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

At-will employment is believed by many employers to allow them the ability to terminate an employee for any reason or no-reason at all, except for a discriminatory reason. We advise our clients to make “at-will” employment status very clear in job offers and in employee handbooks. This prevents an “at-will” employee from believing a contract has been established which guarantees continued employment.

The fallacy of “at-will” employment is that if employers do terminate an employee without notifying them of the legitimate reasons for termination, the employee is free to make-up a reason. This may be in the form of a discrimination claim, sexual harassment claim, wage and hour claim etc.

Truth and honesty with employees is always the best course of action for any employer. Additionally, using good business practices which include accurate performance evaluations, coaching, counseling, fair and reasonable discipline, and providing training opportunities to employees is important. Clear communication of employee expectations is also essential for every employer, as is documenting an employee’s work record. It has been my experience that employees who have been put on notice of work expectations, been treated fairly, and given an opportunity to make necessary changes, are less likely to challenge termination decisions.

The notion of at-will employment is really deceptive. A better course of action for employers is to follow the golden rule, “Treat others, like you want to be treated yourself.” It is one way to reduce legal bills, and avoid some of the costly challenges to employment termination decisions.

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Our public employer clients often express frustration with employees who have a pattern of acting badly at work. How much longer do they have to put up with a problem employee? What options do they have? Two recent arbitration decisions underscore the point public employers are able to terminate employees who act badly at work. Both termination cases involved hospital workers, and were decided by two different experienced arbitrators.

Arbitrator Jacobs upheld the termination of a 30 year employee, who had a pattern of disciplinary problems, culminating in a verbal altercation with a fellow employee. The employee had a documented pattern of problems dating back to 2007 including attendance issues, insubordination, poor workplace demeanor, and attitude problems towards co-workers. Arbitrator Jacobs stated, “She has demonstrated an unwillingness and/or inability to change her workplace behavior or performance as the Employer wants. Keep in mind that the Employer gets to call the shots here in terms of what it expects from its employees. That someone has been doing it in a particular way for years does not carry the day. The question is whether they are doing it the way the Employer wants it done now. Here the grievant has a demonstrable problem doing that.”

Arbitrator Fogelberg upheld the termination of a hospital worker who also had a pattern of bad behavior. The final straw was a loud verbal altercation with another employee, which was interpreted as threatening and abusive. “[H]is disruptive behavior toward his fellow workers proved to have an adverse effect on morale and detracted from the Clinic’s ability to focus on its patients. Moreover, the steps taken by Management demonstrate little of the desired result was achieved.”

Crucial in both arbitration awards is the extraordinary efforts the employers had taken to advise the employee about work expectations. These efforts included documenting performance issues, coaching, counseling, training, and progressive discipline. While any one of the individual incidents may not have been termination worthy, the cumulative nature of the documented misconduct sustained the termination decisions.

All employers should read “document, document, document,” between the lines in both arbitration decisions. Train, transfer, try, and if the employee is still acting badly, then termination may be the appropriate action.

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My law partner Tiffany Schmidt welcomed baby Josée Marie Schmidt last week. Josee joined her sisters Cambria and Brynn early January 25, 2012 at 3:23 am. She weighed in at 7lbs. 5 oz.. Mother and baby Josée are both doing well.

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I am pleased and grateful that our blog was listed as one of the Top 25 Minnesota Blawgs of 2011, by editors of the Minnesota State Bar Association Legal News Digest and Practice Blawg. My law partner, Tiffany Schmidt, and I both enjoy sharing our thoughts and comments on topics important to employers. We are thrilled with the recognition, and it validates our goal to provide a common sense resource for employers.

The 2011 list of Top 25 Minnesota Blawgs is impressive, and we are honored to have our blog included on such a notable list of blogs.

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Apparently, the National Labor Relations Board (NLRB) can’t seem to make up their mind, because just before the holiday weekend it announced another postponement of the effective date for private sector employers to post the notice about employee rights. This is the third time the NLRB has delayed the effective date for the employee rights posting. Most private sector employers whether or not they have a union, were initially required to post the notice effective November 14, 2011. That date was later changed to January 31, 2012, and now the deadline is April 30, 2012.

Here is a link to the poster, which can be downloaded for free from the NLRB website. The poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. The NLRB also has the posting available in 26 other languages for download from their website. If 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language.

