As a refresher, before the Board’s Cemex decision, an employer was always free to reject a union’s claim of majority support among members of a proposed bargaining unit when based solely on presentation of cards signed by the employees. The union’s proper pathway in response to such a rejection was to file a petition for a secret ballot election to be conducted by the NLRB. Such elections have always been considered the “gold standard” for determining majority support.

In Cemex Construction Materials Pacific, LLC ( 372 NLRB #130, 2023) the NLRB overturned 52 years of precedent by setting up a regime that put the burden on an employer to file for an NLRB election or face a “Cemex bargaining order”  for refusing to recognize a union voluntarily. Cemex also allowed bargaining orders to be issued if the board determined that the employer had engaged in unfair labor practices while the petition/election was pending, without any election being held.

The Cemex decision, issued by the “Biden Board” was widely seen to be on the chopping block of the new Trump- nominated Board. Delayed nominations and “other distractions” have left the current Board without the three republican members historically needed to overturn precedent. On March 6, 2026, U.S. Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) stepped in with a body blow to Cemex, at least as far as its remedies are concerned.

In Brown-Forman v. NLRB (6^th Cir. 2026) a union lost an election but claimed that multiple actions by the employer interfered with the election results and constituted unfair labor practices that justified the issuance of an order forcing the company to recognize and bargain with the union, regardless of the vote. The NLRB reviewed the employer’s conduct, which included a unilateral $4.00 hour wage increase for everyone, enhanced the ability of employees to schedule vacations and holiday time off, and free bottles of bourbon. (The employer distills and distributes The Woodford Reserve brand.  But really?)

The Board (when still controlled by President Biden’s appointees) concluded that the employer’s actions were, in fact, unlawful and did interfere with the election results. Following its decision in Cemex, the Board issued the order requiring the employer to bargain with the union, with no case-specific reasoning and without any explanation as to why the election could not simply be re-run.

On review, the Appeals court had no disagreement with the findings that the employer’s conduct was unlawful and did interfere with the election. However, the court strongly rejected the NLRB’s Cemex-driven remedy of an order to bargain. Relying on recent Supreme Court precedent regarding limitations on agency powers and the long-standing preference for elections to determine employee support, the court declared that the Cemex decision reflected “an improper exercise of the Board’s adjudicatory authority,” that it cannot be used in fashioning a remedy for ULPs in the election context, and that it “has no precedential value.”

Bottom Line:  The Court of Appeals sent the case back to the Board for reconsideration in light of its actual statutory authority.  When that occurs, we can assume this Trump-appointed Board will terminate all aspects of Cemex. Because the 8^th Circuit has not yet considered the issue, Minnesota employers and others within that Circuit should still seek qualified advice before deciding how to react to a union demand for recognition and how to run an election campaign involving a union vote. At a minimum, it would be prudent not to give away free bottles of liquor to voters.

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In 2023, New York Presbyterian Hospital Association and the New York State Nurses Association. entered into a Memorandum of Understanding in which minimum RN staffing levels would be maintained in the hospital’s Cardio Thoracic Intensive Care Unit (CTICU). The MOU specifically linked the number of patients in the CTICU to a minimum number of RNs. For example, if there were 31 patients, the hospital needed to staff the unit with 27 RNs. If there were 25 patients, the minimum number of nurses was 22.

Not surprisingly, the hospital found it nearly impossible to guarantee those ratios due to leaves of absence, staff shortages, and less than successful recruiting efforts. The union filed a grievance in June of 2023 asking an arbitrator to declare the hospital in violation of the contract and to award financial remedies. In May of 2024, a highly respected arbitrator did just that. The arbitrator found that the MOU was specific in its requirements and that the hospital agreed to the terms knowingly. The arbitrator rejected the hospital’s defenses that it should not be found liable because it was aggressively recruiting to fill open positions, the CTICU was never unsafe, and the hospital had no pattern of attempting to circumvent the agreement. The arbitrator awarded nearly $300,000 in backpay, awarded to any nurse who was required to work on a shift where the agreed upon ratios were not met, although the arbitrator did make a technical adjustment to minimize the impact.

Following the award, the hospital went to federal district court seeking to have the arbitrator’s decision vacated. That court denied the motion and granted the union’s motion to enforce the award. It is that case that is on appeal. Given the comments by the judges hearing the appeal, relief appears unlikely.

Bottom Line:  Employers in any setting should just say NO to any and every demand from a union to put language into a contract that could reasonably be read as requiring a minimum number of employees on duty at any particular time, or to contractually binding limits on things like production expectations. Alternatively, if you feel compelled to add language, it is imperative that you include an “out” for the employer that recognizes circumstances beyond the employer’s control such as unanticipated leaves, absenteeism, and recruiting difficulties.

