Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

The school year is coming to an end and a new batch of graduates will be hitting the job market, looking for their first real job. The struggling economy has little to offer, and employers are not confident enough to add personnel until the economy improves a bit. The natural temptation for both employers and job seekers is to consider summer internships. Free work, resume boost, whatever the motivation, it all sounds good. Even the internet is full of stories about famous people who worked as interns on the way to becoming who they are today. Oprah Winfrey, Lady Gaga, Brooke Shields, and Kanye West, all reportedly worked as an intern in their career. It sounds even better.

Last weekend Steven Greenhouse of the New York Times wrote, “As of Friday’s job reports showed, job growth is weak, and the unemployment rate for 20-24 year olds was 13.2 percent in April.” He mentions lawsuits filed by three different unpaid interns who worked for “Harpers Bazaar, on the movie set of “Black Swan,” and for Diane von Furstenberg’s fashion house, as well as the negative work experience of other interns who worked in Hollywood for Scott Rudin, and for a booking agent in New York. While some internships may provide valuable experience and boost a resume, others are little more than the exploitation of the vulnerable unemployed, required to perform menial tasks for free.

The Department of Labor takes a dim view of employers who seek to supplement their paid workforce, by using unpaid summer internships in this way. A DOL fact sheet offers guidance to “for-profit” private employers,” to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act, for the services they provide. Internships will most often be viewed as an employee-employer relationship, unless each element of the test described below is met. 
 

Internship Test:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. 

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.

I blogged about summer internships around this same time last year. Unfortunately, the slow economy is perpetuating the practice, as employers and college graduates continue to look to alternate ways to solve their economic problems. Minnesota Lawyer called me for a quote on an internship article they are publishing, after recognizing the same seasonal employment issue.  Employers should think again before concluding an unpaid internship is a great solution.
 

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In two recent arbitration decisions, grievances were denied in part because the action the Employer took was permitted under the “Employer Authority” or “Management Rights” article in the collective bargaining agreement.

In AFSCME, Council 65 and City of Chisholm, the street department employees’ filed a grievance after having their work scheduled changed by two hours. The City Administrator had the street department foreman notify workers two days before the shift change, that employees’ were to come in two hours earlier (prior to the start of the original shift) and leave two hours before the end of the original shift. All employees still worked an 8 hour work day. Arbitrator Gallagher ruled in favor of the Employer. He agreed that Article 4 reserved to management the right of “scheduling work.” Past practice arguments were made by the Union, but were unsuccessful.

In an arbitration between Minnesota Teamsters Public & Law Enforcement Employees’ Union, Local 320 and Chisago County, Arbitrator Bernice Fields ruled in favor of the Employer. The facts in this case involved a restructuring of the Sheriff’s department to accommodate $750,000 in budget cuts. The grievant was a lieutenant in the Sheriff’s department, who was subsequently demoted to sergeant with a cut in pay. All corporal and lieutenant positions were eliminated as part of a department-wide restructuring. A grievance was filed over whether or not the demotion was proper, whether the demotion was in retaliation for protected political/union activities, and whether past practice obligated the Employer to maintain the grievant at the salary of a lieutenant. Arbitrator Fields agreed the Employer Authority rights clause reserved the right to “establish and modify the organizational structure.” Arbitrator Fields stated, “Failure to recognize the Employer’s right to reorganize the work structure when it deems necessary would deny the Employer the ability to remain afloat and competitive in the turbulent financial whitewater that both public and private employers have navigated since 2008.”

All language in a collective bargaining agreement is important, but some of the most valuable language to an employer is the Employer Authority article. Employees care about wages and benefits, but Employers should put a priority on the language that is negotiated.

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Conducting criminal background checks is becoming routine in the hiring process of new employees. Many employers see them as one way to vette potential candidates, and reduce the pool of job applicants. Yet, automatically excluding a job applicant because of a criminal history may subject an employer to a disparate treatment claim brought by the EEOC.

Last week, the EEOC issued a helpful guide for employers called Enforcement Guidance of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Employers should be aware there are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).

• First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. 
•  Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

(A short question and answer guide was also issued, by the EEOC which summarizes the major points.)

Minnesota employers should also be aware of state statutes which relate to criminal history checks. Minn. Stat. 181.981 applies to private sector employers. It is designed to encourage the hiring of ex-offenders by limiting the parties ability in negligent hiring and retention cases, from introducing evidence relating to an employee’s past criminal history, when the job duties of the position did not expose co-workers or the public to any heightened risk of harm.

