I went to an excellent training yesterday put on by the MetroNorth Chamber of Commerce. Coon Rapids Police Officer Bryan Platz was the speaker presenting on HEARTSafe Communities. The Program helps communities, organizations and businesses educate citizens about sudden cardiac arrest, raise money to place automated external defibrillators (AEDs) in business, schools and other public places, and trains people on how to use an AED and perform CPR.

Cardiac arrest can happen to anyone, anywhere, at anytime, and is almost always fatal. On average the survival rate is around 7% for individuals who have a cardiac arrest and don’t receive immediate life-saving treatment. However, survival rates go up to 85% when individuals receive immediate CPR and defibrillation with an AED. The training was eye-opening for me, and really quite simple. The important steps to take are: 1) Call 911, 2) Start CPR, 3) Use an AED, if one is available. The AED’s are completely automatic with easy to follow step by step verbal instructions, that even my 7 year old could follow.

Don’t let fear hold you back from offering assistance to someone needing immediate medical help. Minnesota has a “Good Samaritan” law which protects a person from liability when “offering emergency care, advice, or assistance at the scene of an emergency…”

Currently, Minnesota has 28 communities/businesses with the HEARTSafe designation. If you are interested in learning more about how to become a Heart Safe Community or business check out the toolkit and application here.

Businesses should train employees on how to administer CPR, and have an AED on site. For a minimal investment of time and money, your employees won’t just be a bystanders waiting for emergency personnel to arrive and take action, they will be heroes, helping save a life. I’m relieved to know that if I encounter a medical situation whether it is a friend, family member, or stranger, I now know how I can help until emergency personnel arrive. 

In the last week, the U.S. Supreme Court has issued several labor and employment decisions. Yesterday, two important cases were decided, Harris v. Quinn and Burwell v. Hobby Lobby et al.

In Harris v. Quinn, the Court in a 5-4 decision held the First Amendment prohibits the collection of “agency fees” (union dues) from personal assistants in the Illinois rehabilitation program, who do not want to join or support the union. The Court distinguished the Harris case from its decision in Abood v. Detroit Bd. of Ed., because the personal assistants in this case are different than full-fledged public employees. In Illinois, the state’s involvement with the personal assistants is limited to compensating them for their work. The personal assistants are hired, and their worked directed, by the “customers” who employ them, and they do not enjoy the rights or benefits of other state employees. They are not indemnified by the State for claims arising from actions taken during their employment. Because the Court determined Abood was not controlling, the Court applied First Amendment standards to determine if the agency fee provision served a “compelling state interest.” The Court held it did not.

One of the more controversial decisions of the Supreme Court this session is Burwell v. Hobby Lobby et. al. The issue before the Court was whether the Religious Freedom Restoration Act of 1993 (RFRA) permits the federal Department of Health and Human Services (HHS) to demand that three closely held corporations provide health insurance coverage for methods of birth-control, that violate the sincerely held religious beliefs of the companies owners. The three closely-held companies involved in the case are Hobby Lobby, Conestoga Wood Products, and Mardel. In a 5-4 decision, the Court determined the mandate to provide contraceptive care substantially burdened the exercise of religion.

HHS argued the owners of the companies forfeited all religious freedom when they organized their businesses as corporations, rather than sole proprietorships or general partnerships. The business owners argued that if they comply with the mandate, they would be facilitating abortions, or if they refuse, they would face penalties as much as $1.3 million per day or $475 million per year. The Court ruled a “…Government action that imposes a substantial burden on religious exercise must serve a compelling government interest…” and that it must constitute the least restrictive means of serving that interest, noting there were other ways in which Congress or HHS could ensure every woman has cost-free access to contraception. The Court cited a system developed for non-profit corporations such as that have religious objections to contraceptives. The decision of the Court is limited to closely-held companies, and did not address the first amendment arguments raised by the companies.

Finally, last week in N.L.R.B. v. Noel Canning, et al., the Court, after a significant historical analysis of how the Recess Appointments Clause (RAC) has been used, held three days was too short of a time to bring a “recess” within the scope of the RAC. As such, President Obama lacked authority to appoint three new members to the NLRB from January 3-6, 2012. The Court determined ‘in light of historical practice, a recess of more than three days but less than ten days is presumptively too short to fall within the Clause.’ The Court did indicate the use of the word “presumptively” leaves open the possibility an unusual circumstance could demand the exercise of the recess-appointment power during a shorter break. 

This year the U.S. Supreme Court has now issued four decisions having impacts on workplaces. My law partner blogged about Sandifer et al. v. U.S. Steel Corp. earlier in the year.

The League of Minnesota Cities 2014 Annual Conference is next week in St. Cloud and we can’t wait! This year, my law partner, Marylee Abrams will be attending on behalf of the City of Maplewood where she is a new Councilmember. Of course, our firm will also have a table in the exhibit hall. This is our sixth year exhibiting at the LMC Conference. We really enjoy this opportunity to connect with City Managers, City Administrators, Mayors and City Council members about what is happening in their cities. It is fun to check in with clients and attendees, and hear about all the changes that have occurred in their cities over the past year. If you are attending the Conference, please stop by our booth, introduce yourself, and play our game “Adventures in Public Employerland.” You can find us at Booth 415.

This weekend is Labor Day weekend and for many it marks the official end to summer. The Minnesota State Fair will be closing and I know my daughters are excited to start school next Tuesday. But what is Labor Day and how did it come about?

