Minnesota Labor & Employment Law Blog

Minnesota Labor & Employment Law Blog

Serving the Legal Needs of Minnesota Employers

Last Chance to Weigh in on the Proposed FLSA Overtime Changes

Posted in FLSA, Uncategorized

September 4, 2015 is the last day to submit your opinion on the proposed overhaul of FLSA overtime.  The Department of Labor has proposed revising the FLSA, extending overtime protections to nearly 5 million white collar workers.  Under the proposal, salaried managers earning less than $50,440 per year would now be eligible for overtime.  The intended group expected to benefit from the changes include occupations as diverse as graphic designers, assistant store managers, fast-food managers, and business analysts.  The proposed new rule more than doubles the salary test for those eligible to earn overtime from the current $445.00 per week ($23,660.00 per year), to $970.00 per week, ($50,440.00 per year).  Also being proposed is to increase the total annual compensation for highly compensated employees from $100,000.00 per year to $122,148.00 per year. Both new rates would be updated annually.

With only 2 days left to submit comments, the Department of Labor form is simple and fast to use, even though I believe it is a foregone conclusion the proposal will be passed and implemented in 2016.   The wage threshold has not been increased since 1975 and there is no doubt it needs to be fixed.  However, incremental increases over the years would have been easier to tolerate for employers.

The rules won’t be finalized until 2016, but employers are already looking for ways to comply with the law while keeping a lid on labor costs. A few basic ideas to accomplish this is:

  1. for employers to review their time clocks and time tracking software systems to help avoid workers running up overtime;
  2. carefully review job descriptions and where appropriate consider switching salaried employees to hourly employees; and
  3. one last idea is for employers to review their policies and insist employees not check email or return phone calls while they are off work.

While tracking employee work time has always been important, it is now even a bigger concern for employers.  Get ready, I predict big changes in overtime coming your way.  

College Football Players Will Not Be Forming a Union

Posted in NLRA, NLRB, Uncategorized

This week, the National Labor Relations Board (NLRB) exercised its discretion to decline jurisdiction in a case involving Northwestern University scholarship football players.  The union representation petition filed by the College Athletes Players Association was dismissed.

Over 25 amici briefs were filed with the NLRB for consideration in this case.  Clearly, the potential unionization of scholarship college athletes is a big deal and could have ramifications throughout the country.  Northwestern University, as well as several of the amici briefs argued the NLRB should exercise its discretion to decline jurisdiction over college athletics, because it would not accomplish the basic purposes of the National Labor Relations Act (Act).

In its analysis of the facts, the NLRB indicated although Northwestern University is an “employer” as defined by the Act, the other 13 colleges included in the Big Ten Conference are all state-run institutions over which the NLRB has no authority because they are not considered “employers” under the Act.  Additionally, the NLRB stated, “…the scholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes…”  Therefore, the NLRB concluded asserting jurisdiction in this case would not serve to promote stability in labor relations.

The NLRB was very clear its decision to decline jurisdiction was strictly based on the facts before them, and any changes in the treatment of scholarship football players could outweigh the factors applicable to the current decision, and the issue could be reconsidered in the future.  Nice to see some common sense from the NLRB.

An Employee’s Past Work Record Can Lead to Denial of Unemployment Benefits

Posted in Uncategorized, Unemployment

MnUI-seal-header-sharpMore news on the Unemployment front:  In Fish v. YMCA, A14-728 (Minn. App. 12/15/2014), Mr. Fish was discharged for misconduct from employment with the YMCA.  Minn. Stat. § 268.095, Subd. 4 indicates an employee who is discharged for misconduct is ineligible for unemployment benefits.  Employment misconduct is defined as ‘intentional, negligent or indifferent conduct. . .that displays (1) a serious violation of the standards of behavior the employer has a right to reasonably expect of the employee or (2) a substantial lack of concern for the employment.’

In December 2013, Mr. Fish punched in for work and then proceeded to go lie down because he wasn’t feeling well.  He was found 30 minutes later by a coworker.  Going as far back as 2008, Mr. Fish had received other warnings for unsatisfactory performance.  The Minnesota Court of Appeals has previously held that employee’s behavior as a whole may be considered in determining the appropriateness of a discharge and qualification for unemployment benefits.

