Background

In its current form the House bill would permit any person age 21 or older to:

• • possess up to 2 ounces of cannabis flower in a public place or 1.5 pounds in a person’s residence;
  • possess or transport no more than 8 grams of adult-use cannabis concentrate;
  • possess or transport edible products infused with up to 800 milligrams of THC;
  • give away cannabis flower and cannabinoid products in an amount that is legal for a person to possess in public;
  • use cannabis flower and cannabinoid products in private areas; and
  • cultivate up to eight cannabis plants, of which four or fewer may be mature, flowering plants.

The bill would also make significant changes to other parts of Minnesota law, including:

• • creating more than a dozen types of licenses for growing, selling, transporting and testing cannabis;
  • creating an Office of Cannabis Management to regulate cannabis and take enforcement actions;
  • taxing cannabis retail sales at 8%, in addition to any already imposed local or state taxes;
  • creating and funding programs to combat cannabis abuse;
  • creating grants to assist individuals entering the legal cannabis market;
  • eliminating criminal penalties for cannabis possession; and
  • expunging the criminal records of people previously convicted of low-level cannabis offenses.

Changes to Minnesota DATWA

The bill also includes significant changes to the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA).

Specifically, the bill removes “marijuana,” “THC,” “cannabis products,” and “hemp-derived consumer products” from the definition of “drug” under DATWA.  Instead, it creates a new type of test – called “cannabis testing” – for when an employer tests for “the presence or absence of cannabis flower, . . . cannabis products, . . . lower-potency hemp edibles, . . . hemp-derived consumer products, . . . or cannabis metabolites.”

The bill includes three important limitations on “cannabis testing.”

• • “An employer must not request or require a job applicant to undergo cannabis testing solely for the purpose of determining the presence or absence of cannabis as a condition of employment unless otherwise required by state or federal law.”
  • “Unless otherwise required by state or federal law, an employer must not refuse to hire a job applicant solely because the job applicant submits to a cannabis test or a drug and alcohol test authorized by this section and the results of the test indicate the presence of cannabis.”
  • “An employer must not request or require an employee or job applicant to undergo cannabis testing on an arbitrary or capricious basis.”

Thus, unless a specific exemption applies, the bill would prohibit pre-employment testing for marijuana and THC.  “Cannabis testing” of current employees is restricted (i.e., testing cannot be “arbitrary or capricious”), but is not banned.

The amended law would, however, place the following limitations on discipline or discharging an employee for testing positive for cannabis:

An employer may discipline, discharge, or take other adverse personnel action against an employee for cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product use, possession, impairment, sale, or transfer while an employee is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment as follows:

1. 1. if the employee is under the influence of cannabis flower, a cannabis product, a lower-potency hemp edible, or a hemp-derived consumer product;

   2. if cannabis testing verifies the presence of cannabis flower, a cannabis product, a lower-potency hemp edible, or a hemp-derived consumer product following a confirmatory test;
   3. as provided in the employer’s written work rules for cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products and cannabis testing, provided that the rules are in writing and in a written policy that contains the minimum information required by section 181.952; or
   4. as otherwise authorized or required under state or federal law or regulations, or if a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

The bill expressly exempts the following positions from the restrictions above and, instead, makes clear that for these positions, “cannabis and its metabolites are considered a drug and subject to the drug and alcohol testing provisions in [Minnesota DATWA]:

1. 1. a safety-sensitive position, as defined in section 181.950, subdivision 13;
   2. a peace officer position, as defined in section 626.84, subdivision 1;
   3. a firefighter position, as defined in section 299N.01, subdivision 3;
   4. a position requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to: (i) children; (ii) vulnerable adults, as defined in section 626.5572, subdivision 21; or (iii) patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition;
   5. a position requiring a commercial driver’s license or requiring an employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of a job applicant or an employee;
   6. a position of employment funded by a federal grant; or
   7. any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.

