Minnesota Employment Law Report

Union Wrongly "Reminds" Employers to Post New NLRB Notice by January 31

Thomas R. Trachsel — Mon, 30 Jan 2012 04:45:44 -0600

The National Labor Relations Board (NLRB) has adopted a rule that would require employers under its jurisdiction to post notices informing employees of their rights under the National Labor Relations Act. (We previously addressed this posting requirement here, here, and here).

SEIU Healthcare Minnesota has been sending letters to employers, stating that they are required to post the notice by January 31, 2012. (A redacted version of the SEIU’s letter is available here).

As we advised on December 23, 2011, the effective date of the posting requirement is now April 30, 2012. Although the scheduled effective date was at one time January 31, the NLRB announced on December 23 that it has postponed the effective date to April 30. (The NLRB’s December 23 announcement of the postponed effective date is here).

Thus, contrary to SEIU’s letter, you do not have to post the new NLRB notice (in hardcopy or electronic form) by January 31. Moreover, it should be noted that litigation over the posting requirement is pending, and we expect that at least one U.S. District Court will address the validity of the posting requirement prior to the April 30 effective date.

We will of course provide you with any important updates concerning the new posting requirement.

Unlawful Background Check Policy Costs Pepsi Big

Grant T. Collins — Wed, 18 Jan 2012 23:51:36 -0600

Posted by Grant T. Collins

Last week, it was reported that Pepsi Beverages agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (“EEOC”). News of the lawsuit should not be surprising because, as we previously reported, the EEOC is in the process of more carefully scrutinizing employers’ use of criminal background checks and credit checks as part of its E-RACE Initiative (Eradicating Racism and Colorism from Employment).

Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense. Pepsi’s former policy also denied employment to applicants who had been arrested or convicted of certain offenses that were relatively minor. The EEOC claims that more than 300 African Americans were adversely affected when Pepsi applied their criminal background check policy that disproportionately excluded African American applicants from permanent employment.

It has long been recognized that a blanket policy of denying employment to any person having a criminal conviction violates Title VII as such policies have an adverse impact on minorities. Courts are particularly skeptical of adverse employment decisions based solely on arrest records because statistics show that minorities are arrested at a higher rate, and many arrests never lead to convictions. Given Pepsi’s reliance on arrest records, they made a good decision to settle the case.

As part of the settlement, Pepsi agreed to amend its background check policy, offer employment opportunities to victims of the former criminal background check policy, provide Title VII training for its hiring personnel and all of its managers, and supply the EEOC with regular reports on its hiring practices under its new criminal background check policy.

Bottom Line

The first lesson of the Pepsi case is that employers must avoid the use of arrest records as part of a background check. They don’t really tell you if the applicant committed the crime or is likely to do so in the future. Since statistics still tell us that people of color are arrested on a disproportionate basis, using this non-job related criterion in hiring decisions will eventually result in a disparate impact.

The second lesson is that, rather than implementing a blanket policy, employers are better served by utilizing a more “tailored approach,” screening out only those candidates convicted of an offense that would render them particularly inappropriate for the position in question. For instance, candidates with poor driving records may be barred from positions involving a great deal of driving. Likewise, where the position requires an employee to handle money, a candidate convicted of theft or embezzlement could be excluded.

President Announces Intent to Fill Labor Board Vacancies with Recess Appointments

Thomas R. Trachsel — Thu, 05 Jan 2012 12:40:38 -0600

Posted by Thomas R. Trachsel

The National Labor Relations Act calls for the National Labor Relations Board (the quasi-judicial body that decides cases, and that also has certain rulemaking authority) to consist of five members, but the Board does have the power and authority to issue decisions at times when it has only three members.

The Board, however, does not have the authority to issue decisions (or adopt new rules) with only two members. This was the conclusion that the Supreme Court reached in June of 2010 in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010). The New Process Steel case was the culmination of a 27-month period from January of 2008 to March of 2010 during which the Board issued hundreds of decisions with only two members, and it created quite a fallout. In any case, it is now settled that the Board cannot decide cases or engage in rulemaking any time that it is down to only two members.

Most recently, the Board has consisted of three members – Mark Pearce, Brian Hayes, and Craig Becker. However, Craig Becker’s term expired at the end of the last session of the Senate, at approximately noon on January 3, 2012. This reduced the number of Board members to two.

Members of the Board are nominated by the President, subject to the consent of the Senate. Thus, generally speaking, the President is supposed to nominate individuals to serve as Board members, and the Senate is supposed to confirm them before they can actually be appointed. There is, however, an important exception. When the Senate is in recess, the President may temporarily appoint a Board member without Senate approval, and this is termed a recess appointment. (Member Becker was, in fact, a recess appointment.)

On January 4, 2012, President Obama announced his intent to recess appoint three individuals as Board members – Sharon Block, Terence Flynn, and Richard Griffin. These recess appointments would bring-up the number of Board members to five.