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The plaintiff had taken FMLA leave and later sought accommodation that significantly cut her schedule, including fewer shifts per pay period and elimination of weekend work. When the hospital declined to renew her contract, she sued under the ADA, FMLA, and Iowa law, but both the district court and the Eighth Circuit sided with the employer.

Central to the opinion is the definition of essential duties. “Essential functions are ‘the fundamental job duties of the employment position the individual with a disability holds or desires.’” The hospital showed that working a minimum number of shifts and covering weekends were mandatory aspects of the physician assistant role. Because the requested changes would remove those core duties, the court held they were not “reasonable accommodations.”

Bottom Line

For employers the case highlights the importance of clearly defining and consistently enforcing essential job functions in descriptions and schedules. While it remains important to continue making good faith efforts to accommodate, the ADA does not require outright elimination of core or essential duties of positions to do so. If you have more questions about FMLA requests and accommodation at your business, please contact our office for additional guidance.

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By way of very brief overview, the tax treatment of Minnesota paid leave benefits is driven by then-current IRS guidance.    Until the issuance of the new guidance, we understood the taxability of benefits would be governed by IRS Revenue Ruling 2025-4 (“RR 2025-4”).    In a somewhat surprise move, the IRS issued new guidance delaying the implementation of RR 2025-4 for calendar year 2026.     The net effect is that medical leave benefits (as distinguished from family leave benefits) do not need to be reported on an employee’s W-2 in 2026.   This is, however, just a one-year pause — unless something changes again.

The Bottom Line

As a result of the developments described above, medical leave benefits received by an employee in 2026 (i.e., for an individual’s own illness, injury, etc.)  will not be treated as “third-party sick pay” as contemplated by RR 2025-4 for calendar year 2026 and do not need to be reported on an employee’s W-2.

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The Acting General Counsel alleged that Starbucks unlawfully changed its “past practice” by suddenly enforcing attendance more strictly to punish union activity and Board participation.  The judge found instead that the written attendance policy remained unchanged and that a new store manager legitimately chose to prioritize enforcement of that existing policy.  The record also showed prior attendance-related discipline by earlier managers, undercutting the idea that there had been a consistent, more lenient practice that required bargaining to change.

The General Counsel further argued that discipline issued to a pro-union shift supervisor, who had been involved in organizing, picketing, and NLRB proceedings, was discriminatory.  The judge rejected that claim too, pointing to multiple corrective actions issued to various employees (not just union supporters) for similar attendance violations over the same period.  There was no credible evidence that the manager’s decisions were driven by anti-union animus rather than documented tardiness, including an opening shift where the store opened late because the keyholder arrived over an hour late.

The decision also addressed alleged unlawful surveillance of a strike and “march on the boss.”  Because the employer had a two-employee safety rule requiring the manager to leave the store when other employees walked out, the manager waited in his car and was only occasionally visible to the picketers.  The judge held that such limited, safety-driven observation was not out of the ordinary and did not amount to coercive surveillance of protected activity.

Bottom Line

For employers dealing with unions, the case underscores several practical points: keep written policies stable and clear, train new managers to enforce those policies consistently, document discipline for all employees—not only union supporters—and avoid tying any disciplinary conversation to union or Board activity.  With careful documentation and neutral application of existing rules, employers can enforce attendance and performance standards, even in highly charged organizing environments, while maintaining strong defenses before the NLRB. Please contact our office if you have questions about how this pertains to your place of business and how we may be able to help.

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Each year Super Lawyers selects attorneys using a multiphase selection process that includes peer nominations and evaluations combined with independent research. The top 5% of attorneys who are nominated are named to Super Lawyers and no more than 2.5% are named as a Rising Star.  Those on the Rising Stars list are 40 years old and younger, or have been in practice 10 or fewer years, while those appearing on the Super Lawyers list are more seasoned practitioners.

Felhaber Larson is pleased that so many of our attorneys are selected by our peers again this year for this prestigious recognition.

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Who Must Comply with the MCDPA?

The MCDPA applies to businesses that:​

• Control or process personal data of at least 100,000 Minnesota consumers annually; or
• Derive over 25% of gross revenue from the sale of personal data while processing data for at least 25,000 Minnesota consumers.​

The MCDPA applies to the collection and processing of personal data about Minnesota residents acting in an individual or household context. “Personal data” is broadly defined to include any information that is linked or reasonably linkable to an identified or identifiable individual. This may include names, email addresses, device identifiers, IP addresses, geolocation data, and biometric information.

The MCDPA contains several important exemptions. To name a few, the law does not apply to small businesses as defined by the U.S. Small Business Administration, unless those businesses sell sensitive data, in which case opt-in consent is still required. The law also excludes data processed in an employment context, meaning personal data collected solely in the course of hiring and managing personnel is not subject to the MCDPA’s consumer rights framework. In addition, entities and data already subject to federal privacy laws such as HIPAA, GLBA, or FERPA are generally exempt to the extent they overlap.

