Minnesota Labor & Employment Law Blog

Minnesota Labor & Employment Law Blog

Serving the Legal Needs of Minnesota Employers

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.

Minnesota Minimum Wage Increases August 1!

Posted in Law Updates

Whether Minnesota employers want to or not, this Friday, they are required to increase the wages of employees working for minimum wage. The Minnesota legislature made several changes to Minn. Stat. § 177.24, including modifying the definition of “large employer” and “small employer” for purposes of determining minimum wage. Previously a “large employer” was an enterprise whose gross volume of business was $625,000. This amount has been reduced to $500,000. This has the effect of making businesses which were previously considered “small employers” to now fall in the “large employer” category, and therefore have to pay a significantly higher minimum wage. Businesses with less than $500,000 in gross annual business are defined as “small employers.”

Effective August 1, 2014 large employers will be required to increase the minimum wage from $6.15/hour to $8.00/hour. The minimum wage will increase August 1, 2015 to $9.00/hour and to $9.50 on August 1, 2016. Small employers will pay $6.50/hour in 2014, $7.25/hour in 2015, and $7.75/hour in 2016. Effective January 1, 2018 the minimum wage may be adjusted for inflation.

There are some notable exceptions to the new minimum wages. For example, large employers whose employees are under the age of 18 may pay the minimum wage set out for small employers. Additionally, large employers who have employees under the age of 20 may pay the minimum wage set out for small employers for the first 90 days of employment. After that the wage reverts to the standard for large employers. There is also a detailed exception for hotels, motels or “lodging establishments” with a summer work travel exchange visitor program.

Now is the time to review your payroll protocols and determine which minimum wage is applicable to your employees. 

What Benefits Does Your Business Offer Employees?

Posted in Business Practices

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?

Posted in Informational

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

Posted in EEOC

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.

Does Your Work Track Its Employees?

Posted in Business Practices

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

Posted in Informational

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.