The bill also makes clear that:

• • “Unless otherwise provided by state or federal law, an employer is not required to permit or accommodate cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product use, possession, impairment, sale, or transfer while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment.”
  • “An employer may enact and enforce written work rules prohibiting cannabis flower, cannabis product, lower-potency hemp edible, and hemp-derived consumer product use, possession, impairment, sale, or transfer while an employee, is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment in a written policy that contains the minimum information required by this section.”

Changes to “Lawful Consumable Product” Statute

Finally, the bill also would amend Minnesota’s Lawful Consumable Product statute, Minn. Stat. § 181.938, to protect the off-duty use of products containing TCH, including:

(a) An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours. For purposes of this section, “lawful consumable products” means products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco, cannabis flower, as defined in section 342.01, subdivision 15, cannabis products, as defined in section 342.01, subdivision 19, lower-potency hemp edibles as defined in section 342.01, subdivision 48, and hemp-derived consumer products as defined in section 342.01, subdivision 35.

(b) Cannabis flower, cannabis products, lower-potency hemp edibles, and hemp-derived consumer products are lawful consumable products for the purpose of Minnesota law, regardless of whether federal or other state law considers cannabis use, possession, impairment, sale, or transfer to be unlawful. Nothing in this section shall be construed to limit an employer’s ability to discipline or discharge an employee for cannabis flower, cannabis product, lower-potency hemp edible, or hemp-derived consumer product use, possession, impairment, sale, or transfer during working hours, on work premises, or while operating an employer’s vehicle, machinery, or equipment, or if a failure to do so would violate federal or state law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

Bottom Line

While the recreational marijuana bill is not yet law, it is likely to be passed this legislative session.  We will continue to monitor this and other issues at the Capitol.

The post Minnesota House Passes Recreational Marijuana Bill appeared first on Felhaber Larson.

This ordinance obligates all employers to provide up to 48 hours of sick leave to employees working at least 80 hours a year in Minneapolis (the leave can be unpaid for employers with fewer than 6 employees).  The ordinance applies even if the business is located outside of Minneapolis – if their employees work the requisite hours within the city limits, they must receive sick leave.

The Arguments

The Minnesota Chamber of Commerce was the primary force behind the legal challenge, arguing that the ordinance is preempted by the Minnesota sick leave statute.  That statute states that if an employer grants paid sick leave benefits, they must allow employees to use those benefits for absences occasioned by sick family members. The Chamber contended that since the statute acknowledges that some employers do not provide paid sick leave, this must be considered legislative authorization for them to refrain from doing so.  As such, an ordinance mandating such benefits conflicts with state law.

The Chamber further claimed that the SST ordinance violates the “extraterritoriality doctrine” because it applies to employers not physically located within the city.

The Ruling

On the preemption argument, the Court concluded that state law did not “expressly permit what the Ordinance forbids.” The court acknowledged that the Minneapolis SST Ordinance “imposes requirements stricter than the statute,” but the Court found that “the additional terms only further the policy underlying the statute rather than posing an irreconcilable conflict.” In short, the statute seeks only to imposes requirements on that group of employers who provide paid sick leave, and that group now includes anyone who has employees working 80 or more hours in Minneapolis.

As for extraterritoriality, the Court concluded that the SST Ordinance is valid because it applies only to work performed within the city of Minneapolis, something that the City has the authority to regulate.

Bottom  Line

It seems pretty certain that this decision will be relied upon if similar challenges persist in regard to the comparable sick leave ordinances in St.  Paul and Duluth.

Thus, for those cities (and any others who might adopt this requirement in the future), paid sick leave will remain the “law of the land.”

The post Minnesota Supreme Court Affirms Validity of Minneapolis Sick Leave Ordinance appeared first on Felhaber Larson.

Salary history bans (which also apply to non-salary wages or other forms of compensation) are premised upon the belief that salary decisions of previous employers could have been rooted in bias or discrimination. Using those decisions to set current pay levels may lock females and people of color into continuing and perhaps permanent patterns of pay inequity that do not give full recognition to relevant skills and experience.

What the Legislation Does

The most recent example of a salary history ban is the State of New York’s legislation scheduled to take effect on January 6, 2020.  The law bars employers from requiring salary history as a condition of new or continuing employment. Employers are also barred from seeking such information when verifying employment or obtaining references unless and until a conditional offer of employment has been made.

