The FCRA and Background Checks

The FCRA is a federal statute which provides – in addition to other requirements – certain prerequisites that must be met prior to running a “consumer report” on an employee or applicant. Notably, even simple employee background checks may fall under the definition of a consumer report.

One of the FCRA’s requirements is that the subject of the report be given a written disclosure “that a consumer report will be obtained for employment purposes.” Failure to provide this required disclosure carries a civil penalty, and plaintiffs’ attorneys generally bring class-action lawsuits against employers who violate the FCRA.

The two Ninth Circuit cases discussed below go into detail regarding two specific aspects of the required FCRA disclosure language.

Gilberg v. California Check Cashing Stores, LLC

In addition to disclosure language required under federal law, states may impose additional requirements. For example, under Minnesota law, the subject of a consumer report must be provided with a “box” they can check to receive a free copy of the results of the report.

In Gilberg v. California Check Cashing Stores, LLC, 913 F.3d 1169 (9th Cir. 2019), the Ninth Circuit held that any disclosure language required under state law must be kept in a separate document from the required federal disclosure. The Court based its holding on the fact that the FCRA requires its disclosure to be presented “in a document that consists solely of the disclosure,” meaning any information required by state law must be kept separate.

Walker v. Fred Meyer, Inc

In another recent case, Walker v. Fred Meyer, Inc. 953 F.3d 1082 (9th Cir. 2020), the Court analyzed a similar issue with respect to the FCRA’s requirement that the required federal disclosure be limited to a “disclosure . . . that a consumer report will be obtained for employment purposes.” The employer in Walker included information regarding additional privacy rights an employee had under the FCRA with its disclosure language. The Court noted that even though the information included was 1) accurate, 2) “helpful” to the consumer, and 3) added in good faith by the employer, it was still a violation to include any extraneous language not limited to the fact that a consumer report was going to be obtained for employment purposes.

Why it Matters

Although the Ninth Circuit decisions discussed above are only binding precedent on federal district courts within that Circuit (i.e. Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), it is possible that other Courts may adopt the logic in Gilberg and Walker. As a result, there are a few takeaways for employers to consider with respect to the disclosure and authorization forms used to conduct background checks:

• Employers should ensure that they are providing employees and applicants (meaning individuals who have received conditional offers of employment) with a FCRA-compliant disclosure, as well as with any additional disclosures which may be required under applicable state law.
• The language in any FCRA disclosure should be limited to only a disclosure that “a consumer report will be obtained for employment purposes,” and any other information should be set forth in a completely separate document.
• Any information required under state law should be provided in a separate document as well.

Bottom Line

These cases highlight that employers must meet strict requirements in order to comply with the FCRA when conducting background checks on applicants and employees. Indeed, including extraneous information in the federal FCRA disclosure, even if it is helpful or required under a related state law, may still be a violation that could lead to liability under the FCRA.

The post Ninth Circuit Cases Highlight Pitfalls with FCRA Background Check Disclosure Language appeared first on Felhaber Larson.

The rules have not changed since then so this remains your guide to employee voting rights in Minnesota.

The post Remember the Rules for Employee Time Off to Vote appeared first on Felhaber Larson.

A Budding Problem

Daniel A. Vogel worked as a Forest Technician for Order of St. Benedict (“OSB”) for over twenty years.  He lived on 30 acres of his own property.

In August 2016, the National Guard Counter Drug Division flew over Vogel’s property and observed a “probable marijuana growing operation.” Local law enforcement obtained a warrant and searched Vogel’s home where they found multiple growing marijuana plants, large amounts of loose marijuana, and other items associated with the distribution of marijuana. In January, 2017, the State of Minnesota charged Vogel with a fifth-degree felony for distribution of marijuana.

OSB eventually discharged Vogel but not until April of 2018. The discharge was based on Vogel’s violation of an OSB policy providing:

“The unlawful involvement with alcohol or drugs on or off the job is a serious conduct breach. Each employee has an obligation to advise the employer of any known violation of these requirements. Violations of these requirements will result in disciplinary action up to and including termination.”

Vogel filed for unemployment compensation benefits but the Minnesota Department of Employment and Economic Development (“DEED”) determined that Vogel was disqualified from receiving benefits due to misconduct.

Vogel appealed to the Minnesota Court of Appeals claiming that he uses marijuana for religious reasons and that his off-duty conduct should not be considered in the determination of whether he engaged in work-related misconduct.

Court Puts the Lid on Off-Duty Defense

The Minnesota Unemployment Statute states that employees are generally ineligible for unemployment benefits if they were “discharged because of employment misconduct.” Employment misconduct is defined, in part, as “any intentional, negligent, or indifferent conduct, on the job or off the job 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.” Minnesota courts have interpreted this to include “an employee’s refusal to abide by the employer’s reasonable policies.”

Vogel contended that his behavior was not misconduct because he used the marijuana for religious purposes.  This belief stemmed from his contention that “the plant was given to us by God” and that it should be used as God intended.  The Appeals Court bluntly disagreed, explaining that the seeds of his termination lay in the criminal charge of intent to distribute, and distribution was not part of his so-called religious practice.

Vogel also argued that his behavior did constitute misconduct because it all took place outside of working hours and off the employer’s premises.  As such, it could not have interfered with his employment or his commitment to the employer. This defense sparked very little consideration as the Court cited the statutory language that misconduct covers behavior occurring “on the job or off the job.”

