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 Friday, the Minneapolis City Council passed a new ordinance requiring employers who employ six (6) or more employees to provide a maximum of forty-eight (48) hours of paid sick and safe time.  Under the ordinance, employees accrue a minimum of one hour of sick and safe time for every thirty (30) hours worked.  Additionally, employers must permit an employee to carry-over up to eighty (80) hours of accrued but unused sick and safe time to the following calendar year.  Employers with less than six (6) employees are required to provide unpaid sick and safe time.

This ordinance not only affects Minneapolis businesses, but also any business who has employees working within the geographic boundaries of the City for at least eight (80) hours in a calendar year.  For example, my husband works for a large engineering firm in St. Paul, which routinely has projects in Minneapolis, including the new Vikings Stadium currently under construction. According to the new ordinance temporary employees who work with my husband, and are assigned to work on projects in Minneapolis for more than 80 hours will accrue paid sick/safe leave, even though the other temporary employees who do not work in Minneapolis will not accrue paid leave.  This sounds like an administrative headache to track and document.  Additionally, it results in employees not being treated equally.

The ordinance also states that employers who provide an employee handbook to its employees must include in the handbook notices of an employee’s rights and remedies under the ordinance.  If your company is located in Minneapolis or does significant work in Minneapolis, you may need to update your employee handbook.

It is too soon to know the impact this ordinance will have on businesses in Minneapolis or companies who routinely do business in Minneapolis.  The ordinance is scheduled to go into effect July 1, 2017.  Violations during the twelve months following the effective date will be mediated, and employers issued warnings or notices to correct any problems.  After July 1, 2018, monetary penalties and other relief may be imposed for violations.

I agree providing paid time off for sick employees is an important workplace benefit.  However, this is not something that should be dictated by City government.  Businesses should be free to determine employee benefits in line with their business model and the market.  The new ordinance smells like an anti-business move by a local City government.  Paid time off is something Unions typically work to negotiate for their membership.  Isn’t that what union organizing is all about?  

Next week, I will be presenting at the Vadnais Heights Economic Development Corporation Business Community Roundtable on the biggest mistakes employers make with employee handbooks.  The VHEDC is a great resource for business owners offering valuable training and resources to help local businesses succeed.

Preparing for the presentation I reviewed the recent legislative changes affecting businesses over the past year, and was surprised at the volume and scope of the changes.  I will be focusing on those new changes and encouraging business owners to review and update their employee handbooks.

The list of new changes is impressive and includes WESA, new implementation requirements for the Affordable Care Act, extension of the Parenting Leave law to 12 weeks, the expansion of the Sick Child Care Leave law to the new Sick or Injured Relative Care Leave law, and same-sex marriage and FMLA leave. I will also be addressing the NLRB’s position that employers cannot ask employees for their personal passwords and the Department of Labor’s enhanced focus on misclassified employees and the potential for overtime liability.

The number one pitfall I will be starting with is not having an employee handbook.  I hope to see you there.

This week the NLRB released two Advice Memos on “at-will” employment clauses contained in two different employee handbooks. In both cases the “at-will” language was ruled to be lawful, finding the employer did not violate the National Labor Relations Act (NLRA). The issue decided was whether the employee handbook language defining “at-will” employment was so overly broad, that employees would reasonably believe they could not engage in activity protected by the NLRA.

Yet, just this last winter in American Red Cross v. Hampton, the NLRB ruled in favor of the employee, announcing the “at-will” clause contained in the Red Cross employee handbook violated the employees NLRA protected activity. Three cases, two very different rulings, and all are important for employers who have employee handbooks.

The difference in NLRB rulings can be found in the specific language contained in the three different employee handbooks. While it may seem like hair-splitting, the seemingly slight nuances in language can make the difference between losing or prevailing on an NLRB charge, brought by one of your employees. I have outlined the language and rulings below to clarify.

In favor of the Employer:

  • In the case of Mimi’s Café in Arizona, the employee handbook stated, “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The NLRB ruled the language was not overly broad, as it did not “… require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.”
  • In the case of Rocha Transportation in California, the employee handbook specifically outlined the manner in which at-will status could be changed. It stated, “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will,” it continued. “Only the president of the Company has the authority to make any such agreement and then only in writing.” The NLRB ruling noted the “at-will” language explicitly stated that the relationship can be changed, and therefore employees would not reasonably assume that their NLRA rights are prohibited.

