off and pursue medical help appears to be one such accommodation.

In addition, the ADA requires confidentiality, which the Vikings clearly have honored, as evidenced by their simple announcement that they are aware of the matter and “are currently focused on Everson’s well-being and providing the appropriate support for him and his family.”

While this matter relates to a public figure and some rather alarming behavior, it is still a good example for Minnesota employers on how to address employees with medical issues.  Get the information you need to make good decisions, conduct an interactive process to determine how to proceed and keep the matter from becoming too public.

Good job, Vikings!

Joe Mauer Plays Catcher For Old Time’s Sake

On the last day of the Twins season, and perhaps the last game of Joe Mauer’s famed career, the Twins allowed Mauer to don the catcher’s gear for one more pitch as a tribute to the many years he spent behind the plate.

The gesture was purely symbolic as the Twins apparently cleared it with the opposing team before the game and even made sure that whoever was batting at the time would not swing at the pitch.  All of this was to protect Mauer, whose concussions while playing catcher caused him to switch to playing first base.

All of this made for great spectacle on the ball field but Minnesota employers should avoid similar temptations of allowing employees to work beyond their medical restrictions.  Placing employees at risk of re-injury poses problems for workers compensation claims and could expose employers to claims of discrimination or retaliation under the ADA if employees feel that they are being placed at risk as some sort of punishment for seeking accommodation.

This might be a bit far-fetched but if you have been in the human resources field for a while, nothing surprises you.

Bottom Line

Who knew you could learn so much from reading the sports pages?

The post Minnesota Sports Scene Offers Lessons for Local Employers appeared first on Felhaber Larson.

Farah M. Muse was arrested, jailed and unable to report for work on two consecutive days.  With no telephone, he could not call his employer but did have his lawyer contact the company on the second day of his absence.  The next day, he was fired under the employer’s policy requiring employees to personally call their supervisor within two hours of the start of their shift.

State Unemployment Office Denies Benefits

Muse filed for unemployment benefits with the Minnesota Department of Employment and Economic Development (DEED), testifying that on the day he was arrested, his wife hit him and injured his eye. Muse called the police but when they arrived, his wife immediately told them that Muse was a child abuser.  The police arrested both Muse and his wife.

DEED ruled that because of his absences while in jail, Muse was terminated for misconduct, which disqualifies an employee from receiving unemployment benefits under Minnesota’s unemployment compensation statute.   That statute defines misconduct as any intentional, negligent, or indifferent conduct that displays clearly:

(1) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or

(2) a substantial lack of concern for the employment.

Going to Jail May Not Have Been His Fault

Muse then appealed this ruling to the Minnesota Court of Appeals, who sided with Muse and reversed the decision.  They concluded that while an employer certainly has the right to expect its employees to obey attendance policies and show up for work, there is no absolute rule that being absent from work due to incarceration automatically constitutes employment misconduct.  Instead, every case must be reviewed on its own merits.

In this instance, the Appeals Court noted that the stated purpose of the unemployment compensation system is to help workers “who are unemployed through no fault of their own.” Since the criminal charges were still pending against Muse, DEED should not have concluded that he was at fault for having been taken to jail. Instead, they should have considered the legitimacy of the allegations made by Muse’s spouse and whether it was those allegations, and not Muse’s own behavior, that caused Muse’s incarceration to be outside of his control.  In other words, they could have found that Muse’s stay in jail was not attributable to intentional conduct on his part.

Bottom Line

This case does not mean that every employee who misses work due to incarceration will be ruled eligible for benefits. However, if the evidence reflects that the incarceration resulted from events that the employee was unable to control and thus were not the employee’s fault, that employee may still be eligible for unemployment benefits.

The post Jailed Employee Still Gets Unemployment Benefits appeared first on Felhaber Larson.

In recent years, the Minnesota Employment Law Report reflected on the passing of two sports legends and how their messages translated into observations on human resource management. As we did in Yogi Berra: Human Resources Consultant and Muhammad Ali: Human Resources Consultant, we now consider how Aretha’s song titles offer similar guidance, especially when it comes to planning and implementing difficult termination scenarios.

Think

This is one of Aretha’s biggest hits, as well as a caution to evaluate the correctness of the decision and the process for carrying it out.  Think about whether the employee has had adequate notice and training in regard to the matter upon which the termination is based.  Think about whether a quality investigation has been conducted.  Think about whether there is adequate proof of wrongdoing or inadequate performance

Think also about how the termination will take place.  Do you need another person with you and who will it be?  Have you made adequate arrangements to disable the employee’s access to your network and email system?  What will you identify as the basis for termination?

Think – simple advice but always on point.

Do Right Woman, Do Right Man

One of Aretha’s hits from 1967, this song reminds us even if there is clear proof of wrongdoing or inadequate performance, we have to be certain that the employee has been treated the same as other similarly situated employees?  Have others received the same level of discipline for the same offense and if not, is there a legitimate, nondiscriminatory reason for the difference in response?

In order to “do right”, you have to do it in a nondiscriminatory manner.

Ain’t No Way / Don’t Play That Song

These two hits from 1968 and 1970 respectively remind us to always get the employee’s side of the story.  Regardless of how much evidence you have or how clear the matter appears, you always need to hold off on making a decision until you give the employee an opportunity to explain their version of events.  Otherwise, it may appear that you are rushing to judgement or have not conducted a fair investigation.  Besides, you might find that the employee is ready to acknowledge their poor performance or bad behavior.

Once you hear the employee’s story and find it unpersuasive, then you can say to yourself “Ain’t No Way” or “Don’t Play That Song.”  However, don’t say it out loud because you want to be sure to afford the employee some….

Respect

Aretha’s biggest hit is also her best advice to the human resources practitioner getting ready to discharge an employee.  Termination is difficult for the employee and it may engender a wide range of responses such as shock, embarrassment, panic or anger.  This is not the time to lecture, patronize or humiliate the employee.

No matter the cause for termination, most HR professionals tell us that treating the employee with respect and dignity goes a long way toward getting through a difficult situation and minimizing the potential for conflict later on.

Say a Little Prayer

Good advice for after the termination.

The post Aretha Franklin: Human Resources Consultant appeared first on Felhaber Larson.

Here is our advice on avoiding a visit by the Ghost of Christmas Past (a lawsuit) for unpaid overtime, discrimination or harassment, and liquor-fueled liability arising out of your holiday festivities.

“Holiday” vs “Christmas” Party

Old Fezziwig’s parties clearly sported a Christmas theme through drink, music and decorations. However, the modern workplace very likely includes persons of various faiths, all of whom should be made to feel welcome on an equal footing.

The debate on whether it is best to say “Merry Christmas” or “Happy Holidays” is probably best left for other venues.  Throwing a “holiday party” is certainly the best work-related option for avoiding anyone feeling marginalized or excluded.  After all, there are a number of holidays that occur in December so why not celebrate them all?  This way, you avoid the perception that you favor some employees over others simply because of their religious affiliations.

Of course, in for a penny, in for a pound – a truly non-sectarian holiday party requires attention to all of the trappings (e.g. food, decorations, music).  Focus on neutral thematic elements such as winter, snow, presents and family when planning the décor, music, etc.

Voluntary v. Mandatory Attendance

One of the compelling scenes in the story is Fezziwig’s unrelenting effort to persuade young Scrooge to join in the festivities. He simply refuses to take no for an answer.

Forcing an employee to have a good time may have reflected the character’s kindly benevolence but it was unwise from a business perspective. Mandatory attendance at an office function may require the employer to consider the time as “hours worked” under the Fair Labor Standards Act (FLSA).  This means that non-exempt employees would have to be paid and that the time spent at the party would count in determining whether an employee is entitled to overtime for working more than 40 hours in the week.  The same is true for employees who are told they must come early to set up or stay late to clean up.