The President’s use of the recess appointment process in this case is not without controversy. Republicans have accused the President of abusing recess appointments by placing controversial individuals into high-ranking positions without the approval of the Senate. Accordingly, Republican lawmakers have attempted to block recess appointments at this time by holding pro forma sessions in an effort to avoid a recess of more than three days. The Department of Justice under President Clinton previously opined that a recess has to last for more than three days to permit a valid recess appointment, although the Supreme Court has never ruled on the issue. In this case, the Senate met on January 3 and is scheduled to reconvene on January 6 – a recess that is too short for making recess appointments, if this is indeed the requirement.

Apart from the three Board members, the President on January 4 appointed Richard Cordray to lead the Consumer Financial Protection Bureau. It remains to be seen whether more recess appointments will follow. In any event, we anticipate that there will be legal challenges to the President’s authority to make recess appointments in these circumstances.

On a final note, by tradition, the Board (when at its full complement of five members) has consisted of three members from the President’s own party, and two members from the other major political party. In this case, Mark Pearce (the current Chair), Sharon Block, and Richard Griffin are from the Democrat side, whereas Brian Hayes (the other current member) and Terence Flynn are from the Republican side. Thus, this collection of five Board members would match the traditional balance. However, with a majority of three members on the Democrat side, we expect that the Board would continue to issue decisions that many people view as unfavorable to the business community, and that it would also continue to push for controversial changes to the union election process.

Attorney Jessica M. Marsh contributed to this report.

OSHA Planning More Nursing Home Inspections Soon

Karen M. Charlson — Mon, 02 Jan 2012 11:40:41 -0600

Posted by Karen M. Charlson

The Federal Occupational Safety & Health Administration (OSHA) recently announced that due to the continued high injury rates among healthcare workers, they would be initiating a national emphasis program – the emphasis being inspections targeting nursing homes and other residential care facilities. OSHA is not saying when the targeted inspections will start other than to indicate that it will be “within the coming months.”

Interestingly, OSHA already had a site-specific targeting program and approximately 500 nursing homes were inspected in 2011 because of their above-average number of reported work injuries. So, it is unclear how this new “National Emphasis Program” changes what has already been in place. What is clear is that OSHA believes that nursing home work injuries occur too frequently and at too high of a severity to avoid targeted inspection.

According to statistics published by the Department of Labor’s Bureau of Labor Statistics (BLS) in the Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, 2010, report in November 2011, 489 out of every 10,000 employees working as nursing aides, orderlies and attendants sustained injuries that resulted in lost time from work in 2010. The average rate for all workers in all industries was 118, with bus drivers and law enforcement officers being the only professions with higher rates of loss-time injuries. The BLS report shows that healthcare workers’ most common injuries were muscle sprains, strains and tears (56%) and the most common causes of injuries were lifting/overexertion (49%) and falls (18%).

In some ways, Minnesota nursing homes may be better prepared to weather the targeted inspections. Minnesota's state agency (MNOSH) already goes beyond Federal OSHA regulations by having implemented Safe Patient Handling (SPH) requirements for healthcare facilities, including nursing homes. The SPH Statute, Minn. Stat. § 182.6553 was enacted in 2008 and required healthcare facilities to have a SPH program operational by July 1, 2011. Consequently, Minnesota healthcare facilities must already have written policies and procedures on safe patient handling, an active committee that identifies, evaluates, addresses and resolves SPH issues, proper equipment, training, assessment tools and methods for properly recording and reporting on SPH issues.

For many nursing homes, this “National Emphasis Program” will not translate into a greater chance of citation for violations. However, it may make it more likely that the new year will bring a visit from a MNOSH inspector.

NLRB Delays Notice Posting Requirement (Again)

Charles E. Feuss — Fri, 23 Dec 2011 16:09:28 -0600

Posted by Charles E. Feuss

On December 23, 2011, the National Labor Relations Board announced that it is delaying implementation of its new rule which requires employers to post a notice of employee rights under the National Labor Relations Act. The rule was scheduled to take effect on January 31, 2012. The new effective date of the posting requirement is April 30, 2012.

The Board has agreed to delay the posting requirement at the suggestion of the Federal District Court in the District of Columbia. The Court is currently considering a pending lawsuit challenging the legality of the new rule. While the Agency has argued that the posting requirement is a mere statement of employee rights under the law which the Board is empowered to enforce, opponents claim that the posting requirement is outside the Board’s grant of authority from Congress.

If the Court does not enjoin the rule, employers will be required to comply with the posting requirement starting on April 30th. Note that this is the same day that the Board’s new procedures for representation cases are scheduled to go into effect. (An article on that topic is available here.)

