What Benefits Does Your Business Offer Employees?

Most employers provide the usual paid vacation time, paid sick time and other time off as required by law. However, some employers are trying something new to attract employees, specifically members of the millennial generation (born between 1979 and early 2000’s). Some employers are beginning to offer creative and different benefits. Currently, Brooklyn Park, Minnesota (where I live) is considering different job incentives/benefits to offer its employees and attract new employees.

The Brooklyn Park City Council is currently considering adding two weeks of paid parenting time, in hopes of attracting and retaining younger workers. If the City Council adopts the plan, the City of Brooklyn Park would be the first city in Minnesota to offer paid parenting leave. Brooklyn Park, like many other public and private sector employers recognize the challenges they will face when members of the baby boomer generation retire and members of the millennial generation are to replace them.

Studies have shown millennials are more likely to hop from job to job during their career. Additionally, millennials want more flexibility in where and how they work, whether it is from home, office, or on the road. Employers are facing the challenge and trying to figure out how to attract and retain good employees.

The City of Brooklyn Park is doing an excellent job by preparing ahead of time for the shift in employees and generations. The Council is also exploring other benefits such as tuition reimbursement and some type of leave for employees who care for aging parents. Councilmember Trepanier said, “If it helps get good work-life balance, we should do that.” The Council will be making a decision on this issue at a future Council meeting.

I’m grateful my city, is thinking outside the box when it comes to trying to find and retain the best employees. Everyone knows work-life balance is important, and now more employers are trying to help employees achieve it.

Is Your Business A "HEARTSafe" Business?

I went to an excellent training yesterday put on by the MetroNorth Chamber of Commerce. Coon Rapids Police Officer Bryan Platz was the speaker presenting on HEARTSafe Communities. The Program helps communities, organizations and businesses educate citizens about sudden cardiac arrest, raise money to place automated external defibrillators (AEDs) in business, schools and other public places, and trains people on how to use an AED and perform CPR.

Cardiac arrest can happen to anyone, anywhere, at anytime, and is almost always fatal. On average the survival rate is around 7% for individuals who have a cardiac arrest and don’t receive immediate life-saving treatment. However, survival rates go up to 85% when individuals receive immediate CPR and defibrillation with an AED. The training was eye-opening for me, and really quite simple. The important steps to take are: 1) Call 911, 2) Start CPR, 3) Use an AED, if one is available. The AED’s are completely automatic with easy to follow step by step verbal instructions, that even my 7 year old could follow.

Don’t let fear hold you back from offering assistance to someone needing immediate medical help. Minnesota has a “Good Samaritan” law which protects a person from liability when “offering emergency care, advice, or assistance at the scene of an emergency…”

Currently, Minnesota has 28 communities/businesses with the HEARTSafe designation. If you are interested in learning more about how to become a Heart Safe Community or business check out the toolkit and application here.

Businesses should train employees on how to administer CPR, and have an AED on site. For a minimal investment of time and money, your employees won’t just be a bystanders waiting for emergency personnel to arrive and take action, they will be heroes, helping save a life. I’m relieved to know that if I encounter a medical situation whether it is a friend, family member, or stranger, I now know how I can help until emergency personnel arrive. 

Employers: Use Caution If You Ask An Employee Any Medical Questions

We have all filled out those medical forms that ask “Have you or any of your family (mother, father, sister, brother) ever had any of the following…,” and then it goes on to list a variety of medical conditions including high-blood pressure, diabetes, cancer, etc. In an informal discussion letter from the EEOC Office of Legal Counsel, employers who ask employees to answer these types of questions as part of an annual fitness for duty exam, violate Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA).

GINA applies to both public and private employers with 15 or more employees. It prohibits employers from using the genetic information of applicants or employees when making any employment decisions. The EEOC informal discussion letter was generated in response to an inquiry from a city conducting annual fitness for duty exams, which included a standard medical questionnaire form.