Mandatory attendance may also contribute to a finding that injuries suffered at the event are covered under workers compensation and that accidents caused by employees having left the party are attributable to the company.

Having announced that attendance is voluntary, be sure not to imply, hint or even joke that employees will “be sorry” if they do not attend. If employees feel coerced into attending, or are made to feel that they will be viewed negatively for skipping the party, attendance may not truly be voluntary.  In addition, do not conduct any work-related activities (e.g. training, announcements, distribution of bonuses) at the party.

Harassment

Despite the number of powerful and wealthy men who have fallen from grace recently due to sexual harassment issues, we do not view Fezziwig in that context. Still, he is often depicted as being a bit of a flirt and a tease, and such behavior can begin to cross some important lines.

Depending upon the venue, the time of day and other connections to work, the office holiday party may be an event where the company sexual harassment policy still applies. Best practices suggest that you should re-publish or remind everyone about the policy and inform them that it remains in force during the gathering.

In addition, be on the lookout for behavior that might violate the policy (get rid of the mistletoe) and deal with it promptly and effectively if it takes place.

If the party includes a gift exchange or Secret Santa activity, tell everyone ahead of time that the gifts must be respectful and appropriate for a business environment. Sexually-oriented gifts must not be exchanged, and people must be sensitive to the impact that will be felt regarding gifts reflecting a particular religious or cultural perspective.

Finally, do not plan games or activities that might devolve into something too personal or sexual, especially in light of how alcohol can loosen inhibitions.  This is not the time to break out Twister or Cards Against Humanity.

Alcohol

Fezziwig apparently loved his ale and the liquor flowed freely during his parties. Be careful at yours:

– Consider limiting the drinks to beer and wine. Serving spirits makes it easier to over imbibe.

– Limit the number of drinks through a ticket system or a cash bar.

– Have plenty of non-alcoholic options available, as well as lots of food.

– Limit the length of the party and include some buffer times when the bar does not serve.

– Have activities, games or other diversions so that drinking is not the primary social activity.

– Consider hiring independent 3^rd party bartenders.  They are more experienced in detecting when partiers have had enough and it might help insulate you from liability if an employee hurts someone after the party because they drank too much.

– Have “sober monitors” (individuals who do not drink in case any situations arise) and designated drivers or other transportation available.

Insurance

Review your insurance policy to determine if there is any coverage for these types of events.  If you do not have such coverage, there might be “events coverage” that can be purchased.

Bottom Line

Fezziwig is portrayed as the symbol of a kind and generous employer who chooses to have a positive influence on the lives of those who work for him.  That is of course an admirable goal and a legacy that clearly influenced Scrooge’s eventual transformation.

Bear in mind, however, that if you follow Fezziwig’s example in putting on your holiday party, you may have a Dickens of a time avoiding serious legal consequences.

The post Advice for Old Fezziwig (and You) for the Holiday Party Season appeared first on Felhaber Larson.

The NFL is an astonishingly successful business enterprise that seems to make money for everybody connected with it.  A shrewd employer might therefore be tempted to borrow a few items from the NFL playbook in regard to effective workforce management.  Before you do, however, bear in mind that the NFL is a very unique sort of business and that some of their employment practices are best left on the sidelines in the everyday working world.

1.  “We’re Going With a Younger Player”

We hear this quite often during training camp as well as toward the end of a team’s difficult season.  In a physically demanding sport like football, a player’s skills have a finite life span and will begin to erode sooner or later.  Why not turn your attention to a younger player who has more years to give to the team rather than ride with an aging veteran for another season or two?

Outside of football (and other professional team sports), this obviously is not a viable basis for employment action.  Federal and state age discrimination laws would certainly prevent an employer from deciding, strictly on the basis of age, to replace an older worker with a younger one just because they “can get more years out of him.”

What about when teams decide to cut a veteran player from the squad because they make more money than the younger, cheaper player?  In the non-sports environment, deciding which employees to fire simply on the basis of how much money they earn is likely to have a disproportionate impact on older workers.  Creating this impact without a business necessity can be viewed as illegally discriminatory.

2.  “He’s hurt (or he’s injury-prone) so we cut him”

This is permitted under NFL rules but in the real world, definitely not.  Employers with 15 or more employees are obligated to consider reasonable accommodations to assist injured employees in performing the essential functions of their jobs, while employers of 50 or more generally are required to offer Family and Medical Leave Act (FMLA) leaves for employees too injured to work.  Of course, there is also the issue of workers compensation for work-related injuries.

Interestingly, the NFL has their own rules on dealing with injured players.  Teams must offer injury settlements to players who are cut due to injury.  In such cases, the team and the player try to come to agreement as to how many weeks the employee would miss as a result of the injury and the team then pays the player his contractual salary for those weeks.

3.  “The season is a lost cause so let’s just tank the remainder of our games for a better draft choice next season”

This is not something you will hear an NFL team (or a team in any other professional sport) say out loud but general consensus is that this happens all the time.  With revenue sharing from massive television contracts, teams in the NFL generally will make money whether they win or lose.  As a result, a team can decide to try less hard as the season wears on to improve their position in next year’s player draft, all without fear of incurring financial ramifications.

Can you imagine any other business telling their employees “Since things aren’t going very well for us, you might as well just kick back until the next fiscal year rolls around”?

4.  “That’s just what happens in a locker room”

The phrase “locker room talk” was much discussed during the presidential election campaign as a catch phrase for the rough-and-tumble environment that exists in many sports locker rooms.  Locker rooms often are said to be hotbeds of trash talk, horseplay, hazing and other similar pursuits, much of which seems to encompass a focus on race, ethnicity, sexual orientation and other personal characteristics.  This supposedly fosters “team building.”

Perhaps, but in an ordinary workplace outside the realm of professional sports, such behavior is completely unacceptable.  As we wrote last year in “Slamming the Door on Locker Room Talk“, federal and state discrimination law prohibit harassment based on protected classifications (e.g. race, gender, religion, sex, etc.).  Harassment is defined as verbal or physical attention to an employee’s legally protected classifications when:

– enduring the offensive conduct becomes a condition of continued employment, or

– the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

The law makes it clear that even if you maintain locker rooms in your work environment. you should do everything you can to prohibit locker room talk at work and to address effectively if it occurs.

5.  “Play with Pain”

This phrase has been a part of the football lexicon for decades as players were encouraged to show their toughness.  Clearly, football is a very physical game and the players can be expected to endure a fair amount of discomfort from playing it.  However, this phrase has begun to be a rallying point of sorts for those who question the value of an activity that may cause permanent brain injury and debilitation.

While the debate about football and safety continues, there should be no debate in the ordinary work environment that employees should not be directed to perform beyond their physical capabilities.  Employees who insist on coming to work even though they have a cold or the flu risk spreading the ailment to their co-workers.  Those who work beyond their medical restrictions threaten their own safety and that of everyone working around them.

In addition, employers who insist that employees should ignore their medical concerns run the risk of being charged with interference with FMLA rights or failure to accommodate, and perhaps could be viewed as hostile to an employee with legally recognized disabilities.

No doubt, there are plenty of employees who call in sick with only the mildest of ailments, and some who do so without any ailments at all.  Those employees certainly should be encouraged to “play with pain”, be it real or imagined.  For everyone else, this phrase seems out of place, as even those in the football industry are beginning to recognize.

Bottom Line

Sports have a unique place in American culture and we are right to treat them that way.  It therefore is probably best to leave the football jargon on the field and utilize some different practices when we return to work on Monday.

The post 5 Ways Not To Run Your Business Like a Pro Football Team appeared first on Felhaber Larson.

