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

There is a public uproar in Minnesota about a Stearns County Deputy having received over $200,000.00 in salary and benefits, while facing 22 felony counts of criminal sexual conduct with minors. Recently his criminal trial was postponed again, and he continues in a paid status, approaching the start of his third year on paid leave.

Deciding to place an employee on paid or unpaid leave while criminal charges are pending, is not a new concept. An often over-looked 1997 U.S. Supreme Court case ruled, a public employee may be placed on unpaid leave while facing felony charges. In Gilbert v. Homar, the Court addressed the issue of a police officer facing criminal drug charges, indicating, “…[t]he State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers…We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.”

The Court identified three distinct factors to consider in their analysis. First, the private interest affected by the official action, (i.e the loss of the deputy’s paycheck); Second, the risk of an erroneous deprivation through the procedures used, (i.e. are the charges legitimate?); And finally, the Government’s interest,(i.e. the taxpayers interests.) I have no knowledge whether the Gilbert case was taken into consideration when Stearns County decided to continue the deputy in a paid status, but there are presently some compelling facts which indicate continuing the deputy in a paid status may not have been necessary. The deputy was in charge of the local Explorer Post, and at least one of the alleged victims was an Explorer Scout. Also, the beyond a reasonable doubt standard necessary to support criminal charges, is substantially higher than the clear and convincing or preponderance standards typically found in an employee discipline case before an arbitrator.

While it is true the Gilbert case involved a short suspension and not the two year time frame in Stearns County, the question remains, after consideration of the factors presented by the Court in the Gilbert case, is it fiscally responsible for a governmental entity to be paying an employee for two years to sit at home.

My law partner previously mentioned the Gilbert case in a blog about a recent arbitration case concerning a teacher facing third degree criminal assault charges. The teacher’s union filed a grievance arguing the teacher should been placed on a paid leave while the criminal charges were pending, not an unpaid leave. The arbitrator did not agree and denied the union's grievance.

The decision over whether to place an employee on paid or unpaid status while serious felony criminal charges are pending is a difficult one, and should be made only after a careful analysis of all of the facts in light of the Gilbert case. The decision should be intentional, as the cost to the taxpayers can be very high. Unpaid leave is clearly an option that should not be overlooked by employers.

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

As a reminder, it is important to first determine which leave laws apply to your workplace. In order to do that, you should first review the definition of employer in each situation. Some of the statutory leaves define an employer as a business employing one person, while other statutes require a workplace to employ at least 20 employees for the leave law to apply. Some of the unique employee leaves only apply to public sector workplaces such as cities and counties, while other leave laws apply to every workplace including private businesses. The important point is to determine which state leave laws apply to your workplace.

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

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

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

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The Minnesota legislature has provided certain retiree health insurance benefits to public employees through state statute. For example, former public employees and their dependents must be allowed to continue to participate indefinitely in the employer-sponsored insurance group that the employee participated in immediately before retirement. Additionally, until the former public employee reaches age 65, they must be permitted to be pooled in the same group as active employees for purposes of establishing premiums for health insurance. Finally, public employers and employee unions may negotiate over employer contributions to retiree health insurance premiums. It is safe to say these statutorily created benefits are unique to the public sector, and not typically available in the private sector.

In today’s economy, health insurance costs are crippling the budgets of public employers. Limited to income from property tax revenues, levy referendums, and in some cases local government aid, public employers are struggling to control mounting costs of employee health insurance. My law partner blogged about a recent arbitration case she presented where retiree health insurance was the central issue in dispute. In that case, the arbitrator put a sunset on retiree health insurance, persuaded by the mounting unfunded liability facing the city.

The issue of retiree health insurance benefits is now going up on appeal to the Minnesota Supreme Court. This class action lawsuit, filed by 800 retired Duluth, Minnesota city employees, challenges the changes the City made to health benefits provided to retirees at the time of their retirement. The City had been faced with overseeing about 100 different health plans for former employees, who had retired over the years. The City streamlined the system, taking the position the labor contracts required the employer to provide the same coverage to retirees as it does to current employees, not the coverage the retirees had when they retired. Over the span of 30 years, Duluth Mayor Don Ness estimated the changes would save the city approximately $205 million dollars.