Consumer Rights

Minnesota consumers are granted several rights concerning their personal data:​

• Right to Access: Consumers can confirm if a business is processing their data and access that data.
• Right to Correction: Consumers may request corrections to inaccurate personal data.
• Right to Deletion: Consumers can request deletion of their personal data.
• Right to Obtain: Consumers can obtain a copy of their data in an accessible format.
• Right to Opt-Out: Consumers can opt out of targeted advertising, the sale of personal data, and certain profiling activities.
• Right to Appeal: If a business denies a consumer’s request, the consumer can appeal the decision.​

A unique aspect of the MCDPA is the right for consumers to question the results of profiling decisions, including understanding the reasoning behind such decisions and how to achieve different outcomes.

Compliance Requirements

Businesses subject to the MCDPA must undertake several actions to ensure compliance:​

• Data Inventories: Maintain comprehensive records of personal data collected and processed.
• Privacy Notices: Provide clear and accessible privacy notices detailing data collection practices and consumer rights.
• Data Protection Assessments: Conduct assessments for processing activities that present heightened risks, such as targeted advertising or processing sensitive data.
• Contractual Agreements: Establish contracts with data processors outlining processing instructions, confidentiality obligations, and compliance requirements.
• Security Measures: Implement reasonable administrative, technical, and physical safeguards to protect personal data.​

Enforcement and Penalties

The Minnesota Attorney General has exclusive authority to enforce the MCDPA. Penalties for non-compliance can reach up to $7,500 per violation. Until January 31, 2026, businesses have a 30-day period to cure alleged violations before enforcement actions proceed.​ Postsecondary institutions governed by the Office of Higher Education have until July 31, 2029 to comply with the MCDPA.

Next Steps for Businesses

With the MCDPA’s effective date approaching, businesses should:​

1. Assess whether they fall within the scope of the MCDPA.
2. Review and update data collection and processing practices.
3. Develop or revise privacy policies and notices to align with MCDPA requirements.
4. Implement mechanisms for consumers to exercise their rights.
5. Train staff on data privacy obligations and consumer rights under the MCDPA.

Conclusion

The Minnesota Consumer Data Privacy Act marks a significant development in the state’s approach to data privacy regulation. Given the law’s complexity and broad scope, businesses may find it difficult to determine whether they are subject to its requirements—and if so, how best to comply. While the statute provides an initial 30-day cure period for alleged violations, businesses should not wait for an enforcement letter from the Attorney General to take action. Proactive compliance is the most effective way to reduce legal risk and demonstrate good faith in handling consumer data.

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• Executive Order No. 14151—Ending Radical and Wasteful Government DEI Programs and Preferencing: Ends the provision of federal “equity related” grants and contracts as well as DEI/DEIA employee performance requirements for contractors and grantees.
• Executive Order No. 14168—Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government: Orders agencies to end federal funding of “gender ideology,” which the Order defines as a “replace[ment] [for] the biological category of sex” and an “ever-shifting concept of self-assessed gender identity
  . . . [which] all institutions . . . [must] regard . . . as true.”
• Executive Order 14173—Ending Illegal Discrimination and Restoring Merit-Based Opportunity: Conditions the receipt of federal contracts and grants on a certification from recipients that they do not operate DEI/DEIA programs.
• Executive Order 14187—Protecting Children from Chemical and Surgical Mutilation: Prevents the provision of federal research or education grants to medical institutions that provide permanent and semi-permanent gender-affirming procedures.
• Executive Order 14201—Keeping Men Out of Women’s Sports: Prevents the provision of federal funding to educational programs that allow transgender girls and women to participate in women’s sports.

Judicial Challenges to Executive Orders

The Fourth Circuit Court of Appeals recently lifted a nationwide block which prevented the enforcement of Executive Orders 14151, 14168, and 14173 in their entirety.  Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189, 2025 WL 750690 (4th Cir. March 14, 2025).  However, individual parts of these executive orders have been rendered unenforceable by other courts.  In Minnesota specifically, provisions of these executive orders which cut federal funding for programs promoting “gender ideology” and healthcare providers offering gender-affirming care for those under the age of nineteen have been rendered unenforceable.  Washington v. Trump, No. 2:25-cv-00244-LK, 2025 WL 659057 (W.D. Wash. Feb. 28, 2025).  In short, the landscape related to these Executive Orders and legal changes is changing rapidly.  It is therefore important to monitor the Orders that relate to your organization carefully, and frequently.

How Will These Executive Orders Impact Organizations?