In a recent Alabama federal court case, former hotel manager Vickie Thrower claimed that another manager created a hostile work environment based on gender and race.  She claimed that he questioned everything she did, that he had “trust issues” and that he frequently shouted and swore at her.

What Exactly is Harassment? 

Thrower was terminated for performance reasons that the employer contended were unrelated to the claims of harassment. She then sued for discrimination and harassment based on gender and race.

The word “harassment” is among the most overused in the American workplace. Employees apply it to a vast spectrum of concerns, from the trivial or illogical (“My supervisor keeps harassing me by making me return from breaks on time”) to grave accusations of intimidation or physical harm.

In the legal world, “harassment” has a rather precise meaning, which the Equal Employment Opportunity Commission (EEOC)  articulates as unwelcome conduct based on an employee’s legally protected classification (e.g. race, age gender) where:

–  enduring the offensive conduct becomes a condition of continued employment, or

–  the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

How Can “Equal” be Discriminatory?

This is where Thrower’s claim failed, according to the judge. The employer contended, and the judge agreed, that the, manager in question was just a nasty person who was abusive to everyone, even his superiors.  In fact, the company had received complaints about the manager from virtually every employee, including both men and women, and employees of every racial grouping working at the hotel.

The critical issue, however, was that there was no evidence that the manager ever directed any offensive sexual or racial comments to Thrower (or anyone else). All of his negative attention was focused upon her job performance, and Thrower could not demonstrate that male employees or those of different races were treated more favorably. Therefore, Thrower failed to prove that her work environment was hostile with respect to her protected classifications and her claim was therefore dismissed.

In reality, the manager in this case was not an equal opportunity harasser because, in the legal sense, he was not a harasser at all. He was just a miserable guy who made everyone around him miserable in exactly the same way.  This must be contrasted with the employee who might utter racial epithets toward minority employees, perpetrate sexist behaviors toward women and engage in stereotyping of people in various other protected categories.

Such an individual may mistreat all co-workers equally as bad and equally as often but is unlikely to be viewed in the same manner as the manager who escaped liability in the Thrower case.  Instead, he (or she) will probably be considered to have fostered a number of separate hostile work environment claims based on race, gender or any other protected classification that may have been targeted.  The only equal opportunities created here will be for employment lawyers to take their shot at suing the employer on behalf of clients whose work environments became poisoned by illegal racial, sexual and/or other illegal forms of harassment.

Bottom Line

Even though the manager in the Thrower case was absolved of illegal harassment, his behavior was nonetheless problematic.  Imagine the disruption caused by a manager who is so relentlessly abusive that virtually every employee feels compelled to file a complaint.  If the behavior is severe enough, those employees could consider other forms of legal action, such as a claim for intentional infliction of emotional distress, which has been recognized in Minnesota for more than thirty years.

In addition, there is a national movement seeking adoption of the Healthy Workplace Bill, a uniform anti-bullying law that has been introduced (but not yet passed) at various times in 32 different states.

The notion that a manager is an “equal opportunity harasser” that does not generate liability may occasionally allow an employer to slip past a discrimination claim.  However, it is hardly a comforting doctrine for an employer and steps should be taken to insure that it is a defense that you never have to use.

The post Judge Absolves Equal Opportunity Harasser But You Shouldn’t appeared first on Felhaber Larson.

The culprits in the following three cases must have skipped church that day.

Case One: “Hey Everybody, Guess What’s Wrong With Him”

A federal judge in Florida ruled that even where the employee was granted time off under the Family and Medical Leave Act (FMLA), he could still sue for FMLA interference because his supervisor disclosed the underlying medical condition for which the leave was sought.

The employee had requested a FMLA leave for what the judge described as a “chronic and serious health condition with his genito-urinary system.” After the leave was granted, a supervisor divulged his medical condition to a number of co-workers, many of whom began to tease him and make jokes in front of him.

The employee sued, claiming a breach of FMLA’s regulations requiring that medical information connected with leave requests be kept confidential. The employer moved for early dismissal arguing that there was no interference with the FMLA request since the employee was granted his leave.  In addition, they contended that the law does not authorize lawsuits pertaining to the confidentiality obligation.

The Judge denied the motion to dismiss and allowed the interference claim to proceed. She noted that while some jurisdictions agree that there is no right to sue under these circumstances, other courts do permit such claims to be pursued.  Ultimately, the judge concluded that “confidentiality of medical information is a right provided and protected under the FMLA.”

Interestingly, courts in Minnesota do recognize a right to sue for breach of confidentiality under FMLA, although they appear to require proof of tangible injury caused by the breach in order for the employee to prevail.

Supervisors and managers usually do not need to know why the employee is on FMLA – they just need to know the parameters of the leave.  Disclosing the medical reasons for the leave, as we saw here, can turn a simple FMLA leave into a costly legal claim.  When it comes to medical reasons for FMLA leave: Just. Stop. Talking.

Case Two: Snatching Defeat From the Jaws of Victory

A federal judge in Tennessee refused to dismiss racial discrimination and harassment claims filed by an African-American who quit his job after being subjected to racially offensive and intimidating language from various supervisors.

The employee contended that the supervisors’ racially-oriented conduct, which included frequent use of the “N-word” and jokes about Black History Month, proved that racial bias motivated these same supervisors to deny him various promotions that he sought.  In addition, he contended that this behavior created a racially hostile work environment that eventually forced him to resign.

The employer denied the allegations of discrimination in promotions, claiming that the employee just was not qualified for the jobs. They also denied the harassment claims, despite the fact that they admitted 26 separate allegations of racially oriented epithets and comments.  The judge allowed both claims to proceed, finding it “curious” that the employer would suggest that the extensive pattern of racially hostile behavior was merely “isolated offensive utterance(s)”  and not evidence of actual racial harassment.

The case is still in its early stages so we do not know if the employee actually was qualified for any of the promotions he sought. If not, there were good reasons for not promoting him but the racially-oriented behavior may now influence a jury to believe that racial bias, is why he did not get promoted.  Someone should have told these supervisors: Just. Stop. Talking.

Case Three: Lawyers Do This Stuff Too

Lest you think we focus only on bad behavior by employers, consider the matter of an employment lawyer (on the plaintiff’s side) who recently was fined by a federal judge in California in the amount of $7,706 for suggesting that opposing counsel was displaying “female energy” and that a conspiracy existed among the women in the room during a deposition.  The judge called the remark unprofessional and recommended sensitivity training.

The lawyer in question argued that he should not be subject to sanctions because the case had been very combative on both sides. He stated that he was only responding to [opposing counsel’s] false accusations against him and her obvious dislike for him due to his “masculine appearance.” The judge disagreed, stating “No number of disputes or perceived professional misconduct justifies [the] actions, in which he made disparaging remarks to opposing counsel, repeatedly insulted her and called her names.” the judge said.  She concluded “It was evident from the hearing that he experiences trouble channeling his emotions, and the Court is concerned that he harbors issues, and perhaps even resentment, towards women,”

The lawyer in question may have been correct in observing that opposing counsel was acting improperly but his message got lost among the highly inappropriate gender-oriented remarks.  As a result, his wallet is now a bit thinner after the judge gave him a very clear message:  Just. Stop. Talking.

Bottom Line

As an employer, even justifiable employment actions can be undermined by improvident or improper remarks about an employee’s protected classification.  If anyone in your organization has trouble understanding this, just give them this helpful bit of advice. Just. Stop. Talking.

The post Just. Stop. Talking. appeared first on Felhaber Larson.

The law in question, Minnesota Statute §204C.04 provides:

“Every employee who is eligible to vote in an election has 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, without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.”

Employers may ask that their employees give notice of their intention to be absent, and also may ask them to schedule their absences so as not to impair production.  However, this statutory right to vote may not be denied so if the employees are not inclined to honor these requests, there probably is little that the employer can do.

