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

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In an arbitration award issued late last year by Arbitrator Stephen F. Befort, the Minneapolis Special School District # 1, argued it was justified in placing a teacher on an unpaid administrative leave while criminal charges of third degree assault were pending against the teacher. Ultimately, the teacher pled guilty to the third degree assault charges, and the school district terminated his employment for conduct unbecoming a teacher.

The Minneapolis Federation of Teachers Union filed a grievance claiming the school district violated state statute and the collective bargaining agreement, when it placed the teacher on unpaid administrative leave prior to his discharge. Arbitrator Befort determined the state statute wasn’t applicable in this case, and the collective bargaining agreement was unclear. He relied on the parties past practice, which showed over the years the school district had previously placed 25 employees charged with criminal offenses on unpaid administrative leave, in accordance with district policy. Five of those previous employees were members of the Minneapolis Federation of Teachers and no grievances were raised in those cases.

An interesting aside that wasn’t raised by the school district in this case but could have been, is the United States Supreme Court case of Gilbert v. Homar. The Court ruled, “[t]he State has a significant interest in immediately suspending employees charged with felonies who occupy positions of public trust and visibility, such as police officers. While this interest could have been accommodated by suspending respondent with pay, the Constitution does not require the government to give an employee charged with a felony paid leave at taxpayer expense…”

Public employers should consider the option of placing an employee charged with a felony on unpaid administrative leave while determining how to proceed with the employee’s future employment. Taxpayers should not have to compensate an employee who is facing felony charges.

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Marylee and I are excited to attend the League of Minnesota Cities 2011 Annual Conference and Marketplace in Rochester on Thursday. This will be our third year at the LMC Conference and we always enjoy meeting and talking to the City Managers, City Administrators, Mayors and City Council members about what is happening in their cities, and how they are addressing today’s economic challenges. My firm’s mission is to assist public and private sector employers with their labor relations issues during these challenging times.

This conference is very well organized with lots of valuable sessions for attendees on topics including: creative ways to deliver services, land use basics, trends in economic development, and budget issues to name just a few. We hope you stop by our booth and say hello!
 

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I previously blogged about Minnesota workplace leave laws covering family and children issues, and wanted to follow-up with a grab bag of some unique leave laws covering specific medical conditions, the military, and voting.

As a reminder, it is important to first determine which leave laws apply to your workplace. In order to do that, you should first 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.

• Bone Marrow Donation Leave: Public and private sector employers employing 20 or more employees, must provide up to 40 hours of paid leave time to employees who elect to donate bone marrow. Employers may request medical verification for the leave. The paid leave is in addition to any other leave available to the employee.
• Organ Donation Leave: Only public (state, city, county, school district) employers with at least 20 employees, are required to provide up to 40 hours of paid leave to an employee, who elects to donate an organ. This leave does not apply to private businesses. Public employers may request medical verification for the leave. The paid leave is in addition to any other leave time available to the employee.
• Blood Donation Leave: Employers may provide paid leave for an employee to donate blood. This applies to all employers in Minnesota.
• Leave to Immediate Family Members of Military Personnel Injured or Killed in Active Service: All employers with at least one employee must grant up to ten working days of unpaid leave to an employee whose immediate family member has been injured or killed while engaged in active service in the United States armed forces. This also applies to independent contractors who perform work for a business or public employer. The ten days may be reduced, if an employee elects to use paid time off such as PTO or vacation time.
• Leave to Attend Military Ceremonies: All employers having at least 1 employee, must provide unpaid leave to employees of up to one day in any calendar year, to attend military ceremonies such as a send-off or homecoming for an immediate family member, unless the time off would unduly disrupt business.
• Leave to Vote: All employers must provide paid time-off for employees to go to the polls, cast a ballot, and return to work on the day of an election. This includes primary and general elections, as well as elections for state and federal legislators. Failure to provide time off to vote is a considered a misdemeanor.