Impacts on Federal Grant and Contract Recipients

Organizations that receive federal grants or contracts related to DEI/DEIA or environmental justice should anticipate the termination of these grants and/or contracts altogether.  Recipients of general federal grants and/or contracts (i.e. Grants and/or contracts awarded for purposes unrelated to DEI/DEIA or environmental justice) should be prepared to certify that they do not promote DEI/DEIA as a condition of their receipt of these federal benefits.  Since federal agencies are encouraged to prioritize investigation into organizations that receive federal grants or contracts and are or may be engaged in DEI/DEIA activities, these organizations should anticipate legal and compliance costs associated with preventing or addressing administrative proceedings.

Internally, organizations receiving federal funding or contracts need to ensure that their hiring practices do not involve DEI/DEIA-based criteria that could be seen as giving preferential treatment based on race, gender, or other protected categories.  DEI/DEIA training and policies—as well as training and policies that may be construed as relating to DEI/DEIA—may need to be modified or removed to ensure compliance with these executive orders.

Finally, these executive orders will very likely impact employee recruitment and retention for organizations receiving federal funding, grants, and/or contracts.

Impacts on Educational and Healthcare Institutions

Places of higher education and medical providers that receive federal funding must revise or end their DEI/DEIA programs and policies to avoid funding cuts or administrative proceedings. Further, institutions which allow transgender women to play in women’s sports programs may face similar federal funding cuts or administrative proceedings.

It is important to note that in Minnesota, at least for now, funding may not be cut to healthcare providers on the basis that they offer gender-affirming care to those under the age of nineteen.

Next Steps for Impacted Organizations

 Organizations impacted by these executive orders should consider taking the following steps to ensure compliance and reduced risk:

• conduct internal audits to assess the use of DEI/DEIA in hiring practices and company policies and make necessary changes to comply with these executive orders;
• stay informed about ongoing litigation and court rulings on these executive orders; and
• consult an attorney to develop legal strategies to ensure compliance or defend against policy challenges or enforcement actions.

^* A special thanks to Fidelina G. Valverde-Rivera for her assistance with this post.

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Information about the proposed rules and your opportunity to comment can be found here:

https://www.dli.mn.gov/business/employment-practices/rulemaking-docket-minnesota-rules-chapter-5200

Some of the notable highlights from MN-DOLI’s proposed ESST rules are as follows:

• Employers may not force employees to use ESST for a qualifying reason.  However, if an employee declines, the absence is not protected.
• The rules would give employers ability to push back and request documentation sooner than current parameters (of three consecutive days of absence) where there is a pattern of misuse.  A pattern of misuse is defined to include absences surrounding holidays or weekends or use at the beginning of a shift.
• The rules provide guidance when an employee works some of his or her time in Minnesota and sets forth default parameters depending on whether the individual works more or less than 50% of their time in Minnesota.

Bottom Line

We strongly encourage employers to review the proposed rules and exercise your right to send comments to MN-DOLI.

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After terminating Biden appointee Jennifer Abruzzo, President Trump appointed William B. Cowen as Acting General Counsel (AGC) of the National Labor Relations Board (NLRB). The General Counsel is responsible for the investigation and prosecution of unfair labor practice cases. Accordingly, the General Counsel has great power to affect labor law policy, as it can decide what types of cases are brought before the Board and argue for more pro-union or pro-employer interpretations of the National Labor Relations Act. Additionally, the General Counsel often issues memoranda providing policy guidance as to how the General Counsel, and the NLRB’s regional field offices, will interpret the Act.

Cowen quickly signaled a sharp departure from his predecessor’s pro-union policies, rescinding many via Memorandum GC 25-05 issued on February 14, 2025. Cowen’s memo rescinds 18 memoranda issued by former GC Abruzzo, including GC 21-06 and GC 21-07, instructing Regions to seek expansive remedies in unfair labor practice (ULP) cases and settlement agreements; GC 21-08, classifying student-athletes as “employees” under the National Labor Relations Act (NLRA); GC 23-08 and GC 25-01, asserting that noncompetes and “stay-or-pay” provisions violate the Act; GC 21-01, which permitted mail-in ballot elections during the COVID-19 pandemic; and more. AGC Cowen also rescinded 13 additional memoranda pending further guidance, including GC 24-01 on the Board’s union-friendly recognition standard adopted in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023).

This move comes in the wake of President Trump’s controversial decision to remove Democratic Board Member and Chair Gwynne Wilcox in addition to discharging Abruzzo. Section 3(a) of the NLRA states that “[a]ny member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Although a federal judge ruled on March 6 that Trump exceeded his authority by firing Wilcox, the NLRB has since taken the position in at least six pending court cases that removal protections are unconstitutional. Regardless, the termination of Abruzzo and appointment of Cowen will undoubtedly shift the landscape of labor law.

Bottom Line

While the rescission of the former general counsel memos was expected under the Trump administration, the move nevertheless reshapes federal labor law in a more pro-employer direction. Acting General Counsel Cowen has indicated that further adjustments will be made as needed. We will continue to monitor and report on these developments.