Bear in mind that the statute only permits the employee to be gone for the purpose of voting and going to and from the voting place.  It is not a license to take an entire morning or afternoon off or to do some errands along the way.  Make sure your employees understand this ahead of time.

Overtime Changes Coming December 1

Remember too that the change in the Department of Labor’s salary threshold for overtime exemption takes effect on December 1.  As of that date, to meet the test for being exempt from overtime, employees must earn a salary of at least $913.00 per week ($47,476 annually).  As before, these employees also must perform bona fide executive, administrative or professional duties as those terms are defined in the Department of Labor’s regulations.

The new threshold means that a number of employees who are currently deemed exempt because they meet the existing threshold of $455.00 per week ($23,660 annually) now must be raised up to the new minimum or be treated as a nonexempt employee who is eligible for overtime.

For some guidance on how to implement this change, see our previous post entitled Some Helpful Reminders About the Impending Overtime Changes.

Retaliation Guidelines

Finally, please recall that the Equal Employment Opportunity Commission (EEOC) has issued their new Enforcement Guidance on Retaliation and Related Issues.  This document provides great insights on how the EEOC interprets this area of law and offers what they consider their “promising practices” to help employers avoid retaliation claims.  Those practices include:

–  Maintaining a written anti-retaliation policy;

–  Training all managers, supervisors, and employees on the employer’s written anti-retaliation policy;

–  Providing anti-retaliation advice and individualized support for employees, managers, and supervisors;

–  Proactive follow-up while EEO mattes are pending to insure that retaliation is not occurring; and

–  Reviewing all employment actions (e.g. terminations, discipline, salary decisions) to insure that retaliation played no role.

You can learn more about the Guidelines by reading our article entitled EEOC’s Guidance on Retaliation is Final – Prepare the Floodgates.

Bottom Line

The coming election likely means a number of changes for employers in the future.  Before that even happens, however, employers need to be up to speed on the new overtime regulation and the EEOC’s increasing emphasis on retaliation claims.

The post Employee Time Off To Vote and Other Helpful Reminders appeared first on Felhaber Larson.

While we can turn off the television and dodge political talk at social occasions, it’s different at work. Employees often cannot leave their workstations to escape a heated political debate or a co-worker who wants to pillory Hillary or dump on Trump to a captive audience.

What might seem like simple shop talk can quickly escalate into an unlawfully hostile or harassing work environment under applicable discrimination laws.  Employers therefore should develop a plan to intervene effectively when political talk oversteps the limits of ordinary workplace give-and-take.

We covered this topic a few months ago but the current political scene suggests that a reminder might be helpful.

What’s at Stake?

Political talk distracts employees, but probably not more than other routine debates such as Vikings v. Packers or who makes the best Juicy Lucy.  Ordinary workplace rules designed to limit workplace distractions should be sufficient for this issue.

The bigger concern is that the current political spotlight shines brightly on hot-button issues of race, religion and ethnicity, which are all protected characteristics under Federal and Minnesota discrimination laws. Offending remarks on these topics, if sufficiently severe and frequent, can trigger legal protections even when intent to offend is absent.

Consider how foreign-born employees might take offense when a co-worker echoes a candidate’s call for a ban on immigration. Those who side with law enforcement after controversial police shootings may feel bullied when co-workers brand them as racists.  A workplace debate on transgender issues could spur both sides to seek redress, with one employee claiming sexual orientation harassment and the other feeling attacked because of religion or creed (a separate but still undefined set of religious beliefs protected by the discrimination laws of a handful of states, including Minnesota).

The risk posed by political talk is even greater when a supervisor or manager is involved. A Muslim employee receiving a warning or demotion shortly after opposing a supervisor’s pronouncements on terrorism might perceive retaliation even if those decisions are otherwise well-deserved. Perceptions of the supervisor’s objectivity going forward may now be compromised.

If political discussions devolve into violence, Minnesota courts recognize claims for negligent retention, which holds employers liable for failing to terminate an employee whom they knew posed a risk of physical harm to others.

No Mute Buttons at Work

Despite the risks, banning all political talk is probably not the answer.  For one thing, it prevents respectful discussions among co-workers that might bridge differences, build teamwork and invigorate the workplace. In addition, public employers are prohibited from enacting rules that unnecessarily impede their employees from exercising their First Amendment right of free speech.

Private sector employers are not constrained by the Constitution but must observe the National Labor Relations Act, which protects employees’ right to engage in “concerted activities” for their mutual aid and benefit. This might not cover all political topics but it certainly could apply to discussions regarding critical campaign issues such as jobs, wages, health care and any other subject that touches on the workplace.

Employer Sets the Rules

While “blanket” policies banning all speech may not be the answer, employers definitely may regulate offensive or harmful speech in their workplace. Courts recognize that a public employer’s need for efficiency and a disruption-free work environment normally outweigh free speech interests. In both the private and public sectors, discrimination laws demand that employees be protected from harassment motivated by race, religion and other statutorily-designated characteristics.

Employers should consider issuing a pronouncement that all employees are entitled to be treated with dignity and respect regardless of political affiliations or beliefs. Tell employees that they are free to engage in reasonable discussions of political issues but also will be supported if they choose not to participate. It might also help to remind them that working time is for work and that political discussions should be largely be confined to breaks and meal periods.

Employers should be certain that their policies on harassment and workplace behavior adequately address issues that might arise if political talk gets out of hand. Consider reissuing the policy or otherwise bringing it to the employees’ attention in an appropriate manner.

Supervisors and managers should be directed not to participate in any political conversations and to monitor such discussions among co-workers.  If the discussion is becoming confrontational or begins to touch on discrimination issues, the supervisor should intervene and re-direct the dialogue.

Finally, if an employee complains that political talk has crossed the line into harassment, do not ignore or minimize the complaint. Follow your harassment policy which presumably calls for an investigation and appropriate corrective action if a violation is found.

Bottom Line

It is tempting to think that election day will bring relief from our discordant political climate but recent history and current political events suggest otherwise. Employers should therefore continue monitoring and controlling political talk at work to insure that ordinary and reasonable conversations do not escalate into serious workplace conflict.

The post Red Hot and Blue: Controlling Political Talk at Work appeared first on Felhaber Larson.

When the games end, many of these athletes will retire from athletic competition and either return to their regular lives or choose a path to follow for their post-Olympics careers.  Since we know little or nothing about their backgrounds or their ambitions, we can only speculate about what the more prominent performers might choose to do based on their exploits in Rio.

Usain Bolt – The fabulous Jamaican sprinter won the 100 meter dash for the third straight time, retaining his informal title as “World’s Fastest Human.”  Anyone who can move that quickly should certainly pursue a career in transportation or delivery.  A role as spokesperson for Jimmy Johns also seems like a natural based on their tag line for their delivery: “Freaky Fast.”

Mo Farah – This distance runner from Great Britain took his second Olympic gold medal in the men’s 10,000 meter run despite stumbling and falling in the early stages of the race.  Undaunted, he simply picked himself up, got back in the race and finished with a tremendous burst of speed to win the race.  A fellow who refuses to take no for an answer and won’t give up until he closes the deal undoubtedly has a great future in sales.

Michael Phelps – Having now collected 23 gold medals in swimming, Phelps can stake his claim as perhaps the greatest Olympic athlete of all time.  This time around, however, he also gained notoriety for his reaction when a competitor tried to break his concentration with some pre-race theatrics. Phelps responded with what has since been dubbed “the death stare.” With his ability to muster that look, what middle-schooler could ever deny their role in teenage mischief when called down to the office to meet with Assistant Principal Phelps?

Hope Solo – The goalie for the US women’s soccer team reacted strongly after losing to underdog Sweden who elected to follow a very defense-oriented, conservative game plan.  Solo called the Swedish team “cowards” and claimed that the best team did not win.  With public relations skills like that, she seems destined for great success as an election campaign spokesperson.