This employee rights posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The posting will include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

My law partner, Marylee Abrams and I will be presenting to the White Bear Area Chamber of Commerce on Thursday, February 2, 2012, “Did You Know, Even If Your Employees Are Non-union the National Labor Relations Act, May Apply To Your Business?” We will be discussing who the National Labor Relations Act applies to, the NLRB’s new posting requirement on employee rights, and updates on recent litigation regarding employee use of social media. If you want to learn more about this posting requirement and whether or not your business is required to post the employee rights poster on April 30, 2012, please join us.

Mark your calendars for April 1, 2012 to research if you are required to post the NLRA's employee rights poster at your workplace.  If so, be sure to download and hang the poster prior to the April 30, 2012 deadline.

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I have always liked the quote attributed to Lao Tzu - "Give a man a fish, feed him for a day. Teach a man to fish, feed him for a lifetime." Kiva.org embodies this ideal through global microfinance.

Kiva is an on-line lending platform which allows individuals in the developed world, to make small business loans to entrepreneurs in the developing world. When I opened my law firm in 2008 with my law partner, Tiffany Schmidt, I looked for a symbol of our entrepreneurial spirit, and I found Kiva. To date, I have successfully made 8 loans, including loans to a retail business owner in the Congo, a general store owner in Rwanda, a charcoal sales person in Ghana, a single mother raising chickens in Tanzania, a group of women producing food for sale in Paraguay, and a cattle farmer in Azerbaijan. I was notified the loans had been repaid and today, I made loans to a group of women selling flour and cooking oil in Sierra Leone, a single mother of three with a garment business in Mongolia, and a group of farmers in Kenya to purchase fertilizer and seed for the 2012 planting season.

As my law firm has grown, it has been fun to receive updates on my Kiva loans, and learn about the progress of the global businesses I am helping. Each loan has been for the sum of $25.00, a relatively small amount in western standards, but the global impact has been far greater as people build small local businesses, which in turn help raise their families, and lead to self-sufficiency.

Kiva was started by Mike and Jessica Flannery in 2004. They recognized many people in developing countries had no access to affordable credit. Kiva.org offers loans to handpicked microfinance institutions at 0% interest. These microfinance institutions, in turn screen local applicants, and lend money to individuals at a low interest rate. Updates on loan repayment are provided, and when the loans are repaid, the funds are available to re-loan to another small business enterprise.

During this holiday season, please consider microfinance, and help teach someone to “fish.” The world can be a better place, one small business at a time.
 

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On Monday and Tuesday, Marylee and I had a field trip out of the office to attend the Association of Minnesota Counties 2011 Annual Conference and Vendor Fair. The Association of Minnesota Counties put on an excellent and well run conference. This is the fourth time we have attended this event. We again enjoyed having the opportunity to chat with all the County Commissioners, County Coordinators, and other County employees about what was new in their counties. This year, Marylee gave a presentation on “How to Lose a Discipline Grievance.” The attendees reported back to our booth they found the presentation both helpful and informative. If anyone who attended the conference did not get the opportunity to drop by our booth, give us a call or drop us an e-mail, we would love to chat with you. See you in 2012!

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After a lot of publicity from angry employees about opening at midnight on Black Friday, the big box stores didn’t buckle to the pressure, and Target, Best Buy and Kohl’s opened their doors at midnight on Thanksgiving evening. Even though there were numerous petitions circulating online, signed by hundreds of thousands of people telling stores to not open at midnight, it didn’t stop the shoppers from coming out in droves to shop for bargains.

 The news stories following Black Friday had less to do with the petitions circulated by disgruntled employees and more to do with “competitive” shoppers. In Los Angeles, a female shopper sprayed a crowd of shoppers with pepper spray in order to clear a path to the display of Xbox video game players. Ten shoppers suffered minor injuries from the pepper spray.

Overall, Black Friday has been a boom for businesses. Reports are that Black Friday sales were up 16% this year from last year. Coupled with the good state fiscal news reporting a surplus of $876 million dollars and today’s improved unemployment numbers things may be looking up.
 

Hopefully, the employees who started all the online petitions are now focused on doing their jobs and positively contributing to business.
 

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What should I do about a problem employee? Train, transfer, or terminate? Many of our clients struggle with assessing employee misconduct, and knowing how to make good employee discipline decisions. Making the wrong decision can be costly, embarrassing, and damaging to workplace morale. Too harsh of discipline can be just as bad as ignoring misconduct. The goal for all employers should be to reach a reasoned decision, and mete out just the right discipline based on the facts, the record of the employee, and the practices of the workplace.