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Guidelines for an ICE Raid

A raid happens when ICE agents go to a facility without warning as part of an investigation. ICE agents may come to find a particular person (or people). While they are present, ICE agents may try to question, detain or arrest people. Employers are always permitted to comply with ICE agents, but are only required to comply with agents under specific circumstances. If ICE agents arrive at your facility, the host or receptionist should immediately contact a designated representative, who should immediately contact counsel. The host or receptionist should inform the ICE agents that counsel is being contacted.   As discussed below, it is important that the business understand whether there is a valid warrant in place if ICE intends to access private areas of the property.

Public Areas

Anyone, including ICE agents, may enter public areas of the business without permission. However, being in a public area does not give ICE the authority to stop, question or arrest just anyone. Workers encountering agents in a public section of the facility have the right to remain silent and to ask for an attorney at all times. Employers may (but are not required to) tell employees that they can choose whether or not to speak with ICE, but employers must not direct employees not to cooperate with ICE.

Private Areas

Employers are not required to grant ICE access to private areas of the facility without a valid judicial warrant. A valid judicial warrant will say “U.S. District Court” or a State Court at the top. A valid warrant will be signed by a judicial officer, describes the place to be searched, and the persons or things to be seized, is dated and has been issued within the past 14 days. If the warrant is missing one or more of these requirements, it is invalid. For example, if the warrant does not list the facility’s correct address, it is invalid, and officers cannot conduct a search without your permission.

Administrative warrants do not come from a court but rather will say “Department of Homeland Security” and are on Forms I-200 or I-205. An administrative warrant does not allow agents to enter private areas without your permission.

If ICE agents tell you they have a warrant, ask for a copy and read it. Determine the type and validity of the warrant and proceed accordingly.

If you have any questions or doubts about the validity of the warrant, reach out to legal counsel, and simply inform the agent you need to seek legal advice – which is your absolute right. 

During a Search

Immigration officers may present a valid search warrant, signed and dated by a judge. This search warrant will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, I-9 forms, SSA correspondence, etc.)

If a search warrant is presented, examine it to ensure that you understand the scope permitted by the warrant itself, and monitor the agents’ activities to ensure they stay within that scope.

Protect attorney-client privileged materials during this search. If agents wish to examine documents designated as attorney-client privileged material (such as this memorandum or other communications to or from counsel), tell them they are privileged and refuse to produce them  until you are able to speak to your attorney. If the agents nevertheless seize them,  try to make note of exactly which documents were taken by the agent (even through photographs, if possible).

Arrests or Detentions

If ICE presents a valid arrest warrant, signed by a judicial officer, you must promptly comply.

However, if ICE shows you an administrative warrant with an employee’s name on it, you may (but are not required to) say if that employee is working that day or not. You are not required to lead ICE agents to the named employee.

If ICE agents try to stop, question, detain, or arrest a worker, the worker is not required to hand over any IDs or papers to ICE. The worker may stay silent and ask for an attorney.

Guidelines for a Form I-9 Audit

When ICE notifies you that there will be a form I-9 audit, contact an attorney. You are allowed up to three workdays to produce your I-9 forms. After reviewing the I-9 forms, ICE may find some employees are not authorized to work. If this happens, ICE will give you ten days to provide valid work authorization for these employees. If this happens, you must notify the affected employees.

At all times, you are permitted to speak to your lawyer before answering questions or signing ICE documents.

Bottom Line

With immigration enforcement becoming a top priority under the Trump administration, employers should be prepared to respond should ICE agents arrive at your doorstep.  Employers should have a response plan in place and ensure designated personnel know how to respond to ICE agents and who to contact if agents arrive.

Any questions? Contact your trusted Felhaber attorney.

The post Understanding Employer Rights and Obligations If ICE Knocks on Your Door: What You Need to Know appeared first on Felhaber Larson.

Executive Order 11246

Under Executive Order 11246, covered federal contractors and subcontractors were required to affirmatively recruit women and minorities for employment and ensure employment practices did not discriminate on the basis of race, color, religion, sex, and national origin. Executive Order 11246 further mandated that contractors develop annual affirmative action plans measuring their compliance with these objectives.

The Rescission of Executive Order 11246

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has been responsible for enforcing Executive Order 11246 and its implementing regulations. Trump’s new EO directs the OFCCP to immediately stop:

• Promoting “diversity.”
• Holding Federal contractors and subcontractors responsible for taking “affirmative action.”
• Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.

The EO further provides, however, that contractors “may continue to comply with the regulatory scheme” for a period of 90 days, or until April 21, 2025.

Moving forward under the EO, executive agencies must require federal contractors “to agree that . . . compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions” and “to certify that [the contractor] does not operate any program promoting DEI that violates any applicable Federal anti-discrimination laws” going forward.

The Bottom Line

The full effect of the EO is yet to be determined as we wait for additional information and guidance from the Trump administration. For now, we know that affirmative action and related certification obligations as to gender and race/ethnicity no longer exist.

