FMLA employerguideThe Department of Labor has announced a new FMLA guide designed to help employers through the FMLA process.  “The Guide is organized to correspond to the order of events from an employee’s leave request, to restoration of the employee to the same or equivalent job at the end of the employee’s FMLA leave. It also includes a topical index for ease of use.”  The new employer guide comes almost four years after the DOL published an employee’s guide to the FMLA.

An FMLA covered employer is required to prominently post an FMLA poster, whether or not there are FMLA eligible employees at that location.  A free download of the required poster is available through the DOL.  The DOL is in the process of reworking the poster to make it more reader friendly.  According to the DOL website, the 2013 version of the poster is still acceptable and employers will not be required to use the new version of the poster.  The information has not changed, and the new poster reflects new formatting rather than any substantive changes.

The employer guide is long overdue, and hopefully will help employers as they implement FMLA in their workplaces.

Employees can be very creative when it comes to reasons to take time off of work.  Of course, there are always legitimate reasons for time off of work, such as a family emergency, illness, family vacation, etc…  But occasionally, the reason an employees gives can make an employer pause and wonder just how legitimate is this request.  For example, today is the first beautiful day of warm spring weather in Minnesota, and suddenly several employees are calling in  with reasons they can’t come to work like, food poisoning, their child is sick, their car won’t start, or is it just spring fever?

Last week, Sammy Schmitz from Wisconsin had the very best reason ever to take time-off of work.  Last weekend was the Masters at Augusta National in Georgia.  My husband is a huge golfer and golf fan, so we are always in tune to what is going on.  Every year the Masters invites a select number of amateur golfers to come and play at the Masters.  Last week, one of those lucky amateurs was Sammy Schmitz.  Mr. Schmitz is a regular guy, with a regular job and a family.  He loves golf and plays when he is able.  Last fall, he qualified to play in the U.S. Mid-Amateur in Florida, with the winner being invited to play at the Masters.  Well, Sammy won!  Not long after he won a trip to the Masters, Mr. Schmitz called his boss to request the week of April 4-8 off because he would be playing at Augusta National.  Not too many employees are able to use playing in the Masters as their reason for taking time off work.  Of course, Mr. Schmitz was approved for his time off, and his boss and his boss’s boss both came to Augusta to cheer him on.

Sammy Schmitz had the best reason ever to take time off work! 

Ms. Kern worked for the Minneapolis Institute of Arts (MIA) from August 2004 to July 1, 2014.  In 2012, Ms. Kern received a demotion.  Following the demotion she filed a sex-discrimination complaint with the Minnesota Department of Human Rights.  The parties reached a settlement and Ms. Kern was paid $6,000 “to extinguish any liability whatsoever that the MIA has or allegedly has for claimed lost wages.”  The Minnesota Department of Employment and Economic Development (DEED) determined the $6,000 was deductible from any unemployment benefits Ms. Kern was to receive.  Ms. Kern appealed and the Unemployment Law Judge (ULJ) agreed with DEED.  Ms. Kern appealed to the Minnesota Court of Appeals, for a de novo review.

Minnesota Statute § 268.085, Subd. 3 defines, “back pay” as a payment by an employer to an employee or former employee for lost wages.  The Court looked at the plain language of Minnesota Statute § 268.085 and determined the ULJ correctly determined the $6,000 was back pay and covered the period of time immediately following Ms. Kern’s termination of employment.

Most Employers and Employees don’t realize settlements may affect an employee’s unemployment compensation.  Clearly, Ms. Kern was expecting to receive unemployment compensation in addition to any settlement reached with MIA.  However, receipt of unemployment compensation is not automatic or guaranteed for employees.  Employers should know both settlements and severance packages can affect an employee’s unemployment compensation benefits.

A coalition of Minnesota DFL legislators is proposing a bill that would ensure all employees in Minnesota have paid family and sick leave.  The DFL proposal would establish a state insurance program which would offer employees in Minnesota up to 80% of their pay for up to 12 weeks a year for pregnancy or medical issues.  It would also apply to employees who need leave to care for a sick family member or newborn child.  Under the proposed plan, employers and employees would share the costs for the program.  The program would be mandatory for employers and employees, however, employers who currently have paid family and sick leave policies that match or surpass the proposed state insurance plan would be exempt from the new law.

According to a study conducted by the University of Minnesota almost 136,000 employees would benefit from the program.  It is estimated over $450 million in benefits would be paid out in one year.  The Minnesota Chamber of Commerce although understanding of the program’s goal, objects to the plan because it would take away the flexibility currently available to employers.

Governor Dayton has already proposed a similar program for Minnesota State employees.  California, New Jersey, and Rhode Island all have similar benefits.

