Minnesota Labor & Employment Law Blog

What It Takes To File an Employment Discrimination Case?

Tiffany Schmidt — Tue, 27 Jul 2010 12:29:21 -0600

Daniel Schwartz with the Connecticut Employment Law Blog posted an excellent blog about the basics in filing an employment discrimination case. Mr. Schwartz is correct, a discrimination lawsuit or any lawsuit for that matter is really only a set of allegations made by one party against another party (individual or business). Nothing has to be proven to file a lawsuit. Yet, so often when discrimination cases are filed by employees against employers, it gets reported in the media.

Don’t waste your time talking about a lawsuit which may not even be true or have any merit. Instead do as Mr. Schwartz’s suggests, “. . . the next time you hear about a lawsuit being filed, check back in a few months or years to find out what happened to the lawsuit; that's when there's really news to report.”

Celebrating Two Years of Abrams & Schmidt LLC

Marylee Abrams — Fri, 23 Jul 2010 13:34:16 -0600

Celebrating accomplishments is important, and this includes business events like two year anniversaries. Our law firm just celebrated 2 years of being in business with a wonderful open house for friends, business partners, and colleagues. We called it our “Grand Opening: So Grand It Was 2 Years In The Making,” thus titled by our graphic artist Cheryl Brunkow who designed the invitations.

Food was prepared by Chef Greg who developed a fabulous menu for us, including cherry wood smoked salmon with tarragon, artichoke dip with roasted tomatoes, Italian meatballs, fried eggrolls made fresh on site, and vegetable stuffed mushrooms. We went heavy on the sweet treats and served unbelievably wonderful flan with caramel sauce, old-fashioned cherry cobbler, decadent chocolate cream cheese brownies, and cheesecake with fresh strawberry or raspberry sauce.

It was a truly grand summer evening, celebrating a dream come true. Frank Sinatra and Michael Buble filled the air, along with many pleasant conversations. Business connections were made and new friendships kindled. Remember to celebrate the big and little accomplishments in your business life, and great food can really help!

Fun on the Links

Tiffany Schmidt — Wed, 21 Jul 2010 13:48:24 -0600

Marylee Abrams and I had the wonderful opportunity on Monday to attend the White Bear Area Chamber of Commerce’s annual golf tournament. (No, neither of us golfed, that could have been dangerous for those around us.) We did however enjoy a beautiful day at the 8th hole of the lovely Dellwood Hills Golf Club, meeting and visiting with many local area business owners, city officials and golfers.

We appreciate the opportunity to share with these individuals what our firm does and learn more about the businesses in our community. It is amazing how much business gets done on a golf course. We are already looking forward to next year’s tournament. Neither of us realized golf could be so much fun.

What can Employers Learn from the Agriculture Department and the NAACP?

Marylee Abrams — Wed, 21 Jul 2010 13:31:25 -0600

Knee-jerk reactions can lead to embarrassing mistakes, and can generate a firestorm of negative press coverage. This can be seen in the recent misstep where senior employee Shirley Sherrod was condemned by the NAACP, and ousted from her job by the Secretary of Agriculture. Neither the NAACP nor the Obama Administration conducted an investigation prior to their now infamous knee-jerk reactions.

NAACP President Benjamin Todd Jealous has since retracted the organization’s previous statement about Sherrod, and claimed they were “...snookered into believing that Sherrod expressed racist sentiments at a local NAACP meeting in Georgia earlier this year.” They weren’t snookered, they jumped to conclusions without taking the time to collect and review all of the evidence.

Similarly, the Obama Administration is reconsidering a reversal on her future employment, just hours after her forced resignation. MSNBC reports, Sherrod is not sure she would take her job back even if it was offered.

An employer’s obligation to conduct a full, fair, and thorough workplace investigation should never be compromised, or rushed to conclusion without careful review of all of the facts. Shame on both the NAACP and the Obama Administration! They were too quick to cast Ms. Sherrod’s character and integrity into the shark pool, without taking the necessary time to conduct a proper investigation.

Allegations of workplace misconduct warrant taking the necessary time and effort to determine if in fact the alleged misconduct occurred. I have blogged in the past about serious errors employers make when investigating employee misconduct, and how to avoid them. Jumping to conclusions seemed almost too simple to add to my list of employer don’ts; that is until today.