In contrast, because covered federal contractors/subcontractors’ affirmative action-related obligations with respect to protected veterans and individuals with a disability are based on federal Acts (i.e., the Vietnam Era Veterans’ Readjustment Act of 1974 and Section 503 of the Rehabilitation Act of 1973), the requirements imposed by those Acts and their implementing regulations presumably remain. Additionally, employers must still comply with and file EEO-1, VETS-4212, and state reporting obligations to date.

Though the EO may be challenged, and a lot of questions remain at this point (including the impact of the EO on state contactors’ ability to comply with state affirmative action-related requirements), federal contractors and subcontractors (and other employers) should review their DEI policies and practices for compliance now with existing law and consult their Felhaber attorneys for guidance.

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We are excited to welcome these outstanding attorneys into our group of shareholders.  Both have built great relationships with their clients and colleagues and grown their reputations as accomplished and successful professionals.  We are fortunate to add Zach and David to our class of shareholders.

Zach Alter
Zach’s practice focuses on litigating employment, business, defamation, and real estate disputes.  He also regularly advises employers of all sizes on employment law issues, with a focus on FLSA, discrimination, and non-compete issues.

David Richie
David’s practice is primarily devoted to traditional labor law, including representing employers in matters before the National Labor Relations Board, in collective bargaining negotiations with labor unions, and in grievance-arbitration hearings. He also counsels employers on employee relations issues and interpretation of collective bargaining agreements.

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On November 15, 2024, less than 60 days before the second salary increase was scheduled to take effect, the judge granted summary judgment against the U.S. Department of Labor, ruling that the agency’s increase to the minimum salary level in the 2024 Rule exceeded its statutory authority. As a result, the 2024 Rule—originally announced in April and which sought to raise the compensation thresholds for overtime eligibility—has been struck down on a nationwide basis.

The 2024 Rule

The 2024 Rule introduced a two-phase approach to raising the minimum salary threshold under the FLSA’s overtime regulations. The first phase, which took effect on July 1, increased the minimum salary to $43,888 per year (or $844 per week). The second phase, originally scheduled for January 1, 2025, would have raised the threshold further to $58,656 per year (or $1,128 per week). In addition, the 2024 Rule included provisions for automatic updates to the minimum salary level every three years. To be in compliance with the rules, the first phase increase should have taken place on July 1, 2024.

In tossing the 2024 Rule, the Texas judge found that the new salary threshold “effectively eliminates” consideration of whether an employee performs bona fide executive, administrative, or professional duties, replacing the traditional test with what amounted to a “salary-only” approach. This ruling follows a previous decision by the Eastern District of Texas Judge in June, which blocked the application of the first phase of the 2024 Rule to public employers in Texas. The latest ruling extends the block nationwide.

Bottom Line

With the 2024 Rule now blocked in its entirety, the salary threshold set by the 2019 regulations—$35,568 per year ($684 per week)—remains in effect. What are next steps for employers?

• Have you communicated the salary increases to your employees as one-step or two?
• If you’ve only given the increase required by July 1, 2024, can you hold back on the second increase? The answer is yes but be prepared to explain why the second increase will not occur.
• Can you take-back the increase that went into effect on July 1, 2024? In answering yes to this question, keep in mind that just because an employer could rescind the increase, doesn’t mean it should. What is the message to employees who were given a salary increase only to have it taken away?
• For employers with employees in New York, Colorado, California and other states, consider state laws regarding salary levels which are higher than the salary threshold set by the 2024 DOL rules.

It remains to be seen whether President-elect Trump will seek to raise this threshold during his next term, but it is unlikely that his incoming administration will appeal this decision in favor of the 2024 Rule.

Any questions? Employers can consult with their trusted Felhaber attorneys for guidance.

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In Minnesota, eligible employees have the right to take time off work to vote.   The laws grant employees the right to time off from work on Election Day in order to go to their polling place, cast their ballot, and return. If the time needed to vote falls within an employee’s scheduled work hours, employers are required to pay for this time.  The Minnesota Secretary of State’s Office takes the position employers cannot mandate that employees use personal or vacation leave for voting.

What can employers ask of their employees? While employers can request advance notice of when employees will be absent to vote, they should also encourage employees to coordinate their absences to reduce disruptions in the workplace. So long as employers do not interfere with employees’ right to vote, it can also talk with employees about voting during their non-working time if the polls are then open.

To summarize, employers must allow employees the necessary time off to vote and compensate them if it occurs during scheduled work hours. A violation of this law is a misdemeanor.