Ultimately, the Court concluded that Vogel “violated OSB’s reasonable expectations when he distributed marijuana in violation of state law and the employer’s policy.”  This constitutes misconduct under the statute, thereby requiring that the denial of unemployment compensation benefits be affirmed.

Bottom Line

When challenging eligibility for unemployment compensation benefits due to misconduct, do not get lost in the weeds of the employee’s various justifications for the offending behavior.  The unemployment statute and the Minnesota courts have worked jointly to establish this very clear proposition: intentional behavior that violates the employer’s policies or standards of behavior is misconduct even if the behavior takes place off the job.

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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.”

Can I Ask Employees to Take Off at Specified Times?

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.

Can an Employee Just Punch Out Early to Vote and Go Home?

What happens if an employee wants to work most of the day and then take off early to vote and go home?  Minnesota courts have not ruled on this but the plain language of the statute seems to say that an employer need not pay the employee in this instance.  The statute states “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, case a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence.” (Emphasis supplied). This seems to say that the employee must return to work in order to be eligible for the statutory protection.

On the other hand, prior to 2010, the statute required that employees be permitted time off to vote for two hours “during the morning of the…election.”  It could be argued that the legislature amended the law for the precise reason of not limiting voting-related absences just to the morning hours.  This amendment certainly benefitted Minnesota employers who no longer faced the crunch of all employees being gone in the morning to vote.

Others might suggest, however, that while this might be true, the plain language of the statute still requires that regardless of when employees choose to vote, they still have to return afterward.  Had the legislature intended that employees be allowed simply to leave work early to vote, they would have said so explicitly in the statute.

The upshot here is that while it is not perfectly clear, the law seems to say that while employees who return to work after voting must be paid, employees who leave to vote and do not return by the end of their shift need not  be compensated.  It is then up to each employer to determine for themselves whether withholding pay under these circumstances is fair or perhaps even counter-productive since it will probably influence most everyone to simply take off in the morning hours to vote.

Can I Require That Vacation or PTO Be Used?

What does “without penalty or deduction from salary or wages” mean? Another Minnesota statute requires that a “Voter’s Bill of Rights” be posted at all polling places.  The first such right is:

“(1) You have the right to be absent from work for the purpose of voting in a state, federal, or regularly scheduled election without reduction to your pay, personal leave, or vacation time on election day for the time necessary to appear at your polling place, cast a ballot, and return to work.”

The Minnesota Secretary of State’s website similarly states that “your employer cannot require you to use personal leave or vacation time.”  Therefore, it seems pretty clear that employees should not be required to use paid leave benefits when they are gone from work to vote.

Bottom Line

Election Day is just around the corner so start planning now to adjust for employees taking time off to exercise their privilege of voting.

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In what sounds like a punch line for a bad joke, a federal appeals court recently ruled that a monkey had a constitutional right to sue for copyright infringement of “Monkey Selfies” that the monkey allegedly took.  Unfortunately for said monkey, her claim ultimately failed because the Federal Copyright Act “does not expressly authorize animals to file copyright infringement suits.”

Naruto, the monkey in question, is a crested macaque residing on a reserve on an island in Indonesia. In 2011, a wildlife photographer named David Slater left his camera unattended on the reserve, and Naruto allegedly took photographs of herself with the camera which later became known as the “Monkey Selfies.” The wildlife publisher subsequently published the Monkey Selfies in a book and on a website, and it was these acts that led Naruto to sue the photographer and his publisher for copyright infringement.

True Monkey Business

You may be wondering how a monkey found her way into court in the first place. Naruto’s case was brought on her behalf by People for the Ethical Treatment of Animals (“PETA”), which claimed it was a “Next Friend” of the monkey. “Next Friend” is a legal device that allows an individual or group that has a “significant relationship” with a potential plaintiff to bring a lawsuit when the plaintiff is unable to litigate on her own due to mental incapacity, lack of access to court, or other similar disability.

Naruto’s case was originally dismissed by a trial court. On appeal, the Ninth Circuit Court of Appeals refused to recognize PETA as Naruto’s “Next Friend,” declaring that it “decline[d] to recognize the right of next friends to bring suit on behalf of animals, absent express authorization from Congress.”

Was There a Swing Vote?

On the other hand (or paw?), the appeals court declared that Naruto had independent standing to sue, citing a previous 2004 case where the same court held that the world’s whales, dolphins, and porpoises had constitutional standing to sue the United States Navy for physical injuries allegedly caused by the Navy’s sonar systems.

Sadly for Naruto, despite holding the monkey could sue under the U.S. Constitution, the Ninth Circuit went on to conclude that Naruto’s claim was properly dismissed because the federal law from which her claim arose, the Copyright Act, did not contain language authorizing animals to bring copyright infringement claims. The court concluded that animals can only sue under federal law when Congress includes plain language in the law authorizing animals to file suit.

Bottom Line

As if this story isn’t bizarre enough, it has just been announced that the rights to Slater’s life story have been purchased and that a movie about this case is in the works.  No doubt Naruto is already lawyered up to claim film royalties.

The post Monkey See, Monkey Do: Yes That Wild Monkey Can Sue You appeared first on Felhaber Larson.

