Harris v. Quinn: Second Labor Case This Term to be Decided by the Supreme Court

It is a little unusual for the United States Supreme Court to consider two important labor cases during its’ term, but that is exactly what legal analysts will be saying come June. In January, they issued a decision on a donning and doffing case that I previously blogged about. They are currently considering an even bigger case for unions regarding union dues, and whether or not unions can require non-union workers to financially support the union that represents them.

Since Abood v. Detroit Board of Education which was decided more than 50 years ago, the Supreme Court has upheld the right of unions to require workers to pay a part of usual union dues, in exchange for the union’s duty to represent them in contract negotiations and grievance arbitrations. That whole scenario is now at question, potentially jeopardizing public employee unionism.

In Minnesota, we identify the two types of union membership as “full-dues” and “fair-share.” In the current case pending before the Court, the rights of “fair-share members” are at issue. The dispute stemmed from eight Illinois health care workers who challenged the fair-share fee requirement, arguing the workers should be characterized as independent contractors, and therefore not forced to contribute to union dues against their will.

Since Abood was decided, unions have an obligation to represent all members in a bargaining unit. In exchange, while workers are not required to join the union, they are required to pay for the costs of representation, considered their “fair share.” After all, the workers benefit from the efforts of the union during collective bargaining, and in disciplinary matters. However, the Court has made it clear the “fair share” members can’t be required to pay any part of dues that represent political or ideological activity by the union.

Commentators at the SCOTUS blog are characterizing the Harris case as “public sector unions under fire.” The Court’s ruling will be issued any day now.

Minnesota Nice Isn't Just The People, It's The Businesses Too!

Minnesota is known for its “Minnesota Nice” residents. But it isn’t always the citizens that are nice, sometimes it’s the businesses, or more accurately the business owners. Jon Tevlin (@jontevlin) with the Star Tribune had the opportunity to highlight a few of these “Minnesota Nice” businesses.

Last month Mr. Tevlin wrote about Bob Sullivan, a Wendy’s franchise owner in Duluth whose restaurant had a fire causing the restaurant to close while under construction. Mr. Sullivan is not only committed to rebuilding the restaurant, he is also committed to his employees. He told the employees they will continue to be paid while the restaurant was being rebuilt. Is he legally obligated to do this? No. So, why is he? Because he said, “[r]eplacing good people is hard to do.”

Mr. Sullivan isn’t the first Minnesota business owner to make headlines for doing a good thing for his employees. In December 2013, the owners of Punch Pizza made local and national news for voluntarily raising new employee wages to $10/hour.   It even got mentioned in President Obama’s State of the Union address  In 2012, a Bemidji grocery store owner retired and left his business to his employees, versus selling to a chain store.

None of these business owners were required by law to perform these acts of kindness. They realized their biggest asset is their workforce, and when you have good employees, you want to keep them happy. So often we only hear news about businesses with problem employees, it is a nice change of pace to hear a story about a business that is going the extra mile.

Donning and Doffing According to the U.S. Supreme Court

It is not very often a U.S. Supreme Court Justice begins the Court’s opinion with “The question before us is the meaning of the phrase ‘changing clothes’…,” but that is exactly what happened last month when the United States Supreme Court ruled on an important donning and doffing case initiated by U.S. Steel workers. The whole case revolved around the definition of “changing clothes.” The Court held the U.S. Steel workers were not entitled to compensation for either the time required to put on personal protective equipment (PPE) or for the time necessary to travel from the locker room to their work stations.

Justice Scalia began the analysis by examining the ordinary contemporary meaning of “clothes” and concluded the workers suggestion that clothing did not encompass protective gear was misguided. He concluded “…’clothes’ encompasses the entire outfit that one puts on to be ready for work.” He then tackled the definition of “changing” by citing Webster’s Dictionary, noting the word meant both “to substitute” and to “alter.” The Court took the broader approach that “time spent in changing clothes includes time spent in altering dress.”

The Court discussed 12 particular items the workers were required to wear including: a flame-retardant jacket, pants, hood, hardhat, snood, wristlets, work gloves, leggings, metatarsal boots, safety glasses, earplugs, and respirator. The first nine were determined to be articles of dress, while the remaining safety glasses, earplugs and respirator were excluded from that standard. While the Court refused to adopt the de minimus doctrine concerning the time it would take to put on these three items; it did not want federal judges to be in the position of a time-study professional, and ruled “if the vast majority of time is spent in donning and doffing clothes as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.”

