The trend is shifting back to employees wanting their own workspace.  This is a shift away from more open work areas with shared desks, community areas, and collaborative workspaces.  Research has shown workers now want their own personal workspace to allow for personal boundaries.

In my career I have worked in many types of office workspaces from a cubicle with high walls and some semblance of privacy, to an open workspace area where everyone could hear you when you were on the phone, and see the clutter on your desk.  My favorite has always been a private office with walls and a door.

For many businesses, workspace layout is a budgetary concern.  It definitely costs more to have individual offices versus shared offices or cubicles. However, employee efficiency may be a factor impacted by the workspace provided.  While an extrovert might have no problem working in an open space where others are constantly around, an introvert might be very uncomfortable in the same environment and not work up to their full potential.  Writer Diane Stafford suggests people who are job hunting should inquire about office layout and desk assignment practices, when making job decisions on where they want to work. 

I understand an open workspace concept was originally thought to foster creativity and the free flow of information. However, those are not the only factors for employers to consider in workspace design.   It is important to also consider the type of work being performed, the personality types of employees, and how to get the best work performance from employees.

Earlier this year, I wrote a blog about a new workplace benefit – student loan debt relief.  Now, it seems employers are again thinking outside the box with respect to employee benefits.  The latest workplace benefits employers are offering include onsite meditation, yoga and other programs that help workers de-stress.  Other unique benefits are cooking classes, standing desks, bringing a pet to work, and free snacks or meals.  All these benefits are in addition to the more traditional benefits of medical and dental insurance, paid vacation, sick time, and retirement accounts.

A recent news article discussed a research study conducted by Glassdoor.com which found 57% of people said benefits and perks were among their top considerations when accepting a job.  Also, four out of five employees indicated they would like additional benefits over a pay raise.

These new and unique job perks are structured to help employees with work/life balance.  A challenge for employers is finding benefits their employees are interested in.  Older workers or working parents are going to be interested in different benefits than  younger millennials.  As long as employers keep all employees in mind when deciding what benefits to offer, I think they will definitely increase employee job satisfaction.

 

The Minnesota Court of Appeals has affirmed two unemployment law judges’ decisions to deny unemployment compensation to individuals terminated for clear policy violations.

In Nolan v. Great River Federal Credit Union, Ms. Nolan was terminated for violating the credit union’s policies which prohibit employees from performing transactions concerning family members’ accounts.  Ms. Nolan testified at the unemployment hearing, her mother called her at work and asked about transferring money from her account.  Ms. Nolan asked another teller to assist in transferring the money, but was advised a hold was on her mother’s account and a transfer couldn’t occur.  Ms. Nolan advised her mother of this.  Ms. Nolan then contacted a collections representative to discuss the hold and electronically accessed her mother’s account information.  Ms. Nolan acknowledged she was familiar with the credit union’s policies indicating, “we are not supposed to help family members in anyway” and are prohibited from doing anything regarding a relative’s account.  The Court of Appeals has stated, “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  In this case, Ms. Nolan’s testimony established she violated the policies when she engaged the teller and collections representative on her mother’s behalf.  This knowing disregard for the reasonable policies constitutes employment misconduct and benefits are denied.

In Baker v. Minn. State Supreme Court, Ms. Baker worked as an assistant appellate clerk for the Minnesota Supreme Court and Court of Appeals.  She was hired by the Minnesota Judicial Branch in 1985.  In 1998, the Minnesota Judicial Branch enacted Policy 317 governing the use of internet and technology by employees.  Inappropriate use was defined as “…(1) wagering, betting, selling, (2) commercial activities, e.g. personal for-profit business activities,….”  Employees may access all policies on the employee intranet site, and they also receive e-mail notifications when policies are updated.

In 2014, Ms. Baker’s supervisor, Ms. O’Neill, became concerned with Ms. Baker’s productivity.  Ms. O’Neill has previously seen Ms. Baker using the internet when she was to be working and had warned Ms. Baker about excessive internet use.  Ms. O’Neill then asked the human resources department and IT division to review Ms. Baker’s internet use.  It was discovered Ms. Baker had used the internet during work to access numerous non-work related websites like eBay, Amazon, and PayPal.  Ms. Baker was then discharged for violation of the internet and technology use policy.