The salary history bans in other states all tend to offer the same sorts of protections against requiring disclosure of salary history or using such information to make salary decisions. However, many of these laws contain minor variations. Washington, for example, requires that employers of 15 or more employees must provide applicants with the minimum salary applicable to the job they are seeking.  Illinois prohibits employers from requesting salary history but allows them to discuss salary expectations with employees.  A number of states permit employers to discuss and consider salary history if the applicant voluntarily discloses it.

Localities Get Into the Act

In addition to the eighteen states, a number of large cities and counties have also enacted their own versions of salary history bans.  New York City, Philadelphia and St. Louis County (MO),for example, apply their bans to all employees working within their city/county limits.  Others, such as Atlanta, Chicago and Westchester County (NY), passed regulations affecting only city or county employees.

Interestingly, two states (Michigan and Wisconsin) passed legislation prohibiting cities, counties and other local governmental entities from enacting their own salary history bans so as not to create an obstacle course of local and conflicting legislation for employers to navigate.  Nevertheless, Michigan also has implemented an executive order forbidding the use of salary histories for state agency applicants and employees.

Bottom Line

Salary history bans have only been on the books since 2017 so the movement has taken off very quickly.  Given Minnesota’s penchant for leading the parade when it comes to employee-protective legislation, we wonder how long it will be before the Gopher State joins the ranks.

The post Salary History Bans Are Sweeping the Country appeared first on Felhaber Larson.

The interim final rule changes apply to penalties assessed after August 1, 2016, with respect to violations that occurred after November 2, 2015.

Employee Retirement Income Security Act (ERISA)

Penalties have increased both in regard to information to be sent to plan participants as well as for information to be reported to the government. Although the increases seem limited in terms of their actual amount, many of these fines compound daily for each affected participant, which can cause the employer’s overall liability to escalate quickly.  Some of the more significant changes:

All ERISA Plans

Failure to furnish reports (e.g., benefit statements) to certain former participants and beneficiaries; failure to maintain records – up from $11.00 to $28.00 per participant.

Failure to provide requested documentation to the Secretary of Labor – up from $110 per day (max. of 10 days) to $147 a day (max. of 10 days).

Failure or refusal to file the Form 5500 Annual Return/Report of Employee Benefit Plan – up from $1,100 a day to $2,063 a day.

Retirement Plans

Failure to provide notices to participants regarding automatic contribution arrangements – up from $1,000 to $1,632.

Failing to provide requested plan information or information on withdrawal liability upon request – up from $1,000 to $1,632.

Failure to provide blackout notice or notice of right to diversify – up from $110 per day (max. of 10 days) to $131 per day (max. of 10 days).

Health Plans

Failure to inform employees of Children’s Health Insurance Program (CHIP) opportunities – up from $100 from $110.

Failure to provide summary of benefits and coverage (SBC) to affected individuals – up from $1,000 to $1,087..

Failure to comply with genetic information requirements – up from $100 per day to $110 per day.

Failure to meet genetic information requirements where violations are de minimis and not corrected prior to notice from Secretary – up from  $2,500 minimum to $2,745 minimum.

Failure to meet genetic information requirements where violations are not de minimis and not corrected prior to notice from Secretary – up from $15,000 minimum to $16,473 minimum.

Cap on unintentional failures to meet genetic information requirements – up from $500,000 maximum to $549,095 maximum.

Fair Labor Standards Act

Maximum per-violation penalty for repeated or willful violations of minimum wage and overtime requirements – up from $1,100 to $1,894.

Violations of child labor restrictions – up from $11,000 for each worker to $12,080.

Violations of child labor restrictions that result in serious injury or death – up from $50,000 to $54,910.

OSHA

As we predicted last November in a piece entitled OSHA Penalties May Go Up, maximum penalty amounts will increase from the current caps of $7,000 for a “serious” violation and $70,000 for a “willful” or “repeat” violation to $12,471 and $124,701 respectively.

