Minnesota Labor & Employment Law Blog

Minnesota Labor & Employment Law Blog

Serving the Legal Needs of Minnesota Employers

What Is Employee Fraud & Theft?

Posted in Business Practices, Fraud/Theft, Uncategorized

file0001730089237 (1)The Minneapolis Star Tribune recently reported on an investigation it did into Minneapolis Public School employees’ use of district credit cards.  The Star Tribune reviewed six months of school expense records including credit card purchases totaling $1.5 million dollars.  The newspaper discovered many of the school district employees failed to follow proper expense reporting policies, including not providing receipts for purchases.  Some even made personal purchases with the school district credit cards.  The outgoing superintendent and current CEO have since repaid the school district for unauthorized purchases.

So, would this circumstance be considered employee fraud and theft?  Arguably, any time an employee is making purchases in violation of a policy it could potentially be considered theft.  The Minneapolis School District has indicated it has already made changes to its purchasing card system.  It also acknowledged other changes need to be made, such as revising the reimbursement policy regarding the amount employees who are traveling can spend on meals.  Depending on where an employee is traveling, the current amounts of $7 for breakfast, $11 for lunch and $23 for dinner may not be sufficient.

Employee fraud and theft is an important issue for all employers to be on the lookout.  My firm has found by the time fraud or theft is discovered, it has typically been happening for some time.  It is rare for an employer to discover fraud or theft on the first occurrence.  For more information on what to do if you suspect an employee is stealing from your business check, out some of our previous blog posts here and here.   

Resources for Employers: Pregnancy Discrimination

Posted in Discrimination, Pregnancy
Tiffany pregnant with Josee - 2

Attorney Tiffany Schmidt pregnant with her third daughter Josee.

According to the Department of Labor, “Women now make up nearly half of the U.S. labor force. Three out of four women entering the workforce will experience at least one pregnancy while employed. Every year, thousands of women file charges of pregnancy discrimination… At the federal level, women are protected by laws like Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Family Medical Leave Act.”  In addition individual states have enacted laws that provide women with additional protections against pregnancy discrimination.

More often than not our federal government is known for bogged down bureaucracy and a lack of efficiency.  However, today I have to commend the Department of Labor for a great resource for employers who are asking what laws apply to pregnant employees, and what are employers required to provide.  The DOL published a concise pregnancy resource covering both federal and state laws, that I consider to be a little like one-stop shopping.

A map of the country outlines the federal laws which apply to all 50 states.  Clicking on each state leads you to the laws applicable to that specific state.  Here is Minnesota’s link. 

What a refreshing resource, and from the federal government no less!  


New Year, New Hiring Strategies, and New Interview Questions

Posted in Business Practices, Hiring Practices

A new year means it is time to revisit hiring strategies, and implement new plans to attract and find the best candidates.  The job market is extremely competitive and good candidates are hard to find.  Reworking hiring plans now can help avoid costly hiring mistakes.  We have been advising our clients to rethink their hiring focus, and consider hiring for character. 

It used to be typical interview questions included, “Tell me about your strengths and weaknesses.”  A candidate’s response to this type of question was scripted and simply regurgitated information contained in a resume.  No new insights about the candidate were gained and valuable interview time was wasted.  Better interview questions include:

  1. Tell me about a time you handled a situation in the wrong way?  How did you handle the situation?  What did you learn from that experience?
  2. Define what you believe “doing a great job” means?
  3. What is the last commitment you failed to keep?  Why?
  4. Tell me about a situation where you went above and beyond what was expected of you?
  5. What can you do for our department (company) that someone else cannot do?
  6. What kind of things do you not like to do?

Cierra Ford at BackgroundChecks.org helped develop an infograph that is a good resource for employers considering hiring new employees this year.  My favorite suggestion for employers is to start looking for good candidates before you need them.  That is definitely not a traditional way for employers to think about hiring new employees.  In practice, this means actively recruiting college and vocational graduates, and mining a variety of other places where potential employees can be found.  It may mean starting a paid internship program to gain access to new up-coming talent. 

Creativity is the key to find future candidates who will develop into great employees. The point to remember is that if your business is not creatively approaching its hiring strategy in 2015, your competitor is, and you stand to miss out on some great candidates. 


The NLRB Has Expanded Unionization at Religious Colleges and Universities

Posted in NLRA, NLRB, Union organizing

On December 16, 2014, the National Labor Relations Board (NLRB) issued a decision reexamining two significant bodies of case law concerning collective bargaining rights.  First, it reviewed the standard used to determine when the Board should decline jurisdiction over faculty employed at religious colleges and universities, and also reevaluated the standard used to determine when faculty members are managerial, and therefore not covered by the National Labor Relations Act (NLRA).

In Pacific Lutheran University and Service Employees International Union, Local 925, the NLRB issued a new standard.  The Board decided the NLRA,

“… permits jurisdiction over a unit of faculty members at an institution of higher learning unless the university or college demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment, and that it holds out the petitioned-for faculty member’s as performing a specific role in creating or maintaining the school’s religious educational environment.”