I am speaking at the Association of Minnesota Counties Annual Conference on December 5, 2011, on employee discipline. The subject of my presentation is “How to Lose a Discipline Grievance.” Most of our public sector clients deal with unionized employees who have grievance arbitration rights to appeal discipline decisions. Arbitration challenges mean an employer’s discipline decision will be carefully scrutinized, and will be subject to testimony and evidence before a neutral arbitrator.

The materials I prepared for the presentation include a checklist for employers. It is designed to be used when facing an employee discipline decision. It covers a wide range of things to consider from the quality of the investigation, to the employee’s personnel record, and the history and practice of the individual workplace. The checklist is based on a review of approximately 40 termination arbitration decisions posted by the Minnesota Bureau of Mediation Services in 2011. Approximately 20 of the termination decisions were sustained, and the other 20 were overturned and a lesser form of discipline was issued by the arbitrator. I paid special attention to the 20 terminations overturned by an arbitrator. The raw numbers indicate about half of the termination decisions were overturned in 2011. A 50-50 success rate is unacceptable, costly, and leaves much room for improvement.

Making an employee disciplinary decision can be difficult, but following good employee management practices can remove some of the guess work. The goal for every employer should be to make defensible decisions which will withstand outside scrutiny. Start with this checklist and seek legal advice when there are questions or uncertainty.

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The National Labor Relations Board recently announced another required posting that employers must place in the workplace. This time the required posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The newly required posting will also include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

The NLRB stated, “Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites.”

Luckily, the required posting will be available to download for free off the NLRB website beginning November 1, 2011. It must be posted at your workplace no later than November 14, 2011. The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights, and employer rules and policies are posted. Failure to post the required notice may be considered an unfair labor practice by the Board.

I imagine most workplaces are running out of space on workplace bulletin boards. To double check and make sure you have all of the required posters at your workplace, follow the prompts at the United States Department of Labor website. Make sure to check with your state for required postings as well. Don’t forget to make room for this latest required workplace posting by November 14, 2011.

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I arrived at the office this morning and checked my emails to learn we had been nominated for Lexis Nexis Top 25 Labor and Employment Law Blogs of 2011. We are thrilled with the nomination, and it validates our goal to provide a common sense resource for employers. The list of nominees is quite impressive and to be counted amongst them is truly an honor. 

Lexis Nexis wants readers to voice their support for their favorite blogs. That is where you come in… we need you to click on the link and comment about our blog at Labor and Employment Law Community. 

Each comment is counted as a vote toward the supported blog. To submit a comment, visitors need to log on to their free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. (No, you will not receive any sales contacts for commenting)  Be sure to scroll down to the bottom of the page.  The comment box is at the very bottom of the blog nomination page.

The comment period for nominations ends on September 12, 2011. Thanks for your support!

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The National Labor Relations Board’s Acting General Counsel released a report yesterday, detailing the outcome of a mixed bag of 14 cases involving the use of social media by employees, their employer’s social media policies, and in one case the improper use of social media by a union. The report is a fascinating read for employers, and shows how the NLRB is really splitting hairs on what to do about employee use/misuse of social media. Each case is extremely fact specific. The waters are beginning to clear, but there is no bright line yet.

Eight of the cases reported, involved employees using Facebook to criticize their employer, supervisor, or fellow employee. In four of the cases, the NLRB ruled the employee’s activity was protected concerted activity. In the other four cases, the conduct was deemed to not be protected by the National Labor Relations Act. The difference lies in a determination of whether or not activity is, “Engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or induce or to prepare for group action” and where individual employees bring “truly group complaints” to the employers attention. Translated, this means whether or not the employee is acting alone, or in concert with others. To the extent the employee acts alone it is not concerted activity; to the extent the employee communicates with fellow employees, the more the activity looks concerted and is more likely to be considered protected activity.

One of the fourteen cases was about an employee tweeting, and four others concerned the question whether or not an employer’s social media policy was overly broad. Three of the social media policies reviewed by the Board were determined to be overly broad, one was not.  The take-away for employers is to understand social media cases will be reviewed by the NLRB on a fact specific basis. When presented with a problem of an employee’s potential misuse of social media, an employer should carefully review the facts.