Immigration

Not to be outdone, the U.S. Department of Justice also issued a final rule regarding penalties for immigration-related violations.  These include:

I-9 violations – up from a range of $110 – $1,100 per violation to $216 – $2,156 per violation.

Employment of undocumented workers:

First offense – up from range of $375 – $3,200 to $539 – $4,313.

Subsequent offense – up from maximum of $16,000 to maximum of $21, 563.

Large increases also were implemented for violations of regulations regarding visas.

Bottom Line

Compliance has always been important but the coming increase in penalties makes this an excellent time for all employers to review their plans and policies to be sure that you are not among the first to experience increased penalties of the type referenced here.

Who needs that sort of “accomplishment” on their record?

The post Fines Raised for Benefits, OSHA, Wage and I-9 Issues appeared first on Felhaber Larson.

Specifically, Wisconsin Act 208 prohibits employers from “request[ing] or requir[ing] an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.” The law took effect on April 9, 2014.

What Constitutes “Access Information”?

Under the statute, “access information” means user name and password information, or any other security information “that protects access to a personal Internet account.” The law also imposes these restrictions on educational institutions with regard to current and prospective students, as well as on landlords in the context of tenants and prospective tenants.

Additionally, the statute prohibits employers from discharging, discriminating against, suspending, refusing to hire, or retaliating against applicants and employees for exercising their rights under the statute.

Employer Compliance with Wisconsin Public Act 208

While the statute does present new restrictions for employers, it also sets forth permissible acts to aid employers in compliance. For instance, the statute allows employers to require employees to allow access to an “electronic communications device” paid for in whole or in part by the employer. This means that an employer could access the mobile phones it provides to employees. Employers also may demand access to an account the employer has provided as a result of the employment relationship “or used for the employer’s business purposes.”

Moreover, employers can discipline or discharge employees for transferring confidential or otherwise proprietary information—without authorization—to their personal accounts. Employers can also require access to information in order to conduct an investigation relating to the alleged transfers of information and other issues of alleged employment-related misconduct “if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred.” In such cases, employers can require employees to grant access or otherwise allow observation of their personal Internet accounts. However, employers cannot require employees to disclose access information for the account(s) in question.

Finally, an employer is not subject to liability if it inadvertently accesses information for an employee’s personal Internet account by monitoring the company’s network, provided that the employer does not utilize the information to access the account. Employers that violate the law “may be required to forfeit not more than $1,000.”

The other states that bar employers’ access to employees’ social media accounts are Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington.

Bottom Line

Wisconsin now prohibits employers from requesting or requiring access to the personal Internet accounts of employees and job applicants. While the statute places new restrictions on employers’ ability to require access to this information, it also provides a thorough explanation as to what constitutes permissible employer conduct when investigating alleged employee misconduct.

In Minnesota, the Legislature has tried (unsuccessfully) for the past several years to pass similar legislation.  Although no similiar law exists in Minnesota, employers should be very cautious when requesting or requiring access to the social media accounts of employees or applicants because federal privacy laws may prohibit the activity.

If you have any questions about employee social media use, feel free to contact anyone from Felhaber Larson’s Labor & Employment practice group.

The post Wisconsin Establishes Restrictions on Employer Access to Employee Social Media Accounts appeared first on Felhaber Larson.

Again, please be mindful that while almost all of these bills have received a favorable ruling by at least one committee in advance of the March 21 deadline, these bills must also be passed by a majority of the Minnesota House, a majority of the Minnesota Senate, and be signed by the Governor before becoming law.

Provided below is a brief summary of the bills and their status in the House and Senate:

• Pregnancy Leave Modifications (S.F. 1956 / H.F. 2371) – This bill makes considerable changes to the current pregnancy leave statute, including increasing the leave to 12 weeks, requiring that employers provide reasonable accommodations for pregnant women, including “seating, frequent restroom breaks, and limits to heavy lifting”; and mandating that employers provide a requested transfer to a “less strenuous or hazardous position for the duration of her pregnancy.” This bill has been passed by Committees in both the House and the Senate.

