During the past legislative session, the legislature passed several significant changes to the Minnesota Veteran’s Preference Act, including reducing the 60 day notice period to 30 days, eliminating the three-person panel and replacing it with a single arbitrator, providing for the termination of a Veteran during probation without the protection of a Veteran’s hearing, and providing for the possibility the employer may be responsible for a discharged Veteran’s reasonable attorneys fees.

Minn. Stat. § 197.455 now allows, counties, cities, towns, school districts and other municipalities to require a veteran to complete an initial hiring probation period.  After the initial probation period is completed, a veteran may not be removed from a position except for incompetency or misconduct shown after a hearing.

The legislature also made changes to Minn. Stat. § 197.46.  After a veteran receives notice of the government’s intent to discharge him/her from employment, the veteran now has only 30 days to request a hearing, instead of the previously allowed 60 days.  The failure of the veteran to request a hearing within 30 days constitutes a waiver of the right to a hearing and all other legal remedies for reinstatement.  Additionally, the option to have the hearing before a “three-person panel” has now been changed to “an arbitrator.” In cases where the hearing will be before an arbitrator, the employer is to request a list of seven possible arbitrators from the Bureau of Mediation Services.  The legislature also stated the employer is required to strike first from the list of seven arbitrators, giving the Veteran the final selection.

The last significant change involves the costs associated with the hearing.  The statute will now read, “For disputes heard by a civil service board, commission or merit system authority, or an arbitrator, the governmental subdivisions shall bear all costs associated with the hearing, but not including attorney fees for attorneys representing the veteran.  If the veteran prevails in a dispute heard by a civil service board, commission or merit system authority, or an arbitrator and the hearing reverses the level of the alleged incompetency or misconduct requiring discharge, the governmental subdivision shall pay the veteran’s reasonable attorney fees.”

The most significant change for employers is the exposure to liability for the Veteran’s reasonable attorney’s fees in the event a discharge is reversed.

In Minnesota, it is not uncommon for smaller municipalities, counties, townships or school districts to enter into joint powers agreements with another small entity for purposes of providing better services to its citizens.  A joint powers agreement establishes a board which has the power to receive and expend funds, enter contracts, and hire employees, creating a separate joint entity apart from the individual municipalities involved.   As an example many communities have entered into joint powers agreements for purposes of providing law enforcement services or fire protection.

In 2014, the Minnesota legislature adopted a new statute which provides certain employee protections in joint powers agreements.  The statute governs any joint powers entities established after January 15, 2015 and addresses unionizing, determination of an appropriate bargaining unit, transitioning to a new bargaining unit, interim collective bargaining agreements, as well as contract negotiations and administration.    

In addition to reviewing the new statute prior to entering into a joint powers agreement, I would also recommend you review the League of Minnesota Cities document “Ten Things To Watch For When Entering Into Joint Powers Agreements.”  By doing a little research upfront regarding the process, headaches could be avoided later. 

 

Baby Josee (2-6-12)An interesting development is on the horizon regarding new benefits for employees in the private sector workforce. Last week both Facebook and Apple announced it will be providing up to $20,000 in benefits to help employees pay for infertility treatments, sperm donors or to freeze their eggs. Facebook has stated, freezing their eggs gives women an option to focus on their career or education first.

Dr. Nicole Noyes with the New York University Fertility Center shared the number of patients freezing eggs was almost 400 in 2014 compared with just 5 in 2005. In addition to Facebook, some big banks are already providing this benefit to female employees. It is predicted that law firms will start doing this as well. Employers see this benefit as a way to attract and retain top female employees.

In the public sector, employers are doing something different to attract and retain good employees. This summer I blogged about my city, Brooklyn Park, offering paid leave for new parents. Well, now other cities are considering this as well. Recently, Mayor Coleman from the City of St. Paul announced he wants to offer four weeks of paid leave for the birthing mother and two weeks for the other parent. This policy is being introduced to the City Council for consideration and could be adopted in 2015. Mayor Coleman stated, “This policy is good for families, and it’s good for bringing the best and brightest to the City of St. Paul.”

Clearly, employers are starting to realize that just offering competitive wages and health insurance is not enough to attract and retain talented employees. It is nice to see employers trying to help employees balance work and families. Hopefully, this is the start of a new trend.

