Posted on October 27, 2010 by Tiffany Schmidt

If Your Employee Handbook References Progressive Discipline, You Better Use Progressive Discipline.

Mr. Stagg worked for Vintage Place Inc. for approximately 14 months, during which time he struggled with tardiness and absenteeism. Vintage Place Inc. employee handbook contained a progressive-discipline policy, which provided that Vintage's employee[s] may be disciplined according to a five-step schedule. The schedule permitted an oral warning for the first unexcused absence, a written warning for the second, a three-day suspension for the third, a ten-day suspension for the fourth, and termination for the fifth. As a result of his attendance problems, Mr. Stagg had received both an oral and written warnings, and a three-day suspension, but was fired before receiving a ten-day suspension.

This summer, the Minnesota Court of Appeals reversed an unemployment law judge’s determination an employee was precluded from receiving unemployment benefits because he was terminated for misconduct. In Stagg v. Vintage Place Inc. A09-949 (Minn. Ct. App. 2010) (pdf) the Court of Appeals ruled the employee, “could have reasonably expected Vintage to follow the disciplinary steps, and because Vintage skipped the fourth step of a ten-day suspension, relator's absenteeism does not amount to employment misconduct precluding eligibility for unemployment benefits.”

I have blogged about this in the past, you don’t want to include specific discipline procedures in an employee handbook, because, “Minnesota courts (pdf) have decided when an employee handbook includes specific disciplinary steps to be taken prior to termination, an employee’s “at-will” status is modified and some job security is presumed.”

What should you do?
1) If you have a specific discipline procedure in your employee handbook and you are currently dealing with a problem employee, then you better follow your procedure.
2) If you have a specific discipline procedure in your employee handbook and you do not have a current problem with an employee, then this would be a good time to update and revise your employee handbook.

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Posted on October 19, 2010 by Marylee Abrams

Coffee Breaks? Meal Breaks? Smoke breaks? What Is Required By Law?

Many employers mistakenly assume all employees are entitled to two fifteen minute breaks and an hour lunch break, in a normal work day. I have even spoken to attorneys who have made the same incorrect assumption.

Minnesota law outlines minimum breaks and meal periods, but does not specify the length of time for these breaks. The law applies to many, but not all places of employment. It may not apply if the employer has negotiated a labor agreement, as the parties are free to negotiate break periods which may be different than those provided in the law.

Minnesota Statute §177. 253, requires that employees be permitted adequate time from work within each four consecutive hours of work, to utilize the nearest convenient restroom. There is no mention of time for coffee or a smoke break.

Meal breaks are similar. Minnesota employers must permit each employee who is working for eight or more consecutive hours, sufficient time to eat a meal, but the meal break need not be paid. Once again, nothing prohibits employers and employees from establishing meal periods different from those provided in the law through collective bargaining.

Before an employer tries to reduce employee break times, it is a good idea to first determine if the Minnesota statute applies to the particular employer and employees. (For example exempt employees, agriculture employees, fire and police, elected officials, are all exempted from coverage.) Other questions to consider: Is there a collective bargaining agreement in place which covers breaks? What are the needs of the workplace? What does the employee handbook say about breaks? How do breaks fit into the work schedule and staffing levels? Where did the current break schedule come from, or was it just based on assumptions about what employees may be entitled to for breaks? Above all else, talk with your attorney before you make any changes. 
 

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Posted on October 8, 2010 by Tiffany Schmidt

$2 Million Jury Verdict Against a Wisconsin School District For Violating the ADAAA

Many people have disabilities. Some are physical and obvious to an average observer, such as a person in a wheelchair or like my daughter who has a hearing aid, though her hearing aid is generally covered up by her long blonde hair. People with obvious disabilities which affect a major life activity certainly fall under the Americans with Disabilities Act Amendments Act 2008 (ADAAA). However, other people suffer from disabilities which are not as obvious to an average observer, such as depression, chemical sensitivity, or Krohn’s disease. These disabilities may also fall under the ADAAA.

The Somerset School District in Wisconsin learned an expensive lesson on Tuesday, when a jury awarded a former teacher $2 million because the school district failed to accommodate her disability. Ms. Ekstrand, a veteran teacher, suffered from a form of depression known as seasonal affective disorder (SAD). Treatment for SAD requires exposure to natural light. Ms. Ekstand had worked for the school district for 5 years, when she was assigned to a room with no windows. She repeatedly requested to change to an exterior classroom, and was denied by the school district. Court documents show, the Somerset School District had an exterior room empty, which could have been used by Ms. Ekstrand. Additionally, another teacher offered to relocate rooms to accommodate Ms. Ekstrand’s request. The school district however refused to allow her to change rooms.

The ADAAA requires employers to provide reasonable accommodation to employees with disabilities. In this case it would have been a minor hardship on the school district to provide Ms. Ekstrand with a classroom to meet her needs. In the end, allowing Ms. Ekstrand to change classrooms would have saved the school district a lot of money.

I’ve written in the past about the importance of accommodating employees with disabilities.

So, what should Employer’s do if an employee approaches them requesting accommodation for a disability?
1) Ask the employee for documentation of the disability and inquire about necessary accommodations.
2) Talk to your attorney.

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