District Court Judge Sandvik ruled in favor of the City of Duluth in October 2009, which was upheld by the Court of Appeals in 2010. The Supreme Court accepted review and oral arguments are scheduled for May 2, 2011. I will of course keep my eyes on the case and update you with the results.  This is going to be an important decision for public employers.

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You smell alcohol on an employee’s breath after lunch. What should you do? One of your staff is acting weird, and you suspect they may be smoking marijuana. An employee has a motor vehicle accident with a company car, and you suspect they were under the influence when they crashed. What’s an employer to do?

From experience, more and more employers are turning to drug and alcohol testing of employees as a means of screening new job applicants, and also being able to respond to chemical use and abuse of present employees. Minnesota employers can’t just act on suspicion that an employee was drinking alcohol or using drugs before coming to work. State statute governs drug and alcohol testing of employees in the workplace, outlining what, when, where, and under what circumstances an employer can test an employee for alcohol or drugs.

Before an employer asks a job applicant or an employee to submit to testing, they must have adopted a policy that fits within state guidelines, and the individual must be given a copy of the testing policy. The policy must set out:

1. the employees or job applicants subject to testing under the policy;
2.  the circumstances under which drug or alcohol testing may be requested or required;
3. the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
4. any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test;
5. the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and
6. any other appeal procedures available.

Employers are required to use certified labs which meet minimum qualifications, and follow specific protocols. For example, a positive drug or alcohol test must also be subject to a confirmatory test. A job applicant or employee must be notified about a positive test result, that they have an opportunity to explain the positive test results, and that they can request a confirmatory retest of the sample, at their own expense.

“Safety sensitive” positions can be subject to random drug testing. Random drug and alcohol testing means the employer has initiated a testing schedule, whereby a random sample of employees are tested on a monthly or quarterly basis. Most employees however, are not considered “safety sensitive” and would be subject instead to a reasonable suspicion standard.  Reasonable suspicion means there is a “…basis for forming a belief based on specific facts and rational inferences drawn from those facts.” This may mean a car accident with the company vehicle, observation of behavior and an odor of alcohol on an employee’s breath, or the employee caused harm to another employee.

If the workplace is unionized, drug and alcohol testing must be negotiated with the bargaining agent. If there is no union, the employer is free to adopt a drug and alcohol testing procedure that meets the guidelines of Minnesota state statute. Most employers incorporate the drug and alcohol testing policy in their Employee Handbook.

To test or not to test, that is the question? If the answer is to test- then state statute needs to be followed.

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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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The economy is beginning to recover. Public and private sector employers however are still dealing with fallout from this recession. Last fall, I wrote about the impact on cities and counties of a $6 billion dollar budget shortfall facing the State of Minnesota. Our public sector clients have been taking this issue very seriously and attempting to cut budgets in all areas. Everyone knows it isn’t just the salaries paid to employees that affect an employer’s bottom line, but there are also all the benefits, like health and dental insurance, severance packages, and retiree health insurance to name a few, which all add up. More and more, employers have been attempting to get a handle on employee benefits, in order to get budgets under control.

In Minnesota, police officers are considered essential personnel and are prevented from striking. In lieu of a strike, police officers are permitted to go to interest arbitration if a new collective bargaining agreement cannot be reached through negotiations or mediation. In a recent interest arbitration decision (pdf) Arbitrator Richard Miller agreed the City could sunset the retiree health insurance benefit, in order to get a handle on future expenses.

It is a common axiom in arbitration that the party proposing a change to contract language carries the burden of proving their request is necessary and reasonable. I represented the City in this interest arbitration case. The Union’s primary argument against sun-setting the retiree health insurance language was a lack of a quid pro quo from the City. Arbitrator Miller rejected the Union’s argument and agreed with the City; sun-setting the retiree health insurance benefit was not a take-away, no current police officers were losing the benefit, and therefore a quid pro quo was not necessary.