In the case of public employers, Minn. Stat. 364.021 prohibits most public employers from making inquiry about the criminal history of a job candidate, until the applicant has been selected for an interview. This of course does not apply where the public employer has a statutory duty to conduct a criminal history background on a job candidate such as corrections or law enforcement.

Hiring decisions have the potential for being scrutinized. As such, they should be carefully planned and if a criminal history is utilized, it should be reviewed to insure compliance with the most recent EEOC guidance.

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The local Minneapolis office of the NLRB issued a decision last week, finding a Jimmy John’s franchisee illegally fired six employees for protected activity. This case is a follow-up to a blog I posted last fall about a failed union organizing campaign at Jimmy John’s, which resulted in a settlement agreement and a rerun election.

Chapter 2 of the sandwich saga involved the termination of six employees for posting 3,000 notices near ten Jimmy John’s sandwich shops owned by Milkin Enterprises. The employees had asked the employer to provide paid sick leave, and to change a sick leave policy that required employees to find replacements when they are ill and unable to work. Milkin Enterprises rejected the request, and the employees posted notices near ten sandwich shops warning customers their sandwiches could be made by ill employees. The postings included pictures of two identical sandwiches, and asked:

CAN’T TELL THE DIFFERENCE?
THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T
GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.

WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST…

HELP JIMMY JOHN’S WORKERS WIN SICK DAYS
SUPPORT US ONLINE AT www.jimmyjohnsworkers.org

The Judge ruled the employees’ activity was protected activity under the NLRA, as it was part of an on-going labor dispute. The employer was ordered to reinstate the employees with full back-pay and any other lost benefits.

The employer’s case was argued byMichael Landrum and Mary Dobbins of Landrum Dobbins. Mary is an accomplished law school classmate of mine. She expressed her disappointment over the result stating, “We believe the conduct of the employees was egregious and should not be protected.“

Under these circumstances, the employees had no concern for the business enterprise, or the impact the postings may have on patrons of Jimmy John’s. Instead their only concern was improving their working conditions. This is a really tough spot for employers today. The NLRB pendulum has shifted so far in the direction of protecting employee speech, it leaves little room for employers to protect their businesses. The next step is a review by the full Board. I will keep you posted.
 

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The secret is out on the Secret Service. The sex scandal involving 11 Secret Service agents, 2 of which are supervisors, and 10 military personnel surfaced when a dispute over payment of a Columbian prostitute resulted in a call to Cartagena police, who then contacted the U.S. Embassy, and the story went viral from there.

It is never a good sign when supervisors are found engaging in misconduct along with subordinates. It has been my experience when that happens there is a much larger problem which extends to the underlying workplace culture. It has also been my experience with workplace misconduct that this was likely not the first time Secret Service Agents engaged in risky behavior and trysts with prostitutes. There were just too many agents involved and the behavior too overt to conclude otherwise. News reports have indicated there were at least 20 prostitutes involved in the scandal, indicating this was pretty wide-spread.

We have heard little from the agents themselves other than one news report which indicated, "...some of the men stated they did not know the women were prostitutes.” Instead of well-trained security specialists, charged with protecting the President of the United States, they sound like frat boys who got caught with a woman in their room after hours, except the possible ramifications go way beyond loss of frat membership or suspension from a sports team. ABC News reported, “On Wednesday, the chairman and ranking Democrat on the House Committee on Oversight and Government Reform, Rep. Darrell Issa, R-Calif., and Rep. Elijah Cummings, D-Md., wrote to Mark J. Sullivan, the director of the U.S. Secret Service, about potential security concerns. "The incident in Cartagena is troubling because Secret Service agents and officers made a range of bad decisions, from drinking too much, to engaging with prostitutes, to bringing foreign nationals into contact with sensitive security information, to exposing themselves to blackmail and other forms of potential compromise."

Director Mark Sullivan appears to have acted swiftly and done the right thing by immediately removing the agents from Columbia, suspending their security clearance, and placing them on administrative leave pending a thorough investigation. Based on evidence already collected 3 agents have reportedly been forced out through early retirement, resignation, and proposed termination.

Something went terribly wrong, and the secret is now out of the bag. Between the White House investigation and Congressional hearings, this story will continue to unfold in the months to come. Managers should get beyond the "What were they thinking?" response, and be actively aware of workplace culture.   

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Last week, I blogged the deadline for employers to post the National Labor Relations Board poster on employee rights was fast approaching. Well, yesterday that changed again! The District of Columbia’s Circuit Court of Appeals temporarily enjoined the NLRB’s rule requiring the posting about employee rights. The Court of Appeals took this action, due to conflicting decisions which were issued at the district court level. Earlier this year, the D.C. District Court found the NLRB had the authority to issue the rule. However, last week the South Carolina District Court found the NLRB lacked the authority to issue the rule. Until this gets figured out in the courts, the requirement to post the NLRB poster on employee rights, is apparently on hold. I’ll let you know when a new deadline is set.