For those in states other than Minnesota, similar laws exist. For instance:

• Iowa: Employees may take up to two consecutive hours of paid leave if they lack two consecutive hours outside of their scheduled work hours during polling times. Written requests for this leave must be made before Election Day.
• North Dakota: Employers are encouraged, but not required, to give employees time off to vote if their hours conflict with polling times. There is no requirement to pay for this time.
• South Dakota: Employees can take up to two consecutive hours of paid leave if they don’t have two consecutive hours outside of work hours during polling times. The law does not specify whether employees must provide notice to receive this paid time off.

Bottom Line

It’s crucial for employers to prepare for and comply with these laws on Election Day, ensuring employees can exercise their voting rights while minimizing workplace disruptions. Employers with questions should consult their trusted Felhaber attorneys for guidance.

The post Upcoming Election Day: What Employers Need to Know About Employees’ Voting Rights appeared first on Felhaber Larson.

In addition to representing clients in litigation, she regularly advises and counsels employers on various employment law issues, including hiring, firing, discipline, FLSA, wage and hour, employment discrimination claims, and leaves of absence. Her approach emphasizes proactive guidance, helping employers develop fair workplace policies and procedures while ensuring compliance with federal and state regulations.

The post Attorney Elle Lannon Joins Felhaber appeared first on Felhaber Larson.

We previously reported about this lawsuit in mid-July when the same federal judge issued a preliminary injunction against the FTC Non-Compete Rule.  However, at the preliminary injunction stage, the federal judge declined to issue a nationwide preliminary injunction and, instead, limited the injunction to only the named plaintiffs in that lawsuit.  This narrow decision did little to allay the concerns of businesses with non-competes who were facing a September 4, 2024 effective date of the FTC Non-Compete Rule, which included an obligation that employers needed to provide their employees written notice that their non-competes would have been no longer enforceable.

In the August 20th ruling, the Texas federal judge held that the FTC lacked the statutory authority to issue the Non-Compete Rule and that it was arbitrary and capricious.  Importantly, the federal judge rejected the FTC’s argument that the relief should be limited to only the named plaintiffs.  Instead, the judge held that the Administrative Procedures Act requires the FTC Non-Compete Rule to be “set aside” in its entirety on a nationwide basis. Therefore, “[t]he Rule shall not be enforced or otherwise take effect on its effective date of September 4, 2024 or thereafter.”

It is expected that the FTC will appeal the decision to the Fifth Circuit and it may eventually end up before the U.S. Supreme Court.  However, at this point, the FTC Non-Compete Rule will not become effective on September 4, 2024.  Please remember that Minnesota’s restrictions on non-competes remains in effect and details regarding that law can be found here.

The post Texas Federal Court Blocks FTC Non-Compete Ban Nationwide appeared first on Felhaber Larson.

Under the prior version of ESST, employers that had more generous paid time off policies, for example, PTO policies providing benefits beyond the minimum hours required by the ESST statute, were not required to comply with the ESST statute (including notice, documentation, and protection from retaliation) for any leave benefits which were more than the 48 hours (or 80 hours in a subsequent year) minimums required by the ESST statute.

According to the 2024 amendments to the ESST statute, however, this is no longer the case. The amended statute provides that “[a]ll paid time off and other paid leave made available to an employee by an employer in excess of the minimum amount required in section 181.9446 for absences from work due to personal illness or injury, but not including short-term or long-term disability or other salary continuation benefits, must meet or exceed the minimum standards and requirements provided in sections 181.9445 [which includes the statutory ESST definitions and the statutory mandated use of ESST] …” except for the accrual rates under the ESST statute.

What does this even mean? Originally (and this was the wishful thinking part), we hoped that this amendment only required employers to “protect” additional PTO beyond the minimum ESST requirements to employee use of PTO for their own “personal illness or injury.” (That’s a reasonable interpretation, isn’t it, given that’s actually what the statute says?) In other words, the expansion of the statute did not apply to taking PTO for ESST reasons other than for the employee’s own illness or injury.

Sadly, this was wishful thinking on our part. The Minnesota Department of Labor and Industry (DOLI) is taking a broader view of the amendments, and it appears to be the DOLI’s position that the additional PTO can be used for any of the reasons covered by the ESST statute. In a recent update to the DOLI website, DOLI described the amendment follows:

If an employer provides employees with paid time off (PTO) or other paid leave that is more than the amount required under the ESST law for absences due to personal illness or injury, the additional PTO must meet the same requirements as the ESST hours, other than the ESST accrual requirements. For example, if an employee receives 50 hours of PTO in addition to the minimum requirement of 48 ESST hours per year, the employer must follow the ESST requirements about notice, documentation, anti-retaliation, replacement workers and more for the PTO hours in addition to the ESST hours.

https://dli.mn.gov/sick-leave-changes

So, what does this really mean? If the DOLI is intending to interpret the amendment broadly to require all PTO to be eligible for use as ESST, this means that employees may use PTO (even though it may be well in excess of the ESST statutory minimums) for any of the multiple reasons covered by the ESST statute. For example, an employee receives 120 hours of PTO on their anniversary in addition to PTO time granted the previous year, the employee may use the 120 hours of PTO for vacation or for any reason covered by the ESST statute.