The Board held with respect to Pacific Lutheran University that although the university did meet the threshold requirement of holding itself out as creating a religious education environment, it did not consider the petitioned-for faculty members as performing a religious function in support of that environment.  Therefore, the Board had jurisdiction over those faculty members.

The Board also changed the analysis it applies when determining the managerial status of university faculty.   In determining whether or not a faculty member is actually or effectively “management,” the Board will examine faculty’s participation decision-making in the areas of: 1) academic programs, 2) enrollment management policies, 3) finances, 4) academic policies, and 5) personnel policies and decisions.  If faculty do not exercise control in these areas, then they do not exercise managerial authority on behalf of their employer, and can be included in a bargaining unit.

This decision greatly expands the ability of faculty at religious-affiliated colleges and universities to unionize.  This decision, in conjunction with the on-going movement of adjunct faculty petitioning to unionize, stands to change the future of labor relations on college campuses.   


Millenials Seek Flexibility at Work.

Posted in Benefits, Informational, Millenials

Photo from: FreeDigitalPhotos.net and Panpote

Millenials are the fastest growing group in today’s workforce, and more millenials are seeking alternative work options to the traditional 9 to 5, Monday – Friday job. Millenials (also known as Generation Y) are those born between 1981 and 2002. They like technology/gadgets, they aren’t particularly willing to work overtime, they are big multi-taskers, and are always connected.

This past weekend Adam Belz wrote an interesting article in the Star Tribune and gave several good examples of millenials “thinking outside the cubicle.” Millenials seem to have less interest in money and more interest in freedom, flexibility and personal time. Joe Kessler, with NOISE a consulting business which helps companies market to millenials, stated two out of five millenials want more vacation time vs. a higher salary. Part of the reason for this change in the work habits of millenials is more of them are putting off marriage and having a family.

Millenials aren’t interested in the same kinds of benefits and salary that baby boomers were after in the workplace. Millenials are here to stay, and businesses need to know how to get the best out of their employees. Businesses should see this change in the workforce as an opportunity to offer unique benefit packages that will entice millenials to work for them.

Food for thought: Instead of a raise a millennial employee might find more value in additional time off work, especially since with all the enhancements with technology a millennial employee can still be connected to work without physically being at the workplace.


The U.S. Supreme Court Takes on Pregnancy Discrimination

Posted in Business Practices, United States Supreme Court

Today, the United States Supreme Court will be hearing arguments in the case Young v. UPS on whether or not United Parcel Service (UPS) discriminated against Ms. Young due to her pregnancy. This case arose in 2006, when Peggy Young, a part-time UPS driver was denied light duty. She was placed on unpaid leave because of medical restrictions on how much weight she could lift. In 2006, UPS had a policy to only offer light duty to employees who were injured on the job, legally disabled, or had lost their federal driver’s certificate.

Since 2006, there have been changes made to the Americans with Disabilities Act Amendments Act (ADAAA) and the Equal Employment Opportunity Commission has issued guidance with respect to conditions resulting from pregnancy. Some suggest these changes and guidance make this case irrelevant at this time, however in 2006 only the Pregnancy Discrimination Act was applicable to Ms. Young’s circumstances.

Just this summer, Minnesota passed the Women’s Economic Security Act (WESA) which modified Minnesota Statutes regarding parenting leave, sick leave, and pregnancy accommodations as well as other economic benefits. It created a new statute, Minn. Stat. 181.9414 which provides, “An employer must provide reasonable accommodation to an employee for health conditions related to pregnancy or childbirth if she so requests…unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business.” Under the statute, an employer may not claim an undue hardship for following an accommodation of lifting restrictions for over 20 pounds. This is exactly the issue before the U.S. Supreme Court today. This statute is applicable to Minnesota employers who employ 21 or more employees.

It will be interesting to see how the U.S. Supreme Court interprets the Pregnancy Discrimination Act and if it addresses the fact changes to the ADAAA may have made this case moot. For Minnesota employers, be sure to check both state and federal law when addressing issues surrounding pregnant employees. I’ll keep you apprised of what the U.S. Supreme Court decides in Young v. UPS.


What Should The NFL Do With Adrian Peterson?

Posted in Uncategorized

adrian-petersonYesterday, Minnesota Vikings running back Adrian Peterson reach a plea agreement with the Montgomery County, Texas prosecutor’s office over charges he abused his 4 year old son. Mr. Peterson has pled no contest to one misdemeanor count of reckless assault, fined $4,000, and required to complete 80 hours of community service. He is currently participating in parenting classes. He will be on probation and if he avoids any trouble his record will be expunged in two years.

Mr. Peterson has been nothing but forthcoming about this parenting techniques and has cooperated with the prosecutor’s office, as well as the NFL during this time. So, the question that remains is what is the NFL going to do? Currently, Mr. Peterson is on the Commissioner’s exempt list, which means he can’t play but he is still being paid.