• Who was involved in the social media communication?
• When?
• What was the subject of the social media communication?
• What was the purpose of the communication?
• Does the social media communication appear to be “concerted activity”?

The second step is to review social media policies to determine if they are overly broad, and have the effect of chilling an employee’s rights under Section 7 of the NLRA. Adding an exclusion which reads, “This social media policy is not designed to hinder, restrict, or compromise an employee’s rights under Section 7 of the NLRA,” is a very good idea.

Another good resource for employers is to review the recent “Survey of Social Media Issues Before the NLRB,” completed by the U.S. Chamber of Commerce. It covers 129 NLRB decisions concerning social media and workplace issues. The Chamber reported, “The vast majority of the cases we reviewed through this survey fall into two general categories: employer policies restricting employee use of social media that are alleged to be overbroad and employer discharge or discipline based on an employee’s comments posted through social media channels.”
 

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The American Civil Liberties Union (ACLU) recently filed a notice of claim against the Rocky Mountain Academy of Evergreen in Colorado alleging it let go of a teacher because she pumped breast milk on the job. The school has 90 days to respond to the claim, after which point a formal lawsuit may be filed. Colorado passed a law which requires employers to make reasonable accommodations to allow mothers to pump milk while at work. Minnesota has a similar law.

Minnesota Statute § 181.939 states, employers must provide reasonable unpaid break time each day to a nursing employee who needs to express breast milk for her infant child, unless it would unduly disrupt the operations of the employer. The break time can be at the same time as other break times already provided to the employee. Minnesota employers must also provide an employee a private room or location to use to express her milk. A toilet stall is not considered sufficient under the law for this purpose.

In addition to Minnesota state law which provides this benefit to nursing mothers, my law partner blogged last year about the changes caused by President Obama’s healthcare reform, one of which provided unpaid lactation breaks for nursing mothers.

It is important for employers to consider any potential discrimination claims before taking adverse employment actions against employees. Employment actions must be grounded in facts and evaluated based on legitimate needs. Presently, the Colorado employer is claiming the employee was not retained because her position was changed. I will update you as this case unfolds.

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Taking a statement from an employee in a workplace investigation is an acquired skill, most investigators don’t have sufficient opportunity to practice or perfect. At this point in my career, I have represented clients in over 1,500 workplace investigations, from both sides of the table. I previously represented employees and now exclusively represent employers. I have come to the conclusion there are three words which can cause employees to drip sweat, and can strike fear in most union representatives. Those three words are; “Tell me about…” as in “Tell me about the pornographic sites found in your computer history;” “Tell me about why you were late for work;” “Tell me about the car accident with the company truck;” or “Tell me about the conversation you had with ...”

Asking an open-ended question invites the employee to provide a narrative response, likely to be broad in scope, and extremely helpful to the investigator. If asked as the very first question in the statement, it can provide an opportunity for the investigator to observe the demeanor of the employee, assess the employee’s comfort level with the process, and perhaps help in developing opinions about truth and veracity. Those three powerful words are extremely difficult for a union representative, because they make it difficult to predict what the employee will say in response, and they make it harder for the union to interfere with the statement. 

Several weeks ago I presented a three hour course on investigations called, “How to Take the Best Internal Affairs Statement of Your Career,” and shared these three most powerful words.   I advised all those attending the class, that if they remembered one thing from the class, they should remember the three powerful words, “Tell me about…” The quality of responses and the volume of information obtained from the employee being questioned will be greatly enhanced, resulting in a more complete investigative statement.  

For those wondering, the next question to ask after, “Tell me about,” is either, “Anything else?” or “What happened next?” Short prompting questions at this point will keep the employee talking, and provide even more valuable information to the investigator. 

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Factory workers were locked out Monday from entering seven American Crystal Sugar plants located in Minnesota, North Dakota, and Iowa, after rejecting a contract proposal offering a 17% wage increase over five years. The processing plants have brought in replacement workers, and the employees are flocking to file for unemployment benefits.

Rejecting a 17% wage increase over five years is outrageous and offensive in our present sluggish economy. Most factory workers are happy to just have a job and a paycheck. The Union responded to the press,“These negotiations are not and never have been about pay…” and instead offered increases in health insurance and concerns about job security as the reasons for rejecting the Company’s contract offer.