Labor Day began as a creation of the labor movement and the purpose was to highlight the social and economic achievements of American workers. The first Labor Day was celebrated by the Central Labor Union in New York City on September 5, 1882. Labor Day was originally conceived and celebrated by labor organizations, but in later years individual states began to recognize Labor Day. In 1887, Oregon, Colorado, Massachusetts, New Jersey and New York all passed state legislation recognizing Labor Day as a holiday. Other states followed suit and in 1894, Congress passed an act recognizing the first Monday in September as the official Labor Day holiday.

Labor Day is our country’s tribute to the workers who have made the United States strong and prosperous. In honor of Labor Day, Employers should acknowledge the dedicated service and loyalty of their employees. Good employees make strong businesses.

Have a safe weekend and Labor Day holiday!

I have the honor of serving on the Board of Directors for the White Bear Area Chamber of Commerce and also serve as co-chair for the Professional Development Committee. This month’s presentation is called “Top 10 Employee Handbook Pitfalls” and I am the presenter.

The list includes mistakes I have seen clients make, as well as handbook issues I have previously blogged about. I don’t want to give away the presentation, but anyone who is interested in seeing it is welcome to attend. I hope to see you tomorrow morning (August 2, 2012) at the Vadnais Heights, Country Inn & Suites, 3505 Vadnais Center Drive. Networking begins at 7:30 a.m., and the seminar is from 8:00 a.m. to 9:00 a.m. The seminar is free. You can get some valuable information for your business and network with some other great area business owners.

Despite the bad weather and flooding that occurred in Duluth earlier this week, the League of Minnesota Cities was successful in putting on their 2012 Annual Conference. The schedule had to be adjusted slightly, but there didn’t seem to be any problems when I attended the Marketplace yesterday evening. The staff at LMC and the Duluth Entertainment Convention Center did an excellent job on getting the conference up and running despite the problems caused by the weather on Wednesday. I enjoyed the opportunity last night to see some clients, and visit with Mayors, Council members, City Administrators and Managers about the activities in their cities. I know it will take the City of Duluth some time to repair the damage caused by the weather, but as we witnessed this week city governments are capable of overcoming adversity. I look forward to my trip to Duluth later this summer for a family vacation and legal conference.  (The picture is what Lake Superior looked like yesterday evening after all the flooding on Wednesday.)

The best laid plans… I left this morning to travel to Duluth for the League of Minnesota Cities 2012 Annual Conference and the Minnesota Association of Small Cities reception, but  due to heavy rainfall, road closures, and extreme flooding, (as you can see in the picture on the left, which a friend posted on her Facebook page) today’s activities at the conference were cancelled.  Hopefully, things will be calmer by tomorrow, and I can try again to make my trek north for the Marketplace portion of the conference.   

Thankfully, thus far no people have been injured, but the Lake Superior Zoo did suffer the loss of some animals, due to the floodwaters.  If you are up in Duluth at the conference, and events go forward tomorrow, please stop by Booth 79 to say hi.   

Marylee and I are excited to attend the League of Minnesota Cities 2012 Annual Conference and Marketplace next week in Duluth. We are especially looking forward to meeting City officials at the Minnesota Association of Small Cities reception on Wednesday evening and discussing issues currently affecting smaller communities in Minnesota.

This is our fourth year exhibiting at the LMC Conference. We enjoy this opportunity to connect with City Managers, City Administrators, Mayors and City Council members about what is happening in their cities. It is fun to check in with clients and attendees, and hear about all the changes that have occurred in their cities over the past year. If you are attending the Conference, please stop by our booth, introduce yourself, and play our game “Adventures in Public Employerland.” You can find us at Booth 79.

It has been a while since I have had the chance to post a new blog. I have been adjusting to life with a newborn in the house again. Josée is now two months old, and I am able to get back to a regular work schedule and blogging.

It is all over the internet. Job seekers are being asked to provide prospective employers with their passwords for e-mail and social media sites. The Associated Press reported, a sheriff’s department in Virginia asked job applicants to “friend” background investigators, because today virtual friends know more about each other than actual next door neighbors. The background investigators then look at the social media sites for any potential “derogatory” behavior that could damage the sheriff agency’s reputation if the applicant is hired.

Legislators are not ignoring the phenomena either. Connecticut Senator Richard Blumenthal is currently sponsoring legislation which would make it illegal for employers to ask for this information, citing the private nature of the inquiry.

Currently, it is not illegal for an employer to request a password from a job applicant, but it is certainly a slippery slope with regard to protecting an employer’s right to know, against an applicant’s right to privacy. It is also against Facebook’s policies for users to provide their passwords to others. It is understandable employer’s want to hire the best candidate and protect their business interests, but before social media was even around, employer’s had many other avenues available to properly vet a job applicant, including background checks, reference checks, and detailed interviews.

Social media is the water-cooler of the 21st century. People voice their complaints, share stories and opinions, all on social media websites. Requesting a job applicant’s password is akin to asking for the key to their personal diary. It is important to determine why an employer is interested in the information found on a social media site. Is it really necessary for hiring a job applicant? After the employer gets information from a social media site, what will be done with it?

If an employer is concerned about the character of a prospective job applicant, then traditional background checks, reference checks and interviews are an appropriate means to gather the necessary information to make an employment determination. If an employer is concerned about protecting their business interests from employees sharing information or disparaging the business on social media sites, the better approach would be to inform applicants as a requirement to being hired, they must sign a confidentiality agreement and a non-disparagement agreement. Of course, such agreements must not impact on an employee’s speech rights under the NLRA.

I would not advise employers to ask job applicants for passwords to e-mail and social media sites. I would not want one of my employer clients to be the test case in the legal system over this unsettled issue. Right now, the old-fashioned approach is a better alternative to vetting prospective employees.


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.