EEOC made it clear, “Once employment begins, an employer may ask disability-related questions (questions likely to elicit information about a disability) and require medical examinations only if they are job-related and consistent with business necessity.” The standard forms were too broad and required employees to offer too much information. An employer is obligated “…to tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required. See 29 CFR § 1635.8(c).”

EEOC also objected to two specific questions included on the medical form which asked about hospital stays in the past five years, and whether or not the employee had visited a doctor for anything other than a routine physical in the last year. These two questions violated the Americans with Disabilities Act.

Employers need to review the forms used by medical providers to collect information on applicants or employees, in order to prevent a GINA violation. Medical information requested of employees must be very narrowly limited.

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Does Your Work Track Its Employees?

Technology is advancing in all areas at what seems to be lightening speed. You can buy a new cell phone or tablet, and within a month a new improved version is being released. Medical technology now allows surgery with lasers requiring minimal recovery time. Changes are also occurring in the workplace.

Employers are moving towards utilizing technology to track a host of employee information. The restaurant industry has been collecting data from employees for quite some time. Restaurant Guard, a product originally introduced to help restaurants track employees, orders, and inventory, and be alerted to possible employee theft, has actually resulted in increased revenue to restaurants. Servers know they are being tracked, and thus encourage customers to have an extra drink or get a dessert.

Sociometric Solutions is a new company which advises companies on human dynamics research through the use of sensor-rich employee ID badges. The sociometric ID badges are equipped with two microphones, a location sensor, and an accelerometer. The purpose is to monitor the communication behavior of individuals. Employees elect to have their data collected by Sociometric Solutions. Sociometric Solutions gathers the raw data but only provides aggregate statistics to the employers. The results of one study conducted at Bank of America call centers resulted in the company introducing a shared 15 minute coffee break. This resulted in a 10% increase in call handling productivity, and a 70% decline in employee turnover.

Utilizing digital tools for workplace monitoring can be both good and bad. The overall concern is, what is the “right” level of monitoring and why is it being done? As with any type of new monitoring/tracking technology there are concerns about privacy issues.

Workplace analytics is a new business arena that is making use of technology. The law will have to catch up and address the privacy questions raised by this type of tracking/monitoring technology in the workplace.
(Photo courteousy of ccsionline)

U.S. Supreme Court Updates

In the last week, the U.S. Supreme Court has issued several labor and employment decisions. Yesterday, two important cases were decided, Harris v. Quinn and Burwell v. Hobby Lobby et al.

In Harris v. Quinn, the Court in a 5-4 decision held the First Amendment prohibits the collection of “agency fees” (union dues) from personal assistants in the Illinois rehabilitation program, who do not want to join or support the union. The Court distinguished the Harris case from its decision in Abood v. Detroit Bd. of Ed., because the personal assistants in this case are different than full-fledged public employees. In Illinois, the state’s involvement with the personal assistants is limited to compensating them for their work. The personal assistants are hired, and their worked directed, by the “customers” who employ them, and they do not enjoy the rights or benefits of other state employees. They are not indemnified by the State for claims arising from actions taken during their employment. Because the Court determined Abood was not controlling, the Court applied First Amendment standards to determine if the agency fee provision served a “compelling state interest.” The Court held it did not.

One of the more controversial decisions of the Supreme Court this session is Burwell v. Hobby Lobby et. al. The issue before the Court was whether the Religious Freedom Restoration Act of 1993 (RFRA) permits the federal Department of Health and Human Services (HHS) to demand that three closely held corporations provide health insurance coverage for methods of birth-control, that violate the sincerely held religious beliefs of the companies owners. The three closely-held companies involved in the case are Hobby Lobby, Conestoga Wood Products, and Mardel. In a 5-4 decision, the Court determined the mandate to provide contraceptive care substantially burdened the exercise of religion.