Shaunae Miller – This amazing runner from the Bahamas saw her quest for gold fading away as she approached the finish line just behind another contestant in the women’s 400 meter run  so she did what she had to do – she literally dove across the finish line and snatched victory from the jaws of defeat.  With an ability to make snap decisions like that to save the day from impending doom, a career in crisis management seems like a great fit.

Katie Ledecky – With four gold medals, two world records and one of the most dominant swimming performances in Olympic history, this incredible US swimmer can do anything she wants in her professional career because, quite simply, she’s awesome.

Bottom Line

These speculations may be way off-base but it is fun to think about the possibilities. Are there others?

The post What Jobs Await the Olympic Stars After the Games? appeared first on Felhaber Larson.

Nintendo’s Pokémon Go is a downloadable game that immerses the player into an augmented reality. The app tracks the user’s location and creates a map of the surrounding area.  The user is guided to local landmarks known as “Pokestops” to acquire virtual tools for “capturing” Pokémon monsters who are overlaid on the screen.  The player then uses the phone’s mobile camera to navigate around the real-life surroundings tracking down the virtual creatures.  Points are earned and rankings increase as the player continues catching more and more characters.

High Tech Treasure Hunt

This high-tech treasure hunt is so popular that it has been downloaded by more than 15 million users since it arrived on July 6, and shares of Nintendo stock soared 56% in the first 2 weeks.

Pokémon is a Japanese anime world of fictional characters that captivated children and teens in the 1990’s.  That generation now makes up the majority of the American workforce so the allure of this new game is likely to generate significant workplace issues.  Simply stated, Millennials grew up in the Pokémon world and they are not going to be deterred from returning to it merely because they now might have to work for a living.

Indeed, almost one third of respondents to a recent Forbes poll indicated that they play the game for more than one hour at work each day, a potential productivity and quality issue if it occurs beyond lunch and authorized breaks.  Of course, distracted employees have been around since Fred Flintstone worked for Mr. Slate, and most employers presumably have well-established policies for dealing with this sort of thing.  Even so, the fact that so many people are already willing to admit their fascination with this brand new time-waster does not bode well for meeting production quotas in the near future

Pokémon Go…to the Hospital

Employees whose work requires them to drive pose a special hazard since Pokémon Go requires more extended periods of looking at the phone and therefore not at the road.  Rules prohibiting texting behind the wheel or requiring hands-free use of cell phones probably are not sufficient to deal with this new problem and should be beefed up to totally ban looking at a cell phone screen while the vehicle is in use.

Injuries resulting from distracted players can happen away from the highways as well.  In San Diego, it was reported that two men had to be rescued after falling over a cliff while playing the game.  It is certainly conceivable that distracted employees might wander in front of forklifts, tumble down staircases or ignore important safety rules in their quest for more Pokémon prey.

More Bad News

Even if employees stay safe, they may still get themselves into trouble.  Consider how it might look if one of your employees feels compelled to poke around a client’s office in search of Pokémon characters when they are supposed to be there for a meeting or sales pitch.  What if one of your people is arrested for trespass because they entered a secured premises to make another capture, or causes a confrontation because a property owner refuses to allow them access?

Image is important too – will customers at your store or visitors to your office be impressed by hordes of phone-staring zombies in company attire wandering around the premises?

Confidentiality concerns also come into play because so much of the game is built around the player’s mobile camera.  Players who take pictures of the Pokémon characters at work could then post their “trophies” on social media, thereby exposing company property, products and other confidential items to the public.  Co-workers may also become angry over such intrusions into their privacy, and one can only imagine the reaction of a client (or worse, a competitor) who finds one of your employees wandering their premises after hours with their camera out.

What to Do?

Figuring out how to address these concerns might create a sense of déjà vu for the days when employers sought to ban e-mail and the internet from the workplace.  Banning Pokémon Go is certainly one method for insuring that it does not create business troubles but really, it’s not the game that causes the problem; it’s the employee’s obsession with it.  Banning the actual game does not address the true harm that arises out of preoccupation, and employees can become fixated on texting, fantasy sports and the millions of other distractions available in the cyber world.  Therefore, employers should also focus on reminding their employees about policies that have been in place for some time and must be observed, such as:

–  Policies requiring employees to refrain from engaging in personal matters during working time;

–  Policies prohibiting various forms of distracted driving;

–  Polices prohibiting photography at work (except for legitimate business reasons);

–  Polices requiring adherence to safety rules;

–  Policies regarding appropriate interactions with clients and customers; and

–  Policies prohibiting the disclosure of confidential information.

Bottom Line

Pokémon Go  could be just a craze, but there are already new options and add-ons available, and second generations of the game are in the works.  Knock-offs from other companies are bound to appear as well so if its a craze, it may be an extended one.

Employers can try to stem the tide or figure out how to swim along with it.  Many employers have imposed an outright ban but there are also reports of companies organizing mass Pokémon Go outings during meal breaks, after work or during office parties.  An effective answer to adapting to this newest challenge may be the biggest treasure of them all.

The post Should Employers Say No to Pokémon Go? appeared first on Felhaber Larson.

Despite the brutality of his profession, Ali remained a gentle soul who sought to inspire us with humor, poetry and a relentlessly positive view of life.

Last year, we noted that the wit and witticism of another departed sports hero, Yogi Berra, translated neatly into a series of observations on effective human resource management. Like Berra, Ali’s reflections on life also can be interpreted as astute critiques of the American workplace.  Here are some examples from the man known as “The Greatest”:

• “He who is not courageous enough to take risks will accomplish nothing in life.” Ali clearly understood the importance of setting goals and making them ambitious. Settling for an easy, comfortable routine is not likely to be the avenue toward great accomplishment in any workplace setting.
• “The best way to make your dreams come true is to wake up.” On the other hand, Ali also understood that dreams don’t just happen – you have to make them happen.  He would certainly have agreed that employees need to establish specific action steps to achieve their goals, and must be provided with the tools and opportunity to follow those steps.
• “If they can make penicillin out of moldy bread, they can sure make something out of you.” This colorful remark notes the importance of patience with new employees as well as those employees who are having difficulty with their work assignments. Ali might have suggested that the answer is not just discarding those employees like you might toss out old food.  Instead, try to rediscover and nurture the qualities that you saw in those individuals when you hired them.
• “Hating people because of their color is wrong. And it doesn’t matter which color does the hating. It’s just plain wrong.” Ali obviously understood the value of a diverse and harassment-free work environment where everyone deserves respect and everyone shows it.
• “Silence is golden when you can’t think of a good answer.” Despite his penchant for fast and boastful talk, Ali clearly recognized the sometimes it is best to just keep quiet.  Employers should bear this in mind when they are tempted, for example, to suggest that an illness must be causing an employee’s performance problems, or to invoke an employee’s protected class status in a misguided attempt at humor.
• “It’s just a job. Grass grows, birds fly, waves pound the sand. I beat people up.” Ali worked hard to show everyone that he was not the brutal man that he portrayed in the boxing ring.  He felt that his truer worth was demonstrated in how he served others.  Maybe this was Ali’s way of suggesting a good work-life balance, or perhaps of not defining yourself only in terms of professional accomplishments.
• “Don’t count the days; make the days count.”  This is great advice for those who don’t see the value in what they do or how they might fit into the big picture at work.  Employees need to feel that they matter to the organization.  Help them understand their contributions and how those contributions are valued.

Bottom Line

Ali urged us to “Live everyday as if it were your last because someday you’re going to be right.” Now that he has indeed reached his last day, why not take a moment to reflect on how our work in the field of human resources can be enhanced by considering his words of wisdom and inspiration.