Under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), Minnesota employers can’t fire an employee after their first positive drug or alcohol test unless two conditions are satisfied:

First, the employer must give the employee an opportunity to participate in “either a drug or alcohol counseling or treatment program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical dependency [professional].”

Second, the employee has refused to participate in or failed to successfully complete the program.

With a Choice Between Options A and B, Choosing Option C Won’t Work

In Jones v. Green Bay Packaging, Inc. James Jones tested positive for marijuana after a workplace injury. His employer, Green Bay Packaging (“GBP”), placed him on an unpaid suspension and told him that he could return if he (1) immediately submitted to an evaluation by a chemical dependency treatment facility approved by GBP, and (2) successfully participated in a treatment program for the period of time recommended by that approved facility.

Jones initially agreed to the company’s proposal and identified two treatment facilities where he could be evaluated and treated, both of which GBP approved. Jones was then evaluated by one of the designated facilities and was told that he should receive outpatient treatment four times per week. Jones claimed he could not afford the gas money for travelling 30 minutes to this facility four times per week so he suggested that he attend a different facility closer to his home. Said no and said Jones would be terminated if he did not participate in the program where he had already been evaluated. When Jones refused, GBP fired him.

Jones sued GBP claiming that his termination violated DATWA because he was in fact willing to attend a treatment program. The trial and appellate courts both disagreed, noting that the company followed the statute by providing Jones with an opportunity to attend a treatment program that the company had approved. When Jones refused to attend that particular program, GBP was within its legal rights to terminate him. The Minnesota Court of Appeals explained that the plain language of DATWA did not require GBP “to grant Jones an additional opportunity to attend a different treatment program after the company had already approved the treatment center initially requested by Jones.”

Bottom Line

A Minnesota employer must provide an employee with an opportunity for counseling or treatment before discharging the employee following a first positive drug test under DATWA. However, once the counseling and/or treatment provider has been selected, the law does not let the employee keep shopping for alternative treatment programs. This helps move the process along and bring finality to the drug testing process and related follow-up.

The post Drug Tested Employee Can be Fired For Rejecting Agreed-Upon Treatment Provider appeared first on Felhaber Larson.

In Coats v. Dish Network, LLC, No. 13-SC-394 (June 15, 2015), the employee claimed that his use of lawfully prescribed medical marijuana was protected under Colorado’s “lawful activities statute” which prevents employers from firing workers based on their “lawful” activities outside of work.  The Colorado Supreme Court thought otherwise, noting that marijuana is still listed as a Schedule I substance under the Federal Controlled Substances Act and its use, possession and manufacture is therefore still illegal except in federally approved research.  As such, the lawful activities law did not protect the employee because “an activity…that is unlawful under federal law is not a “lawful” activity under [the Colorado statute].”

Minnesota’s Non-work Activities Act will likely be interpreted the same way regarding medical marijuana.  Similar to Colorado, this Minnesota law bars adverse employment action based on the “use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.” Since our law also does not define the term “lawful”, it is likely that Minnesota courts would agree with Colorado to find that employees are protected only if their off-duty activities are legal under both federal and state law.

Does Minnesota’s Medical Marijuana Act Change Things?

This could be a bitter pill for Minnesota employers since our medical marijuana law contains an anti-discrimination provision that is much more expansive than its Colorado counterpart.  While Colorado only prohibits criminal prosecution of medical marijuana users, Minnesota’s Medical Marijuana Act bars employers from discriminating against any person based on (1) the person’s status as a patient enrolled in the registry program or (2) a patient’s positive drug test for cannabis components or metabolites, unless the employee used, possessed, or was impaired by medical cannabis on the job.  Therefore the legitimacy of a termination will not depend on the definition of what is “lawful” but rather, whether the employer can prove that the employee “used” marijuana at work or was working while “impaired” by marijuana use.

Bottom Line

Minnesota employers must exercise great caution.  While the Colorado decision on its non-work activities statute is instructive on how to interpret Minnesota’s parallel law, it does not impact the primary protection afforded to medical marijuana users in our state, namely the anti-discrimination provisions of Minnesota’s medical marijuana law.  These provisions are new and obviously untested in the courts so be sure to address each situation carefully and with good counsel on this emerging area of law.

The post Colorado OK’s Firing Employee Using Medical Marijuana appeared first on Felhaber Larson.

A recent Michigan case warns employers that improper application of drug policies may violate the Americans with Disabilities Act (ADA).  In EEOC v. Pines of Clarkston, 2015 U.S. Dist. LEXIS 55926 (E.D. Mich. Apr. 29, 2015), an assisted living facility refused to employ a nursing administrator, Jamie Holden, after she tested positive for marijuana prescribed to treat epilepsy.  This raised the question: was  Holden rejected because of the positive drug test or for the disability that required marijuana for treatment?

Improper Questioning

After testing positive for marijuana on a pre-employment drug test, Holden divulged that she had epilepsy and was prescribed marijuana as part of her treatment.  One of the facility owners then questioned her about her epilepsy and suggested she may not be able to perform the duties of the position.  A few days later, Holden’s application was rejected.

The Equal Employment Opportunity Commission (EEOC) sued the company claiming that the positive drug test was a pretext for disability discrimination under the ADA.  The employer countered that Holden was let go for violating their zero-tolerance drug policy, not for having epilepsy.  When the company filed a motion for early dismissal, the judge declined.  He observed that while marijuana is still an illegal drug under federal law (regardless of what state laws say about legal use) and its use need not be permitted as a reasonable accommodation, using positive drug tests to screen out disabled job applicants is nevertheless a violation of the ADA and most state disability laws.

