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The Modern Workplace

The Modern Workplace

  • Posts by Mark S. Mathison
    Partner

    Mark Mathison advises and represents a wide range of employers, including corporations, nonprofits, and educational organizations, on labor and employment law issues in the workplace. Mark chairs the firm's Labor Law team and is a ...

It comes as little surprise that the new administration in Washington is contemplating changes to laws and rules affecting employers. Early hints about changes that might be in store began to appear already on Inauguration Day. These included a regulatory freeze issued by the White House in the form of a non-binding memorandum to federal agencies. This freeze, which is aimed at halting pending regulatory changes while the new administration takes time to assess them, may affect the Final Rule on Independent Contractor status about which we wrote in this space on January 14, 2021. We ...
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Employers have been facing an incredible range of complex and varied issues during the COVID-19 pandemic. Not least among these have been how best to respond lawfully to workers for whom work is available but who are reluctant to work, refuse to be in the workplace, or who may be unavailable because they are sick or have been exposed to the virus. Now, as the nation begins to contemplate a reopening process that will significantly increase the number of open workplaces, these questions will arise with increasing frequency. Making sound decisions about how to respond to employees with ...
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Posted in Leave, Wage & Hour

The Minneapolis City Council adopted a new Wage Theft ordinance on August 8 that adds requirements on top of those in the new Minnesota Wage Theft law that became effective July 1. The city ordinance will be effective January 1, 2020, and will require employers to satisfy the citys wage theft requirements for all employees who work at least 80 hours in a year within the geographical boundaries of Minneapolis, regardless of the location of the employer. Violations of the ordinance subject an employer to a variety of damages, costs, and penalties.

New Information Requirements for ...
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As we discussed in prior posts (MinnesotasNew Wage Theft Law: Are You Prepared? and Minneapolis Wants a Piece of the Wage Theft Pie), Minnesotas 2019 legislature passed expansive new wage theft protections for employees. Most of the new laws provisions became effective July 1. The new criminal penalties for intentional wage theft are effective August 1. While the new law contains numerous significant changes to wage-related notice and recordkeeping requirements, payment of commissions and bonuses is also affected and deserves an employers close attention to achieve compliance ...
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In a highly anticipated 5-4 decision, in which Justice Gorsuch cast the deciding vote, the U.S. Supreme Court overruled its own previous case and held today that a labor union may not require employees in the public sector to pay for its services. The decision, Janus v. AFSCME Council 31, may significantly weaken unions operating in both the public and private sectors and throw labor relations between government workers, their employers, and their unions into turmoil.


Until now, the Courts 1977 decision in Abood v. Detroit Bd. of Ed. had permitted public sector unions to compel payment ...
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Posted in Labor & Unions

The Chair of the National Labor Relations Board (NLRB), John Ring, confirmed on June 5 that the NLRB will engage in formal notice-and-comment rulemaking on the subject of joint employers, about which we have written many times (1, 2, 3, 4, 5). Rings announcement was made in a letter to three Democratic senators who had written to him expressing concern that the NLRB was contemplating formal rulemaking on the joint employer issue. Such rulemaking is rare for the NLRB. Candor requires me to inform you, wrote Ring, that the NLRB is no longer merely considering joint-employer rulemaking. A ...
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A high-profile Minnesota employer, Surly Brewing Company, has been found liable in a state court class action for violations of Minnesota's wage and hour statute governing the pooling of employee tips. The amount of damages has not yet been assessed but the class of employees who stand to receive payment from Surly under the ruling appears to number in the hundreds. Given the prevalence of various kinds of tip pooling in the hospitality industry, a great many Minnesota employers may be at risk for similar litigation under the tip pooling statute. At a minimum, an employer whose ...
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The U.S. Department of Labor (DOL) has withdrawn two informal regulatory interpretations, issued in 2015 and 2016, on the subjects of joint employer and independent contractor liability of employers. (See our previous blog posts about the related risks for employers, available here.)
 