Ms. Baker argued she did not commit employment misconduct because she did not know of Policy 317.  During the hearing before the ULJ, Ms. Baker admitted to visiting websites for personal use.  Ms. Baker also acknowledged “I’m sure I probably have used it (intranet site) but I don’t know exactly what is on there or why I went to it.”  The ULJ denied unemployment compensation finding Ms. Baker used the Judicial Branch’s telecommunication system to engage in selling activity and personal business, and spent a significant amount of time on personal websites outside of authorized break times.  The Court of Appeals stated, misconduct need not be deliberate and that Ms. Baker’s argument she did not know of Policy 317 was unpersuasive given she had received approximately ten verbal warnings about excessive internet use.  The Court of Appeals affirmed the denial of unemployment benefits.

A couple of points to consider:

1)      Employers need to have clear policies;

2)      Employees need to know about the policies; and

3)      It is a good idea to be able to prove the employees have access to the policies or have received copies of the policies.    

Last month, El Azteca, a Wisconsin business which owns four restaurants, reached a consent judgment in U.S. District Court to resolve a lawsuit filed by the U.S. Department of Labor. The U.S. Department of Labor’s Wage and Hour Division conducted an investigation and discovered numerous violations of the Fair Labor Standards Act.  The violations included:

–          Failing to keep records of daily and weekly hours worked.

–          Failing to pay employees the federal minimum wage for all hours worked.

–          Failing to pay overtime.

–          Paying kitchen staff, a flat salary without regard to numbers of hours they worked.

–          Making illegal deductions from servers’ pay for uniform shifts, nametags and aprons.

Under the consent judgment, the restaurant will pay 129 current and former employees $350,000 in back wages, and $350,000 in liquidated damages.  The defendants will also be paying $25,000 in civil penalties.  Additionally, the restaurants are now required to provide to employees:

1)      Several wage and hour division publications in both Spanish and English;

2)      The Wage and Hour division’s phone number; and

3)      Each pay day, a pay stub showing the pay period, hours worked, rate of pay, overtime hours worked, overtime rate and all deductions.

The FLSA provides that employers who violate the law are generally liable to employees for any back pay, and an equal amount of liquidated damages. The law also prohibits employers from retaliating against employees who exercise their rights under the law.

I have blogged in the past about FLSA issues in the food service industry. The Department of Labor has targeted their investigative efforts on FLSA violations.  Take this opportunity to:

1) confirm your business is accurately tracking hours worked and maintaining records of hours worked;

2) all employees are being compensated correctly; and

3) all your required posters are up to date.

Norfolk Southern Corp. is a federal contractor that has reached an agreement with the U.S. Department of Labor to pay almost $500,000 to 2,086 African-American job applicants in order to resolve claims of race-based hiring discrimination.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) conducted a routine compliance evaluation, and found over a two-year period a division of Norfolk Southern engaged in hiring practices which discriminated against African-American applicants.  These actions were in direct violation of Executive Order 11246 which prohibits federal contactors from discriminating in employment practices.

Norfolk Southern has not admitted liability.  But the Company has agreed to discontinue use of its current selection procedures, as well as to review and modify its employment practices for recruiting, screening, selecting, interviewing, rejecting and hiring candidates.  These changes resolve all the violations found by the OFCCP.

I recently blogged about the importance of not discriminating against job applicants.  This case shows how expensive it can be for employers who fail to review their hiring processes for potential discrimination.    Before making your next hires, review your policies and procedures to make sure you are not discriminating against job applicants.  

Line of people taking notesEarlier this year the Court of Appeals overturned the district court’s dismissal of a case regarding the negligent retention of an employee.  In Hartfiel v. Allison, unpublished Court File # A15-1149 (Minn. Ct. App. 2016) Mr. Hartfiel, the plaintiff, drove truck for T.J. Potter Trucking Inc. as an independent owner-operator.  Mr. Allison drove truck for Potter Trucking as an employee.  In June 2010, Mr. Allison attacked Mr. Hartfiel at the workplace.  Mr. Hartfiel sued Potter Trucking for negligent hiring, negligent retention and negligent supervision of Mr. Allison.  The district court dismissed all of Mr. Hartfiel’s claims, and Mr. Hartfiel appealed.