Applying the dictionary definitions, the Court held that “…donning and doffing of the protective gear in question qualifies as changing clothes,” and was not compensable under the Fair Labor Standards Act. (FLSA) This case should shut-down most employee arguments about donning and doffing, and hopefully be the last word on “changing clothes.”

National Labor Relations Board Has an App

The Government is certainly using new technology to get the word out to citizens on a variety of topics. Previously, I blogged about two apps the U.S. Department of Labor had developed; one allows consumers to determine if a business is in compliance with federal labor laws and another that allows employees to track their work hours. Now, the National Labor Relations Board (NLRB) has created its own app about the National Labor Relations Act (NLRA).

The NLRB’s app was actually rolled out in August of last year, but has been flying under the radar. The purpose of the app is to educate, employers, employees, and unions on their rights under the NLRA. I have downloaded the app to my android phone to give it a test drive. It basically provides a breakdown of the law in layman’s terms. It also allows you to use your GPS to find the NLRB office nearest to your location, and gives you the numbers to call if you have additional questions or want to file a claim.

Just earlier this month, the NLRB acknowledged employers were not required to post a notice advising employees about their rights in the workplace. However, that doesn’t mean the NLRB isn’t still trying to get their message out to workplaces (i.e. this new app). It is important for employers to be aware of what information is available out there for employees. Employers should check out the NLRB’s app, they might find it informative.

On-Line "Reasonable Accommodation" Resources

Yesterday forty brave Minnesotans came out for a 7:30 am presentation my firm made on “Effective Management of Difficult Employee Issues,” despite gusts of blowing snow and rough driving conditions. The presentation was part of the Vadnais Heights Economic Development Corporation business community roundtable series, designed to be a resource for local business owners.

My law partner and I spoke on how to manage poorly performing employees, abuse of sick leave/attendance problems, employee medical issues, and employee misconduct. We provided samples of: 1) Performance Improvement Plans, 2) discipline letters, 3) checklist outlining what an employer should consider before issuing discipline, and 4) a blog I wrote on coaching and counseling employees, which included a sample script for supervisors. The training was designed to be practical and give hands-on resources to local business owners and supervisors.

I told those attending the training I would blog about an on-line resource for employers who are managing an employee with a medical issue, needing “reasonable accommodation” under the Americans with Disabilities Act Amendments Act (ADAAA). I really like the Q & A found on the EEOC website which asks and answers the most common questions employers need to know about making reasonable accommodations. I also like the Job Accommodation Network (JAN) for its sample forms and free and confidential guidance on workplace accommodations. The site offers an A-Z of disabilities, and by clicking on options, an employer can review limitations and job functions to determine possible reasonable accommodations.

National Labor Relations Board's Notice Posting Rule is Invalid Once & For All.

The on-again, off-again National Labor Relations Board (NLRB) posting requirement for private sector employers is finally decided. Last week the NLRB decided to not seek Supreme Court review of the two U.S. Court of Appeals decisions invalidating its “Notice Posting Rule.” The NLRB had been trying to require private sector employers to post a notice about employee rights in the workplace since 2011. I have blogged about this issue on several occasions, because the NLRB deadline was repeatedly changed and postponed due to pending litigation.

Private sector employers can rest assured they are not legally required to post a notice about employee rights in the workplace, however they can do so voluntarily if they wish. The U.S. Court of Appeals for the District of Columbia stated, “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” At the present time the workplace poster is still available on the NLRB website.

It is the choice of the private sector businesses to decide if they want to hang the “Employee Rights” poster or not. If you have already had it posted in your workplace, you can remove it if you wish.


Employers Can Still Terminate Pot-Smoking Employees in Colorado

The recent legalization of recreational marijuana in Colorado has been all over the news.  Articles have reported on the law legalizing recreational possession and use of marijuana by adults; the expected tax revenues to the state of Colorado through the sale of legal marijuana; and some have offered commentaries on the social impact of the new law.  But no one has reported on the impact on workplaces until now, which naturally comes to my mind as an attorney representing employers.