The DOLs announcement this week appears to signal a major course reversal in the wage and hour arena, particularly from 2016 when its Wage & Hour Division had made joint employment a major focus. This is likely true even though the DOL said, in announcing the withdrawal: Removal of the two administrator ...
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Last week, President Trump signed four bills passed by Congress under the Congressional Review Act. The effect of each bill is to roll back regulatory actions adopted in the late days of the Obama administration. Of particular interest to employers who are federal contractors, one of the bills permanently blocks implementation of the Blacklisting Rule, otherwise known as the Fair Pay and Safe Workplaces Order, which was designed to bar companies with serious or repeated employment and labor law violations from receiving federal contracts and to address wage theft and other pay ...
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While the presidential inauguration is front and center, here are two quick items employers will want to take note of:

  1. A Hennepin County Court judge has issued an order temporarily blocking enforcement of Minneapolis new paid sick time ordinance against employers who are not located within the city limits.

  2. There is a new I-9 form that must be used starting this Sunday, January 22. Previous versions of the I-9 may not be used with new hires after that date.

Minneapolis Paid Sick and Safe Time. We have previously blogged about the Minneapolis paid sick leave ordinance. The ordinance ...

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The White House has detailed a broad series of new administrative steps in response to an earlier Executive Order calling for actions that enhance competition to benefit consumers, workers, and entrepreneurs. The White House described these steps as consistent with the continuing effort of the administration to find ways to increase job growth and reduce income inequality across the country. Although the new administrative steps do not include new prohibitions and generally do not require immediate action, the steps do raise the possibility of near-term legislative and ...

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We have previously blogged (here and here) about the expanding risks of joint employer liability under various employment laws, most prominently the National Labor Relations Act and the Fair Labor Standards Act. Recent developments underline just how prominent these risks are becoming for many businesses, including traditional employers, staffing and temp agencies, and franchised companies.
The U.S. Department of Labors (DOL) Wage and Hour Division recently announced it has obtained a federal court consent judgment and order of $1.4 million jointly against United Plastics ...
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In a recent ruling, the White case, the Minnesota Court of Appeals held that an employee who has been terminated for misconduct caused by mental illness, such as depression, may nevertheless be eligible for Minnesota unemployment benefits.   Notably, the Court also ruled that an unemployment judge has an affirmative duty to help such a claimant present relevant evidence if the claimant is unrepresented by counsel.
 

The Minnesota unemployment law generally provides that employees terminated through no fault of their own are entitled to benefits.  Individuals who voluntarily quit ...

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The National Labor Relations Board (NLRB) has just approved a ruling that certain employees (in this instance, tugboat captains) are not supervisors within the meaning of the federal labor law (the National Labor Relations Act, or NLRA). The NLRB said it drew this conclusion because the employer did not show the employer held the captains accountable for the performance of the mates whom they directed. A dissenting NLRB member complained that the Boards conclusion in this case fails the test of common sense.

The tugboat captains case makes painfully clear that identifying and ...
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Posted in Labor & Unions
The National Labor Relations Board (NLRB) continues to aggressively advance its agenda of making it easier for unions to organize new groups of workers. Just last month the Board set a new legal test for when two separate organizations should be considered joint employers for union-related purposes, including liability for unfair labor practices and responsibility for bargaining a union contract.
 

We had written previously about preventive steps organizations might take to avoid joint employer liability, and such actions should be considered now more than ever following the ...

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On July 6th, the federal Department of Labor initiated a rule-making process designed to significantly increase pay for white collar managers, administrators and professionals by more than doubling the salary an employer is required to pay to classify them as exempt from overtime requirements.  Estimates are that the change could result in employers being required to pay overtime to some 4.6 million workers who are currently classified as exempt from the overtime rule. The rule, as proposed, would also mean that employers would have to re-examine the overtime exemption for ...
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Much has been written in recent months about the National Labor Relations Board (NLRB) standard for joint employment liability between separate businesses, especially with respect to franchisor McDonalds Corporation, which is facing dozens of cases in which it has been named as a respondent along with its franchisees. The NLRBs General Counsel has been advocating for a change to the joint employer test currently used by the NLRB.  An arm of the U.S. Chamber of Commerce recently published a 40-page report on how the NLRBs proposed new joint employer test threatens small ...
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Posted in Labor & Unions

Since the end of last year, we have been blogging about the rapidly-changing environment for labor relations and union organizing in light of new positions and rulings of the National Labor Relations Board.

