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The Modern Workplace

The Modern Workplace

  • Posts by Dean A. LeDoux
    Partner

    Dean LeDoux’s employment and litigation practice includes representing employers in litigation and also advising them on employment issues. Dean also has extensive business litigation experience. Over approximately the ...

The beginning of a new year is a good time for employers to consider reviewing and possibly revising any non-compete and confidentiality agreements in place for their workforce or to consider putting such agreements in place. Generally, courts look more favorably upon the enforcement of confidentiality agreements than on non-compete or non-solicitation restrictions and all are subject to state law, as discussed more below. It is also possible that the federal law landscape on non-compete agreements might change significantly under the new administration of President Biden
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In the continued wake of the COVID-19 pandemic, numerous states have recently taken steps, through either new legislation or executive orders issued by governors, to expand both workers compensation and unemployment benefits in circumstances tied to COVID-19. We highlight Minnesota developments as examples.

Workers Compensation Benefits for Essential Workers:  

Newly enacted legislation in Minnesota creates a presumption of workers compensation coverage for various categories of workers who contract COVID-19. Categories of covered workers include first responders ...
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Posted in Wage & Hour
Employers should be aware that an amendment to the Federal Fair Labor Standards Act (FLSA) will increase the salary level threshold for the white-collar employee exemption from overtime pay commencing January 1, 2020. The white-collar exemption generally applies to executive, administrative, and professional job positions, as defined under the FLSA. A final rule was issued by the federal Department of Labor (DOL) on September 24, 2019, which increases the white-collar exemption salary level from the current level of $455.00 per week to $684.00 per week (which computes to ...
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Although the recently completed 2019 regular session of the Minnesota Legislature included a significant number of bills on various employment-related topics, in the end, the Legislature passed very few such bills. The future fates of those bills are quite unclear at this time. As of the close of the regular legislative session, numerous employment-related bills were still active, in either one or both legislative bodies, touching on a variety of significant topics, including:

  • Paid leave (generally).
  • Medical leave.
  • Family leave.
  • Work shift scheduling requirements.
  • Wage theft ...
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Posted in Labor & Unions

Ensuring that an employer has properly designated workers as independent contractors, as opposed to employees, is an important issue. The applicable test and factors to be considered and applied when making this important determination have often changed over time, with yet another significant change being recently adopted by the National Labor Relations Board (NLRB). In a January 25, 2019, decision in SuperShuttle DFW, Inc., the NLRB relaxed the test, making it easier for a worker to qualify as an independent contractor and effectively reversing a more stringent test adopted by ...
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Lawsuits involving claims for misappropriation of trade secrets are continuing to trend upward, even in an era when litigation as a whole is believed to have decreased. At a time when companies most sensitive confidential and proprietary business information is becoming ever more digitalized and thus easily transportable all employers should maintain vigilance in protecting their crucial business information. Not surprisingly, a significant amount of trade secret litigation involves situations where former employees accessed company information before their ...
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The saga of a 2016 Obama administration federal rule, issued under the Fair Labor Standards Act (FLSA), has taken a somewhat surprising turn. The 2016 rule, which was scheduled to be effective December 1, 2016, would have greatly increased the weekly salary threshold for white collar overtime pay exemptions. The federal Department of Labor (DOL) recently filed an appeal in a Texas federal court lawsuit, challenging an August decision by the district court judge that effectively invalidated the Obama administration rule.
We have previously posted several times about the 2016 ...
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It has become a bit easier for Minnesota employees to blow the whistle against their employers due to a recent decision of the Minnesota Supreme Court. In the case of Friedlander v. Edwards Lifesciences, LLC, et al., the Minnesota Supreme Court eliminated the previous requirement under Minnesota law that in order to establish a claim for a violation of the Minnesota Whistleblower Act, it must be shown that in blowing the whistle the employee was acting with the purpose of exposing illegal activity by the employer.  The net effect of this judicial ruling may be a relaxation of the proof ...
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As expected, Minnesota Governor Mark Dayton has vetoed legislation passed by the Minnesota legislature that would have preempted local governments ability to enact laws that set wage, vacation, or sick time requirements, or other employment benefit levels higher than those set by state-wide law. The vetoed legislation (the Uniform Labor Standards bill) was passed by the Minnesota state legislature late last month and was perceived, to a great degree, as a response to the enactment of Minneapolis and St. Paul city ordinances creating mandatory sick leave benefits for employees ...
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I recently read an interesting article noting the increase of employees reporting that they have been treated rudely or uncivilly by a boss or colleague in the workplace. The topic of workplace bullying or the bully boss has received significant attention over the last few years. Some researchers have noted that even highly performing employees may face this type of negative behavior. It is a situation that can create frustration for employers, but which typically does not give a bullied employee a legal claim unless the workplace bullying is tied to unlawful discrimination, sexual ...