• “Familial Status” and “Family Caregiver” Protections Added to MHRA (S.F. 2006 / H.F. 2300) – This bill amends the MHRA to add “familial status” and “status as a family caregiver” to the list of protected statuses. “Family caregiver” is defined by the bill as “a person who cares for another person: (1) who is related by blood, marriage, or legal custody; or (2) with whom the person lives in a familial relationship.” This bill has been passed by Committees in both the House and the Senate.

• Mandatory Paid Sick Leave (S.F. 2105 / H.F. 2461) – This bill mandates that employers must provide eligible employees with 1 hour of paid sick time for every 30 hours of work; up to a maximum of 72 hours (40 hours for employers with fewer than 21 employees). While the bill would permit employers to “require reasonable notice of the need” to use sick time, employer are prohibited from requiring more than 7 days’ notice. This bill has been passed by Committees in both the House and the Senate.

• Pay Equity Standards for Certain State Contractors (S.F. 1806 / H.F. 2373) – As we previously reported, this bill provides that all state agencies and private employers that have a contract with the state in excess of $500,000 (and at least 40 full-time employees) must have their pay practices approved by the Commissioner of Human Rights. This bill has been passed by Committees in both the House and the Senate.

• Wage Disclosure Protections Added to MHRA (S.F. 1999 / H.F. 2274) – This bill would amend the MHRA to provide that “[a]n employer shall not discharge or in any other manner discriminate or retaliate against . . . any employee because the employee inquired about, disclosed, compared, or discussed the employee’s wages or the wages of any other employee.” This bill has been passed by Committees in both the House and the Senate.

• Jury Trial Requirement under the MHRA (S.F. 2322 / H.F. 2958) – This bill would amend the MHRA to provide a right to a jury trial for the “person bringing a civil action” (but not for the employer who is alleged to have violated the MHRA). To date, this bill has been passed by a Committee in the Senate, but not in the House.

• Prohibitions Against Using State Funds for “Employee Influence Activities” (S.F. 2320 / H.F. 2312) – This bill prohibits employers from using “public funds” to engage in “employee influence activities,” which is defined to include “encourage[ing] or discourage[ing] any employee from joining or refraining from joining a labor organization.” While a similar “neutrality” bill was struck down on preemption grounds by the Supreme Court in Chamber of Commerce v. Brown, 554 U.S. 60 (2008), it is too early to tell whether this bill would face a similar fate if challenged. To date, this bill has not been passed by a Committee in the House or the Senate.

• Amendments to Nursing Mothers Break (S.F. 2000 / H.F. 2259) – As we previously reported, this bill would amend Minn. Stat. § 181.939 to enlarge the employer’s obligation to provide a separate space for nursing mothers to express milk. This bill has been passed by Committees in both the House and the Senate.

• Amendments to Independent Contractor Registration Requirement (H.F. 2198 / S.F. 2065) – As we previously reported, this bill would amend Minn. Stat. § 181.723, which provides that individuals performing work in the commercial or residential construction industry must first obtain an “independent contractor exemption certificate” in order to avoid being considered “employees” of the “person for whom the individual performs services.” This bill has been passed by a Committee in the House, but has not been passed by a Committee in the Senate.

Bottom Line

While these bills still have a long way to go before becoming law, because they seem to have some momentum at the Capitol, we will continue to monitor these bills as they wind their way through the Legislature. We remind you that if you have particular concerns about any of these bills, you may want to consider contacting your state representative to voice your concerns.

The post Nine Employment-Related Bills We’re Watching at the MN Legislature appeared first on Felhaber Larson.

The Minnesota Whistleblower Act bars an employer from discharging, disciplining, threatening, or otherwise discriminating against an employee in response to the employee’s good faith report of a violation or suspected violation of any law to an employer, a governmental body or a law enforcement official. An employee who wins a claim under this law may recover damages for lost future earnings, impairment of reputation, mental anguish and emotional suffering, and reasonable attorneys’ fees.

The amendments broaden the definition of what may be considered a “good faith” report. Previously, a “good faith” report was one where the employee subjectively believed that the conduct was illegal. Now, the employee need only establish that the report is not knowingly false or made in reckless disregard of the truth.