This is the second time the Board has delayed the implementation of the new posting rule. The first delay was on the Board’s own initiative and was intended to give employers more time to prepare for the implementation process. (See our previous report that is available here.)

The posting rule may or may not survive legal challenge. For now, however, there is no urgency in clearing off that bulletin board space or uploading a copy of the notice to your intranet page for employees. April 30th is the earliest date on which compliance will be required.

Stay tuned for further developments.

Labor Board Adopts Procedural Changes for Handling Representation Cases

Thomas R. Trachsel — Thu, 22 Dec 2011 15:49:48 -0600

Posted by Thomas R. Trachsel

On December 22, 2011, the National Labor Relations Board announced that it is making certain changes to its procedures for processing representation cases. Although the new procedures are primarily addressed to cases in which the parties are unable to reach an election agreement, the changes are significant for all such cases.

The new procedures are scheduled to take effect on April 30, 2012, although legal challenges have already been filed.

The procedures that have been adopted consist of some – but not all – of the changes that were proposed by the Board back in June of 2011. The remainder of the proposed changes (which would significantly shorten the time period leading up to a union election in all cases) have not been dropped, but are merely on hold pending further consideration by the Board.

A full article discussing the adopted changes is posted on the Felhaber, Larson, Fenlon & Vogt website, available here.

Does Your High School Diploma/GED Requirement Violate the ADA?

Grant T. Collins — Tue, 20 Dec 2011 01:07:16 -0600

Posted by Grant T. Collins

At present, there are as many as 25 million workers age 18 to 64 who do not have a high school diploma or a General Educational Development (GED) equivalent. Many employers – likely without even thinking – include a diploma requirement as part of their standard set of qualifications for a position. But, a recent Informal Discussion Letter from the Equal Employment Opportunity Commission (EEOC) should cause employers to think carefully before including such a requirement.

In its letter, the EEOC points out that “some individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.” As a result, a diploma requirement may have the effect of screening out individuals with learning disabilities.

Under the Americans with Disabilities Act (ADA), “a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity.” A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant's ability to perform the fundamental responsibilities of the job in question.

But, that measure is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with a reasonable accommodation.

The EEOC suggests the following accommodations in its letter: (a) “considering relevant work history” and/or (b) “allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process.” But, in the end, the EEOC makes clear that the employer is by no means required to prefer a learning disabled applicant over other applicants who are better qualified.

Bottom Line

While this is not an official opinion letter from the EEOC, it should cause employers who automatically include a high school diploma as a baseline requirement for positions to reconsider the business necessity of this requirement. Moreover, even where the diploma requirement is job related and consistent with business necessity, employers need to be prepared to accommodate learning disabled applicants who lack a diploma, but who are capable of performing the essential functions of the job.

The letter does not address whether the EEOC will go so far as to require employers to affirmatively notify applicants that the employer will accommodate applicants who lack a diploma. Otherwise, learning disabled applicants would likely not apply to a position where a diploma is required. Further guidance is needed to clarify this issue.

Government Proposes Huge Changes For Federal Contractors and Disabled Individuals

Ryan A. Olson — Mon, 12 Dec 2011 10:34:27 -0600

Posted by Ryan A. Olson

On Friday December 9, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published Proposed Regulations that may dramatically change federal contractors’ and subcontractors’ obligations regarding disabled applicants and employees. Public comments on the proposed regulations are due by February 7, 2012.

Currently, certain federal contractors and subcontractors must maintain affirmative action and undertake outreach efforts to increase employment of disabled individuals, and allow disabled individuals to voluntarily identify themselves as disabled individuals after receiving a job offer.

The proposed regulations would add to these requirements and would create new obligations for federal contractors and subcontractors (“contractors”), such as:

Requiring contractors to invite applicants to self-identify as individuals with disabilities before and after an offer of employment using language prescribed by the OFCCP;

Requiring contractors to conduct annual employee surveys to give employees an opportunity to self-identify as an individual with a disability;

Requiring contractors to list all employment opportunities with the closest Department of Labor One-Step Career Center, and to enter into agreements with three specified agencies to reach more disabled individuals with job opportunities;

Requiring contractors with written affirmative action plans to conduct annual policy reviews that, in part, require the contractor to: (1) identify vacancies and training programs for which disabled individuals were considered, (2) provide written reasons for not selecting the disabled individual for the vacancies and training programs and a description of considered accommodations, and (3) describe the nature and type of accommodations made for disabled individuals who were selected for hire, promotion, or training programs;

Requiring a numerical hiring goal for disabled individuals, which may, as presently proposed, be within the range of 4% to 10%; and

Requiring certain contractors to develop and implement written procedures for processing requests for reasonable accommodation, and disclose them to all employees.

These proposed changes will dramatically increase contractors’ obligations regarding disabled individuals. Although it is possible that public comment will persuade the OFCCP to lessen the burden, drastic revisions to the proposed regulations is highly unlikely.