Employers need to look at all avenues available for reducing expenses and controlling budgets. Just because a benefit has previously been provided to employees doesn’t mean it must continue. Public employers must get control of future costs to avoid what some are considering the next major economic tsunami – the bankruptcy of state and local governments.

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Garrity refers to a 1967 United States Supreme Court decision that continues to be a mystery to many public employers. (pdf) It is a case they don’t teach in law school, and in fact it is unfamiliar to many city and county attorneys. It represents a very small niche in workplace investigations, but it can have a nuclear impact if the case is overlooked or misapplied, resulting in a criminal walking free. The principles of the case apply to all public employees who are the subject of an internal affairs investigation.

In Garrity, New Jersey police officers were ordered to answer questions as part of an internal investigation into allegations of traffic ticket-fixing. The police officers were ordered to answer questions asked by the internal affairs investigator, and they were told if they refused to answer the questions, they would be terminated from employment. The answers provided by the officers were then turned over to the prosecuting attorney to assist in criminally prosecuting the police officers. The United States Supreme Court held the officers statements (ordered under threat of termination) were compelled, and therefore violated their Constitutional rights.

Understanding Garrity is crucial to all public employers. While the case may be over 40 years old, it is good law today. Minnesota (pdf) has had several appellate court decisions (pdf) concerning Garrity issues.

On January 13, 2011, our firm is conducting comprehensive Garrity training, in conjunction with the White Bear Lake Police Department. (pdf) We have dissected almost a dozen local Garrity cases. We present the cases fact by fact, to help attendees not only understand, but also apply the Garrity case to real life situations. Our goal is to make sure the Garrity case is known and correctly applied by public employers, and help to avoid a potential disaster.
 

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The Commander of the USS Enterprise (the US Navy sailing ship, not Captain Kirk’s star fleet battleship), ran into rough seas over lewd videos he made while on-duty, and then aired for the crew of his aircraft carrier. Capt. Owen Honors has been temporarily relieved of duty, while the Navy is conducting a formal investigation.

The videos shot in 2006 and 2007 included gay slurs, suggestive shower scenes, and simulated sexual acts. Capt. Honors characterized the videos as an effort to blow off steam and boost morale on the ship, which was not well-received by the Navy. The videos, ”…were not acceptable then and are not acceptable in today’s Navy.” Navy Cmdr. Chris Smith stated, executive officers and other leaders “… are charged to lead by example and are held accountable for setting the proper tone and upholding the standards of honor, courage, and commitment that we expect sailors to exemplify.” Capt. Honors will have rough sailing ahead, and no doubt discipline will follow.

Goofing around with video doesn’t just happen on naval ships out at sea. A local Minnesota police department experienced similar poor judgment when several of its officers, including a supervisor, shot an anti-management video concerning on-going labor negotiations. The officers made a Star Wars parody while on-duty, with costumes and dialogue. The video was edited to include a rolling text screen like the original Star Wars films, a musical score, and credits. Management was portrayed as the evil empire, and the final scene included a picture of a City Council member with a voice over of the evil emperor.

The department conducted an investigation concerning the Star Wars video, which also uncovered that the employees had made other videos while on- duty. The investigation resulted in discipline of the involved officers. I represented the city at arbitration where Arbitrator Beens upheld a five day suspension of one of the officers, and Arbitrator Moeller reduced a ten day suspension of another officer to a seven day suspension. (pdf) Another case is still pending. 

The union argued the videos were part of team-building and stress-relief at work, but neither arbitrator was convinced. I think it is safe to say creating videos on-duty, unless it is part of a legitimate training function, is very problematic. It is activity which will surely lead to an investigation, and more than likely serious workplace ramifications for employees.

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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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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.