Recently, the Court of Appeals affirmed the decision of the ULJ who determined Mr. Fish’s past work record negatively impacted the YMCA, and he could not be trusted to perform his job duties in the future.  His misconduct could not be deemed a good-faith error in judgment.

Employers should consider an employee’s past work record and document it in a termination notice, in support of the decision to discharge the employee.  A sufficiently documented termination decision can support the denial of Unemployment benefits based on misconduct.   

Denial of Unemployment Compensation Upheld by Minnesota Court of Appeals

Posted in Unemployment

It is fairly well-known that unemployment compensation in Minnesota favors employees, and employers have a high hurdle to reach in unemployment challenges.  There are times however when the Department of Employment and Economic Development and the Court of Appeals agree with the Employer and deny unemployment benefits to an employee.

In Bronstad v. House of Hope, Inc., A14-54 (Minn. App. 09/22/2014) the Court of Appeals upheld DEED’s determination that Ms. Bronstad was ineligible for unemployment benefits because she quit without good reason caused by her employer.  Ms. Bronstad was employed by House of Hope, Inc. as a full-time client manager from 2006-2013.  On September 23, 2013, she was notified she was being demoted from her supervisory position in the men’s program and transferred into a non-supervisory position in the women’s chemical dependency treatment program.  Ms. Bronstad’s demotion was due to past reprimands, client complaints, and medication errors.  As a result of performing more medication errors than other client managers, House of Hope, Inc. needed to try something different to address the issue, and avoid future problems.  House of Hope, Inc. wanted to keep her on staff and believed the best option was to transfer her to the women’s house which had fewer clients.  Ms. Bronstad refused the transfer to the women’s house, and she was instructed to turn in her company keys and credit card.

Minnesota Statute §268.095 states a quit “occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  In contrast, a discharge “occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”

The ULJ found and the Court of Appeals agreed there was evidence that House of Hope, Inc. provided Ms. Bomstad continuing employment in the women’s program at the same pay rate, and therefore concluded the decision to quit employment was strictly Ms. Bronstad’s.  The Court next evaluated whether or not Ms. Bronstad’s decision to quit was based on a good reason caused by the employer.

The Court of Appeals has previously held a good cause to quit does not exist when an employer demotes an employee to a non-supervisory position when the employer has been dissatisfied with the employee’s job performance.  The Court of Appeals affirmed the ULJ’s denial of unemployment benefits.

It is helpful for employers to be familiar with the statutes surrounding unemployment compensation, because sometimes what appears to be a “discharge” is actually a “quit”. 

8th Circuit Rejects Trio of ADA cases

Posted in ADAAA, Business Practices, Discrimination, EEOC

US-CourtOfAppeals-8thCircuit-SealThe ADA makes it unlawful for a covered employer to discriminate against any qualified individual on the basis of a disability.  In E.E.O.C. v. Product Fabricator, Inc., 763 F.3d 963 (8th Cir. 2014) the Equal Employment Opportunity Commission brought an action on behalf of a terminated employee indicating there was reasonable cause to believe the employee was terminated as a result of a shoulder injury and on-going shoulder problems.  Product Fabricator, Inc. (PFI) was made aware of the employee’s shoulder injury in September 2008.  From that time until his termination on September 1, 2009, PFI transferred the employee to a less physically demanding position, accommodated his work restrictions, and all medical appointments.  The employee did not schedule surgery on his injured shoulder until after his termination from employment.  The court determined the year long lapse between the employee’s shoulder injury and his subsequent termination was too long and did not support the inference of discrimination.

In Withers v. Johnson, 763 F.3d 998 (8th Cir. 2014), Mr. Withers sued Judge Johnson contending Judge Johnson discriminated against him because of his back injury, failed to accommodate his disability, and retaliated against him for requesting accommodation.  Mr. Withers worked as an assistant probation officer under Judge Johnson.  He suffered an injury at work, and was placed on medical leave in accordance with the Family Medical Leave Act.  On May 10, Mr. Withers was cleared by his doctor to return to work.  He left several voicemail messages for Judge Johnson, but did not reference his ability to return to work.  He also called the H.R. Department, but failed to mention his ability to return to work.   He did not provide a copy of his release to return to work until May 16, when he sent a copy to the H.R. Department, who then forwarded it on to Judge Johnson’s office.  The personnel policy stated, “…you are required to immediately provide a copy of the release to your supervisor to determine your return to work date.  Employees who fail to return to work as designated are considered to have resigned.”  Judge Johnson issued a letter to Mr. Withers indicating he was considered to have resigned his position with the County.  The court held there was no causal connection between Mr. Wither’s request for medical leave and his subsequent discharge, and barred his ADA claim.