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Posted in Leave

With the presidential and general election rapidly approaching, Minnesota and all employers need to be mindful of employees rights to reasonable voting leave under state laws. Election season, particularly polarizing presidential campaigns and elections, can also present some headaches for well-intended employers.

 

Minnesota employees have a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal ...

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Posted in Wage & Hour
The victory for proponents of a new $15 per hour minimum wage in Minneapolis turned out to be short-lived. Yesterday, the Minnesota Supreme Court issued an expedited ruling that struck down a lower court ruling that had required a ballot referendum to amend the Minneapolis City Charter to add the increased minimum wage for Minneapolis workers. We recently blogged about that campaign and the lower courts ruling.  The Supreme Court issued an abbreviated decision, due to the rapidly approaching date for printing ballots, with a more detailed decision to be issued later.


The Minnesota ...

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After several years of consideration, the U.S. Congress has finally passed legislation that will create a federal statute for the protection of trade secrets, entitled the Defend Trade Secrets Act (DTSA). The DTSA had strong bipartisan support, passing in the Senate by a vote of 87-0 (on April 4) and passing by a vote of 410-2 in the House of Representatives (on April 27). President Obama has previously indicated that he will sign the legislation into law and that action is expected to occur soon. With its enactment, the DTSA will represent the first federal law protecting companies ...
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Regardless of ones political views, the passing of a sitting United States Supreme Court Justice always has the potential to create major waves on the waterfront of federal law. But the recent death of Justice Antonin Scalia, in particular, could have significant implications for employers. There are currently several cases pending before the Supreme Court that raise important employment and labor law questions. The potential voting shifts that always follow a reconfiguration of the Supreme Court could impact the ultimate outcome of those cases.

Just a few of the employment and ...
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As we begin December and head into the end of another year, our thoughts often turn to giving.  But, unfortunately, it is also a time when employers should give some thought to taking e.g. the possible theft of confidential business information.  It is common for employees considering career changes, whether taking a job with a competing company or starting their own business, to make that move shortly after the start of a new year (oftentimes sticking around long enough to receive year-end bonuses).  And, an all too common first step to those career moves can include the gathering of ...
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Employers should be aware of recent federal agency activity that may require modifications to employee confidentiality agreements. The federal Securities and Exchange Commission (SEC) issued a press release on April 1, 2015, trumpeting the SECs first enforcement action against an employer based upon the company's use of confidentiality agreements for its employees that included improperly restrictive language. In its press release, the SEC announced that KBR Inc., a Houston-based technology and engineering company, had entered into a settlement agreement with the SEC ...
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A new year may bring new employment chances for Minnesotans with criminal records. Minnesota's new Second Chance law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of ones criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged ...

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In our modern, ever-electronic, workplace, it continues to become ever-easier for dishonest employees to help themselves to their employers most sensitive and valuable assets through wholesale electronic copying of confidential, proprietary, and trade secret information. A recent example is a case of a former employee of a large medical device company who was recently indicted for criminal charges for stealing, via a thumb drive, the company's trade secrets regarding the design of a balloon-catheter system. According to the indictment, the employee then left his ...

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The heavily regulated world of companies conducting business as federal government contractors is becoming even more heavily regulated. President Obama recently issued another new executive order setting out additional labor-related requirements for government contractors and subcontractors. The most recent executive order issued by President Obama, on July 31, 2014, includes these additional requirements for companies engaged as contractors or subcontractors for the federal government:   
Paycheck Transparency:  Contractors are now required to provide additional ...
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Posted in Discrimination

If Minnesota employers recently detected vague but ominous tremors beneath their feet, it may have resulted from very recent activity coming out of the Minnesota state capitol. With one very short amendment to the Minnesota Human Rights Act (the "MHRA") that was signed into law by Governor Dayton on May 13, the legal exposure landscape for employment discrimination claims may have shifted radically. Specifically, the MHRA was amended to now grant a right to a jury trial for violations of that law.

As most employers are aware, the MHRA is the Minnesota statute that prohibits ...
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In this era of hyper self-promotion and cyber networking, through the wonders of social media, former employees are commonly creating some of the most incriminating evidence establishing their violation of non-compete and non-solicitation agreements. When employees switch jobs, they now frequently broadcast that changed status to all of their contacts through social media platforms, such as LinkedIn and Facebook. Among those contacts, however, may be a significant number of customers or clients of their now former employer. If the employees previously signed ...

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A recent trial experience provided an extraordinary lesson on the significant legal exposure employers face when hiring away employees from a competitor. I recently completed a jury trial in which my client obtained a $22.7 million verdict against a competing company that had hired away two of my clients employees who had secretly taken numerous computer files belonging to my client and then used them for the benefit of their new employer. Although there ended up being many actions of the new employer to criticize, I believe that the most egregious one was the new employers failure to ...