 

The 88th Minnesota Legislature ended its session on May 16, 2014, and there are some significant changes to Minnesota Statute Chapter 179A, the Public Employment Labor Relations Act (PELRA). 

One of the biggest changes involves the creation of the Public Employment Relations Board (PERB).  Back in the 1970’s, Minnesota had a PERB, but its’ responsibilities were changed and reassigned to the Bureau of Mediation Services (BMS).  Now the legislature has re-created a new PERB.  This PERB consists of three members, two of which will be appointed by the governor, one who represents exclusive representatives, and one who represents public employers.  These two board members will then select a third member to serve the public at large.  The purpose of the new board will be to take actions and enforce Minn. Stat. § 179A.13 regarding unfair labor practices. 

Effective, July 1, 2015, if an employee, employer, employee/employer organization, or exclusive representative, allege an unfair labor practice has occurred, they shall file such charge with the PERB.  Currently, such actions are brought in district court.  The PERB will then conduct an investigation into the allegation and issue a complaint, unless the charge has no reasonable basis in law or fact.  After a complaint has been issued a hearing will be conducted within 20 days of the service of the complaint.  By mutual agreement, the parties prior to the close of the hearing can also request a referral to mediation. 

If the hearing officers determine a party has engaged in an unfair labor practice, then a recommended decision and order shall be issued outlining the findings of fact and conclusions, and requiring the party to cease and desist.  The hearing officer can also order other appropriate relief that make the charging party whole. 

It will be interesting to see how this all works once the PERB is established.  I think it will be beneficial to the arena of labor law to have individuals who are well-versed in the legal aspects of unfair labor practices investigating and hearing cases vs. the average district court judge who may be hearing a personal injury case on Monday and a criminal case on Friday.  I think this change has been along time coming and will expedite unfair labor practice claims to the benefit of both labor and management.  

The Bureau of Mediation Services (BMS) recently issued a decision which could have broad implications. The BMS ruled the part-time professional firefighters in the City of Brooklyn Park could vote to unionize. According to the BMS, thirty-one of the sixty-two part-time firefighters for the City fall under the definition of public employee found in state statute. The City of Brooklyn Park does not have a full-time fire department; it utilizes part-time professional firefighters. The firefighters set their own work schedules through seniority shift-bidding, so they control how many hours they work, and whether or not they would be in the union.

Minnesota Statute § 179A.03, Subd. 14(e) excludes from the definition of a public employee, “part-time employees whose service does not exceed the lesser of 14 hours per week or 35 percent of the normal work week in the employee’s appropriate unit.” The City of Brooklyn Park argued because the part-time firefighters do not work a regular schedule, but instead sign up for shifts based on seniority and set their own schedule, they didn’t qualify as public employees under the statute. The City of Brooklyn Park told the local Sun Post it isn’t opposed to the firefighters unionizing. It just wanted to make sure it had a clear understanding of this unique issue, which has not previously been explored in the state of Minnesota.

The recent ruling creates other concerns which may need to be addressed, such as how does an Employer manage when the union status of a part-time firefighter changes, because sufficient hours weren’t worked in the previous year to qualify as a public employee? Changes in union status may have an annual affect on firefighters’ wages. Additionally, the interpretation by the BMS that the statutory definition of a public employee is based on the requirement of working more than 14 hours per week in the majority of weeks worked by an employee is perplexing. The statute does not specify how many weeks a part-time employee has to work more than 14 hours to be part of a union. I know many management labor representatives, myself included, have interpreted the statute to mean a 1 year period (52 weeks), so, in order to qualify to be in a union, the part-time employee must work 728 hours. The Bureau’s interpretation greatly expands who can qualify as a public employee.

I spoke with City Manager Jamie Verbrugge to get his opinion on the recent decision. He told me the situation could turn out to be very problematic. The City requires firefighters to work approximately 20 hours per quarter. Scheduling is strictly bid by seniority, therefore the newer firefighters may never be able to obtain union status, because they would always be out bid for work hours by senior members of the department. Additionally, the City has a strong belief in internal equity in wages and benefits amongst its employees. The City has decided to not appeal the BMS decision, and will evaluate what needs to be done if the firefighters vote to join a union.