In favor of the Employee:

  •  In the Red Cross case noted above, employees were required to sign an acknowledgement form indicating, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” It was determined the employer violated the Act as the language was overly-broad and discriminatory.

Based on the recent NLRB rulings, every employer with an employee handbook should review their “at-will” language and determine whether the language is more like Mimi’s Café and Rocha Transportation? Or is the language more like Red Cross? Adjustments should be made if your “at-will” language sounds more like Red Cross, to avoid any future NLRB problems.

My law partner and I have blogged, trained, and also counseled clients about the importance of having updated Employee Handbooks at their workplaces. A court case out of Pennsylvania confirms the point we have been trying to make at an expensive price for the employer!

According to Pennsylvania attorney Jodi Frankel, Wal-Mart was just ordered to pay $187.6 million in back pay, damages, and fees to 187,000 current and former employees. It seems Walmart included paid break language in their Employee Handbook, and then failed to provide the benefit.

Frankel noted the Handbook policies in question “…[n]ot only guaranteed, but also mandated, a single fifteen-minute rest break to an employee who worked more than three hours in a shift, and two such breaks if an employee worked more than six hours. Pursuant to the policy, the breaks were to be ‘full, timely, uninterrupted’ and employees were to receive compensation for break time at the applicable rate of pay. The rest break policy set forth in Wal-Mart’s employee handbook, which was provided to all employees at the start of employment.”

While the Handbook stated it was not to be considered a contract by the employee, the Pennsylvania court found Wal-Mart had in fact made a promise regarding rest breaks, and that the promise amounted to a contract. The facts the Court found compelling included Wal-Mart had repeatedly held out rest breaks to employees as a benefit of being employed at Wal-Mart during employee orientation, they mentioned breaks in numerous postings at the workplace, and had taken disciplinary action against managers and employees for failure to follow the rest break policy.

While a Pennsylvania court case interpreting Pennsylvania law is not determinative in Minnesota workplaces, this case does offer some insight for Minnesota employers. Careful attention was paid by the Court to Wal-Mart’s Employee Handbook, and comparison to its actual business practices.

Since this is a start of a new year, it is the perfect time for employers to review and update their employee handbooks to insure they are consistent with current business practices. Also remember to update your policies when you update technology. If the start of a new year doesn’t inspire you to review your business practices, consider the cost and expense of litigation over an employee handbook issue.

 

There is no one-size fits all dress code for a workplace. What is appropriate attire for employees in a workplace varies drastically according to the work being performed, the physical requirements of the job, and exposure to the elements. It is important however for employees to always dress appropriately for the position they are in. Earlier this year, I blogged about the importance of reminding employees about a business’s dress code policy, especially when the seasons start to change.

MSN Careers website had a great article today on the 10 Commandments of Workplace Dress. I completely agree with the ten tips author, Beth Braccio Hering identified in the article. Most of these tips probably seem like common sense, but believe it or not, employees often need to be reminded of these rules. An Employee Handbook is the perfect place for employers to outline a dress code/appearance policy and place employees on notice of the employer’s expectations. By having a dress code/appearance policy in an employee handbook, employers can avoid some of the awkward conversations with employees when they show up for work in sweats and football jerseys.

If you are an employer and you don’t have a dress code/appearance policy or you haven’t reviewed the one you have in awhile, take a moment and do so now. First impressions are important and you want to make sure your employees are leaving the right impression about your business.

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.
 

 

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. 
 

Why is it important for a business to have an employee handbook or personnel policy manual? There are many reasons.

Handbooks or policy manuals can set the tone for a business. They put all the employees on the same page with respect to workplace rules. They outline benefits for uniform and consistent treatment of employees, and they set forth the legal obligations of the employer.

Having an employee handbook or policy manual can show a good faith effort by an employer to comply with applicable laws, like EEOC, FMLA, and FLSA.

Types of polices to consider including in handbooks or policy manuals are internet usage at work, personal cell phone usage at work, attendance/punctuality, confidentiality and use of social media. If a business has decided employees will serve “at-will,” they should not include policies outlining probationary, introductory or trial periods, grievance procedures, or a lock-step discipline process. These types of policies in Minnesota could be interpreted as a guarantee of work or a contract between the employer and the employee (pdf) effectively eliminating an employee’s at-will status.

Employee handbooks or policy manuals should be tailored for each specific business; one size does not fit all when it comes to these documents. Employee handbooks or policy manuals make for better workplaces, because employees know what to expect and what is expected of them.