The Court of Appeals reviewed the negligent hiring and negligent retention claims stating, “Negligent hiring is the failure of an employer to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public…. An employer will not be held liable for failure to discover information about the employee’s incompetence that could not have been discovered by reasonable investigation…”

Plaintiff Hartfiel claimed because Potter Trucking did not do a background check on Allison when it hired him, it did not conduct a reasonable investigation.  Mr. Allison had previously been arrested for assault on two occasions.  Generally, there is no legal duty that employers investigate an applicant’s criminal record.  Potter Trucking does check applicants’ driving records but does not conduct criminal background checks.  The Court of Appeals stated, “In determining whether an employer conducted a reasonable investigation, …is directly related to the severity of risk third parties are subjected to by an incompetent employee.”  The Court of Appeals found there was no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him as a truck driver.  Therefore, the district court did not err when it granted summary judgment to Potter Trucking on the negligent hiring claim.

The argument of negligent retention has very different considerations.  The Court indicated, “The difference between negligent hiring and negligent retention focuses on when the employer was on notice that an employee posed a threat and failed to take steps to insure the safety of third parties.”

Plaintiff Hartfiel testified he had heard about Mr. Allison “working over” a subcontractor while off-duty out at a bar.  Mr. Allison admitted to smacking the subcontractor because he thought the subcontractor was going to hit him.  The incident was not reported to Potter Trucking because it was off-duty and off-site, but the owner of Potter Trucking acknowledged the altercation had been brought to his attention via the gossip mill.  He did not address the issue because it was not work related and he stated, “boys are boys”. The Court of Appeals held there were genuine issues of material fact regarding Mr. Hartfiel’s negligent retention claim, and overturned the district court’s granting of summary judgment.

My law partner has previously blogged about the importance of the hiring process.  Many employers many not realize that they can be sued for negligent hiring and/or negligent retention.  Take an opportunity to make sure you have a good hiring process in place.  Also, don’t ignore issues between employees just because they don’t occur at work.

Earlier this year, the Minnesota Court of Appeals held a per diem payment does not fall within the definition of wages under Minnesota Statute § 181.13, resulting in the reversal of a penalty against the employer issued for non-payment of wages.

In Schreader v. D, C & D Enterprises, LLC, Case #: A15-1140 (Minn. Ct. App. 2016), Ms. Schreader was terminated from her employment.  On the day of her termination she e-mailed DC & D Enterprises LLC and notified them she had forgotten to add five days of per diem to her last time sheet.  She received a per diem rate of $30 for each day she was out of town for work.  She also requested payment of ten hours of paid time off and her full wages to the date of her termination.  She received payment for her full wages, but was not paid the per diem rate for 5 days or the ten hours of paid time off.  Ms. Schreader sued and was awarded judgment of $3,109.62.  $2,884.62 of the $3,109.62 was the penalty for failure to make the per diem payments.  DC & D Enterprises appealed the Court’s imposition of the 15 day wage penalty.

Minnesota Statute § 181.13 provides, “…If the employee’s earned wages and commissions are not paid within 24 hours after demand… the employer is in default. In addition to recovering the wages and commissions actually earned and unpaid, the discharged employee may charge and collect a penalty equal to the amount of the employee’s average daily earnings at the employee’s regular rate of pay or the rate required by law, whichever rate is greater, for each day up to 15 days, that the employer is in default, until full payment or other settlement…”

According to the Court of Appeals when a statute provides for a penalty, it must be strictly construed.  Therefore, the plain meaning of the words “per diem” and “wages” prevail.  The common definition of “per diem” is a daily allowance used to cover expenses.  The Court relied on the common definition of wages when it determined the per diem payments are not considered wages within the meaning of Minn. Stat. 181.13.

Minnesota employers should refer to Minnesota Statute 181.13 so they don’t run the risk of having to pay penalties in regards to compensating a terminated employee.  Don’t forget to pay them within 24 hours of a request from the terminated employee.

Last week I spoke at the “Professional E.D.G.E” morning business event co-sponsored by the White Bear Area Chamber of Commerce and the Vadnais Heights Economic Development Corporation.  I spoke on the importance of good hiring practices and in particular, hiring employees for character.