This law would be a huge change for Minnesota employers.  For many small employers it could be a financial hardship to require them to contribute to this type of benefit.  I agree with the Minnesota Chamber of Commerce, it is a great idea in concept, but I’m not sure it is the best idea for Minnesota’s small entrepreneurial businesses.

Recently, I blogged about the basics of interest arbitration and the factors arbitrators consider.  To illustrate my point, I ran across a new interest arbitration decision which cites the very same factors in my blog post.  In Nobles County, Minnesota and Minnesota Teamsters Public & Law Enforcement Employees Union – Local # 320, Arbitrator Miller did a nice job of walking through each of the factors he considered when making his decision to deny shift differential to Jail Sergeants. 

The sole issue at arbitration was whether or not shift differential should be established for the Jail Sergeants and if yes, for what hours and what amount?  This was a brand new benefit the Jail Sergeants were seeking.  Nobles County opposed the inclusion of the new benefit.

Arbitrator Miller found that although Nobles County could afford to pay the new shift differential proposed by the Union, that wasn’t an automatic reason to award the new benefit.  Arbitrator Miller determined none of the County’s other settled bargaining units, including deputies who worked a night shift, received shift differential.  Only four of the eight external comparables offered some type of shift differential, and the amounts varied greatly from the amount requested in Nobles County by Teamsters Local # 320.  Lastly, there was no need to award shift differential as an incentive to attract or maintain Jail Sergeants, because out of the four Jail Sergeants, three had more than 10 years of seniority.

It is a big hurdle for either side to try and obtain a new benefit through interest arbitration.  By doing research you can see how arbitrators are making their decisions, which can  help in negotiations and in preparation for an interest arbitration hearing. 

The State of Minnesota recognizes that vital services are provided to the public by specific governmental employee groups, and therefore prohibits them from going out on strike.  These employees are considered “essential” and include firefighters, peace officers, public safety dispatchers, correctional facilities guards, confidential, and supervisory employees.  Instead of the right to strike, essential employees are afforded the opportunity to proceed to mediation and interest arbitration to resolve contract disputes over terms and conditions of employment.

Most arbitrators agree interest arbitration is supposed to reflect what the parties would have negotiated, had they been able to reach an agreement on the disputed contract terms.

Factors an interest arbitrator looks at include:

1)      What is the internal pattern? – What did other employees in the workplace receive in wages and benefits?  If all the other employees received a 2% wage increase, and this group is asking for a 4% wage increase, the group asking for 4% will have to justify why they are entitled to a higher wage increase than their fellow employees.

2)      What do external comparisons show? – I’ve blogged in the past about creating a good comparable group.  An arbitrator may look at what are other essential employees in the area received in wages and benefits.  For example, is this group of essential employees far under paid compared with other essential employees in the area, or are they average or over paid in comparison?

3)      What is the Employer’s ability to pay? – Is the Employer able to pay the increase in wages or benefits?  Public employers have an obligation to be fiscally responsible with public funds.  If a public employer can establish an inability to pay an increase in wages or benefits, it might be persuasive for an arbitrator.

4)      Is there a compelling need for a change? – If either party is interested in making a change to a benefit or to contract language, it is necessary to convince the arbitrator there is a compelling reason for the change.  Another argument is to show the arbitrator that an appropriate quid pro quo was offered at bargaining, in exchange for the requested change.

Keeping the factors an arbitrator considers in mind during negotiations and mediation, may help parties reach a contract settlement and perhaps even avoid the need for interest arbitration.

Student debt relief has recently surfaced as the newest workplace benefit.  Traditional workplace benefits include: health insurance, retirement plans, vacation and sick leave, and paid holiday time.  Now, more companies are looking for new ways to entice and retain millennial employees, and one new trend is for employers to offer financial assistance with school loans. 

The cost of a higher education has been increasing over the years, and coupled with the market crash of 2008, more people took on student debt and stayed in school to ride out the economic downturn.  Given the fact, Minnesotans have the fifth highest school debt load in the nation, financial assistance is a great marketing tool for employers.

Currently, only 3% of companies offer any type of student loan repayment plan, but that number is expected to grow.  Gradifi Inc. is a company that helps employers implement, “Student Loan Payment” (SLP) plans as a workplace benefit for their employees.  The participating employers determine the structure of the SLP, including who is eligible to participate, how long the plan lasts, and the amount of the employer contribution.  Minnesota based, PwC, is a consulting company that will be introducing an SLP plan this spring.  Starting a SLP plan gives employees more freedom to plan and save for other things in life, and avoid being saddled by their student loan debt for years to come.