As a follow-up to our recent posts (see here and here) I'm sharing my top-five list of preparation steps for employers. Of course, every employer has to assess its unique risks of union organizing activities and make reasonable choices about how much and where to invest in preparation and prevention. When you make that assessment and those choices, however, keep in mind that ...

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The National Labor Relations Board has been busy this holiday season. In the last few weeks, the Board has pushed ahead with its quickie election rules and changed the analysis it uses to determine whether to assert jurisdiction over faculty at religious institutions of higher education, and whether faculty members are managerial employees with a protected right to unionize. In addition, the Board ruled earlier this month that employers must generally permit employees to use company email systems for a variety of protected labor law activity, including union organizing. Then ...

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Posted in Leave
With the general election less than a week away, Minnesota employers need to be mindful of the states voting rights leave law. 


In Minnesota, an employee has 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 leave, or vacation for voting leave. An employer who refuses, abridges, or interferes with an employees right to voting leave is guilty of a misdemeanor.

Here are some suggestions on managing ...

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Adjunct faculty members at the University of St. Thomas Monday voted overwhelmingly against union representation by the Service Employees International Union (SEIU) Local 284Gray Plant Mooty's Labor Law and Higher Education Practice Teams served as labor counsel to St. Thomas in the union representation process. Since the union filed its petition for an election on May 23, GPM has been working intensively with the General Counsels office at St. Thomas to advise on the labor law, handling matters before the National Labor Relations Board (NLRB), assisting the university's ...

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This week, the Minnesota Governor signed the Women's Economic Security Act (WESA) into law. The WESA makes a sweeping variety of changes and additions to Minnesota law aimed at protecting women's economic security. These changes include, among others, modifications to the length of Minnesota parental leave, a new required handbook notice regarding employees freedom to discuss wages and benefits, and the addition of a new protected class under the Minnesota Human Rights Act.  Some of WESAs provisions are effective immediately and others are effective later this year ...
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There has been a storm of comment and controversy since the National Labor Relations Board ruled last week that scholarship football players at Northwestern University are employees of the school who have the right to unionize under the federal labor law governing private sector employers. The College Athletes Players Association (CAPA), the union seeking to represent the players, is moving ahead full-steam with a vigorous persuasive campaign to convince the 87 Northwestern football players to vote for union representation when the NLRB conducts its election soon. On its ...
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Last week, the Northwestern University football team shook up the playbook by taking the unprecedented step of petitioning the National Labor Relations Board for a union election. The result to be determined will have a significant impact on the relationship between higher education institutions and their student-athletes, as well as potentially many other students who receive aid in consideration of services performed to the benefit of the schools, such as graduate assistants. 
 
Under the leadership of star quarterback Kain Colter and with financial support from the United ...
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The National Labor Relations Board (NLRB) appears ready to extend its jurisdiction over certain private and religious schools that were previously thought exempt from the NLRBs reach. If it does assert jurisdiction in these cases, the NLRB will act to protect union efforts to organize the schools faculty and other workforces. And just as significantly, an assertion of NLRB jurisdiction over these schools will clearly usher in the potential for direct NLRB involvement in deciding school policies.
The NLRB has several cases involving religious schools lined up for review, the ...
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Earlier this week we blogged about employee surveillance and its potential to change employee behavior. As noted there, employee surveillance is a powerful tool that raises significant legal issues, including those discussed below. 
Discrimination Laws.  State and federal discrimination laws prohibit employers from obtaining information related to the protected class status of applicants or employees, such as information about national origin, religion or genetic or family medical history. Employers must take care not to search for such protected information, whether ...
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Effective August 1, Minnesota employers with 21 or more employees may have to change their sick leave policies. A change to Minnesota law, enacted during the 2013 legislative session, requires employers that offer paid sick leave benefits to allow the use of those benefits for absenses related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent. Previously, the law had required employers to allow use of paid sick leave only for absences due to the employee's own illness or the illness or injury of a child. The new legislation, which amends a ...