I have blogged about the importance of hiring for character in the past and routinely talk to clients about the importance of good hiring practices.  In fact, I see good hiring as a gift that will keep paying off in rewards to any workplace for years and years.   A poor hiring decision can be costly in terms of potential litigation, morale, low-productivity, and may even lead to retention problems with the exit of many great employees.

If you are still relying on the old standard interview questions “What are your strengths?” and “What are your weaknesses?” STOP immediately!    The Internet is full of websites and blogs that provide answers to these and other standard questions.  You are not gaining any insights about the candidates and most likely are just getting rehashed Google search responses for the most commonly asked interview questions.  Instead, go deeper.  Check out my blog for character questions that will be helpful in vetting candidates.

As always, interview questions should be focused on the skill set necessary for the position being filled.  Employers should keep the focus on the job, and not attempt a fishing expedition into protected waters. 

In Minnesota the long-standing rule is that continuation of employment by itself, is insufficient consideration for a non-compete agreement entered into after employment has commenced.  Minnesota employers have always been able to require new employees to enter into non-compete agreements in exchange for starting a job.

The Wisconsin Supreme Court ruled the continuation of at-will employment is lawful consideration for a non-compete agreement entered into with existing employees.  No additional payments, training, promotions or other benefit is necessary.  In Runzheimer International, Ltd. v. Friedlen, 862 N.W.2d 879 (Wis. 2015), the Court only evaluated the existence of consideration, not the adequacy of it.

In that case, the employee, Mr. Friedlen had worked for the company for more than 15 years without a non-compete agreement.  In 2009, as part of a corporate initiative all employees were required to sign agreements containing provisions against disclosure of confidential information, solicitation of customers or competing against Runzheimer after their employment ended for any reason.  Mr. Friedlen was given two weeks to review and consider the agreement.  He was told he would be fired if he didn’t sign it.  Mr. Friedlen eventually signed the agreement and continued working for Runzheimer for over 2 years.  Mr. Friedlen subsequently was hired by a competitor and Runzheimer sought to enforce the non-compete agreement.  The Wisconsin Supreme Court stated, “Runzheimer’s promise was that it would not fire Friedlen at that time and for that reason.  Thus, Runzheimer performed immediately when it forbore its legal right to fire Friedlen at that time.”

The courts in Minnesota have taken the opposite stance, instead ruling that a current employee lacks bargaining power when presented with a non-compete agreement and told to sign it or be terminated.  Under Minnesota law a current employee must receive a real benefit that is directly related to the signing of the non-compete agreement.

If you are a Minnesota-based employer who has employees who live or work in Wisconsin you may want to consider selecting Wisconsin as the governing law for employment agreements with non-compete provisions.    

Student debt relief has recently surfaced as the newest workplace benefit.  Traditional workplace benefits include: health insurance, retirement plans, vacation and sick leave, and paid holiday time.  Now, more companies are looking for new ways to entice and retain millennial employees, and one new trend is for employers to offer financial assistance with school loans. 

The cost of a higher education has been increasing over the years, and coupled with the market crash of 2008, more people took on student debt and stayed in school to ride out the economic downturn.  Given the fact, Minnesotans have the fifth highest school debt load in the nation, financial assistance is a great marketing tool for employers.

Currently, only 3% of companies offer any type of student loan repayment plan, but that number is expected to grow.  Gradifi Inc. is a company that helps employers implement, “Student Loan Payment” (SLP) plans as a workplace benefit for their employees.  The participating employers determine the structure of the SLP, including who is eligible to participate, how long the plan lasts, and the amount of the employer contribution.  Minnesota based, PwC, is a consulting company that will be introducing an SLP plan this spring.  Starting a SLP plan gives employees more freedom to plan and save for other things in life, and avoid being saddled by their student loan debt for years to come.

Employers who add SLP plans as an employee benefit will be highly attractive to new employees.  I previously blogged about the trend in public sector employers willing to think outside the box by offering paid parenting leave beyond the minimums required by law. 

Benefit plans need to change in order to attract the best talent in a competitive business climate.  By taking a few creative steps, employers can create benefit packages that will improve employee satisfaction, retain talented employees, improve the bottom line, and improve the likelihood of future growth and development.