In addition, the revised law expands the scope of prohibited employer conduct by protecting reports of legal violations (or suspected violations) that have not yet occurred, as well as reports of violations committed by persons other than the employer.

Bottom Line

Since it is now much easier to file successful whistleblower claims, Minnesota employers should implement policies requiring the investigation of all employee allegations of wrongdoing. These policies should include a prohibition against any retaliatory conduct against the person making these reports. Employers should also carefully document each of the steps taken in these investigations.

Most importantly, as has always been the case, employers should take great care to avoid creating any inference of a connection between the employee’s complaint and any subsequent adverse action that the employee might suffer as a result of legitimate performance or behavioral issues at work.

The post MN Legislature Expands Whistleblower Protections 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.

Currently, certain federal contractors and subcontractors must maintain affirmative action and undertake outreach efforts to increase employment of disabled individuals, and allow disabled individuals to voluntarily identify themselves as disabled individuals after receiving a job offer.

The proposed regulations would add to these requirements and would create new obligations for federal contractors and subcontractors (“contractors”), such as:

• Requiring contractors to invite applicants to self-identify as individuals with disabilities before and after an offer of employment using language prescribed by the OFCCP;

• Requiring contractors to conduct annual employee surveys to give employees an opportunity to self-identify as an individual with a disability;

• Requiring contractors to list all employment opportunities with the closest Department of Labor One-Step Career Center, and to enter into agreements with three specified agencies to reach more disabled individuals with job opportunities;

• Requiring contractors with written affirmative action plans to conduct annual policy reviews that, in part, require the contractor to: (1) identify vacancies and training programs for which disabled individuals were considered, (2) provide written reasons for not selecting the disabled individual for the vacancies and training programs and a description of considered accommodations, and (3) describe the nature and type of accommodations made for disabled individuals who were selected for hire, promotion, or training programs;

• Requiring a numerical hiring goal for disabled individuals, which may, as presently proposed, be within the range of 4% to 10%; and

• Requiring certain contractors to develop and implement written procedures for processing requests for reasonable accommodation, and disclose them to all employees.

These proposed changes will dramatically increase contractors’ obligations regarding disabled individuals.  Although it is possible that public comment will persuade the OFCCP to lessen the burden, drastic revisions to the proposed regulations is highly unlikely.

We will provide an update as soon as these regulations are finalized.

The post Government Proposes Huge Changes For Federal Contractors and Disabled Individuals appeared first on Felhaber Larson.

Judging by Attorney General Lori Swanson’s recent filing with Ramsey County District Court, the impact could be huge.  In her petition to keep “essential” services of the government running, Swanson made virtually no mention of the various offices comprising the Department of Employment and Economic Development (DEED), the Department of Labor and Industry (DLI) or the Department of Human Rights (DHR), or the Bureau of Mediation Services (BMS).  The lone exception was for the services of DEED’s unemployment insurance office, whose services Swanson called “protected by the procedural due process requirements of the fourteenth amendment.”

Swanson did ask the court to appoint a “special master,” as happened during a partial state government shutdown in 2005.  The special master is a judge whose sole job is to hear legal arguments over which state services should be essential and then issue rulings.  The judge may determine that portions of DEED, DLI, MDHR and BMS are essential, but it is likely that significant portions of these departments will be shuttered.  For example:

• DEED: Job placement, training and other related services will likely cease.  Claim and appeal processing for unemployment benefits will almost certainly be affected.

• DLI: Qualified Rehabilitation Counselors (QRC’s) in the Vocational Rehabilitation Division presumably will likely be laid off, as will those who work with people seeking to become licensed or re-licensed as boiler operators.  Services in the licensing and inspection areas for construction will be curtailed, which will certainly affect work in that industry.

• DHR: Compliance audits and approvals necessary to bid on or receive awards of government contracts will have to wait and case investigations will almost certainly be suspended.

• BMS: Mediation and arbitration proceedings will likely be postponed, as well as petitions to certify or decertify bargaining representatives.

No doubt there are many more issues lurking ahead if the budget impasse continues.  We will continue to monitor these developments and keep you apprised.

The post State Shutdown Looms Ahead appeared first on Felhaber Larson.