The post Muhammad Ali: Human Resources Consultant appeared first on Felhaber Larson.

Stand Alone Disclosures

Employers who use a third party to conduct background checks on applicants or employees must comply with the requirements of the federal Fair Credit Reporting Act (“FCRA”).  The FCRA mandates, among other things, that individuals subject to background checks be given a disclosure informing them that the employer intends to obtain a consumer report and requesting their authorization.   Such disclosures must “stand alone”, meaning that the disclosure must be in a separate document that does not seek any additional information nor contain extraneous information.

The rationale for the stand-alone requirement is to ensure that individuals are not misled or confused by the inclusion of unnecessary text in the disclosure.

Time and again, employers have been frustrated by the courts’ unwillingness to dismiss these class action lawsuits based on this very technical provision of the law.  They then are faced with the prospect of having to settle these claims because the cost of defending, plus the prospect of paying huge attorneys fees to the plaintiffs who prevail on this technicality, make it too daunting to proceed with the defense of the case.

Reasonable Interpretation Prevents Willful Violation

In the recent case of Thomas Just et al. v. Target Corp., Civ. No. 15-4117 (DWF/TNL), Target got sued because their disclosure form was alleged to contain improper extraneous information, including a basic “employment at will” statement. Since the case did not seek any actual monetary damages arising from the faulty document, however, Federal District Judge Donovan Frank here in Minnesota ruled that the aggrieved individual had to prove that Target willfully (meaning knowingly and recklessly) violated the FCRA’s stand-alone disclosure requirement.

Judge Frank then concluded that Target could not be found to have willfully violated the FCRA because their reading of the FCRA was not objectively unreasonable. With an absence of conclusive case law in the appellate courts and little guidance from the Federal Trade Commission on the meaning the stand-alone disclosure requirement, the true intent of the provision is far from settled. Therefore, Judge Frank was unwilling to rule that Target was intentionally ignoring the FCRA when they interpreted the “stand-alone” requirement to permit some extraneous information on the disclosure form.

Bottom Line

This is a significant development since it gives employers some hope that courts will begin disallowing these big class-based lawsuits that allege only a very technical violation of the law.   After all, if there are no actual damages to be claimed, why should employers be subject to such extensive litigation and penalties?

Still, until this becomes more of a trend, employers should strive to make sure that their forms pass muster.  In doing so, do not rely on the disclosure and authorization forms provided by third-party vendors, especially because employers often must also comply with equivalent state laws, many of which impose additional requirements.

This case could be appealed and there is definitely more to this story down the road. Still, it is good to see that at least one federal court is willing to stand alone to help employers resist expensive and aggravating litigation.

The post Employers Get a Break on Fair Credit Reporting Act Cases appeared first on Felhaber Larson.

The vote of confidence in sports is one of those statements often understood to mean exactly the opposite, just like “the check is in the mail” and “I already finished my homework.”  When the declaration is issued, there is a good chance the coach knows that it is time to start packing.  Former Minnesota Wild hockey coach Mike Yeo recently found this out when the team fired him after issuing their kiss of death, – oops, vote of confidence – just eight days earlier.

Lessons for the Non-Sporting World

Perhaps the vote of confidence is intended as reassurance to the coach, a message to the players about their performance or simply a strategy to avoid paying out the remainder of a departed coach’s contract.  As the team keeps losing, however, and the fans and media start getting angry,  the analytics become pretty simple.  They can’t fire an entire team of professional athletes under contract so they fire the coach in the hope that this might shake things up.  If it work, great; if not, there’s always next year.

In the non-sporting arena, this approach is usually the wrong call.  The business version of a vote of confidence, such as a positive performance evaluation, a letter of commendation or a significant pay increase, is typically understood to reflect management’s satisfaction with the employee’s body of work for the period that the evaluation or increase covers.  The employee therefore has reason not to be concerned about imminent termination unless, of course, there has been a very critical lapse in performance or behavior since then, such as the loss of a major customer, a serious policy infraction or some other equally significant occurrence.

A Pat on the Back Shouldn’t Hurt

In the absence of such a critical failure, an employee who is terminated or suffers some other adverse action shortly after getting a “vote of confidence” has good cause to believe that there must be a reason other than job performance for the sudden shift in management’s demeanor.  This is when that employee begins to wonder whether there might actually be an illegal motivation for all of this, such as race, gender, or some other protected classification.  After all, how could the termination be work-related if the employee just got a strong pat on the back a short time ago?

This concern increases if the employee has engaged in some sort of protected activity between the time they received their vote of confidence and the adverse employment action.  An employee who is praised for their job performance and then receives a demotion or disciplinary action has good cause to be suspicious if that action follows quickly after, for example, an OSHA report, an illegal harassment claim or a FMLA request.

In fact, as we reported recently in “EEOC’s New Retaliation Guide is Threat to Employers,” an impending relaxation of the standard for proving retaliation cases makes it even more worrisome for employers to take adverse action against an employee who has engaged in protected activity.  The fact that an employee received some sort of vote of confidence will be a significant part of the “convincing mosaic of circumstantial evidence” (the EEOC’s proposed standard of proof) needed to persuade an enforcement agency, a judge or jury that the adverse employment action is retaliatory.

Certainly there may be times when the employer intends to use a commendation or a raise as an incentive to a weak performer or as an expression of confidence that the employee is still valued despite recent setbacks.  In such cases, however, that intent should be expressed clearly and documented effectively to insure that there are no misunderstandings. Otherwise, it is best to find a more effective and less dangerous form of motivation.

Bottom Line

In the sports world, it’s all about the wins and losses.  If the team continues to lose, everybody understands that the coach may get fired regardless of what team officials might have said previously.

It is different for the rest of us.  If you seek to motivate your employees through troubled times or disappointing performance, do so in a way that makes it clear that you believe that improvement is needed.  A steady course of timely discussion and thorough documentation works well for this.  On the other hand, giving an employee a strong vote of confidence and then kicking that person off the team a short time later may put you in the human resources version of the penalty box.

The post Vote of Confidence: OK for Sports, Not for Business appeared first on Felhaber Larson.

Events in the sports world often mirror the issues that Human Resource practitioners face in the business world. For example, the St. Louis Cardinals in Major League Baseball face charges of stealing trade secrets from a competitor.  In the NBA, Atlanta Hawks General Manager Danny Ferry resigned after news surfaced about his racist remarks about a player.  And of course, the NFL has had numerous off-field incidents that have tarnished the reputation of the league and many of the teams in it.   Human Resource professionals know these sorts of issues all too well.

College athletics also have had their share of issues, including a sexual harassment scandal at the University of Minnesota Athletic Department and the firing of USC head football coach Steve Sarkisian for coming to work inebriated.

Broncos Do Things Differently

The Denver Broncos, on the other hand, seem to have found a different way to do things. How many organizations would hire a 68-year old senior management employee who was fired from his last job just two years previous and then was out of the industry completely last year?  Add in the fact that they had already fired this same fellow from a higher level position (head coach) 20 years ago.  That’s the story of Wade Phillips, the Broncos Defensive Coordinator and architect of the defensive effort that carried the day for the team.

What about the decision to continue relying on Peyton Manning as the face of the franchise, despite the well-documented decline in his everyday performance and the presence of an able successor on the roster?

And finally, what organization would finish as number 2 in their industry just two years ago and then decide to completely revise their product and revamp their workforce? The Broncos pulled that off after riding the top-rated offense to the Super Bowl in 2014 (and losing handily).  They decided then that they needed to focus more on defense, sought out the best available players and two years later are at the pinnacle of their industry.

Bottom Line

Of course each situation is different.  Often, employees who haven’t made it back into the workforce two years after their termination are not a good risk until they have proven themselves again (elsewhere).  Employees whose skills have diminished frequently don’t hold on to finish with one last magnificent blaze of glory.