U.S. Dept. of Labor Recovers $4.2 Million in Back Wages for 603 Oregon Workers

Tiffany Schmidt — Tue, 13 Jul 2010 13:08:20 -0600

My law partner, Marylee Abrams has blogged in the past about the importance of properly classifying your employees. Not only is it important to properly classify your employees it is also important to pay them appropriately for the actual hours they work.

An investigation by the U.S. Department of Labor Wage and Hour division at the Umatilla Chemical Depot plant determined 603 employees involved in departments including maintenance, munitions, and warehouse work, were underpaid for their time in the workplace. “In some instances, workers were not relieved for their lunch time, resulting in inappropriate pay deductions for lunch breaks that could not be taken.” These pay deficiencies are violations of federal laws including the Fair Labor Standards Act (FLSA). This investigation has resulted in a payment of more than $4.2 million dollars in back wages and additional civil monetary penalties.

The Fair Labor Standards Act provides an employee must be paid for all of the time considered to be hours worked and all time that is hours worked must be counted when determining overtime hours worked. The FLSA defines the term "employ" to include the words "suffer or permit to work". If an employer knows or has reason to believe that the employees are continuing to work when they are supposed to be on break and the employer is benefiting from the work being done, it should be compensated time.

This was a very costly error in employee compensation. I’m sure the employer is not likely to make this kind of mistake again. The U.S. Dept. of Labor will not hesitate to take action against employers who violate the law. In addition to making sure employees are properly being compensated for all hours worked, the U.S. Dept. of Labor is also investigating if employees are appropriately classified.

Please Help; Share Your Thoughts on Social Media and the Workplace

Marylee Abrams — Tue, 13 Jul 2010 08:00:00 -0600

I am presenting on the social media explosion and its impact on workplaces, in conjunction with popular mommy blogger Heather B. Armstrong, and twin cities IP attorney Kenneth Kunkle. The presentation is next month at the 2010 American Bar Association Annual Meeting in San Francisco.

I would love to share a variety of perspectives on how social media has impacted and is continuing to impact workplaces. I have my own opinions on how social media is affecting the employers we represent. I want to go broader than my own backyard, and would like to hear from other labor and employment attorneys, HR professionals, and social media gurus. What are your experiences, opinions, and future projections?

Please share your thoughts with me about what you think is most important, cutting edge, or crucial. I will blog about the responses I receive, and I will share my printed materials with those who kindly contribute their thoughts.

So please weigh in, contribute, and lend your voice. I would love to hear from you. If you are in San Francisco attending the ABA Meeting, please stop by. I think the presentation will be a lot of fun.

EEOC v. Hibbing Taconite Company Is Going To Trial

Tiffany Schmidt — Tue, 06 Jul 2010 10:51:40 -0600

Last year the EEOC filed a charge of discrimination against the Hibbing Taconite Company for denying Mr. James Edstrom, a deaf individual, employment in its mine. The EEOC contends that Hibbing Taconite rejected Mr. Edstrom, who formerly worked for LTV Mining, due to his hearing impairment, in violation of the Americans with Disabilities Act as amended (ADAAA).

On March 5, 2010, Hibbing Taconite filed a motion for summary judgment alleging it was entitled to immediate judgment in its favor because there were no disputed facts and Mr. Edstrom was not qualified for the positions he applied for due to being deaf. Mr. Edstrom applied for three positions which were in the Hibbing Taconite plant and two positions in the open pit mine. The Court granted partial summary judgment to Hibbing Taconite. It agreed there were no facts in dispute and Mr. Edstrom wasn’t qualified for the positions in the plant, but the Court found there was ample evidence on which a jury could find Mr. Edstrom could have performed the jobs in the open pit mine with a reasonable accommodation. The court stated, “The very fact that (Edstrom) successfully worked at the LTV mine pit is strong evidence that a reasonable accommodation could have been possible.”

It will now be up to a jury to decide if Hibbing Taconite discriminated against Mr. Edstrom: (1) by considering the job duties of the positions Mr. Edstrom applied for; (2) considering his disability; and (3) considering if a reasonable accommodation could be made for Mr. Edstrom. The trial is set for July 26, 2010. As a parent of a daughter with a hearing disability and a business owner in Minnesota, I will be watching this case closely and will provide an update when more is known.