HHS argued the owners of the companies forfeited all religious freedom when they organized their businesses as corporations, rather than sole proprietorships or general partnerships. The business owners argued that if they comply with the mandate, they would be facilitating abortions, or if they refuse, they would face penalties as much as $1.3 million per day or $475 million per year. The Court ruled a “…Government action that imposes a substantial burden on religious exercise must serve a compelling government interest…” and that it must constitute the least restrictive means of serving that interest, noting there were other ways in which Congress or HHS could ensure every woman has cost-free access to contraception. The Court cited a system developed for non-profit corporations such as that have religious objections to contraceptives. The decision of the Court is limited to closely-held companies, and did not address the first amendment arguments raised by the companies.

Finally, last week in N.L.R.B. v. Noel Canning, et al., the Court, after a significant historical analysis of how the Recess Appointments Clause (RAC) has been used, held three days was too short of a time to bring a “recess” within the scope of the RAC. As such, President Obama lacked authority to appoint three new members to the NLRB from January 3-6, 2012. The Court determined ‘in light of historical practice, a recess of more than three days but less than ten days is presumptively too short to fall within the Clause.’ The Court did indicate the use of the word “presumptively” leaves open the possibility an unusual circumstance could demand the exercise of the recess-appointment power during a shorter break. 

This year the U.S. Supreme Court has now issued four decisions having impacts on workplaces. My law partner blogged about Sandifer et al. v. U.S. Steel Corp. earlier in the year.

2014 League of Minnesota Cities Annual Conference

The League of Minnesota Cities 2014 Annual Conference is next week in St. Cloud and we can’t wait! This year, my law partner, Marylee Abrams will be attending on behalf of the City of Maplewood where she is a new Councilmember. Of course, our firm will also have a table in the exhibit hall. This is our sixth year exhibiting at the LMC Conference. We really enjoy this opportunity to connect with City Managers, City Administrators, Mayors and City Council members about what is happening in their cities. It is fun to check in with clients and attendees, and hear about all the changes that have occurred in their cities over the past year. If you are attending the Conference, please stop by our booth, introduce yourself, and play our game “Adventures in Public Employerland.” You can find us at Booth 415.

Have You Updated Your Job Applications and "Banned the box" for New Summer Applicants?

"Ban the box" was signed into law in Minnesota back in January 2014. This is the law that prohibits public and private sector employers from asking about arrests and criminal convictions on a job application. I previously blogged about “ban the box,” and urged employers to update their application forms.

Now six months later, you may be looking to do some summer hiring and may have forgotten to update your job applications. Here is a resource to help you review your job applications and it even includes training for employers on hiring practices.

It is too easy to dust off the hiring file and do things the same way you did for your last hire. Please make sure you have updated your job application forms and freshened things up a bit to avoid penalties.

Anthony Wedo, CEO of Old Country Buffet Restaurants on Leadership

I had the pleasure this morning to introduce the speaker at the White Bear Area Chamber business breakfast, Mr. Anthony Wedo. Mr. Wedo is the CEO of Ovation Brands, but you might recognize his name from his television commercials for Old Country Buffet, or his episode on “Undercover Boss."  He is the mastermind behind the reinvention and redesign of the Old Country Buffet line of restaurants, new food, fresh décor, hospitality all wrapped in his personal guarantee to “make it right” for each customer.

Mr. Wedo spoke to the group of local business owners about his twelve commandments for successful leadership. In short, he covered passion, caring, the fact leadership is earned, persistence, results, teamwork, judgment, accountability, humility, courage, honesty and gratitude. He used examples, humor, and enthusiasm to get across his business philosophy, and challenged everyone to “stand for something,”

The business breakfast was, of course, held at the Maplewood Old Country Buffet restaurant. Mr. Wedo shared his insights as if we were all family members sitting around the kitchen table, however, it was hard to ignore the fact his business employs 18,000 employees and has carved out a billion dollars in sales in the restaurant market. 

Anthony Wedo is truly an example of the American entrepreneurial spirit at its finest!