Still, the Broncos’ Super Bowl win this year shows us that there are times when a veteran in the industry can offer the insight and perspective needed to move the business forward.  The long-time employee whom you think has one foot out the door sometimes can still get the job done with guile and experience making up for fading skills.  Most importantly, staying with a plan that makes you good may not be the best option if what you want is to be great.

Established trends often reflect great success – that’s why trends get followed.  However, when someone decides to go their own way and make it work, they deserve some accolades.  Congratulations to the Denver Broncos, who bucked the trends and are now galloping off with their trophy.

The post Broncos Buck Established Human Resources Trends appeared first on Felhaber Larson.

Fraud and Deceit

The case of People v. BMY Foods Inc., involved Adbul Jamil Khokhar, the owner of numerous Papa John’s pizzeria franchises located in the Bronx, New York. On July 15, 2015, New York Attorney General Eric Schneiderman announced that the State of New York would be bringing criminal charges against Khokhar and his company, BMY Foods. These charges followed a U.S. Department of Labor (“DOL”) investigation into whether Khokhar had violated federal and state laws by failing to pay his employees overtime and minimum wages.

This probably was not a case of simple oversight. Upon learning of the DOL’s investigation, Khokhar appears to have created fictitious identities to conceal the overtime worked by employees, and filed fraudulent tax returns with the State of New York in order to keep the authorities off his trail. In total, it is estimated that around 250 current and former Papa John’s employees were affected by Khokhar’s efforts to scrimp on wages.

Paying the Price

In July of 2015, Khokhar reached a civil settlement with the DOL that required him to pay $230,000 in liquidated damages in addition to $50,000 in civil monetary penalties. Khokhar and his companies will also be required to appoint an internal compliance officer, create controls and procedures to avoid further violations, and will be subject to independent auditing.

Khokhar pleaded guilty in the New York prosecution to a misdemeanor failure to pay wages, and his company pleaded guilty to falsifying business records, a felony. On November 16, 2015 a judge handed down a sentence ordering Khokhar to spend two months in jail. The State also imposed an additional $230,000 in restitution of unpaid wages in addition to the DOL fines. This appears to be the first instance of a franchisee of a large national chain serving jail time for wage violations.

The Bottom Line

Khokar’s case may be an extreme one, but it provides a useful reminder to employers that wage violations can be accompanied not only by hefty monetary penalties, but also jail time. A surprising number of statutes include provisions identifying certain breaches as misdemeanors and even felonies. That’s an extra topping to be avoided.

The post State Delivers Criminal Sentence to Papa John’s Franchise Owner appeared first on Felhaber Larson.

Many people probably don’t realize, however, that Yogi Berra’s frequently-quoted observations can also be viewed as astute critiques of the American workplace. His ability to reduce the complexities of life into humorous sound bites created a treasure trove of good counsel, especially on the importance of thoughtful evaluation and looking at the big picture, when he reminded us that you can “observe a lot by watching.”

Some of Berra’s shrewdest thoughts on the American workplace included:

• “Ninety percent of the game is mental. The other half is physical.”  Berra understood that hiring workers and having them show up is only half the battle. You want a workforce that is motivated and engaged, and who takes pride and satisfaction in their jobs. That’s the other half of the equation and it is the far more significant half.
• “I never said half the things I said.”  This was Berra’s great reminder of the importance of documentation for managers and supervisors. For all the times that employees claim that their supervisor said they could take the day off, or that a manager uttered a discriminatory remark, Berra knew that you have to be able to prove that you did not say what they claim you said.
• “It was impossible to get a conversation going, everybody was talking too much.”   Despite his sometimes befuddling remarks, Berra understood the importance of clear and effective communication. It is important that everybody be on the same page and work together toward the common goal, and you can’t achieve that unless there is a very clear voice coming from the leader.
• “There are some people who, if they don’t already know, you can’t tell ’em.”  Berra saw a great number of baseball players come and go, and he understood that some of them just could not compete at a Major League level. In any workplace, there will be people who simply are not able to perform their job responsibilities capably. In those cases, Berra would tell you that at some point, if they haven’t caught on, they never will. Don’t avoid making the hard decision to let someone go if they simply can’t play the game.
• “Nobody goes there anymore. It’s too crowded.”   Innovation and creativity are often critical to success in business. You need employees who can think outside the box and come up with creative ways to increase productivity, reduce expenses and stay ahead of the competition. Berra reminded us of how important it is to distinguish yourself from the other guys.

Bottom Line

Berra’s most enduring line may have been “It ain’t over until it’s over.” He is gone now, but Yogi Berra’s impact on the American workplace will never be over.

The post Yogi Berra: Human Resources Consultant appeared first on Felhaber Larson.

What Used to be a Business Contract . . .

Browning-Ferris Industries (“BFI”) retained a staffing agency (Leadpoint) to supply temporary workers to its recycling facility in California.  The contract between the two companies specifically stated that Leadpoint was the workers’ sole employer and set forth the following assignment of responsibilities:

• Leadpoint handled all the hiring (but the contract required that they make “reasonable efforts” to not assign former BFI workers who had been deemed ineligible for rehire at BFI);
• Leadpoint was responsible for disciplinary matters (but there were a couple of occasions where BFI insisted that a temp be disciplined);
• Leadpoint set wages (but could not pay more than what a BFI employee would get for similar tasks); and
• Leadpoint handled all terminations (although BFI could bar any worker from continuing to work at BFI facilities).

A union then petitioned the NLRB to represent both the BFI employees and the Leadpoint temporary workers under the theory that the two companies jointly employed the Leadpoint workers.   This theory required that the supposed joint employer (1) possessed authority to control the terms and conditions of employment, and (2) actually exercised that authority.

. . . Is Now an Employment Agreement

The NLRB ruled for the union, choosing to adopt a new and scaled-back version of the joint employer test.  Now, for the first time, an employer need only possess the authority to control the working conditions but does not have to have actually exercised that control.  The NLRB declared that the explosive growth of the contingent workforce meant that continuing to follow the old test would represent a failure “to adapt the [National Labor Relations] Act to the changing patterns of industrial life.”

In determining whether an employer possessed control over the working conditions of contract workers, the NLRB acknowledged that “direct, indirect, and potential control” were all relevant to the joint-employer inquiry, as was the “way the separate entities have structured their commercial relationship” because it determines whether the putative employer might have the authority to govern working conditions.

Under the new, relaxed standard, BFI was deemed to be a joint employer of the Leadpoint workers because:

• BFI “codetermined” the outcome of the hiring process by imposing specific conditions on Leadpoint’s ability to hire certain workers.
• BFI essentially had the ability to terminate Leadpoint employees because of their “unqualified right to ‘discontinue the use of any personnel.’”
• BFI managers actually assigned specific tasks that needed to be completed, specifed where Leadpoint workers needed to be positioned, and exercised “near-constant oversight of employees’ work performance.”
• BFI played a “significant role in determining the employees’ wages” because contract specifically prevented Leadpoint from paying employees more than BFI employees performing similar work.

Bottom Line

Pay attention to this decision if you use independent contractors.  If you are considered a joint employer of the people working at your company from staffing agencies, subcontractors, etc., the value of using those resources is greatly diminished.  Therefore, you should try very hard to minimize your involvement in decisions affecting contract workers in the areas of hiring, discipline, termination and all the others that are typically associated with employers.  Hire a good contractor and let them make those decisions.

Incidentally, the NLRB is not the only government agency looking at these issues.  The Department of Labor recently announced that is also is exploring an expansion of liability for OSHA violations by joint employers, as is the Equal Employment Opportunity Commission in regard to discrimination liability.

The post Are Employers Now Responsible for Their Contract Workers? appeared first on Felhaber Larson.