Lastly, in Cody v. Prairie Ethanol, LLC, 763 F.3d 992 (8th Cir. 2014) the court determined Prairie Ethanol offered a legitimate, non-discriminatory reason for terminating Mr. Cody’s employment.  The employer cited performance-related issues resulting from Mr. Cody’s overly aggressive way of operating the plant.  While Mr. Cody established a prima facie case of disability discrimination, Prairie Ethanol offered a legitimate, non-discriminatory reason for terminating Mr. Cody, thus shifting the burden back to Mr. Cody to present evidence that Prairie Ethanol’s reasons were pretextual.  The court determined Mr. Cody failed to raise a genuine dispute whether Prairie Ethanol discharged him due to his disability rather than performance issues.

Discrimination cases are very fact specific.  Employers should be strategic and intentional, and avoid knee jerk reactions to avoid missteps.

NBC Talent Trouble or “Employees Behaving Badly”

Posted in Employee Misconduct, Informational, Uncategorized

NBC_News_Rockefeller_CenterThe recent Brian Williams debacle is the third major employee melt-down for NBC in the last 18 months.  NBC’s talent trouble started with the 2013 Today Show debacle and the bullying of Ann Curry by her fellow Today Show producers and hosts.  Curry left the show in tears amidst allegations of taunting and what she termed “professional torture.”

In 2014, NBC medical correspondent Dr. Nancy Snyderman’s ignored an ebola quarantine to go get take-out food, which brings us to Brian Williams recent 6 month suspension over his exaggerating news stories.  It was uncovered that news anchor Brian Williams embellished his involvement in a news report from twelve years ago, where he claimed his helicopter took on gun and missile fire while he was reporting from Iraq.  The media frenzy surrounding this revelation was a lot like piranhas feeding on fresh meat, no doubt influencing NBC’s decision to suspend Williams from the anchor desk.

It goes to show employee misconduct is not restricted by employee education, income, or job visibility.  I was glad to hear NBC conducted an investigation into the Williams matter, before deciding to suspend him for six months.

My question for NBC is why did it take twelve years for the Williams story to surface, and then only because an issue was raised by military personnel who were present?  What about the NBC camera crew and support personnel who were with Williams during the embellished helicopter ride twelve years ago?  Is there a corporate culture at NBC that protects badly behaving talent that should be addressed here as well?

Spin doctors are trying to shift the focus off of troubled NBC, and onto Fox news journalist Bill O’Reilly, alleging he embellished news coverage over the Falkland war.  Unlike Williams however, O’Reilly is holding fast to his journalistic integrity.

The take-aways:  NBC, like any employer dealing with employee misconduct, needs to review its’ corporate culture to get at the heart of why well-educated, highly-paid talent are behaving badly.  That is the only way NBC can truly retool their image and regain market share. I know I am going to be checking out David Muir over on ABC for my evening news, while NBC figures this all out.  I might even tune in to Bill O’Reilly to see why he is viewed as such a threat.

Employees Waiting in Security Lines, Not Entitled to Overtime

Posted in FLSA

U. S. Supreme CourtHave you ever thought you did something, but never did?  I am not talking about the recent admission and apology of NBC anchor Brian Williams who mistakenly claimed to have taken enemy fire while in a helicopter covering the Iraq war twelve years ago.  I am talking about something less significant; something that can legitimately just slip your mind.

I thought I had blogged about the Amazon overtime case pending at the U. S. Supreme Court.  It turns out the blog never made it past the draft stage, and I mistakenly thought I had posted it.  I was watching the case filed by Amazon warehouse workers to see how the Court would handle a new overtime twist.   Amazon requires warehouse employees to pass through security at the end of each shift as an anti-theft measure.  Some employees reportedly have waited in security lines for as long as 25 minutes, before they are free to leave work.   The employees filed suit seeking overtime compensation for the time they spend waiting in the security lines.