The company’s main problem in this case was their inability to get their story straight.  At various points, they presented different reasons for not retaining Holden—a zero-tolerance drug policy, her failure to disclose her medications during the interview process or a genuine concern she could not perform the duties of the job. As a result, the judge decided that a full trial was needed to flesh out the company’s reasons for their actions.  Therefore, unless the case is settled, a jury will get to scrutinize whether the company lawfully relied on the drug or merely used it as an excuse not to hire an applicant with a disability.

Bottom Line

The need to use medical marijuana is not itself a qualifying disability under the ADA.  However, using positive drug tests as a method designed to screen out disabled job applicants would violate the law.  In addition, merely relying on the illegality of the drug will not be useful in Minnesota and most other state discrimination laws because the drug is in fact legal if prescribed, and employers must then consider whether such use can be accommodated.  If this situation arises, get help from a skilled employment lawyer in order to ensure all state and federal laws are followed.

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“Right to Be Absent from Work . . . Without Penalty or Deduction”

Under Section 204C.04, every employee who is eligible to vote has the “right to be absent from work” to vote on the day of the election, “without penalty or deduction from salary or wages because of the absence . . . .” Employees may be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work . . . .”

Employers or “other persons” may not either directly or indirectly refuse to grant the time off or otherwise interfere with an employee’s right to take the time to vote on Election Day. Violation of this statute is a misdemeanor.

Employer FAQs

While the Minnesota Election Day Law provides few specifics on how this law works, Minnesota Secretary of State Mark Ritchie provided some guidance in a recent letter to “All Minnesota Employers.” Based on that letter, here are some answers to commonly asked questions:

• Can I request that employees provide advanced notice and coordinate their time off with other employees who need time off to vote?

Yes. While the statute does not directly address this issue, the Secretary of State believes that “employers may request that employees provide notification as to when they will be gone and request that employees coordinate their absences so as to minimize adverse impact on the workplace.”

Importantly, the Secretary of State uses the term “request” (not “require”), so it is likely not permissible for an employer to mandate that employees give advanced notice or that employees coordinate their absences.

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

Likely yes, but this issue is not directly addressed by the statute or the letter from the Secretary of State. It would also be difficult to enforce.

Specifically, the statute provides that the employee must be given time off for the time necessary to (1) appear at the employee’s polling place, (2) cast a ballot, and (3) return to work. Obviously, this would not also permit an additional stop at McDonald’s on the way. It may be difficult, however, to determine whether an employee who seems to be taking a long time to return to work is doing anything other than simply waiting in a long line at the polling place.

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

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

No. The statute gives employees the right to be absent from work “without penalty or deduction from salary or wages.” According to the Secretary of State, this means that “employees cannot be required to use personal leave or vacation time for the time off necessary to vote.”

Bottom Line

Minnesota employers are required by law to provide employees with time off to vote on election day. The amount of time must be sufficient to (1) appear at the employee’s polling place, (2) cast a ballot, and (3) return to work. The time off must be paid, but employers can take some steps to minimize the disruption these absences may cause.

The post Employees Head Back to the Polls on November 4th appeared first on Felhaber Larson.

Executive Order

The April 8, 2014 Executive Order (“EO”) amends Executive Order 11246 by prohibiting a federal contractor from discharging or retaliating against “any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.” Employees, however, who have access to compensation information as part of their essential job duties, and who make unauthorized disclosures of such information are excluded from the EO’s protection.

As specified in the EO, “[i]t is the policy of the executive branch to enforce vigorously the civil rights laws of the United States, including those laws that prohibit discriminatory compensation practices.” According to the EO, “[w]hen employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist.” Additionally, according to the EO, “ensuring that employees of Federal contractors may discuss their compensation without fear of adverse action will enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices . . . .”

The DOL will issue proposed regulations within the next 160 days.  The National Labor Relations Act (“NLRA”), however, already generally protects the right of employees to discuss their pay. Therefore, unless a federal contractor or subcontractor does not fall within the coverage of the NLRA, the EO does not impose any new obligations on federal contractors and subcontractors.

Presidential Memorandum

The Presidential Memorandum, on the other hand, triggers the development of new obligations for federal contractors and subcontractors. In the Memorandum, President Obama directed the DOL to draft a proposed rule (i.e., data collection tool) that will require federal contractors and subcontractors to submit employee compensation data by sex and race to the DOL. President Obama noted that the rule will lead to effective enforcement of pay discrimination, which is currently impeded by a “lack of sufficiently robust and reliable data on employee compensation.”

The OFCCP has been interested in compensation practices for the last few years. Importantly, the compensation data collection tool envisioned by the Memorandum will provide the OFCCP access to compensation data, which it can use to select contractors for compliance audits. Accordingly, if a rule consistent with the Memorandum is promulgated by the DOL, federal contractors will need to fully understand their compensation data before submitting it to the OFCCP.

