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

Last week, there were two interesting articles in the St. Paul Pioneer Press about providing medical care on-site at businesses.

The first article was about school districts which have started free on-site clinics for teachers and staff. In Minnesota, the Brooklyn Center school district has an on-site clinic and the Farmington and Minneapolis school districts have approved on-site clinics and are working at getting them established. The Brooklyn Center school district program is run by NeoPath Health. The clinic is staffed one day a week by a doctor who sees patients and dispenses free generic drugs. The rest of the week, the doctor is available by phone, e-mail, or webcam. The goal of the clinics is to prevent illnesses and manage chronic conditions, such as diabetes. The school districts involved in this new endeavor hope the use of these clinics will not only save on increases in insurance premiums by having fewer doctor’s visits, but also save the cost of replacing teachers and staff who need to take time off in order to go to their normal physician.

The other article profiled a new business called OnSite Care Doctors PLLC. The purpose of this company is to provide work-site health and wellness services to small and medium size businesses. They provide on-site educational services as well as treatment services including chiropractic and acupuncture. The purpose of this company is to combine the convenience of care in the workplace, and reduce health care costs by reducing stress, reducing injuries and preventing illnesses.

These are fascinating new developments in how to deliver healthcare to employees. It will be interesting to watch how these end up benefitting workplaces in the long run. Thinking outside the box can cut costs and improve productivity.

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Minnesota workplaces are required to provide time off to employees for a variety of ten little known leaves of absence. While most employers are familiar with the federal Family Medical leave Act (FMLA), and military leave law, few realize Minnesota has a variety of state leave laws which cover some very unique and dare I say, unusual circumstances.  The potpourri of leave laws include four which cover family, health and children matters. The last six cover a variety of individual employee issues, including two newer military leaves for family members of service members. 

To determine which leave laws apply to any particular workplace, it is important to review the definition of employer in each situation. Some of the statutory leaves define an employer as a business employing one person, while other statutes require a workplace to employ at least 20 employees for the leave law to apply. Some of the unique employee leaves only apply to public sector workplaces such as cities and counties, while other leave laws apply to every workplace including private businesses. The important point is to determine which state leave laws apply to your workplace. The first four employee leave laws are:

• Parenting Leave: This law provides up to six (6) weeks of unpaid time off for the birth or adoption of a child. It applies to employers who have 21 or more employees, and is like a mini-FMLA. Employees must work for at least 12 consecutive months and at least half time prior to making the leave request. The employer must continue to make health coverage available during the leave, however there is no requirement the employer pay the costs of the health coverage during the parenting leave.
• Leave for Adoptive Parents: If an employer provides maternity/paternity time off to employees, they must also provide a minimum of four weeks paid or unpaid time off for the adoption of a child. This statute has a broader application than parenting leave above, and is not restricted to employers of 21 or more employees. It applies to all employers. There is also no restriction on the length of time an employee must work to qualify for the leave.
• School Conference and Activities Leave: Employers are required to grant up to 16 hours of unpaid leave time during any 12 month period, to attend school conferences or activities of the employee’s child, which cannot be scheduled during non-work time. It applies to all public and private sector employers in Minnesota who employ at least one employee. Employees are permitted to use vacation or PTO for any time taken under the statute.
• Sick or Injured Child Care Leave: If an Employer provides sick leave benefits for the absence of an employee, the employee is permitted to use sick leave to care for an ill or injured child. It applies to employers who have 21 or more employees, and requires employees to have worked at least 12 consecutive months and at least half time prior to making the sick leave request. Sick leave benefits do not  mean short or long term disability.

After checking the definition of employer, it is also a good idea to carefully check the definition of family member and child to determine who has what rights, and who is covered by each particular statutory leave. If you determine a particular leave applies to your workplace, it is a good idea to include mention of it in the Employee Handbook.  Don't forget to revisit the statutory leave laws as your workplace grows in size to remain in compliance. 

Stay tuned for Part 2 covering organ, bone marrow, and blood donation, as well as two newer  military leave laws covering military ceremonies and caring for an injuured service member.

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Every day more and more applications become available for smartphone users some are for fun and some are useful. I personally have a barcode scanner app, The Weather Channel app and a stopwatch app on my smartphone. The federal government has gotten into the app business and created an application which will help employees track the hours they work and determine the wages they are owed. At this time, the Department of Labor app is available in either English or Spanish, but only for the iPhone and iPod Touch. The Department of Labor timesheet app does not handle tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

Secretary of Labor Hilda Solis remarked, "I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled. This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

I’ve blogged several times about employers who have been fined for not properly paying their employees under the Fair Labor Standards Act, including Levi Strauss & Company and Walt Disney Parks & Resorts in Orlando, Florida. Now, employees have technology in their favor. In the past, if the Department of Labor received a complaint and the Wage and Hour Division conducted an investigation, the only party with any evidence was the Employer. Through this new app the employee can now provide verification of their tracked work hours to the Wage and Hour Division. The Department of Labor states, such information could prove invaluable during an investigation when an employer has failed to maintain accurate employment records.

Employers make sure you are correctly tracking your employees’ hours of work, and make sure employees are properly compensated under the FLSA. You don’t want your business subjected to an investigation by the Wage and Hour Division and then have to rely on the evidence provided by an employee through a smartphone app, because you don’t accurately track an employee’s work hours.
 

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Many work accidents are preventable through training and actively managing employees. Accidents at work can be devastating to the public, employees, and the employer, not to mention the liability exposure and resulting loss of employee work time and productivity. The federal government maintains statistics on fatal accidents, as do most states. Most recently, the Monthly Labor Review reported on a “Survey of Occupational Injuries and Illnesses,” based on national data from state and local governments. The survey noted a higher rate of injuries and illnesses in the public sector as compared to the private sector, and a higher rate of injuries and illnesses in local government workplaces, in comparison to state government. It is estimated there are approximately 1.6 million workplace injuries each year. The data is daunting.