Justice Thomas ruled the time spent in security screenings was not “integral and indispensable” to the warehouse workers jobs, which involved retrieving products and packaging them for Amazon customers.  This was a big decision as more retailers today are requiring security screening of employees to help reduce employee theft.  The Court unanimously held fast to the 1947 “Portal to Portal Act” which indicates employers are not responsible to pay employees for preparation activities both before and after work.  Employers are only responsible for such preparation activities if they are “integral and indispensable” parts of the principal work of the employee.

Employers should properly pay employees overtime when it is due, but as the Supreme Court sets forth, not everything is compensable time.  

At-Will Fire Chiefs Had No Property Interest in Their Jobs

Posted in At-Will Employees

Three Fire Chiefs in Crews v. Monarch Fire Protection District, 771 F.3d 1085 (8th Cir. 2014) challenged their terminations from employment, claiming procedural due process violations and defamation.  The three Fire Chiefs were terminated from their positions after the Missouri Court of Appeals upheld a jury verdict against the Monarch Fire Protection District for sexual discrimination, concerning the treatment of several female firefighters.  The Fire Chiefs had been given an opportunity to resign, but refused and were then terminated.

The Board for the fire protection district’s defended its decision to terminate, based on the Court of Appeals ruling.  Several members of the Board were alleged to have stated the Chiefs were discharged for promoting an environment of unacceptable discrimination. The Fire Chiefs claimed Monarch violated their fourteenth amendment rights without due process of law.

Missouri is an at-will state and the Fire Chiefs did not have express employment contracts.  The Court determined “In Missouri, an employee can be terminated at the will of his employer unless a valid employment contract – complete with ‘offer, acceptance and bargained for consideration – states otherwise.”  Nothing in this case established the elements of an enforceable contract, and therefore the Fire Chiefs were at-will employees and held no property interest in their continued employment.  Additionally, the Chiefs forfeited any loss-of-liberty claim when they failed to request a name clearing hearing; and the Chiefs did not clearly establish any constitutional violations.

Minnesota is also an at-will state, unless an employee is covered by a union contract, or has a contract with his/her employer.  Minnesota employers should be aware at-will employment can be negated through an employment contract.

Is Your Municipality Considering A Joint Powers Agreement?

Posted in Law Updates, Legislation, Public Employers

In Minnesota, it is not uncommon for smaller municipalities, counties, townships or school districts to enter into joint powers agreements with another small entity for purposes of providing better services to its citizens.  A joint powers agreement establishes a board which has the power to receive and expend funds, enter contracts, and hire employees, creating a separate joint entity apart from the individual municipalities involved.   As an example many communities have entered into joint powers agreements for purposes of providing law enforcement services or fire protection.

In 2014, the Minnesota legislature adopted a new statute which provides certain employee protections in joint powers agreements.  The statute governs any joint powers entities established after January 15, 2015 and addresses unionizing, determination of an appropriate bargaining unit, transitioning to a new bargaining unit, interim collective bargaining agreements, as well as contract negotiations and administration.    

In addition to reviewing the new statute prior to entering into a joint powers agreement, I would also recommend you review the League of Minnesota Cities document “Ten Things To Watch For When Entering Into Joint Powers Agreements.”  By doing a little research upfront regarding the process, headaches could be avoided later. 


Top 10 Legal Pitfalls with Employee Handbooks

Posted in Employee Handbooks

Next week, I will be presenting at the Vadnais Heights Economic Development Corporation Business Community Roundtable on the biggest mistakes employers make with employee handbooks.  The VHEDC is a great resource for business owners offering valuable training and resources to help local businesses succeed.

Preparing for the presentation I reviewed the recent legislative changes affecting businesses over the past year, and was surprised at the volume and scope of the changes.  I will be focusing on those new changes and encouraging business owners to review and update their employee handbooks.

The list of new changes is impressive and includes WESA, new implementation requirements for the Affordable Care Act, extension of the Parenting Leave law to 12 weeks, the expansion of the Sick Child Care Leave law to the new Sick or Injured Relative Care Leave law, and same-sex marriage and FMLA leave. I will also be addressing the NLRB’s position that employers cannot ask employees for their personal passwords and the Department of Labor’s enhanced focus on misclassified employees and the potential for overtime liability.

The number one pitfall I will be starting with is not having an employee handbook.  I hope to see you there.