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The Modern Workplace

On August 28, 2021, Missouri joined the growing list of states with legislation aimed at protecting employees who experience domestic or sexual violence. Missouri’s Victims Economic Safety and Security Act (“VESSA”) applies to all employers with at least 20 employees. This new law provides unpaid leave and reasonable safety accommodations to employees who are victims of domestic or sexual violence or who have a family or household member who is a victim of domestic or sexual violence. It also requires employers to give notice of the new law to all current employees and ...

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Deja vu, all over again!!! Last week, the EEOC announced that the deadline to submit and certify 2019 and 2020 EE0-1 Component 1 Reports has been changed – for the umpteenth time. The NEW filing deadline is now Monday, October 25, 2021. And, the EEOC has said (again, as I recall) that this new deadline is the FINAL DEADLINE, that all eligible filers must submit data by this time, and that ”No additional changes to the filing deadline will be made.”  

While we should all take the EEOC at its word, the EEOC also said that this latest extension was due to the “continuing impact of the pandemic ...

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Remember back in May 2021 (May 13 to be exact!) when the CDC dropped bombshell recommendations which outlined what individuals could / could not do based on vaccination status?! Vaccinated individuals rejoiced that they could remove their masks inside and largely dispense with social distancing. Unvaccinated individuals were, of course, less enthused. At that time, OSHA guidance had been to not treat employees differently based on vaccination status. The agency fairly quickly pivoted, affixing this banner to the top of its website on May 18, 2021:  

“The Centers for Disease ...

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Yesterday, on July 27, 2021, the U.S. Center for Disease Control (CDC) issued new COVID-19 guidance, including recommending face masks even for vaccinated people when they are in indoor public settings in geographic areas with substantial or high COVID-19 transmission rates, as mapped from time to time by the CDC. The CDC:

  • Updated guidance for fully vaccinated people given new evidence on the degree to which the B.1.617.2 (Delta) variant is currently circulating in the United States and its high contagion factor.
  • Recommended that fully vaccinated people wear a mask in public ...
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The new federal administration continues to put its stamp on the development and enforcement of wage and hour laws under the Fair Labor Standards Act (FLSA). Recently, the Department of Labor (DOL) issued a new Field Assistance Bulletin (Bulletin 2021), revoking a Trump administration policy relating to the practice of seeking liquidated damages in pre-litigation settlement discussions.

Employers who violate the FLSA provisions relating to minimum wage, overtime compensation, and protections for tipped employees, are liable for the unpaid wages or tips as well as an equal ...

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On June 10, 2021, OSHA released a long-awaited new Emergency Temporary Standard (“ETS”), which establishes new mandatory workplace safety requirements for employers providing healthcare services or healthcare support services. The ETS aims to protect employees from exposure to COVID-19 in the workplace by requiring the following:

  • a COVID-19 plan based on an assessment of COVID-19 hazards;
  • patient screening;
  • transmission-based precautions;
  • continued personal protective equipment (PPE) usage;
  • social distancing while indoors;
  • proper cleaning and disinfecting ...
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The gig economy is an industry that is generally characterized by the prevalence of short-term contracts, freelance work, and indefinite flexible working arrangements. It also usually comes with getting work through some type of online or app-based digital platform. The unifying factor in all of these companies is that they are managing independent contractors and freelancers who have signed up to perform task services for the ultimate end user. From a legal perspective, this is very different from the traditional employee model. In a recent podcast, we explored the impacts of the ...

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The Equal Employment Opportunity Commission (EEOC) has issued an important update to its COVID-19 guidance. Most notably, the update provides long-awaited guidance on mandatory vaccination policies and vaccination incentives—both of which we discussed in earlier blog posts and client alerts

Mandatory Vaccinations

The EEOC’s updated guidance makes clear that, under employment discrimination laws, an employer can require its employees to be vaccinated for COVID-19 before physically entering the workplace, subject to the reasonable accommodation provisions of the ...

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The Centers for Disease Control and Prevention (CDC) recently issued new guidance regarding what activities fully vaccinated people may safely engage in. The CDC stated that fully vaccinated individuals can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal or territorial laws, rules and regulations. In response to the CDC’s new guidance, the Occupational Safety and Health Administration (OSHA) added a statement to its January 2021 guidance stating that OSHA is reviewing the recent CDC guidance and will ...

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As the number of people working remotely decreases while employees start returning to their places of employment, or decide to make home their permanent office, a refresher on the requirements around the compensability of travel time to and from the workplace could prove helpful.

The general rule under the Fair Labor Standards Act (FLSA) is that employees must be compensated whenever they are working. However, pursuant to the Portal-to-Portal Act, time spent traveling to and from the actual place where the employee performs his or her principal activities, or “commuting ...