We will provide an update as soon as these regulations are finalized.

Bah, Humbug! Are Holiday Injuries Covered by Work Comp?

Karen M. Charlson — Wed, 07 Dec 2011 09:19:56 -0600

Posted by Karen M. Charlson

‘Tis the season for questions about holiday parties and the associated risk of having one. Beyond deciding what to call the party, employers are often concerned about potential fallout from parties – in particular, “If my employee is injured at the party, is the company on the hook for work comp benefits?” The worry can be enough squelch the festive mood.

Minn. Stat. § 176.021, subd. 9, provides that injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties and picnics, do not arise out of and in the course of employment. The exceptions typically are: (1) When an employee is ordered or assigned by the employer to participate in the program or activity; or (2) When the employer-sponsored party is intended to serve some other business objective, i.e. promoting goodwill or marketing between the employer and its customers. In these circumstances, the injuries sustained are generally covered by the Workers’ Compensation Act. Sometimes it can be hard to determine what is truly “voluntary” when it comes to the company holiday party.

Case in point, in Boraas v. Strand-Saboe VFW #5247, the employer would host an annual Christmas party for employees and their guests (no customers). An employee slipped and fell while dancing with a coworker at the party and the judge found, and the appellate court agreed, that because the attendance was not “entirely voluntary,” the employee’s injury was covered under the Act. The evidence showed that there was a notice and sign-up sheet for the party, and that the employer questioned employees who were not signed up to obtain a reason for not attending. Further, the employees who decided not to attend, though not disciplined, were subject to sarcasm and ridicule. At the party, there was an attendance/sign-in sheet and the employee testified at hearing about the overall importance placed upon the employee’s attendance by the employer and her belief that she was expected by the employer to attend the function. These facts were sufficient to make the Christmas party injury compensable under the Act.

Say you want to forego the party and just give out the holiday ham or turkey – that’s safe, right? Not necessarily. An employee who had been on a leave and received notification that she could come to pick up her holiday turkey, and then slipped and fell in the parking lot, was held to have a compensable injury. The court likened it to situations where an employee is injured on the employer’s premises while picking up a paycheck. It appears that the enticement of the “turkey bonus” was an anticipated benefit on the part of the employee and attributable to the employment relationship and the injury sustained while collecting the turkey was covered under the Act.

Bottom Line

You don’t have to be like Scrooge and ban the holidays from work, just remember that when it comes to parties, do not require and police attendance – voluntary must be voluntary. And, if you are giving your employees the holiday goose, turkey or ham, think about sending them a gift card instead.

What Happens When the Claimant Dies in the Middle of a Case?

Dennis J. Merley — Sun, 27 Nov 2011 20:53:58 -0600

Posted by Dennis J. Merley

Joan Gilbert sued her former employer, Metropolitan Property and Casualty Insurance Company (“MetLife”), for disability discrimination under the Minnesota Human Rights Act (“MHRA”) after learning that she would be the only supervisor laid off when her office closed. Sadly, as the case progressed, Gilbert passed away from cancer. Her daughter Toni, as personal representative for her mother’s estate, petitioned the court to allow her to substitute as the plaintiff in the case. MetLife brought their own motion seeking dismissal of the whole case, claiming that a discrimination case does not survive the death of the claimant.

Under Minnesota law, a claim for injury to a person ordinarily expires when the person dies. However, where the injury was allegedly caused by the act or omission of another person (including a corporation), and the claimant thereafter dies from a cause unrelated to those injuries, courts will continue to hear a claim for “special damages” arising out of the injury. “Special damages” are those that can be ascertained in a precise, exact amount, such as back wages or medical expenses.

Federal District Court Judge John R. Tunheim ruled that Gilbert’s discrimination claim, which included demands for back pay, front pay and the monetary value of various employment benefits, were special damages that could survive Gilbert’s death.

MetLife argued that there were times when Gilbert could not work because of her disability and that without her testimony at trial, they would be unable to establish the precise amounts by which her back pay and benefit claims should be reduced during those periods. The judge responded, however, that Gilbert died after her deposition testimony had been taken. Thus, if there was a gap in MetLife’s information, it was caused by their own failure to inquire adequately about the issue. As a result, Gilbert’s daughter was allowed to step in as the substitute plaintiff to pursue her mother’s claims for special damages.

However, Judge Tunheim ruled that the claims for mental anguish damages were not easily quantifiable because they are personal and unique. Without the deceased employee’s testimony, the jury would be left to speculate on whether and to what extent she suffered from the type of humiliation and distress that is addressed through awards for mental anguish and suffering. Therefore, Judge Tunheim ruled that these damage claims did not survive Gilbert’s passing. Gilbert v. Metro. Prop. & Cas. Ins. Co., Civil No. 09-1990 (D. Minn. Oct. 7, 2011).