A quick check of the leave laws that apply to your business will insure your workplace is in compliance with state law. Some of the unique leave laws are so limited in purpose that you may not have ever run across a situation where they apply. For example, in 27 years of labor and employment practice, I am only aware of one situation where an employee requested organ donation leave to donate a kidney to a family member. The large employer was unfamiliar with the statutory leave. I reviewed the legislative history and concluded paid organ donation leave was clearly in addition to any sick leave benefit the employee had available.

We recommend incorporating reference to applicable employee leaves into your Employee Handbook, so everyone knows who is entitled to what leave, and whether it is paid or unpaid time. Take the guess work out of employee leaves, and be prepared for a request for statutory time off from work.

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The facts in this case are quite unique. Twenty non-union employees of Hmong or Spanish descent were terminated when they refused to sign away their rights under the NLRA by signing up for Supply Technologies LLC's new Total Management System. The Total Management System (TSM) created an internal process for comprehensive grievance resolution. The TSM would require employees to use a 3-step procedure as its sole means for resolving any and all claims against the Company except workers compensation, unemployment, and criminal claims.

Prior to the twenty employees beginning terminated the National Labor Relations Board (NLRB) had conducted an election to see if the employees of Supply Technologies LLC wanted to join the International Brotherhood of Teamsters. The employees vote was a split decision and therefore the Union did not prevail. Supply Technologies LLC, Total Management System was introduced to employees only three days after the Union was voted down. The employees who refused to sign were immediately told to leave the facility and not return.

The unique twist in this case is that the International Brotherhood of Teamsters, even though it did not represent the twenty terminated employees, filed charges with the NLRB, concerning the new grievance procedure and the termination of employees, alleging the actions constituted an unfair labor practice.

Administrative Law Judge Alemán agreed with the Union and ordered Supply Technologies, Inc. to discontinue its new grievance procedure in all its locations and reinstate the twenty discharged employees with full back pay.

Consider this a word of caution; if your employees are considering unionizing everything needs to stay status quo. Even if the Union doesn’t prevail in the election, don’t take that as an opportunity to immediately change policies and terminate employees.

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A warehouse fork-lift operator failed a random drug test, and was terminated from employment.  He worked for a beer and soft drink distributor, who had adopted a random drug testing policy for all safety sensitive positions.  At the hearing, the employee testified he had inadvertently ingested marijuana laced brownies at a private barbecue ten days before he was selected for the random drug test.  He stated he was unaware the brownies contained marijuana and ate “five or six brownies and that he felt fine afterward.” 

The Union argued the employee had an unblemished work history and that there was no requirement to terminate an employee who failed a drug test, only to remove them from a safety sensitive position.  They argued the employee had inadvertently ingested marijuana at a private picnic, and was never under the influence at work.

The Employer conceded, while they had not terminated all first time offenders of the policy, they had previously terminated three other first time offenders of the drug policy in the past 5 years.  The Employer argued the inadvertent consumption of marijuana defense was not credible, and was concocted in an effort to obtain unemployment compensation benefits.  The arbitrator agreed and found the testimony “neither credible nor plausible,” upholding the Employer’s decision to terminate.   

Throughout the decision, the arbitrator lays out facts which indicate the employer’s drug testing policy followed the requirements set out in state statute.  These include:

·         The employee had notice of the policy, having signed an acknowledgment form;

·         The employee was working in a safety sensitive position and therefore was subject to random testing;

·         The employee was provided an opportunity for a retest of the sample at his own expense; 

·         The employee was aware of the penalties which could be imposed for a failed drug test.

I have blogged in the past about how to adopt a drug testing policy which complies with state statute.  Employers who have adopted a drug testing policy according to state statute, will have a stronger case to support discipline for violations of the drug policy.  The union's brownie defense is half-baked and a travesty to chocolate confection lovers.  Shame on the union for throwing a gooey chocolate mess at the wall, to see if anything sticks.   Really, brownies are a dessert, not a defense.

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