Hospitals and other health care providers frequently ask whether their receipt of reimbursement for medical care and services provided to Medicare or Medicaid patients renders them a federal contractor or subcontractor.  According to the OFCCP, provider agreements, pursuant to which hospitals and other health care providers receive reimbursement for services covered under Medicare Parts A and B, and the provider agreements the hospitals and other health care facilities have entered into with State Medicaid agencies, are not covered government contracts under the affirmative action laws enforced by the OFCCP. Accordingly, a hospital or other health care provider is not covered under the affirmative action laws enforced by the OFCCP if its only contractual relationship with the federal government is as a participating provider under Medicare Parts A and B and Medicaid.

Stay tuned for further developments.

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Background

Lily Prince claims that in August 2012, she begged her supervisor at Electrolux in St. Cloud, Minnesota, to let her leave her assembly line post so she could use the restroom. After waiting more than 35 minutes, Ms. Prince finally relieved herself in a box near the assembly line, leading to her termination for a “health and safety violation.”

Ms. Prince was covered by a collective bargaining agreement (“CBA”) that entitled her to two 10-minute breaks during an 8-hour shift: one in the first 4 hours of the shift and one in the second 4 hours of the shift. In addition, Electrolux had previously circulated a memorandum stating that employees who needed to use the restroom during a shift should notify their supervisor who would then relieve the employee for that purpose.

Despite these policies, Ms. Prince alleged that she and her co-workers were effectively denied access to a restroom. She claimed that one co-worker also had urinated in a box and another soiled herself because they were not allowed to use the restroom during their shift.

The union filed a grievance challenging the termination. Ultimately, an arbitrator determined that while Ms. Prince’s conduct constituted a “health and safety violation,” termination was too harsh a penalty and ordered her back to work. Ms. Prince then filed a lawsuit against the company.

Minnesota OSHA Protects Employee Access to Restrooms

Ms. Prince’s lawsuit claimed that that the company violated the Minnesota Occupational Safety Act (“MOSHA”) which incorporates many of the federal OSHA standards, including the requirement that employers must provide restroom access to employees as follows: “[T]oilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment . . . .” After the company requested immediate dismissal of this claim, the judge ruled that Ms. Prince adequately alleged that since she was denied the right to use the toilet facilities, those facilities were not ‘provided,’ to her as required under MOSHA.” Therefore, the claim could proceed.

Minnesota’s Law Requires “Adequate Time” to Use the Restroom

The lawsuit also alleged violation of the Minnesota Mandatory Work Break statute, Minn. Stat. § 177.253, which provides:

Subdivision 1. Rest breaks. An employer must allow each employee adequate time from work within each four consecutive hours of work to utilize the nearest convenient restroom.

Subdivision 2. Collective bargaining agreement. Nothing in this section prohibits employers and employees from establishing rest breaks different from those provided in the section pursuant to a collective bargaining agreement.

Electrolux also sought immediate dismissal of this claim, arguing that employees had “adequate time” as a matter of law because the CBA mandated a 10-minute break every 4 hours. The judge disagreed, noting that in light of the problems that Ms. Prince and her co-workers experienced, the breaks authorized in the CBA simply did not provide “adequate time” to use the restroom. Therefore, this claim was allowed to move forward as well.

Additional Bathroom Breaks as a Reasonable Accommodation?

This decision did not address whether the company failed to accommodate a health condition that required Ms. Prince to use the restroom frequently. However, other courts have tackled this claim. For example, a California jury in 2009 awarded $200,000 to an employee whose dry mouth from throat cancer treatment caused her to drink extra water and require extra bathroom breaks. Although her employer had granted the requested accommodation in the past, a new manager failed to do so and the employee ended up soiling herself in front of customers.

Bottom Line

While restroom breaks can be regulated to prevent production disruptions, an employer may not impose unreasonable restrictions on employee use of facilities. Employees claiming such restrictions can file a complaint with MOSHA or federal OSHA, or may file a private lawsuit. Moreover, a discrimination claim might be triggered the failure to allow restroom breaks is deemed to be a failure to accommodate a disability.

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Starting on March 24, 2014, contractors beginning their compliance cycle must use the revised self-identification form to invite applicants to self-identify as an individual with a disability at both the pre-offer and post-offer phases of the application process. Contractors must also use the self-identification form to invite current employees to voluntarily self-identify as an individual with a disability the first year the contractor becomes subject to the final regulation, and once every five years thereafter. Additionally, at least once during the intervening years between these invitations, contractors must remind their employees that they may voluntarily update their disability status, which may, for instance, be accomplished through an email to all employees.

Bottom Line

While the OFCCP does not intend to penalize individuals for failing to meet hiring benchmarks or the utilization goals for individuals with disabilities, the OFCCP has made it clear that contractors who fail to comply with the revised regulations by, for example, failing to perform the requisite analyses, will be held accountable. Since the revised Self-Identification Form plays a significant role in performing the requisite analyses, contractors should revise their policies and/or procedures to ensure the form is appropriately used for new hires and current employees.

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Separation Payments

William Moore earned $175,000 per year plus an annual performance bonus while working for Waterstone. The bonus was generally paid in installments over the subsequent three years.

Shortly after his termination in June of 2012, Moore received $650,000 for performance bonuses that he earned in his last year of work. Approximately two months later, Moore and Waterstone entered into a settlement agreement that included an additional $100,000 to settle “all payments under [Moore’s] Employment Agreement” and to release Waterstone “from any and all claims, damages and expenses whatsoever arising under, or in connection with, [Moore’s] Employment Agreement.”