In response to the Union’s concerns, management explained, “Health care costs would go up an average of about $1,000.00 per employee, which is significantly less than their pay increase,” and indicated the Company had proposed language concerning job security. The Company proposal specified prior to any lay-offs, the Company would have to meet certain stipulations before being able to hire non-union workers.

The major disconnect here may very well be the fact the parties last contract negotiations were in 2004, when they agreed to a 7 year labor agreement that raised salaries by 2% and locked in health insurance rates for 7 years. The world has changed profoundly in the last 7 years, our economy has tanked, health care costs have sky-rocketed, and the unemployment rate is hovering close to double digits. The Union representing workers of American Crystal Sugar seems to have been trapped in a time warp. It is hard to have any sympathy for workers who reject a sweet 17% wage increase over 5 years, and opt for unemployment benefits instead. A reality check is in order.
 

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Technology and social media use is morphing at light-speed. Figuring out clear lines and appropriate social behaviors remains very murky. The court system has been no help in providing guidance, due to the lengthy delays between the filing of a case and a final court ruling, generally issued years later. Last year, my law partner blogged about a sexting workplace discipline case. There was an eight year delay between the employee's misconduct, and the final decision issued by the United States Supreme Court. By the time the Court ruled, the pager technology used by the employee was already out of date. Judges are historically reserved and reluctant to provide much guidance because they simply can’t predict where social media and technology is headed, and can’t fathom how quickly the social media/technology landscape is changing.

I keep looking for cases to help clarify the boundaries and the new rules, but they are few and far between. What are the appropriate boundaries on social media use, and what are the new rules?
The Minnesota Court of Appeals gave us a glimmer of guidance this week, in a case having to do with a University of Minnesota mortuary science student. We can extrapolate from the tenor of the decision and start to see where social media may be headed, and what seems to matter to the Courts.

In the case, a mortuary science student commented on Facebook about a cadaver she named “Bernie,” she described embalming as cathartic, and stated she wanted to stab someone in the throat with an embalming tool. She also mentioned wanting to take out her aggression on the cadaver and about updating a “Death List.” The Facebook posts went out to fellow mortuary science students, her Facebook friends, and friends of her friends. Her Facebook comments were determined to be threatening and inappropriate, and in violation of University rules. Her sanctions included: receiving a failing grade in the class, attending a clinical ethics class, writing a letter to department faculty addressing the issue of respect in the department and the profession, and completing a psychiatric evaluation.

The student challenged the University’s discipline as arbitrary, and argued that her Constitutional right to free speech had been violated. The Court of Appeals was not convinced and ruled, “A public university’s disciplinary sanctions do not violate a student’s right to free speech where the student’s posts to a social networking website materially and substantially disrupt the work and discipline of the university.”

Important points noted by the Court include the fact the University had held an in-depth orientation for students about the treatment of cadavers, and students were required to sign acknowledgment forms indicating they had read the department policies about the responsibilities of dissecting a human body. Additionally, because the University relied very heavily on a voluntary anatomy-bequest program for donated bodies, and because the program was jeopardized, the Facebook posts were deemed to be disruptive to the work and discipline of the program and the University.

Based on the Court’s rationale, we can extrapolate a few take-aways.  Clearly, the Court took note of the fact there was an adopted social media policy which established notice and expected accountability. Training on the policy, and requiring a signed acknowledgment form indicating receipt of the policy, were also mentioned by the Court as important to their ruling. Finally, if social media use can be proven to disrupt work and discipline, it is less likely to be determined to be protected speech.  Common sense won out in the end.  If it's not a good idea to shout out thoughts and comments standing on a street-corner, it is probably not a great idea to post them on Facebook.

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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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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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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 am excited to be a presenter at an LRIS conference about “Collective Bargaining” in Las Vegas this week. I will be presenting management’s position, and attorney Rob Wexler from California will be presenting the union’s side. Will Aitchison is serving as the moderator. We will be discussing the “Nuts and Bolts of Collective Bargaining.”

It will be great to get out of Minnesota and away from yet another snowstorm heading our way. I have checked and the Vegas forecast is looking sunny and in the 80’s all week. I hope to see you there. If you read our blog, be sure and introduce yourself.  Viva Las Vegas!!!!!!

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My law partner, Tiffany Schmidt and I have been asked to present, “What to do about Employee Misconduct?” as part of St. Paul College’s Smart Start Breakfast Series. As usual, we will skip the legalese and instead offer practical tips and suggestions gained through years of experience in labor relations. Join us for an informative and fun early start to your work day.