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This week saw the introduction of a bill in the Minnesota House of Representatives that would outlaw the enforcement of most noncompete agreements in Minnesota. Under the pending legislation, all noncompete agreements would become unenforceable, with just three exceptions. The exceptions provide for very limited enforcement of noncompetition agreements in particular circumstances: in connection with:  the sale of a business, in connection with the dissolution of a partnership, and in connection with the withdrawal of membership in a limited liability company. 
Although ...
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Three states held votes earlier this month about legalization of the recreational use of marijuana. In two of the three, Washington and Colorado, the measures were approved.  Oregon voters defeated the initiative in their state.  
What does this mean for employers doing business in states where recreational marijuana use is now legal? Its a little too early to tell, it seems, although it appears that at least in Washington, employers can continue to enforce their drug use and drug testing polices as before, at least for the time being.  Our Washington partner in the Employment Law ...
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Posted in Labor & Unions
Despite an employer offer for substantial wage and other compensation increases over four years, the Chicago Teachers Union has taken its members out on strike this week, leaving some 350,000 Chicago Public Schools students wondering what to do with their time and energy. What great divide between the Union and the Schools has precipitated this strike? Primarily, it is the Chicago Public Schools proposal to initiate a new performance evaluation system for teachers, to be implemented gradually and by a joint employer-union committee. In the tradition-bound world of big ...
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A new provision of the Minnesota unemployment statute became effective July 1. Enacted by the 2012 legislature, the new language could have an impact on Minnesota employers and employees, but just what that effect might be is not -- to be charitable -- entirely clear.

It is not unusual for an employer to enter into an agreement with the departing employee under which the employee releases potential claims against the employer. To make such an agreement enforceable in a court of law, the employer must provide the departing employee something of value that, without the agreement, the ...

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Posted in Labor & Unions
To post or not to post?  Employers now have a temporary answer. The D.C. Circuit Court of Appeals has issued an order blocking implementation by the National Labor Relations Board of its announced rule requiring private employers to post a Notice of Collective Bargaining Rights by April 30. We have previously written (click for The Modern Workplace and Employment Edge) about the Notice posting rule. Now employers will not be required to post the Notice until at least some time later this fall. This does not affect in any way the underlying collective bargaining rights that were the ...
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Posted in Labor & Unions
Among other developments at the National Labor Relations Board (NLRB), as it prepared for another period of inertia brought on by lack of a quorum, the agency announced near the end of last month that it has agreed to postpone the effective date of its employee rights notice-posting rule.  The postponement is at the request of the federal court in Washington, DC, which is hearing a legal challenge regarding the rule. We have previously written about the new NLRB rule requiring employers to post a notice of collective bargaining rights along with their other workplace postings. April ...
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The cultural struggle over collective bargaining rights continues with the National Labor Relations Board (NLRB) announcement that it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.   Private sector employers already must have large bulletin boards to post the many government-required notices to employees about various workplace laws.  Now employers may need to upsize those bulletin boards to comply with the new NLRB rule requiring employers to let employees know about their collective ...
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The General Counsel (GC) for the National Labor Relations Board (NLRB) plays a major role in deciding which cases the agency will prosecute and which legal theories it will apply in making those prosecutorial decisions.  This means the GCs recent analysis of fourteen separate social media cases (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) is highly instructive for the many employers and their lawyers who have been closely watching the NLRBs enforcement activity in this ...
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Our last post set out some of the key points for employers from the recently-published analysis of social media cases by the General Counsel (GC) for the National Labor Relations Board (NLRB).  (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases)  In this post we set out some of the key points about employer policies and employee handbooks gleaned from the GCs analysis. 
Most private employers are covered by the National Labor Relations Act (NLRA) and need to be mindful of the GCs ...
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