DEED Delays Unemployment

Moore filed for unemployment benefits from the Minnesota Department of Employment and Economic Development (“DEED”) and was awarded a weekly benefit of $597. However, upon learning of the $100,000 settlement payment, DEED concluded that Moore had received “severance” and ordered that his unemployment benefits be delayed for three months. Moore appealed, claiming that the payment was in return for his waiver of legal claims and “notice pay, severance pay, retention bonus, vacation pay or a lump-sum pension payout,” all of which will delay the payment of benefits under Minnesota’s unemployment compensation law.

The unemployment law judge (“ULJ”) rejected the appeal, finding that both the bonus payment and the settlement amount delayed Moore’s unemployment benefits, making him ineligible until December 13, 2015. As a result, Moore was ordered to return more than $19,000 in previously paid unemployment benefits. Moore appealed again, this time to the Minnesota Court of Appeals.

Only Certain Payments Delay Unemployment Benefits

The Appeals Court “split the baby,” finding that while the bonus payments did delay the unemployment benefits, the $100,000 “settlement payment” did not. The Court explained that under the statute, only certain types of payments at separation delay eligibility for unemployment benefits. Such payments include “bonuses,” “back pay,” and “severance payments.” Obviously, the bonus that Moore received fell into that category, and therefore quite properly was considered a basis for delaying the receipt of benefits.

The “settlement payment,” however, was not a “bonus” because the settlement agreement clearly stated that Moore had already been paid all of the bonus that he was entitled to receive. It also was not “severance pay,” which the Court defined as “[a] sum of money usually based on length of employment for which an employee is eligible upon termination.” In this case, the settlement amount did not correlate with Moore’s length of employment. In fact, the payment was not related to any past or future services at all. Instead, it was simply the quid pro quo for Moore’s release of claims.

Accordingly, the court reversed the portion of the ULJ’s decision finding that Moore’s eligibility for unemployment benefits was delayed as a result of the settlement payment.

Bottom Line

When negotiating separation packages, it is important for Minnesota employers to understand the unemployment implications of any separation payments. If the employer seeks to delay the former employee’s eligibility for unemployment benefits (which is usually desirable from the employer’s perspective), the employer should ensure that the payment is in the form of “bonus pay” or “severance pay.” Any agreement reflecting payment should use these terms explicitly and, in the case of the latter, the payment should seek to somehow correlate with the employee’s length of service.

No doubt, attorneys for terminated employees will fight hard to characterize these payments as “settlement payments” or other similar terms that underscore the fact that the payment is not compensation for services. This distinction will be important in determining the ultimate cost of any settlement, and may be useful as a bargaining chip in any negotiation of an employee’s departure.

The post Settlement Payments May Not Delay Unemployment Benefits appeared first on Felhaber Larson.

Importantly, however, employers who have a statutory duty to conduct a criminal history background check or consider such criminal history during the hiring process (i.e. applications for working at a school or as a school bus driver) do not have to remove criminal history questions from the application. In addition, employers are not prohibited from notifying applicants that “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.”

The Commissioner of Human Rights is tasked with investigating violations of the statute. If a violation occurs prior to January 1, 2015, an employer is given a written warning to remedy the violation. If the violation is not remedied, or subsequent violations occur, the Commissioner may impose up to a $500 fine per violation, not to exceed $500 in a calendar month. For violations after December 31, 2014, the penalties are as follows:

• Up to $100 per violation for employers with ten or fewer employees, not to exceed $100 in a calendar month;

• Up to $500 per violation for employers with 11-20 employees, not to exceed $500 in a calendar month; and

• Up to $500 per violation for employers with more than 20 employees, not to exceed $2,000 in a calendar month.

The remedies stated above are exclusive and an employer is not otherwise liable for complying with or failing to comply with the statute.

Bottom Line

The fix is straight-forward:

• Employers should “Ban the Box” and remove any questions on the job application related to criminal convictions unless the employer has a statutory duty to consider such information.

• The statute does not prohibit employers from considering an applicant’s criminal history when deciding whether to offer an applicant a job; it only determines the timing of when such information may be considered.

• Employers should wait until the interview (or after the conditional offer is made if there is no interview) before inquiring into an applicant’s criminal convictions.

• Employers have the right to notify applicants that either the law or the employer’s policy will disqualify an individual with a particular criminal background.

• Employers who wish to include such notification could place it on the job application.

• At the interview stage, an employer interested in an applicant’s criminal conviction could ask the questions that used to be on the application (i.e. have you ever been convicted of a felony?).

• As intended by the statute, job applicants now get a chance to explain their side of the story.

The post Minnesota Employers Must Take Action in Response to "Ban the Box" Legislation appeared first on Felhaber Larson.

In OFCCP v. UPMC Braddock, ARB Case No. 08-048, ALJ Case Nos. 2007-OFC-001, 2007-OFC-002, 2007-OFC-003 (May 29, 2009), the Department of Labor’s Administrative Review Board (“ARB”) found that three Pittsburg Hospitals were federal subcontractors. The Government (the Office of Personnel Management (“OPM”)) contracted with a Health Plan (UPMC) to provide HMO coverage for its federal employees. In turn, the Health Plan contracted with the Hospitals via a HMO contract. The ARB concluded that the Hospitals were federal subcontractors because:

The UPMC’s contract with OPM required UPMC to put a health maintenance organization (HMO) into operation. The contract thus depended on medical providers like the [Hospitals] to offer medical services and supplies necessary for the UPMC to meet a portion of its obligation under its contract with OPM to put an HMO into operation. Therefore, their contracts with UPMC are subcontracts under the second prong of the definition [(performing a portion of the contractor’s obligations under the contract)].