How To Screw Up A Termination Case And Pay Big Money!

Marylee Abrams — Fri, 02 Jul 2010 12:20:42 -0600

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:

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.)
Conference fees were not set appropriately; (The arbitrator ruled that higher ups were actually responsible for setting the fees, not Hamm.)
She failed to report donated gifts; (The arbitrator ruled the gift policy was not applicable to the facts.)
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.......

FMLA Covers Any Employee Who Assumes the Role of Caring for a Child

Tiffany Schmidt — Tue, 29 Jun 2010 14:08:33 -0600

In a news release last week, the U.S. Department of Labor announced the Wage & Hour Division had issued an Administrator’s Interpretation (No. 2010-3) clarifying the definition of “son or daughter” as it applies to an employee standing “in loco parentis” to a child under Section 101(12) of the Family and Medical Leave Act (FMLA).

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter, . . .[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,. . . and to care for a son or daughter with a serious health condition.” See 29 U.S.C. § 2612(a)(1)(A) - (C). The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

“It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. . . . Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.”

If an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or a statement indicating the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations of in loco parentis where there is no legal or biological relationship.

Employers may have more “parents” working for them than they think. Not only biological mothers and fathers qualify for FMLA leave, but other adults may qualify in loco parentis as well. If you are an employer and you aren’t sure if an employee qualifies for FMLA leave, request documentation or a statement from the employee about the familial relationship.

2010 League of Minnesota Cities Annual Conference and Marketplace

Tiffany Schmidt — Fri, 25 Jun 2010 13:30:54 -0600

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.

City of Ontario, California Did Not Violate Quon's Fourth Amendment Rights According to the U.S. Supreme Court.

Tiffany Schmidt — Fri, 18 Jun 2010 10:31:07 -0600

Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).

The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.

The Court acknowledged, we

“…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . .Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”

The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”

Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:

1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.

Employees and Interns and Volunteers, Oh My!

Marylee Abrams — Wed, 16 Jun 2010 10:50:43 -0600

Just like Dorothy following the yellow brick road to Oz battling lions, tigers, and bears, the path to determining the right classification for summer employees, interns, independent contractors, and volunteers can be hazardous. Mischaracterizing a worker can lead to sanctions and fines for Employers. Due to current economic challenges, concerns are being raised that Employers are misclassifying workers as interns, volunteers and independent contractors to save from paying wages, benefits, and taxes. The Department of Labor is paying close attention and auditing workplaces.

There is a presumption anyone performing work for a “for-profit” enterprise is an employee. In Minnesota, the nature of the employment relationship is determined by using the same tests, and in the same manner as employee status is determined under both workers’ compensation and unemployment insurance law. Compensation of Minnesota employees is determined under Minn. Stat. § 181.722, Subd. 3, and the federal Fair Labor Standard Act. Dorthy Gale had to stay on the yellow brick road to try to avoid the wicked witch and her flying monkeys. As an Employer the path to proper classification of workers will avoid the ire of the Department of Labor. Correctly assessing a worker as an employee, student/intern, independent contractor, or volunteer is critical.

Employee: An employee is someone who works for hire in the services of another. The existence or non-existence of an employment relationship between two parties is a question of fact. To the extent the facts lead to a conclusion the parties have an employment relationship, the Employer is responsible for state and federal taxes, workers’ compensation, and unemployment insurance.

Student/Intern: The use of student/interns in the workplace has increased over the years. This group of workers is currently the subject of close scrutiny by the Department of Labor. Student/interns are not considered employees under both state and federal law, if their use in the workplace generally passes six tests offered by the Department of Labor. The tests are:

The training experience is similar to what is provided at school;
The training experience is for the benefit of the student/interns;
The student/interns do not displace regular employees;
The employer providing the training receives no immediate advantage from the activities of the trainees;
Student/interns are not necessarily entitled to a job at the conclusion of the training; and
The employer and the student/interns understand the work is unpaid training. (Note: a reasonable stipend may be permitted)

Independent Contractor: Independent contractors are hired to perform special services of a limited scope and duration, and they typically perform the same services for a variety of businesses. The standards in Minnesota to be considered in determining whether or not an individual is an employee or an independent contractor include:

The right to control the means and the manner of performance;
The mode of payment;
The furnishing of materials or tools;
The control of the premises where the work is done; and
The right of the employer to discharge the individual.