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Posted in Labor & Unions
Late last week, the National Labor Relations Board(“NLRB”) finished counting the ballots in a highly-publicized attempt by the Retail, Wholesale and Department Store Union to organize an Amazon distribution center in Alabama. The votes were mailed in over a six-week period, a process the NLRB has used to replace in-person voting since the outset of the COVID-19 pandemic. It took several days to count over 3,000 ballots, a count which resulted in a rejection of the union by more than a 2 to 1 margin. 
Despite this seemingly convincing statement by the employees, the result is likely ...
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Posted in Discrimination
The Equal Employment Opportunity Commission (“EEOC”) recently released its enforcement and litigation statistics for FY2020. In summary, the EEOC’s data shows that there were 67,448 charges of discrimination filed in FY2020, which represents 5,227 fewer charges that were filed in FY2019. Of those charges, retaliation continues to be the most frequently cited claim -- accounting for 55.85 percent of all charges filed in FY2020. Disability and color discrimination claims increased marginally while genetic information claims doubled from the prior year. The remaining ...
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Posted in COVID-19, Leave
Here we go again… California has passed new legislation (Senate Bill 95) requiring a larger group of employers to provide paid leave for many more COVID-19-related reasons than previously allowed.
Q: Who must provide the SB 95 leave?

A: California employers (including public entities) with more than 25 employees nationally.

Q. Who is eligible for the SB 95 leave?

A. “Covered employees” is defined as California-based employees who are unable to work or telework for one of the qualifying reasons.[1]
Q. What reasons qualify for the SB 95 leave?
A. There are more qualifying reasons ...
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An EEO-1 Report must be submitted by all private sector employers with at least 100 employees, or federal contractors with 50 or more employees. This submission has been required for over a half century. Because of the pandemic, the due dates for the submission of the 2019 and 2020 EEO-1 Reports were suspended by the EEOC until March 31, 2021.

Earlier this year the EEOC announced that the EEOC’s collection site for the submission (the EEOC On Line Filing System) will open in April 2021 for an eligible employer’s submission of both the 2019 and 2020 EEO-1 Component 1 workforce ...

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Posted in COVID-19

On Thursday, March 11, 2021, President Biden signed an historic $1.9 Trillion COVID-19 Relief Package known as the American Rescue Plan Act. You may be (rightfully) thinking, “wow, that’s a lot of money, what’s in it for me?!” In fact, many Americans will receive direct stimulus checks aimed at helping to offset widespread economic strain caused by the pandemic. Whether you use the money to pay overdue bills or towards a new car is up to you, and either way the economy will theoretically be improved. In addition to the personal funds the federal government is sending to millions ...

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By now, we are all familiar with the routine employee handbook disclaimer: 

This Handbook is provided for informational purposes only and is not a contract between the Company and any employee. 

Even with such a disclaimer in place, though, employers should be thoughtful when drafting and implementing detailed policies, particularly wage-related policies, as highlighted by a recent case out of Minnesota. In Minnesota, courts have often refused to construe an employee handbook as a contract when it contains a conspicuous contract disclaimer. In Hall v. City of Plainview, though ...

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As we predicted in a blog post earlier this year, the Biden administration has placed a 60-day hold on the U.S. Department of Labors (DOL) final rule on determining when a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA) which was expected to take effect March 8, 2021. The Biden Administration issued a memorandum to various executive agencies, including the DOL, asking that they: (1) not propose or issue any rules until a department or agency head appointed or designated by the Biden Administration reviews and approves the rule; (2) withdraw any ...
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On Wednesday, February 10, the CDC announced that individuals who are fully vaccinated against SARS-CoV-2 do not necessarily have to quarantine following exposure to someone with suspected or confirmed COVID-19.
In addition, businesses have asked the U.S. Equal Opportunity Commission (EEOC) to clarify the types of incentives employers can legally provide employees to encourage them to get COVID-19 vaccinations. Incentives offered by some employers might, for example, include: 
  • Time off from work to get vaccinated, often with pay
  • Incentive bonus (for example, $100)
  • Gift cards
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Last week, the federal Occupational Safety and Health Administration (OSHA) issued new guidance to help employers and employees identify risks of being exposed to and/or contracting COVID-19 in the workplace and to assist in determining appropriate control measures. The guidance is advisory in nature and does not impose new legal requirements on employers, but provides additional information that may be helpful to employers in their efforts to provide a safe and healthful workplace during the COVID-19 pandemic. 
 
The guidance recommends implementing a workplace COVID-19 ...
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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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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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On January 7, 2021, the U.S. Department of Labor (DOL) published its final rule (Final Rule) setting new standards for determining when a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule takes effect sixty days from its publication in the Federal Register and is, therefore, scheduled to take effect on March 8, 2021. The DOL notes that the Final Rule reaffirms the economic reality test; however, the new test changes the analysis to be used when applying the test.