The court in Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 11-cv-00917, (S.D. Ohio Dec. 27, 2012) rejected the employer’s argument that veganism does not qualify as a religion, but is merely the employee’s dietary preference or social philosophy. It reasoned that the former employee alleged a plausible claim that she subscribes to veganism “with a sincerity equating that of traditional religious views” and the matter should go to trial. The Supreme Court and the EEOC regulations and have interpreted “religious belief” broadly, giving protection to employees with moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.

Bottom Line

The moral of the story? When your employee asks for an exception to a policy or requirement based on a “sincerely held belief,” consider whether it may be considered a religious belief subject to protection by Title VII.

The post Do You Need to Accommodate Your Vegan Employee? Court Rules "Maybe" appeared first on Felhaber Larson.

The Equal Employment Opportunity Commission (EEOC) believes otherwise, having asserted way back in 1999 that “reassignment means that the employee gets the vacant position, if s/he is qualified for it.” Courts in other federal circuits, including those in Colorado (10th Circuit), D.C. (D.C. Circuit), and Florida (11th Circuit), have agreed with the EEOC’s reading of the ADA.

The Seventh Circuit in Chicago had previously sided with the Eighth Circuit’s view on this issue, explaining that the ADA merely requires a level playing field and is not “an affirmative action statute.”  However, last week they reversed course and ruled:

“[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” EEOC v. United Airlines Inc., No. 11-1774 (Sept. 7, 2012).

The court was not persuaded by the company’s “disability neutral” policy of hiring only the best applicant for a vacant job. They found that while an employer probably does not have to disregard a full-fledged “seniority system” (e.g., a system established by a collective bargaining agreement), a simple rule or policy does not create an “automatic exemption” from an employer’s duty to accommodate under the ADA. Instead, the employer must be prepared to show that “fact-specific circumstances” particular to the employer’s employment system would create an undue hardship and render mandatory reassignment of a disabled employee into a vacant job unreasonable.

Bottom Line

Remember that this is a Seventh Circuit decision so it does not directly impact Minnesota employers. However, the EEOC’s success in getting the Seventh Circuit to flip flop almost certainly will spur them to seek the same from the Eighth Circuit. Therefore, while the law governing Minnesota says that we can remain “disability neutral” and not give preference to a disabled employee over more qualified applicants for a vacant job, we definitely can sense a possible change in the wind.

We will keep you up to date as this emerging issue continues to develop.

The post Is Reassignment to Another Job a Required Accommodation under the ADA? appeared first on Felhaber Larson.

As we previously reported, Williams claimed that after Smith offered him an assistant coaching job, he quit his job at Oklahoma State and prepared to move to Minnesota, only to have Coach Smith rescind the job offer. The Minnesota Supreme Court ruled that because Smith had no duty of care to Williams, the negligent misrepresentation claim failed as a matter of law.

The court explained that the dealings between Smith and Williams consisted of negotiating potential government employment, which was not that type of relationship that is typically accorded legal protection. Specifically, there was no professional or fiduciary relationship between the two and Smith was not acting as an advisor to Williams. Thus, it did not matter that Smith failed to explain to Williams that Athletic Director Joel Maturi would actually make the final hiring decision, as Williams contended.

Moreover, the nature of this relationship “was that of two sophisticated business people, both watching out for their individual interest while negotiating at arm’s length.” Both, Smith and Williams had decades of coaching experience which included negotiating coaching contracts and exposure to a variety of hiring practices.

The court was, however, quick to criticize the University for how it handled the hiring. “[T]he manner in which [the University and Smith] treated Williams . . . was unfair and disappointing.” More importantly, the court specifically noted that even though Williams may not have a claim for negligent misrepresentation, a prospective employee like Williams could have a claim for intentional fraudulent misrepresentation.

Williams and his attorney are said to be giving strong consideration to further appeals.

Bottom Line

Even though the University and Smith ultimately came out on top, Minnesota employers would be best-served by continuing to follow our coaching tips for prospective employees:

1. Be precise when communicating a job offer, disclosing any limitations or contingencies (e.g. background check, drug test).

1. Send an offer letter or document the proposal in some other fashion to be sure that there is no misunderstanding about the terms.

1. 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 Supreme Court Throws Out Prospective Coach’s $1 Million Verdict appeared first on Felhaber Larson.

Employers’ use of social networking sites (“SNS”) like Facebook or LinkedIn to screen applicants is nothing new.  One 2011 Reppler study even found that 91% of employers were doing it and that 69% of those eliminated at least one candidate based on information uncovered.

Just what are the risks of using SNS’s in the pre-employment arena?

Risks of Reviewing SNS Information

In general, anti-discrimination laws prevent employers from asking applicants about their marital status, pregnancy, future child bearing plans, religion, disability and other questions related to characteristics or traits protected by these laws.  Perusing an applicant’s Facebook page or Twitter site may allow the employer to obtain this prohibited information, and may give the rejected applicant reason to believe that it was this information that caused them to lose the job, not their lack of qualifications or poor interviewing skills.

Risks of Asking for Applicants’ Passwords

In particular, requesting an applicant’s SNS password may also violate the federal Stored Communication Act (“SCA”) or the Computer Fraud and Abuse Act (“CFAA”). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA prohibits intentional access to a computer without authorization to obtain information.

Of course, neither of these statutes applies where the individual has consented to the access. Thus, the question becomes whether any such consent is truly voluntary or whether it was coerced by the threat of not getting the job if the consent is withheld.

In the case of Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009), for example, employees created an online chat group for venting frustrations about the employer and their managers. When the company learned of the site, one participating employee provided her log-in information under the belief that she was would have been penalized if she did not do so. This was enough for the jury to find that the access was not authorized and that it violated the SCA.

Bottom Line

While Pietrylo involved a current employee, the analysis seems just as compelling in the pre-hire context.  For this reason, until we have more certainty about the legalities of this practice, employers should be wary of requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites.

This does not mean that SNS’s are not valuable tools in an overall pre-employment procedure.  It just means that employers should be cautious about whether they wish to enter this legal gray area by requiring access to what is otherwise considered a private domain.

The post Employers Should Think Twice before Logging In to an Applicant’s Facebook Account appeared first on Felhaber Larson.

OSHA approaches workplace violence in different ways according to the relationship between parties involved.

• Type I violence involves violent criminal intent or acts by people who enter the workplace to commit a robbery or other crime.

• Type II is directed at employees by customers, clients, patients, students, inmates or any others to whom the employer provides a service.

• Type III is violence against co-workers, supervisors or managers by a current or former employee.

• Type IV includes violence in the workplace by someone who does not work at the location, but is known to or has a relationship with an employee.

The Directive identifies industries that are identified as high risk for potential workplace violence.  Healthcare and social service settings are considered in this category, along with late night retail settings (e.g. convenience stores, liquor stores and gas stations).

OSHA’s Directive focuses on two primary questions: (1) Did the employer recognize potential hazards in the workplace?; and (2) Are there feasible means of preventing or minimizing such hazards?  The Directive encourages employers to conduct assessments of their risk for workplace violence at their jobsites and sets out steps that employers can take to minimize that risk.  In particular, employers are urged to be aware of potential workplace hazards because of specific past incidences, characteristics of the employer’s facility or general industry wide knowledge of the potential of workplace violence.  OSHA suggests that employers assess hazards on a periodic basis to determine whether safety mechanisms are effective.

Employers are encouraged to keep detailed records of workplace violence as well as workers’ compensation records, insurance reports, police reports, security reports and accident logs.

Bottom Line

Employers, especially those in identified “high risk” industries, should have well defined and maintained workplace violence prevention programs designed to minimize and eliminate the potential for workplace violence.  Employers should educate their employees on risk factors and prevention procedures to reduce the potential for workplace violence.

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