Workplace safety numbers are impressive, but they only tell part of the story. Behind each workplace accident or injury, is the potential for employee discipline. Employees can and should be held accountable for safety violations. This month in Minnesota, two different arbitrators ruled in favor of the Employer, in two separate cases dealing with safety violations at work.

Arbitrator Martin upheld the termination of a public works employee who failed to stop for a school bus that had its flashing lights on and stop arm out. The Anoka City employee was driving a street sweeper at the time. No accident occurred and no small children were injured, but the arbitrator still upheld the employer’s decision to terminate the public works employee. He based his decision on the careful attention the City had paid to safety matters, and the safety training and policies they had adopted. The employee had a lengthy work record which included a laundry list of at least fifteen (15) past careless acts, including some intentional acts of disregarding safety rules. The Arbitrator noted there was no formula to determine discipline in safety cases “…how many events, over how much time, with what lulls require what discipline…” He did indicate the City did not have to wait for a serious accident before terminating the public works employee.

In another safety related case, Arbitrator Beens upheld the termination of a Metro Transit bus driver who had four chargeable accidents in a three year period. Almost four pages of the arbitrator’s award discuss the safety training, policies, and rules adopted by Metro Transit. A policy was in place indicating four “responsible accidents” within a three year period would result in termination. The driver had adequate notice her three previous accidents were going into her permanent file, and she elected not to grieve any of the prior determinations by the Employer.
The union and management disagreed on the definition of a “responsible accident,” and the arbitrator ruled in favor of the Employer, agreeing that a responsible accident means a preventable accident. Despite the union arguing the driver was well-liked by bus-riders, and enjoyed her job; safety won out in the end.

Employers prevailed in both arbitration cases because they had focused a lot of time, attention, and money relaying the importance of safety to employees through training, policies, and consistent application of discipline. Accidents will happen; Employers need to make safety a priority, and hold employees accountable for safety violations.

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Spring is in the air, which means love is in the air, and we are fast approaching the official wedding season. It is estimated that roughly 1/3 of romantic relationships begin at work. This isn't hard to understand when you consider “...the average American spends 46 hours per week at their job, and 38 % spend more than 50 hours per week on the job,” according to the National Sleep Foundation. The workplace is the new dating arena, making it more likely that romance between employees may blossom. What does that mean for employers?

Workplace romances can be a nightmare for most employers, fraught with potential sexual harassment claims, cries of favoritism, and reduced morale and productivity on the job. Romance between an employee and a customer/client presents another set of problems in the workplace. It is best to not just let cupid run amuck at work, but instead assume a workplace romance will happen, and plan for it.

Outright prohibition of all workplace romances is not generally favored. It can be hard to define the difference between dating and “just friends,” and could invite an invasion of privacy claim, or a discrimination claim based on marital status. The better choice is to proactively advise employees about work expectations concerning romances through your employee handbook. Cupid is not the only one with arrows in his quiver. 

Consider the following:

• Place limits on supervisor-subordinate romances as these relationships are the most likely to result in a harassment claim, if the relationship turns sour. A policy should spell out this type of relationship will require one member of the couple to transfer or resign.
• Spell out professional expectations of all employees at the workplace. If a romantic relationship creates a conflict of interest or dissension amongst employees, then a transfer or resignation may be necessary.
• Require employees to notify Human Resources of a dating relationship at work, and include a penalty for not reporting. This will afford an opportunity to have a discussion with the romantic couple about professional expectations, and to document the relationship.
• Outright prohibition of an employee/customer dating relationship is different than prohibiting employee-employee romances. It is easier to identify a legitimate business need to support the prohibition of a romantic relationship, when an employee wants to date a customer/client. The employee handbook should be clear on the issue, and state employees are prohibited from dating clients or customers.

An interesting arbitration case in the public sector ruled an employer can restrict a supervisor-subordinate romantic relationship through policy, even if the policy was initiated after the relationship had begun. The case dealt with a City of Champlin police sergeant, who started a relationship with a female officer under his command. It seems looking for love in all the wrong places can even lead to a demotion.  Cupid can be managed with a little bit of planning.
 

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I must confess I told a little white lie to my 4-year old daughter about how the Easter Bunny was able to leave the eggs so high up on a shelf. I told her, bunnies can hop really, really high and that is how he was able to get it on the high shelf. She was pretty impressed with this feat by the Easter Bunny. In the employment setting though, lying is not recommended, not even little white lies.

Ms. Robin Shea with Constangy, Brooks & Smith LLP wrote an excellent blog on why employers should not tell little white lies to employees. I fully agree with everything she outlines in her post.
Ms. Shea states, “…it is notoriously hard for an employer to tell an employee that he's not doing a good job, and is one more screw-up away from being fired. Of course, having never been properly warned, the employee then commits the final screw-up and gets fired, and didn't even see it coming because the employer was so afraid of hurting the employee's feelings. . . Not only is this unfair to the employee, but it's also throwing the door wide open to an allegation that the employee was actually terminated for an illegal reason.”

Nothing is more difficult for an attorney than to try to defend a case against an employee, when the employee hasn’t been told the complete or accurate reason for their discipline or dismissal. It makes the job for the attorney more difficult, requiring them to play catch up. Employees have a right to know what mistakes they are making in order to have an opportunity to improve their performance. Notice is fundamental to establish a discipline case.

If you have an employee who is having performance problems, don’t let them think their performance is acceptable. Talk to the employee about the performance issues, and document the problems. This will help you and your attorney if any legal action is subsequently taken by the employee.

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