St. Paul College designed the Smart Start Series as part of their quality training programs designed to deliver information to help businesses and organizations throughout the Twin Cities metro area stay informed and educated about best practices pertinent to workplace skills, leadership, organizational sustainability, and business solutions.

The spring Smart Start Series includes other presentations on:

• “Best Business Practices: Keeping Your Business Out of Legal Trouble” by attorneys Susan Minsberg and Mary Budge;
• “Getting What You Want” by attorneys Gayle C. Hendley and Karen E. Marty, and
• “From Divorce to Death” by attorneys Susan Minsberg and Catherine R. Thatcher.

We hope to see you there.

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After a week of protests in Madison, Wisconsin, the labor dispute appears to be feverishly ratcheting up and the parties are becoming more entrenched in their positions. Two days ago, a reporter made a prank phone call to Governor Walker, impersonating a multi-millionaire political backer. The Governor was duped, and the unflattering recording of the Governor went viral. Meanwhile, the 14 absent Democratic Senators whereabouts are still unknown, and the Governor is threatening to lay-off 1,500 state workers if the missing legislators don’t return to the state capitol. The capitol rotunda has been turned into a campground, housing a variety of labor supporters. Unaffected labor groups like the Firefighter Association, are even joining the crowd of vocal protesters by staging a sleep-in. The House just voted 51-17 in favor of limiting collective bargaining rights as proposed by the Governor, and the bill will proceed to the Senate. Neither side is showing signs of blinking, intensifying the stare-down in Wisconsin.

Labor disputes seldom are resolved when the parties point fingers of blame at each other. Nor are they resolved by arguing over how the dispute began or by regurgitating the facts. When that occurs, no one is compelled to change or work toward a resolution. Labor disputes can only be resolved through communication, and in Wisconsin neither side appears willing to take that step.

No one is disputing the State of Wisconsin is facing a dire financial crisis, nor is anyone disputing the fact public employee wages and benefits are a disproportionately large budget item, contributing to the crisis. According to a recent 60 Minutes report, the rising cost of public employee benefits will bankrupt cities and states across the country. Economists are predicting the next to fall after the recent banking and financial melt-down, followed by the housing and mortgage crisis, is the failure of our cities, counties, and state governments.

Wisconsin is a wake-up call for both labor and management. There is a new normal, in the wake of the economic catastrophe of 2008. It is safe to predict there will be no federal bail-out offered to cities, counties, or states. Therefore, labor and management have to focus on fixing the financial problems themselves. This can only be accomplished through some belt-tightening, communication, and re-inventing new ways to problem solve. While circus antics, protests, and stonewalling attracts the media, they will not fix the financial problems faced by state and local governments today.

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Each year Attorney Molly DiBianca of the Delaware Employment Law Blog prepares a list of the top 100 labor & employment law blogs worth reading. I am pleased to announce our blog was included in her 2010 list of the best labor and employment blogs. We are grateful for the acknowledgment and honored to be included among the company of some very excellent bloggers.

The list of blogs is an impressive resource for employers. Readers can either subscribe to an individual blog or add it to their RSS feeds. Keeping updated on what is happening concerning labor and employment issues is crucial to every employer. We will keep blogging and you keep reading.  Merry Christmas!
 

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Today is Veteran’s Day. I would like to take this opportunity to thank all the individuals currently serving in the various branches of the military and all the veterans who served in the past. We owe you a huge debt of gratitude for your commitment to this Country.

There are many businesses who also want to thank veterans and active duty military personnel for their services.

Some are offering food:
• Applebee’s is offering a free entrée.
• Boston’s is offering a free entrée.
• Outback Steakhouse is offering a free bloomin’ onion and non-alcoholic beverage.
• Chili’s is offering a free entrée from six menu options.
• Texas Roadhouse is offering a free entrée.
• Hy-Vee is offering a free breakfast buffet and small beverage.

Other values for veterans and active duty military personnel include:
• 10% discount at Dollar General.
• Free admission to National Parks.
• Select bed & breakfasts and hotels are offering a free night’s stay on Nov. 10.

I would especially like to thank my grandfather, who if he hadn’t served in the Army in WWII, would never have met my grandmother and well, I wouldn’t be here. Thank you for all you do!
 

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