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.
 

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.

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.

 

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.

 

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.

 

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.

 

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.

Artwork by: http://www.mysafetysign.com/notice-signs

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.

 

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.