New Changes Are Coming To PELRA

The 88th Minnesota Legislature ended its session on May 16, 2014, and there are some significant changes to Minnesota Statute Chapter 179A, the Public Employment Labor Relations Act (PELRA). 

One of the biggest changes involves the creation of the Public Employment Relations Board (PERB).  Back in the 1970’s, Minnesota had a PERB, but its’ responsibilities were changed and reassigned to the Bureau of Mediation Services (BMS).  Now the legislature has re-created a new PERB.  This PERB consists of three members, two of which will be appointed by the governor, one who represents exclusive representatives, and one who represents public employers.  These two board members will then select a third member to serve the public at large.  The purpose of the new board will be to take actions and enforce Minn. Stat. § 179A.13 regarding unfair labor practices. 

Effective, July 1, 2015, if an employee, employer, employee/employer organization, or exclusive representative, allege an unfair labor practice has occurred, they shall file such charge with the PERB.  Currently, such actions are brought in district court.  The PERB will then conduct an investigation into the allegation and issue a complaint, unless the charge has no reasonable basis in law or fact.  After a complaint has been issued a hearing will be conducted within 20 days of the service of the complaint.  By mutual agreement, the parties prior to the close of the hearing can also request a referral to mediation. 

If the hearing officers determine a party has engaged in an unfair labor practice, then a recommended decision and order shall be issued outlining the findings of fact and conclusions, and requiring the party to cease and desist.  The hearing officer can also order other appropriate relief that make the charging party whole. 

It will be interesting to see how this all works once the PERB is established.  I think it will be beneficial to the arena of labor law to have individuals who are well-versed in the legal aspects of unfair labor practices investigating and hearing cases vs. the average district court judge who may be hearing a personal injury case on Monday and a criminal case on Friday.  I think this change has been along time coming and will expedite unfair labor practice claims to the benefit of both labor and management.  

"Past Practice:" A Primer for Employers

"Past practice" has to be one of the most misused phrases in labor relations, seldom used correctly by labor or management. In the past three months, the Bureau of Mediation Services has published a trifecta of arbitration decisions which spell out how to effectively break a past practice, how to establish that one exists, and how a past practice applies when the labor contract is silent.

In a City of Duluth case, Arbitrator Befort ruled in favor of the Employer in a case concerning standby pay. The Union argued there was an established past practice to pay travel time as part of standby pay. The Employer argued they provided clear notice to the Union they were ceasing the practice of paying travel time, and provided the Union with the opportunity to engage in bargaining over the decision. In the award, Arbitrator Befort sets out a nice primer on how to properly break a past practice when the contract is silent. He noted, 1) the Employer advised the Union of its intent to alter the practice following the expiration of the contract, 2) the Employer indicated a willingness to engage in negotiations over the topic, and 3) the Union failed to address the issue during the 2013 round of bargaining.

In an Isanti County case, past practice was again argued. But this time the Employer claimed the existence of a past practice to deny holiday pay to officers in a non-work status, who were receiving worker's compensation benefits. Arbitrator Jacobs agreed with the Employer and indicated there was a 20 year history and practice of not paying holiday pay while the employee is off work on an injury.

Finally in the third case involving past practice, Arbitrator Beens ruled in favor of the State of Minnesota. The labor agreement provided the State would provide safety boots for 950 employees, but did not specify the amount that would be paid by the State. Instead, the State relied on a policy and a long-standing past practice to reimburse $125.00 for the cost of each pair of safety boots. The Union argued this amount was insufficient to cover unique sizes and specific boots sometimes needed by the employees. Where the contract was silent, Arbitrator Beens found a 20 year reimbursement policy raised the issue of past practice, and applied the classic standard test of: 1) clarity and consistency; 2) longevity and repetition of the activity; 3) acceptability of the pattern; and 4) mutual acknowledgment of the parties.

These three arbitration awards in less than three months are a trifecta for Employers on past practice. Employers with unionized workforces would be wise to review these three arbitration decisions, and use them as an instructional primer for future past practice issues.