Generally, the more control an Employer has over the individual performing the work, the work site, and the nature, quality, and manner in which work is performed, the more likely the relationship is an employer-employee relationship vs. an independent contractor arrangement.

Volunteer: Volunteers freely offer services to non-profits, charitable organizations, and churches at no charge without expectation of compensation. “…Any individual who renders service gratuitously for a nonprofit organization,” is not considered an employee. Minn. Stat. § 177.23 Subd. 7 (7). Volunteers at a non-profit organization are not subject to workers’ compensation or unemployment benefits. Someone performing work on behalf of a for-profit enterprise, is presumed to be an employee.

Properly classifying workers, including summer workers, is important to your business. Minn. Stat. § 181.722 prohibits the misrepresentation by an Employer of the nature of an employment relationship with its workers, including not requesting a worker enter into an agreement, or sign a document which results in misclassification of a worker’s status. An Employer may be subject to penalties for improperly classifying workers. Be sure to intentionally follow the yellow brick road to avoid the lions, tigers and bears along the way. OH MY!

Sporting Events & The Workplace

Tiffany Schmidt — Wed, 09 Jun 2010 14:21:23 -0600

Do you have employees? Do your employees enjoy sports? Well, this week there is a trifecta of major sporting events going on. Game 6 of the Stanley Cup Finals is televised tonight, tomorrow is Game 4 of the NBA Finals and Friday is the kick-off concert for the World Cup. It seems there is something for every sports fan. What does this mean for your business? Well, that depends on how you address workplace distractions.

Mr. Daniel Schwartz with the Connecticut Employment Law Blog has some excellent points about the opportunities and distractions which can accompany various sporting events, in particular this year’s World Cup, which will be televised between 8:00 a.m. – 5:00 p.m for the next month.

I agree with Mr. Schwartz suggestions and recommend you plan ahead.

• Remind employees about your policy on using computers for “personal use.”
• Review your PTO or vacation policy and decide how much flexibility you are able to use to address employees’ requests for time off.
• Encourage employees to watch during their lunch hour, and allow some flexibility in scheduling breaks and lunch hours to accommodate game time.
• Encourage professional behavior in the workplace.

These tips can also be applied to any other high profile televised events which may be distracting to your employees and affect productivity at your workplace.

U. S. Supreme Court Rules Against The City of Chicago

Tiffany Schmidt — Fri, 28 May 2010 15:38:32 -0600

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.

Class Action Grievances In Minnesota

Marylee Abrams — Thu, 27 May 2010 09:01:56 -0600

Class action grievances permit a group of individuals who are similarly situated to arbitrate claims together under one umbrella case. Previously, if a labor contract or arbitration agreement was silent on class action grievances, they were generally allowed by most arbitrators. However, according to the U.S. Supreme Court that is no longer the case.

In April, the U.S. Supreme Court ruled “[A] party may not be compelled under the FAA (Federal Arbitration Act) to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen v. Animal Feeds Intl’ Corp. This means unless an arbitration agreement specifically permits class action arbitrations, none will be allowed.

But wait, in May the Minnesota legislature passed legislation overhauling the Minnesota Uniform Arbitration Act. In the overhaul there is a provision for consolidating separate arbitration proceedings if some or all of the claims are between the same parties, the claims arise in substantial part from the same transaction or series of related transactions, there is a common issue of law which creates the possibility of conflicting decisions, and the prejudice for failing to consolidate claims is not outweighed by the risk of delay or prejudice to the party opposing consolidation. In essence, the law provides a vehicle to combine grievances, much like a class action grievance.

What the U.S. Supreme Court had put asunder, the Minnesota legislature now has put together….

Seventeen St. Paul Pothole Patchers Punished

Marylee Abrams — Fri, 14 May 2010 08:00:00 -0600

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.

Tell "At-Will" Employees They Are "At-Will"

Tiffany Schmidt — Thu, 13 May 2010 14:14:14 -0600

I have previously posted about the topic of “at-will” employees and cautioned employers that it is possible to create an expectation of job security in the documents issued to employees, thus negating the “at-will” status.