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Most individuals and businesses at this time of year are more focused on the tax deadline that is quickly approaching next week, April 17th to be exact, than other deadlines which maybe on the horizon. Well, this month there is one other deadline which is quickly approaching for most employers, the requirement to post the Employee Rights under the National Labor Relations Act poster. Last year, the National Labor Relations Board (NLRB) announced it would be requiring both unionized and non-unionized employers to post an employee rights poster in the workplace. Originally, employers were going to be required to hang the poster effective November 14, 2011, but that deadline was delayed several times. Well, now the deadline is fast approaching (April 30th) and it doesn’t appear that it will be postponed this time.

Some changes have been made to the poster since it was originally proposed by the NLRB. It is no longer an automatic unfair labor practice to not hang the poster, nor is there an indefinite extension of the statute of limitations for filing an unfair labor practice charge.

If you haven’t already done so, go to the NLRB website and download the poster for free. Remember the poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. Also, if 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language. The NLRB has foreign language versions also available on its website. Additionally, if your business regularly posts policy updates electronically on a company intranet page, you are required to include this notice there as well. 

Steps to take now:

1) Research to determine if you are one of the employers required to hang this new poster.
2) Train your managers/supervisors so they are aware of the new poster, and know how to respond to employee questions.
3) Hang the poster by the April 30, 2012 deadline.

 

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I am once again co-teaching the 2-day intensive Internal Affairs Investigation Seminar with Wayne Shellum through UMCPI. The course is designed to equip workplace investigators to conduct full, fair, neutral investigations. 

Workplace investigations are stressful, and fraught with changing situations. My teaching responsibility for the course covers the legal aspects of conducting a workplace investigation. My goal is to equip anyone conducting a workplace investigation, with the legal framework they need to plan and carry-out a thorough investigation. 

One of the most crucial things for an investigator is to have an intentional plan. This will include identifying employee rights, developing strategies for collecting all necessary data, and obtaining successful interviews from both witnesses and the employees who are the subject of the investigation. Finally, an investigator has to have the confidence to draft conclusions based on the facts collected. 

The course is generally offered at least once a year, and sometimes twice depending on demand. To all “would be” workplace investigators, get the training you need to prepare yourself. Investigations can be a wild ride with many twists and turns. They definitely are not for the faint of heart. 

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It has been a while since I have had the chance to post a new blog. I have been adjusting to life with a newborn in the house again. Josée is now two months old, and I am able to get back to a regular work schedule and blogging.

It is all over the internet. Job seekers are being asked to provide prospective employers with their passwords for e-mail and social media sites. The Associated Press reported, a sheriff’s department in Virginia asked job applicants to “friend” background investigators, because today virtual friends know more about each other than actual next door neighbors. The background investigators then look at the social media sites for any potential “derogatory” behavior that could damage the sheriff agency’s reputation if the applicant is hired.

Legislators are not ignoring the phenomena either. Connecticut Senator Richard Blumenthal is currently sponsoring legislation which would make it illegal for employers to ask for this information, citing the private nature of the inquiry.

Currently, it is not illegal for an employer to request a password from a job applicant, but it is certainly a slippery slope with regard to protecting an employer’s right to know, against an applicant’s right to privacy. It is also against Facebook’s policies for users to provide their passwords to others. It is understandable employer’s want to hire the best candidate and protect their business interests, but before social media was even around, employer’s had many other avenues available to properly vet a job applicant, including background checks, reference checks, and detailed interviews.

Social media is the water-cooler of the 21st century. People voice their complaints, share stories and opinions, all on social media websites. Requesting a job applicant’s password is akin to asking for the key to their personal diary. It is important to determine why an employer is interested in the information found on a social media site. Is it really necessary for hiring a job applicant? After the employer gets information from a social media site, what will be done with it?

If an employer is concerned about the character of a prospective job applicant, then traditional background checks, reference checks and interviews are an appropriate means to gather the necessary information to make an employment determination. If an employer is concerned about protecting their business interests from employees sharing information or disparaging the business on social media sites, the better approach would be to inform applicants as a requirement to being hired, they must sign a confidentiality agreement and a non-disparagement agreement. Of course, such agreements must not impact on an employee’s speech rights under the NLRA.

I would not advise employers to ask job applicants for passwords to e-mail and social media sites. I would not want one of my employer clients to be the test case in the legal system over this unsettled issue. Right now, the old-fashioned approach is a better alternative to vetting prospective employees.

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