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When employees blur the line between their private life and professional life, it can be problematic for employers. In two recent Minnesota arbitration decisions, the issue of romantic relationships was central to employment consequences for two police officers. Both cases were heard by neutral arbitrators, and the actions taken by the employer were affirmed.

Fraternization: A romantic relationship which developed between a City of Champlin Police Sergeant and a patrol officer, eventually lead to the Sergeant’s demotion. The romantic relationship developed over a period of time, which led the City to give the Sergeant the option to resign his supervisory position or end the relationship. The Sergeant declined either option. The City subsequently adopted a formal Fraternization Policy. As a result of the new policy, the Sergeant was involuntarily demoted.

At arbitration, the Employer successfully argued the romantic relationship could lead to “…lawsuits, claims of preferential treatment, morale problems and safety problems in the department.” The Union claimed the Employer was prohibited from retroactively applying the Fraternization Policy. The arbitrator dismissed the Union’s argument stating, “All new policies have to have a starting point and the Fraternization Policy was enacted for safety, liability, and morale concerns, which are justifiable reasons for ‘retroactively’ applying the Policy to the Grievant’s romantic relationship, which caused the Policy to be promulgated in the first place.” As a result of the arbitrator’s decision, the Sergeant exchanged his supervisory stripes for romance.

Love Gone Bad: In another arbitration decision, a patrol officer for the City of Prior Lake was terminated from employment for his actions surrounding a failed romantic relationship. The officer had recently broken up with his fiancée, when he returned to her residence in uniform and on-duty. He used a key he still had to let himself in the house, and then broke down a bedroom door where his former fiancée was hiding with another man. The officer left the residence, and offered to pay for the broken door. He was convicted of two misdemeanors and terminated from employment. The arbitrator noted the conduct of the officer “…undercuts the mission and trust in a police department when an officer on duty violates the law and shows bad judgment resulting in abuse of authority and a failure to exercise discretion.”

Generally, when romance and work collide, the case concerns off-duty conduct. These two arbitration cases clearly indicate romance at work, or romance which leads to conduct during work, can have significant employment consequences. Employers clearly have a right and an obligation to consider the impact of romances on workplaces.

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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.
 

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The beauty of arbitration decisions is that they provide a blueprint on what went right and what went wrong in discipline decision-making. Employers should carefully review arbitration awards, taking note of the arbitrator’s rationale to avoid making the same costly mistakes in the future.

The Minnesota Department of Natural Resources (DNR) terminated an employee, which was later overturned by an arbitrator. (Hamm v State of Minnesota) The employee was reinstated and then she filed a discrimination claim, which was recently settled when the State agreed to pay her $250,000.00.

DNR officer Cathy Hamm, had been terminated for her participation in preparing for the 2007 National DNR Conference held in Minnesota. 150 employees worked on the conference, but only Hamm was disciplined. The state alleged she had:

1. Failed to establish a time track code for work she completed on the conference, (The arbitrator ruled this was above her pay grade. Her supervisors were discussing how to accomplish this, but did not follow through.)
2. Conference fees were not set appropriately; (The arbitrator ruled that higher ups were actually responsible for setting the fees, not Hamm.)
3. She failed to report donated gifts; (The arbitrator ruled the gift policy was not applicable to the facts.)
4. Her use of state property and time in the drafting and sending of a fund-raising letter for the event was inappropriate. (The facts indicated the Commissioner of the DNR had approved the fund-raising letter via email and received copies of it as well.)

In conclusion, the arbitrator found the charges of misconduct alleged by the employer could not be supported by the results of the investigation.

So what went wrong? When we conduct investigations at our firm we make a practice of reviewing an investigation microscopically and then telescopically; up close and then stand back and take a fresh look. A fresh pair of eyes would have also been a great idea in the Hamm case, to review the investigation before making a disciplinary decision. Fresh eyes might have seen that the alleged policy violation did not actually fit the facts of alleged misconduct. Fresh eyes would have made sure the employee actually was given the job responsibilities, and not some supervisor above the employee, before alleging such misconduct. Fresh eyes would have confirmed the head of the department had actually approved a fund-raising letter, before finding misconduct on the part of an employee for sending it. Fresh eyes might have questioned why only 1 out of 150 employees was under investigation for misconduct. 