Employers who add SLP plans as an employee benefit will be highly attractive to new employees.  I previously blogged about the trend in public sector employers willing to think outside the box by offering paid parenting leave beyond the minimums required by law. 

Benefit plans need to change in order to attract the best talent in a competitive business climate.  By taking a few creative steps, employers can create benefit packages that will improve employee satisfaction, retain talented employees, improve the bottom line, and improve the likelihood of future growth and development.  

I had a call from a client last week asking about whether there was a good format to use for drafting a disciplinary letter to give to an employee.  I advised her there was and suggested the following format:

  • Start with an accurate statement of the facts including: what happened, when it happened, etc… Make sure it is factually based and does not include opinion or judgment.  If a workplace policy or safety violation occurred, it should be referenced.
  • Describe any previous problems or issues, and what happened as a result (if anything). Be specific about dates and consequences such as you were counseled about …, or you were reprimanded, or you were retrained on this same problem etc…
  • Describe the impact the misconduct or performance problems have on the workplace.  The impact could be financial, related to staffing, safety, disruption of work production etc…  An example would be; “As a result of you being late to work, other employees needed to fill in for you until you arrived.  This meant they were not able to complete their own work.”
  • Clearly explain the expected behavior or performance that must be achieved to be successful.
  • Finally, the conclusion should state what will happen if the employee does not improve or change their conduct.  For example: “Future misconduct may result in further discipline, including termination from employment.”

A clearly drafted disciplinary letter helps to document an employee’s misconduct or performance deficiency and can help avoid future litigation claims.  It also gives clear direction to the employee about what is expected in the future and the potential consequences for failing to make the identified changes. 

Photo by: MCruz

The New Year is upon us which means many public sector collective bargaining agreements have expired.  Perhaps your City or County was fortunate enough to start negotiations prior to the expiration of the collective bargaining agreement, and maybe even reached a settlement.  If not, here are a few tips to help you begin to prepare for negotiations.

First, consider your budget and then look back at any problems that arose under the collective bargaining agreement.  These could be grievances that were filed or any type of problem that may have developed.  Evaluate these issues and how they were resolved to determine whether or not you need to propose changes to the collective bargaining agreement.

Second, create a comparable group.  You may not need the comparable data at the first negotiation session, but this will definitely be helpful down the road, especially if you get to the point of mediation or interest arbitration.

The following should be considered when compiling a comparable group:

1) Start by checking if a comparable group was ever used in prior negotiations or interest arbitrations.  If so, determine if there is any reason to change the previously established comparable group.

2) If there is no comparable group, start by looking at cities or counties of like size and tax capacity.  When I create a comparable group, I make sure to keep true to the region of the state, for example, I compare northern Minnesota cities to other northern Minnesota cities.  I don’t compare small out-state cities to small metro area cities.

3) It is also important to compare like job positions, supervisors should be compared to supervisors etc…

4) Always compare cities to cities and counties to counties, apples to apples.  Do not mix cities and counties as they have substantially different tax bases.

Finally, look at your past practices.  Are there any past practices the Employer is interested in ending, if so, this is the time to put the Union on notice about it.

Keeping these suggestions in mind will help you successfully prepare for negotiations.  For more helpful information look back at my previous blogs about documenting collective bargaining negotiations and handling different negotiation styles at the bargaining table.  

Paperback-stack2016 is here, and so is the opportunity to gain new perspectives and tools to help transform workplaces, increase productivity, and better manage employees.  My current favorite read on this topic is Shawn Achor’s book, “The Happiness Advantage: The Seven Principles of Positive Psychology that Fuel Success and Performance at Work.” 

Achor’s book turns some old ideas upside down.  He suggests our culture falsely believes, “If you work hard, you will be successful, and once you are successful, then you’ll be happy.”  Achor proposes this is backwards thinking and broken.  Instead based on positive psychology, happiness is actually the precursor to success.   His book outlines seven principles he identifies including:

  1. the happiness advantage,
  2. the fulcrum and the lever,
  3. the tetris effect,
  4. falling up,
  5. the Zorro circle,
  6. the 20 second rule and
  7. social investment”    

I admit, I am only as far as the fifth principle – the Zorro circle.  This principle suggests how limiting your focus to small manageable goals can actually expand your sphere of power.  It is a very fast read, packed with research to support his principles, and I plan on implementing some of them in 2016.

For a quick recap from author and researcher Shawn Achor watch his TED talk.  He is engaging, funny, and outlines the premise of his book.  New ideas help fuel successful workplaces.  I advise clients to keep fresh ideas flowing, and I think Shawn Achor has some very good insight on human potential that can translate well into a transformed workplace.