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This blog has focused heavily on social media-related issues that arise in the employer/employee relationship and that have been a continual challenge for employers over the last decade. Employment-related social media issues are often close cousins to other important issues created by technology generally and social media specifically. It is crucial for businesses to step back and take a big-picture look at the wide range of social media-related considerations that affect the way they communicate, operate and compete. 
Our firm recently completed a publication that ...
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Is workplace flexibility a necessary casualty of difficult economic times?  When thinking about the innovations that make up the modern workplace for which this blog is named, employers embrace of flexible work hours and locations would be very near the top of the list.  Advances in technology particularly electronic connectivity have allowed employers to move away from traditional concepts of the workplace and the workday.  More employers permit telecommuting by their employees and allow flexible work hours. There are, however, signs in the business world that employees may have ...
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Posted in Discrimination
Perhaps you think this is the most wonderful time of the year, or perhaps you think its the most stressful.  Either way, its here, and our workplaces aren't immune from the impact of the holidays.  It can sometimes be tricky for employers to allow goodwill and celebration without offending those who do not celebrate Christmas. 
The topics of religious accommodation and religious discrimination have been touched on in previous posts.  This post is focused on the specific issues that arise during the holiday season.  Note that these comments are intended for secular employers only.  ...
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The workplace tragedy that occurred in Minneapolis two weeks ago, and the media coverage that followed, concerned all Minnesotans, me included. In addition to my reaction as a citizen, I viewed the events and their aftermath as an employment lawyer.
As is often the case in the face of horrific and inexplicable acts of violence, the workplace mass shootings by Andrew Engeldinger led to questions from many quarters about whether and how such a senseless act of violence could have been avoided. Such well-intentioned questioning, while certainly understandable, raises important ...
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As we recently noted, Illinois just became the second state to pass a law prohibiting employers from requiring employees or applicants to disclose their social media passwords. This appears to be the latest addition to a growing body of similar legislation, rather than an isolated action. The adoption of this law in Illinois quickly followed the enactment of the first such law by Maryland. Several other states, including California, Michigan, and New Jersey, have similar bills working their way through their legislatures. Additionally, the U.S. Congress continues to consider the ...
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Although employers rightfully appreciate the efficiency and responsiveness of employees who use cell phones (and smart phones) to get their work done, they must also be aware of the financial and safety risks created by the use of these devices while driving. Numerous media reports have trumpeted the increase of distracted driving including the use of a cell phone as a cause for automobile accidents. A recent article in the Washington Post noted multi-million dollar jury awards against employers in accidents involving death or serious injury, when the negligent driver was talking ...
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In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor.  The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses ...

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Employee use of social media tools, such as an actively managed professional profile on LinkedIn, can be quite beneficial to the business interests of an employer.  As with many work-related innovations, however, sometimes there can be too much of a good thing.  Social media tools can be vehicles for serious harm to employers.  In particular, the use of social media sites by employees can lead to disclosure of a company's confidential business information, and may also provide significant opportunities for unlawful competition by employees.  These very real threats to an employers ...
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Interesting developments touching on technology in the workplace, and regarding employment law issues generally, dont take a year-end break for the holidays.  Indeed, those work-related holiday gatherings have been known to be fertile breeding grounds for employment difficulties --but dont get us started on that.  In this two week, holiday season Week in Review, we provide you with a virtual smorgasbord of linked articles heavy on interest, but light on calories.  Enjoy and see you next year.
Technology and the Workplace
Numerous American Businesses Plan to Deploy iPads in the ...
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The recent, shocking news floating around Penn State University has understandably caused some employers to reflect on their obligation to report and take meaningful action in response to suspected criminal sexual activity.  Most states have statutes that establish when reporting of the abuse of a minor is required, but employers who do not serve or supervise minors may have little knowledge of mandatory reporting laws. Common law, which also varies from state to state, may create a duty of care for employers that requires reasonable attention to the safety and security of employees ...
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A recent article in the New York Times highlighted, yet again, the significant challenges faced by employers when they try to balance the possibilities of technology with the need to protect company data.  That article  discussed allowing employees to conduct company business through the use of their own personal computers and devices.  This development is being referred to as the consumerization of I.T.  In a nutshell, consumerization of I.T. represents a significant shift away from a closed technology system, in which an employer supplies all computers or other devices (such as ...
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As discussed in the previous post, protecting a companys confidential business information and trade secrets is increasingly problematic in this era of electronic communication.   Even if an employer has the most detailed and well-written policy regarding the use and disclosure of confidential business information, it must take steps to ensure that the policy is being followed by employees.  If the employer fails to do so, or fails to take disciplinary action when the policy is violated, it may lose its ability to succeed on a legal claim for misappropriation of that information.  More ...
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In this era of ever-expanding web-based presences for businesses and the increased use of social media sites for job-related reasons, it is becoming much more difficult for employers to protect their important confidential business information and  trade secrets. 
 Businesses have a lot to lose when employees misuse confidential information. If a customer list, the details of a proprietary product, or company financial information gets into the hands of a competitor, a business may lose its competitive edge or its best customers. On the other hand, failure to use the power of the web ...
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