(Emphasis added).

An appeal of this decision has been pending in United States District Court, District of Columbia, for the past several years. On March 30, 2013, the D.C. Court affirmed the administrative determination. (UPMC Braddock v. Harris, D.D.C., No. 09-01210, 3/30/13).

The D.C. Court agreed with the ARB’s reasoning that the Hospitals are federal subcontractors because the services provided by the Hospitals were necessary to the performance of the HMO’s prime contract with the Government (the OPM). The Court ruled that it did not matter that the prime federal contract between the Government (OPM) and the Health Plan (UPMC) specifically stated that medical providers (i.e. Hospitals) would not be considered federal subcontractors. Basically, the Court concluded that the contract could not trump the law. The Court also found it insignificant that the Hospitals had never “consented” to be federal subcontractors. Again, the Court held that the only issue is whether or not the Hospitals meet the legal definition of federal subcontractors – consent is not required.

The post D.C. Court Holds Hospital Group Is a Federal Subcontractor Due to HMO Contract appeared first on Felhaber Larson.

The Form I-9 is used to verify both the employment authorization eligibility and the identity of employees.  Although employers should begin using this new form immediately, the USCIS acknowledges that some employers may need sufficient time to update their business processes prior to transitioning to the use of this form. As a result, if necessary, employers can continue using previously valid Forms I-9 until the use of the new form becomes mandatory on May 7, 2013.  Employers who fail to utilize the new Form I-9 as of May 7, 2013, may be subject to penalties as set forth in 8 U.S.C. § 1324(a).

Provided that re-verification does not apply, employers are not required to complete a new Form I-9 for any current employees for whom proper Forms I-9 are already on-file.

The changes are aimed at minimizing errors in form completion and include:

• Expanded instructions;

• Expanded length from one to two pages; and

• New fields for e-mail addresses, phone numbers, and foreign passport information in Section 1.

The revised form includes “Rev. 03/08/13” in the lower left corner of the page and is accessible at www.uscis.gov.

Bottom Line

Employers should be aware of the new Form I-9 and begin utilizing it immediately, if possible. Failure to use this new form when it becomes mandatory on May 7, 2013, may subject employers to penalties.

More information about the new Form I-9 is available at www.uscis.gov/I-9Central.

The post New Form I-9 Released appeared first on Felhaber Larson.

New Forms for Employers and Consumer Reporting Agencies

For employers, the most significant of these forms is entitled “A Summary of Your Rights Under the Fair Credit Reporting Act.” Employers must provide this Summary of Rights to applicants and employees when the employer (or its third-party background check company) issues a pre-adverse action letter and in certain other situations.

The other two forms are to be used by the third-party background check companies, which are also known as “consumer reporting agencies” under the FCRA. As to the second form, “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA,” consumer reporting agencies are required to provide this notice to users of their services, including employers. As to the third form, entitled “Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA,” consumer reporting agencies must provide this notice to providers of information in certain situations such as re-investigations where a consumer has disputed the information.

Consequences for Failing to Use New Forms

Failing to comply with the FCRA can subject employers to significant liability. Employers that negligent in their noncompliance with the FCRA may be liable to the employee or applicant for his or her actual damages and attorneys’ fees. If the employer’s noncompliance is found to be willful, then the employer can face additional penalties, including statutory damages ($100 to $1,000 per violation) and punitive damages.

Bottom Line

The advice for employers is not complicated: those that are subject to the FCRA should be using the new forms when conducting background checks.

The post Employers Subject to the FCRA Must Use New Forms for Background Checks Effective January 1, 2013 appeared first on Felhaber Larson.

“Right to Be Absent from Work . . . Without Penalty or Deduction”

Pursuant to Section 204C.04, every employee who is eligible to vote has the “right to be absent from work” to vote on the day of the election, “without penalty or deduction from salary or wages because of the absence . . . .”  Under the law, employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work . . . .”

Employers or “other persons” may not either directly or indirectly refuse to grant the time off or otherwise interfere with an employee’s right to take the time to vote on Election Day.  Persons who violate the statute are guilty of a misdemeanor.

Employer FAQs

While the Minnesota Election Day Law provides little specifics on how exactly the leave should work, Minnesota Secretary of State Mark Ritchie provided some guidance in a recent letter to “All Minnesota Employers.”

• Can I request that employees provide advanced notice and coordinate their time off with other employees who need time off to vote?

Yes. While the statute does not directly address this issue, the Secretary of State believes that “employers may request that employees provide notification as to when they will be gone and request that employees coordinate their absences so as to minimize adverse impact on the workplace.”

Importantly, the Secretary of State uses the term “request” (not “require”), so it is likely not permissible for an employer to mandate that employees give it advanced notice or that employees coordinate their absences.

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

Likely yes, but this issue is not directly addressed by the statute or the letter from the Secretary of State.  It would also be difficult to enforce.