Manipulations of the bargaining unit by employees signing up for shifts could pose an interesting dilemma for the City. The firefighters will be voting later this month on whether or not they want to join a union. As a resident of Brooklyn Park, I will be following this issue closely.
 

Earlier this week, Marylee and I had the pleasure of attending the Association of Minnesota Counties 2010 Annual Conference and Vendor Fair. This is the third time we have attended this event and we always enjoy our time there. We had a wonderful time chatting with all the County Commissioners (new and retiring), County Coordinators and other County employees about what is happening in their counties. The theme of the conference was “Think Possible” and focused on bold ideas, creating new options, and finding better solutions in these challenging times. My firm’s mission is to provide creative, clear, and innovative legal services to public and private sector employers. As usual, the conference was extremely well organized and we are already looking forward to visiting with everyone again at next year’s conference.

In this economy everyone is looking to save a dollar or two (or make an extra dollar or two), if possible. So, how do people do it? They ask others for suggestions. There are hundreds of books, websites, and blogs available with tips on how to save money, get out of debt, or make extra cash.

Well, Minnesota cities are doing the same thing. The State of Minnesota is grappling with a $6 billion dollar shortfall in the next biennium and has already cut local government aid to cities and counties repeatedly over the last few years. Because of this, cities are having to cut back on services, hours, and spending, just to name a few things. So, how should cities deal with budget cutbacks while still maintaining services? The League of Minnesota Cities is doing what the average person would do, it is asking others for suggestions. In June, the League posted a unique video set to slam poetry on its blog and youtube and directly asked citizens for creative ways to keep city costs in line. The Star Tribune reported last week, 3,100 citizens have responded to the League with suggestions. The League is compiling the comments left on the www.outsidetheox.org website, and sharing the information with community leaders.

Everyone from businesses, to local government, to citizens is struggling in this economy. It is nice to see people asking for help and giving suggestions on how to weather this storm. If you are a public employer in Minnesota don’t be afraid to ask your citizens what they really need from you, it could help you make some of those tough budget decisions.

** The League is a membership organization dedicated to promoting excellence in local government. It serves its more than 800 member Minnesota cities through advocacy, education and training, policy development, risk management, and other services.
 

I had the pleasure of spending yesterday afternoon and this morning in lovely St. Cloud, Minnesota at the League of Minnesota Cities 2010 Annual Conference and Marketplace. Marylee and I had a wonderful time talking to various City Managers, City Administrators, Mayors and City Council members about what is happening in their cities and how they are addressing the economic challenges their cities are facing. My firm’s mission is to assist public and private sector employers with their workplace issues during these challenging times.

The conference was very well organized with lots of valuable sessions for attendees on topics including: LGA cuts, cost cutting measures, city budgets, and dealing with unions to name just a few. We are already looking forward to next year’s conference in Rochester.
 

As the City of Detroit is learning, discrimination claims under the Americans with Disabilities Act may not result from your typical disabilities. Susan McBride, a city employee, filed a lawsuit under the Americans with Disabilities Act in 2007, claiming the City violated her rights under the ADA by failing to accommodate her chemical sensitivity. Ms. McBride claimed a life-long chemical sensitivity to scented substances such as perfume, body lotion, aftershave, cologne, hand cream, hair spray, deodorant, and various cleaning compounds. Exposure to these and other irritants caused headaches, nausea, chest tightness, cough, and rhinitis and required her to seek medical care. When a coworker refused to quit wearing perfume Ms. McBride complained to her supervisor and requested the City implement and enforce a “no-scent policy” as an accommodation to her chemical sensitivity. The City denied her request and offered no alternative accommodation.

A disability determination under the ADA (now updated and revised as the ADAAA) is to be made on a case-by-case basis. The City of Detroit filed a motion to dismiss Ms. McBride’s case in 2007, but the motion was denied. (pdf) Recently, the City of Detroit settled out of court with Ms. McBride for $100,000. It will also be putting up signs warning workers to avoid wearing scented products. Because the case was settled, it is not possible to say if her chemical sensitivity would be considered a disability under the ADA or ADAAA.

What do employers need to take away from this case? A few things spring to mind:

(1) Take employee complaints seriously.
(2) Address issues promptly to avoid unnecessary costs later.
(3) Consider if a policy might fix a problem.