Dan Wetzel with Yahoo Sports wrote an excellent blog yesterday indicating this is a golden opportunity for not only Adrian Peterson, but also for the NFL to speak out and educate fans about domestic violence. Mr. Wetzel suggests, “Peterson’s punishment (or opportunity) going forward should be to take what he has learned (and will continue to learn) about abuse, anger management, parenting, child development and everything else and impart it to the public at large. If the NFL wants to make an impact on America then it should utilize Peterson’s celebrity and credibility in hard-to-reach communities and require him to lead on the subject of child abuse.” I completely agree with Mr. Wetzel’s opinions on this issue and think the NFL needs to run with Mr. Wetzel’s suggestions and return Adrian Peterson to work.

The NFL has suffered a lot of negative publicity since the start of the season, and here is a prime opportunity to take a bad event and turn it around so something good can come out of it.


Election Day Is Fast Approaching!

Posted in Business Practices

You can’t miss all the yard signs promoting candidates for mayor, city council, or state representative in my neighborhood.  Every other house seems to have at least one, and some have two.  In addition, my mailbox is over-flowing with the political advertisements saying why I should vote for “that” candidate, and of course, don’t forgot the televisions ads.  We are just one week away from 2014’s mid-term election day, and after that the yard signs will be replaced with snow and the advertisements replaced with holiday catalogs and ads.

It is a good time to remind employers about their obligations regarding employees voting rights.  Minnesota statute §204C.04 indicates, “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.”

This means employers must provide employees with a reasonable amount of time off work to cast their ballot on November 4.  Employers should check their policies or collective bargaining agreements, for further information about what may be required.

To insure adequate work coverage, employers may want to talk with employees prior to election day, and inquire about what time employees may be voting.  Just remember violation of the Minnesota election law by an employer is a misdemeanor.


Babies Now or Babies Later, It Is Your Choice!

Posted in Benefits, Informational, Public Employers

Baby Josee (2-6-12)An interesting development is on the horizon regarding new benefits for employees in the private sector workforce. Last week both Facebook and Apple announced it will be providing up to $20,000 in benefits to help employees pay for infertility treatments, sperm donors or to freeze their eggs. Facebook has stated, freezing their eggs gives women an option to focus on their career or education first.

Dr. Nicole Noyes with the New York University Fertility Center shared the number of patients freezing eggs was almost 400 in 2014 compared with just 5 in 2005. In addition to Facebook, some big banks are already providing this benefit to female employees. It is predicted that law firms will start doing this as well. Employers see this benefit as a way to attract and retain top female employees.

In the public sector, employers are doing something different to attract and retain good employees. This summer I blogged about my city, Brooklyn Park, offering paid leave for new parents. Well, now other cities are considering this as well. Recently, Mayor Coleman from the City of St. Paul announced he wants to offer four weeks of paid leave for the birthing mother and two weeks for the other parent. This policy is being introduced to the City Council for consideration and could be adopted in 2015. Mayor Coleman stated, “This policy is good for families, and it’s good for bringing the best and brightest to the City of St. Paul.”

Clearly, employers are starting to realize that just offering competitive wages and health insurance is not enough to attract and retain talented employees. It is nice to see employers trying to help employees balance work and families. Hopefully, this is the start of a new trend.


Quarantine, the Workplace, and Ebola too!

Posted in FMLA, Informational

A few years back my oldest son Zach became extremely sick. For weeks he was tired and could barely struggle through a full day of school. All he wanted to do was sleep. After several doctor visits, nothing was clear except we ruled out mono, strep, and the flu.

Then a strange cough developed and again we ran to the doctor. This time the doctor thought he might have whooping cough, and immediately began antibiotic treatment even before the diagnosis was confirmed. Two days later on a Friday evening, the doctor called and confirmed Zach tested positive for whooping cough, and advised me the whole family would have to be quarantined. I was in shock. How could he get whooping cough? He was up to date on all his immunizations and booster shots.

The doctor then asked me how Zach was doing and to be honest, I had let him go to a play with his friends because for the first time in weeks he was actually feeling pretty good. The doctor advised me I would have to go pick him up as his next phone call would be to the County Health Department to report a case of whooping cough, and put our family in quarantine. I had to make arrangements for prophylactic prescription antibiotics for each family member, and notify everyone Zach had been in contact with during the week that he had whooping cough. We all took our antibiotics, watched a lot of movies, and stayed at home for the prescribed period.

What in the world was NBC medical correspondent Dr. Nancy Snyderman thinking, when she recently broke quarantine imposed due to her exposure to ebola?  She had traveled to Liberia to cover the spread of ebola for the evening news.  I had watched her report and wondered whether it was a good idea to send a news crew to cover the story. Within a very short time, news coverage reported one of her camera crew had contracted Ebola and was being treated in Nebraska. Just yesterday, news coverage reported Dr. Snyderman had broken her 21 day quarantine when she went to get take-out food with her camera crew at a New Jersey restaurant.

Irresponsible is the first word that comes to my mind. NBC, as her employer, I hope you are paying attention. As an on-air medical professional, she exercised extremely poor judgment which goes to the very question of her credibility to continue to report medical news. She should have honored the quarantine, reported stories via Skype about being quarantined, and maybe even done a few historical pieces on past quarantines. She would have been entitled to exercise FMLA leave, and could have educated the public about the laws surrounding quarantine. Instead, I predict she may lose her job as a medical correspondent for NBC.