Specifically, the statute provides that the employee must be given time off for the time necessary to (1) appear at the employee’s polling place, (2) cast a ballot, and (3) return to work. Thus, it is safe to say that it does not provide for time off to stop at McDonald’s on the way. It may be difficult, however, to determine whether an employee who seems to be taking a long time to return to work is doing anything other than simply waiting in a long line at the polling place.

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

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

No.  The statute gives employees the right to be absent from work “without penalty or deduction from salary or wages.”  According to the Secretary of State, this means that “employees cannot be required to use personal leave or vacation time for the time off necessary to vote.”

Bottom Line

Minnesota employers are required by law to provide employees with time off to vote on election day.  The amount of time must be sufficient to (1) appear at the employee’s polling place, (2) cast a ballot, and (3) return to work.  The time off must be paid, but employers can take some steps to minimize the disruption these absences may cause.

The post Employees Head Back to the Polls appeared first on Felhaber Larson.

The MPLA requires most Minnesota employers to provide up to six weeks of unpaid leave of absence to eligible employees in conjunction with the birth or adoption of a child similar to the unpaid leave available under the federal Family and Medical Leave Act (“FMLA”).  In a rather limited reading of the law, the Minnesota Court of Appeals ruled that an employee was not protected under the MPLA, even though her reason for the leave of absence was covered, because she did not specifically refer to the MPLA when she requested her leave.

However, the Minnesota Supreme Court recently reversed this decision, ruling that an employee need only state a reason that puts the employer on notice that the leave qualifies for protection under the MPLA.  In other words, the employee need only state something like “I need a leave of absence because I’m adopting a child.”   The Court noted that the MPLA’s plain language, which is similar to that contained in the FMLA, “does not specify the terms by which such leave must be requested.”  The Court went on to reason that the MPLA must be construed liberally, because “[a] narrow reading of the MPLA would deny an employee the protections of the statute based on the technicality of failing to expressly invoke the statute.”

Bottom Line

An eligible employee will be entitled to leave under the MPLA even if he or she does not specifically mention the Act when requesting leave.  Employers have an obligation to recognize when an employee’s stated reason for leave qualifies under the MPLA.

While the greatest impact of this decision will fall on smaller Minnesota employers who do not meet the 50-employee threshold for coverage under FMLA, all Minnesota employers are advised to take note of this decision.  Even if you are covered by FMLA, your employee still has rights under MPLA that run concurrently with the longer 12-week leave under the federal law.  In addition, an employee who has exhausted entitlement to FMLA because of leave taken for other reasons (e.g. a serious health condition) will still have the right to take leave under the MPLA if the reason for the absence qualifies.

The post You Don’t Have to Say "Parenting Leave" to Get Parenting Leave appeared first on Felhaber Larson.

However, the Minnesota Legislature has stepped in to put an end to that practice by making such agreements invalid.   This means that unless you have offered other consideration in addition to this promise, the separation agreement, including the employee’s promise not to bring suit, may be invalid.

Specifically, beginning July 1, 2012, an employer may not agree to not contest the payment of unemployment benefits, including agreeing not to provide information to the Minnesota Department of Employment and Economic Development, in exchange for an employee agreeing to:

• Quit the employment;

• Take a leave of absence;

• Leave the employment temporarily or permanently; or

• Withdraw a grievance or appeal of a termination.

2012 Minn. Laws. Ch. 201 Art. 3, Sec. 7 (to be codified as Minn. Stat. § 268.192, subd. 1(a)). According to the new law, “[a]n agreement that violates this subdivision has no effect under this chapter.”

Bottom Line

Note that this new law states that an agreement promising to not contest benefits “has no effect under this chapter.” (Emphasis supplied). This means that the agreement not to contest benefits will be ignored in the context of the unemployment process but will not affect the rest of the agreement. However, if the promise not to contest benefits is the only thing that the employer offers in return for the release of all claims, the entire release won’t be valid because the employer will not actually have given up anything in return for that release.

For this reason, employers should make sure that they have included other benefits, such as a severance payment, payment of specified benefit premiums, or other similar items, to ensure that the employee’s promise not to sue is supported by adequate consideration. Simply promising not to contest unemployment benefits is now a legally empty promise.

The post Certain Agreements Not to Contest Unemployment Benefits Are No Longer Valid appeared first on Felhaber Larson.

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

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

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

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

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

Bottom Line

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

The post Court Holds Posting Embarrasing Family Photos on Facebook Is Not Harassment appeared first on Felhaber Larson.

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

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

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

Bottom Line

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

The post Bah, Humbug! Are Holiday Injuries Covered by Work Comp? appeared first on Felhaber Larson.

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

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

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

Stay tuned for more information.

The post Renewed OFCCP Better Equipped and More Focused appeared first on Felhaber Larson.

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

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

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

Stay tuned for more information.

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Why Are These Workers Losing Their Jobs?

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

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

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

What Is the Common Theme?

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

The post ICE Audits on the Rise: Are You Prepared? appeared first on Felhaber Larson.

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

Expansion of the “Right to Be Absent from Work”

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

Every employee who is eligible to vote has the right to be absent without penalty or loss of salary or wages.  Under the new law, employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election.”

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

Answers to Unanswered Questions

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

• Can I require an employee to provide advanced notice?

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

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

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

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

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

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

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

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

Take-away

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

The post Election Day in Minnesota: New Employer Obligations appeared first on Felhaber Larson.