In the case Ellis v. BlueSky Charter School, A09-1205 (Minn. Ct. App. 2010) (pdf) the school director challenged his termination based on language in his employment agreement. Mr. Ellis was hired as school director for the 2008-2009 school year. An employment agreement was executed between Mr. Ellis and the school board stating, “[t]his is a general at will agreement.” It also set forth the work year as July 1, 2008 – June 30, 2009 and provided, “[p]ositions will automatically renew for one year after one year of service unless specific actions are taken by the board before April 15th of each year.” Mr. Ellis was terminated by the board on May 7, 2009.

In Minnesota, an employment contract for a fixed term is generally interpreted as terminable only for cause. The Minnesota Court of Appeals in an unpublished decision held in this case, “[t]he plain language of the “at-will” phrase overrides the general rule for construing a fixed-term contract, expressly replacing any implication that might have been drawn from the reference to start and end dates. The asserted tension between the at-will declaration and the stated dates of service does not create ambiguity.” Mr. Ellis’s position was determined to be at-will.

If you are hiring new employees, make sure their employment status is clear to them. If an employee is “at-will,” tell them so.

Training Is Important

Tiffany Schmidt — Fri, 07 May 2010 10:42:53 -0600

My firm provides training to employers on various topics concerning labor and employment law. For example, we do training (pdf) on the United States Supreme Court case, Garrity v. New Jersey, (pdf) as well as, how to address and prevent employee fraud and theft in a workplace. We think training is very important. It provides instruction on best business practices and it can also reduce liability for an employer.

Training has even been raised in the press lately. The Federal Aviation Administration recently distributed an “Information for Operators” guide, urging airlines to train their crews about in-flight distractions. This stemmed from the October 2009 incident, where a Northwest Airlines plane over-shot the Minneapolis-St. Paul International airport by more than 100 miles, before circling back and landing an hour late. During an investigation into the incident it was determined the pilots were immersed in working on their laptops during the flight.

Also, as part of a settlement in a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC), Alliance Rental Center, L.P. is being required to provide training to its managers on the laws enforced by the EEOC.

When problems occur in your workplace, one of the first questions that will be asked is, “Was training provided?” Questions to ponder: What training do you do in your workplace, and do your employees need training or a refresher?

Oddities of Health Care Reform

Marylee Abrams — Thu, 06 May 2010 13:46:00 -0600

Understanding the scope and impact of the recent health care reform legislation is difficult for any employer. The law itself is several thousand pages long and spans 8 years of phased-in implementation to reach its full impact on the health care system.

The new health care reform legislation includes some errant twists which on their face, do not appear to involve health care. These include requiring unpaid employee lactation breaks for one year after the birth of a child which amends the FLSA, and a new mandate requiring fast-food chains to disclose the calorie count of foods they serve.

The new health care law also removes student loan processing from private banks and institutions and places the job in the hands of the federal government, much to the dismay of my college age son who lost a great summer job processing student loans.

The best phase-in discussion I have seen outlining what employers need to know right now is in a blog from the Texas law firm Hutton & Williams. It outlines what to expect now, and each successive year in the future.

This massive piece of legislation can only be understood if you take it one bite at a time, otherwise you could choke on the massive overhaul coming our way.

Workers Memorial Day

Tiffany Schmidt — Fri, 30 Apr 2010 11:58:27 -0600

April 28, 2010 was Workers Memorial Day. U.S. Secretary of Labor Hilda L. Solis issued a nice statement in honor of the memory of workers killed on the job. Employees are the life blood of most businesses. They are who get the work done and keep a business going.

Employees are injured on a daily basis in workplace accidents. When this happens it affects a business operations and finances. It causes employees to lose time from work to recover, it diverts the attention of other employees to cover the work of the injured employee, and it will affect an employer’s worker’s compensation rating.

What can you do to prevent workplace injuries?

• Make sure your employees have the proper safety equipment.
• Make sure employees have the proper training.
• Make sure employees keep their work areas clean.

If you provide a safe work environment, and train your employees, you won’t have workplace injuries affecting your company’s bottom line.