Are there any exceptions to the use of PTO under the revised ESST statute? According to the amendment, for any PTO accrued prior to January 1, 2024 (the effective date of the ESST statute), “an employer may require an employee who uses such leave to follow the written notice and documentation requirements in the employer’s applicable policy or applicable collective bargaining agreement” under any [PTO] rules which existed before January 1, 2024. In other words, employer documentation requirements (such as requiring doctor’s note or 24 hours’ notice) would apply only to time that accrued prior to 2024 and only if those requirements existed prior to January 1, 2024.

Does this mean that all PTO plans are a free-for-all? Not necessarily, or maybe better said, not quite. Since PTO time over and above ESST minimum requirements can be used for any ESST reason, it follows that an employer can require employees to comply with the ESST rules, including advance notice, if possible, and requirements for following company call-in procedures.  This is likely small solace because what this amendment also means is that employers who provide generous amounts of PTO will have a far more difficult time holding employees accountable for unpredictable, missed work as employees can easily claim that such absences are protected by ESST.

It is also important to note that with respect to PTO use that is solely for rest and relaxation (i.e., a vacation), it is likely that employers will still be allowed to use and enforce any existing rules they may have about request and approval of PTO used for vacation if it’s clearly defined in the PTO policy.

Bottom Line

For employers who provide more generous amounts of PTO than the minimum requirements of ESST, it may be time to consider whether you want to make changes to those policies to limit the impact of the changes to more generous policies. For example, an employer could consider dividing a generous PTO policy into sick time (subject to ESST) and vacation time (not subject to ESST).

If it’s possible to divide up an employer’s PTO plan into pre-2024 versus post-2024 accrual, an employer can impose whatever notice or documentation requirements existed before January 1, 2024. If that is not possible, then the new provisions effective January 1, 2025, will apply.

Short of changing your PTO plan or divvying it up into pre-2024 and post-2024 accrual, effective January 1, 2025, employers will be required to allow all PTO to be used for any reason covered by the ESST statute under DOLI’s interpretation of the most recent amendment.

The post It Was Wishful Thinking On Our Part… appeared first on Felhaber Larson.

In addition to the firm’s state-wide rankings, six of our attorneys earned individual recognition as notable practitioners:

The post Felhaber’s Labor & Employment, Litigation: General Commercial And Real Estate Groups Are Recognized By Chambers appeared first on Felhaber Larson.

Brian is an experienced advisor and litigator who represents and defends businesses.  He provides advice on matters ranging from employee discipline, terminations, corporate restructuring and reductions-in-force, policy/procedure/process development, and general employment and labor law compliance.  He has tried multiple jury, bench and arbitration matters to verdict or decision and is a skilled advocate in the courtroom.   Brian also helps businesses navigate disputes and labor relations issues in the unionized setting.

Brian represents clients as outside General Counsel.  He drafts and negotiates commercial contracts, provides advice on general business matters, legal disputes, litigation, and guides his clients through compliance issues and related strategy.

The post Attorney Brian T. Benkstein Joins Felhaber appeared first on Felhaber Larson.

Non-competes (eff. 7/1/23)
Nursing Mother’s Accommodations (eff. 7/1/23)
Pregnancy Discrimination (eff. 7/1/23)
Recreational Marijuana (eff. 7/1/23)
Statewide Paid Sick Leave (eff. 1/1/24)
Statewide Paid FMLA Leave (eff. 1/1/26)

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The post 2023 Minnesota Legislative Wrap Up appeared first on Felhaber Larson.

In addition to the firm’s state-wide rankings, five of our attorneys earned individual recognition as notable practitioners:

Labor & Employment 

Paul Zech, Band 1

Sara McGrane, Band 2

Penny Phillips, Band 2

Real Estate

Mark Radke, Band 4

Steve Yoch, Band 4

The post Felhaber’s Labor & Employment and Real Estate Groups are Recognized by Chambers appeared first on Felhaber Larson.

US News – Best Lawyers® “Best Law Firm” rankings are based on a thorough review of client and lawyer evaluations, peer review and data provided by the law firms being evaluated. A law firm must also have at least one attorney named to the Best Lawyers in America® list in that practice area and metropolitan area.

The post Felhaber Larson honored to be recognized in the “Best Law Firms” of 2023 appeared first on Felhaber Larson.

In addition to the firm’s state-wide rankings, four of our attorneys earned individual recognition as notable practitioners:

Labor & Employment 

Paul Zech, Band 1

Sara McGrane, Band 2

Penny Phillips, Band 2

Real Estate

Mark Radke, Band 4

The post Felhaber’s Labor & Employment and Real Estate Groups are Recognized by Chambers appeared first on Felhaber Larson.