The Denver Post finally addressed a little known section of the new law which provides that nothing in the new law will “affect the ability of employers to have policies restricting the use of marijuana by employees.” This is particularly true of those employers who have drug-testing policies in place covering safety sensitive employees such as bus drivers, police officers, or pilots. Due to the fact marijuana metabolites can remain in the blood stream for weeks, an employee in Colorado could legally use marijuana while off work, then fail a drug test required by their employer, and be terminated from employment.

I expect Colorado employers are scrambling right now to review their drug testing policies to determine how they fit with the new law. They also should inform employees of the potential negative impact on continued employment, if they fail to pass a required drug test. Another complication is the fact marijuana is still illegal under federal law. I will be keeping my eye on new developments as the legal system has time to catch up with the new law.

Merry Christmas and a Happy New Year from Abrams & Schmidt!

We have been listening to Christmas music at the office since the day after Thanksgiving, and Christmas is finally here. It is good to remember during the holidays that it is not about the gifts, the shopping, the food, or the fact the office is closed. This is true if you celebrated Hanukkah earlier in the month, will celebrate Christmas this week, or plan on celebrating Kwanzaa later this week. Author and humorist Oren Arnold reframes it all and gives us a great non-material list of holiday gifts.

Christmas Gift Suggestions:

To your enemy, forgiveness.
To an opponent, tolerance.
To a friend, your heart.
To a customer, service.
To all, charity.
To every child, a good example.
To yourself, respect. 

Blessings to you and your family from Marylee and Tiffany.


New Year Review: Are You Ready for "Ban the Box"?

A new year is quickly approaching and so is the implementation of a new law restricting circumstances when Minnesota public and private employers can request information about a job applicant’s arrests and criminal convictions. This is happening across the country in a number of other states and is being called “ban the box,” in reference to the box on many job application forms which ask about an applicant’s criminal record. 

Under the new law scheduled to take effect January 1, 2014, Minnesota public and private employers may not inquire, consider, or require disclosure of an applicant’s criminal history until after the applicant has been selected for a job interview, or if no interview is being conducted, then before a conditional offer of employment has been made.

This is not new to Minnesota public employers, as a similar restriction went into effect for them in 2009. Note: The new law does not impact employers who have some other statutory duty to conduct criminal background checks which are job-related such as police, fire, school bus drivers, etc…

This is however new to private employers, who may become subject to review and penalties from the Minnesota Department of Human Rights. Penalties are set out in the new statute and increase as time passes. Public employers who are the subject of complaints or grievances in violation of the statute will be reviewed under Chapter 14, the Administrative Procedures Act.

Prior to January 1, 2014, all Minnesota employers should review their job applications and hiring procedures, to insure they are ready to comply with the new law. This may require removal of questions on job applications concerning criminal history, unless of course the position is covered by a statutory exception. It may be permissible to consider criminal history later in the process, if an applicant has been selected for an interview or a conditional offer has been made to the applicant. 

Disconnecting From Work: A New Trend.

An interesting article appeared in the Sunday Pioneer Press regarding the 24/7 connectivity of the business world, and the problems it creates for employees’ mental health, productivity and turnover. Everyone is reachable everywhere today. It is rare to find someone who doesn’t own a cell phone. Some people even have two, a personal cell phone and a cell phone provided by work. Employees frequently check their e-mails when on vacation or home sick.

In the recent past, all the new developments in technology helped boost employee productivity. However, all this technology is coming at a price. The Associated Press reports, “Information overload cost American businesses just under $1 trillion in employee time lost to needless emails and other distractions in 2010.” Employees who are overworked and undervalued are at risk for burnout which often leads to employee turnover all resulting from employees being connected to the workplace 24/7. Most recently, employees affected by the Great Recession were fearful of taking time off, so they worked during vacation, at home in the evening, and also on the weekends.

Businesses are taking notice of these issues and implementing some creative changes. Volkswagen turns off email to some employees’ 30 minutes after their shift ends. Goldman Sachs is urging junior staff to take weekends off, and not check email or do work. BMW will be implementing rules in 2014 that will prevent workers from being contacted after hours. Businesses are seeing the benefits of having employees “escape” from work, so when they are at work, they are more productive.

What is your company’s practice regarding evening and weekend work? Are your employees showing signs of burnout? Employees are the biggest asset and biggest expense for many businesses. Now is the time to take the steps to do what is necessary to protect the asset! Let your employees know it is okay to be focused on home life when they are at home.