Employers should make it a habit to routinely read discipline arbitration decisions to avoid making costly mistakes.  The Minnesota Bureau of Mediation Services is a good place to start your reading.......

 

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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.
 

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Many firms have blogged about the most recent U.S. Supreme Court decision, Lewis v. City of Chicago No. 08-974 (May 24, 2010) including Ford & Harrison and Jackson Lewis.

In Lewis, the City of Chicago gave a written examination to applicants seeking positions with the city as firefighters. After the examination, the applicants with passing scores were categorized as “well qualified” or “qualified.” More than a year after receiving notice of the examination results, several African-American applicants who had been categorized by the City of Chicago as “qualified,” but had not been hired, filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). Federal law required EEOC charges be brought within 300 days after the unlawful employment practice occurred. Lewis and others then filed suit against the City alleging, the City’s practice of selecting only applicants who scored 89 or above, categorized as “well qualified,” had a disparate impact on African-Americans in violation of Title VII. The City objected claiming the petitioners had not filed the EEOC charges within the required 300 days.

The issue before the U.S. Supreme court was, “[w]hether a plaintiff who does not filed a timely charge challenging the adoption of a practice – here, an employer’s decision to exclude employment applicants who did not achieve a certain score on an examination – may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice.” The U.S. Supreme Court held, a plaintiff may timely challenge an employer’s later application of a practice, as long as he alleges each of the elements of a disparate-impact claim.

What is disparate impact? Disparate impact is defined as, “an unnecessary discriminatory effect on a protected class caused by an employment practice or policy that appears to be nondiscriminatory.” What is a protected class? A protected class is, “a group of people intended by a legislature to benefit from the protection of a statute.”

Since the enactment of Title VII of the Civil Rights Act of 1964, employers have known they are prohibited from discriminating against an individual based on their race, color, religion, sex, or national origin. However, as originally enacted, Title VII did not expressly prohibit employment practices that caused a disparate impact on individuals. In 1971, the United States Supreme Court first recognized “disparate impact” claims.

What does this decision mean for employers? It isn’t when a policy or practice is adopted that may start the time clock for discrimination or disparate-impact claims, but when the policy or practice is applied/used that is important.

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Native Minnesotans are all too familiar with the ravages that temperature and moisture can play on asphalt roads. We even grade our potholes from mere fissures all the way up to an abyss which is capable of devouring a small vehicle and its driver. As the driver of a small car, I am constantly alert for these roadway gouges, in hopes of averting a flat tire or the need for yet another wheel alignment.

Much to my dismay in March, local Channel 5 KSTP investigative reporters caught a number of St. Paul public workers on tape, spending more time in convenience stores, and restaurants on breaks, than actually fixing potholes. The story culminated this week with 17 public works employees being disciplined for their extremely poor pothole performance. The discipline included eight letters of reprimand, two demotions, and a total of 59 days of suspensions without pay.

Local newspaper columnist Joe Soucheray described the public works crews, “…are more lawyered up than British Petroleum.” Grievances have been filed on all of the disciplinary actions by five different unions, and a federal U.S. Department of Labor complaint has been filed by the employees alleging a new bathroom break policy violates their rights. It begs the question, How many unions does it take to fill a Minnesota pothole? Answer: Five. One union official was quoted as stating, “I don’t think my workers did nothing wrong” instead blaming the problem on supervisors and inefficiencies in the workplace.

Obviously something went very wrong, and it took an investigative reporter to bring the problem to light. Workplace accountability, active supervision of employees, and better work site controls need to be implemented immediately. To the unions, I say: Use some common sense before you take these cases forward to expensive arbitrations. No one has much sympathy for lazy public workers in today’s challenging economy. 

 

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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.

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