New Test
The Final Rule implements a five-factor economic reality ...
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With two COVID-19 vaccines already authorized for emergency use in the United States and more likely forthcoming soon, employers are asking whether they can and should require employees to get vaccinated. This alert identifies some of the major issues that employers are likely to face when rolling out policies related to vaccinations. 
Can Employers Require Employees to Get Vaccinated?

Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does ...
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Posted in Labor & Unions
The National Labor Relations Board (NLRB) recently affirmed the decision of an administrative law judge that FDRLST Media, LLC (FDRLST) violated the National Labor Relations Act in June of 2019 when Ben Domenech, publisher of the Federalist, published the following tweet on his personal Twitter handle: FYI @fdrlst first one of you tries to unionize I swear Ill send you back to the salt mine. Domenechs tweet was posted in response to the news of Vox Media Inc. employees walking off the job after demanding a new collective bargaining agreement. FDRLST contended that Domenechs tweet was ...
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With COVID-19 cases surging, employers should take the time to review the federal Occupational Safety & Health Administrations recent guidance document, which was generated based on a review of data from citations issued, many of which were the result of complaints, referrals and fatalities in industries such as hospitals and healthcare, nursing homes and long-term care facilities, and meat/poultry processing plants. OSHA News Release (11/7/2020).

The guidance document identifies the standards that are most frequently cited in coronavirus-related OSHA inspections and ...
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Prior to COVID-19, virtually all union representation elections were conducted through in-person voting, often at the workplace. In mid-April, however, the federal National Labor Relations Board (NLRB) empowered its Regional Directors to exercise their discretion to order mail ballot elections when circumstances warrant. Since then, virtually all such elections have been conducted by mail because of the pandemic. Many of these decisions were challenged, generally by employers arguing that in-person voting can be conducted safely, but those objections have not been ...
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With the holidays fast approaching and employers beginning to think about their employee holiday gatherings, the Centers for Disease Control (CDC) recently issued updated holiday guidance amid the COVID-19 pandemic. While the guidance is not targeted specifically to the workplace, it provides employers insight into the various factors they should consider when planning and hosting in-person company-sponsored events, which include the following:
  • Check the COVID-19 infection rates in your area, which can be accomplished by consulting the applicable state and local health ...
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The federal Occupational Safety and Health Administration (OSHA) recently published additional frequently asked questions and answers (FAQs) regarding the need to report employees in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus. These FAQs reverse OSHAs previously issued guidance that, for cases of COVID-19, the work-related incident triggering reporting requirements was the employees positive diagnosis. Now, the triggering event is the employees exposure to the coronavirus at work.
 
Employers are required under ...
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Many employers have implemented Diversity & Inclusion (D&I) programs over the last few years, often including training on topics such as implicit or unconscious bias. For some employers, those efforts may now be in peril. On September 22, 2020, the White House issued Executive Order 13950 entitled On Combating Race and Sex Stereotyping (EO 13950 or order). The orders stated purpose is to combat offensive and anti-American race and sex stereotyping and scapegoating. Private employers are not covered by EO 13950, but federal contractors and subcontractors (and recipients of ...
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Whether we realize it or not, we all have unconscious biases - even scientists who are trained to overcome them. Events of the last year have riveted our attention not only on a global pandemic, but also on race relations. Addressing this topic is important to us all - in our businesses and beyond. Unconscious bias training helps us understand why we harbor biases, how to avoid bad decision-making associated with those biases and how to promote greater inclusivity. 
The problem with unconscious biases is we don't see them. As Henry Thoreau said, "Many an object is not seen, though it falls ...
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The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Many of the updates to the guidance document are consistent with the EEOCs March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (ADA) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 ...
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Posted in Wage & Hour
A basic tenant of the Fair Labor Standards Act (FLSA) is that employers are required to pay their non-exempt employees for all hours worked. While this seems simple enough, sometimes employees do not record all of their work time. Under the FLSA, employers must pay for time worked if they know or have reason to believe that the work was performed. In other words, employers have a duty to make sure that work is not performed when they do not want it to be performed. Recently, in light of the pandemic, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) highlighting the ...
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Posted in Labor & Unions
Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to engage in protected, concerted activities. Such protected activities often include protesting working conditions that employees find unfair, unsafe, or undesirable. But what happens when these protected statements are coupled with inappropriate outbursts filled with abusive, harassing or profane language? Or worse yet, what if these protected statements are coupled with racist or discriminatory statements? Can employers still discipline employees for their inappropriate behavior ...
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Posted in COVID-19
Across the country, state and local mask orders are becoming more common. For those employers located in Minnesota, for example, a new mask order went into effect on July 25, 2020, pursuant to Minnesota Governor Tim Walzs Executive Order on masks. Under the Order, Minnesotans over the age of five must wear a face covering in indoor businesses and indoor public settings, unless alone. The Executive Order contains specific requirements for businesses, including provisions generally requiring workers to wear a face covering at all times when working indoors, outdoors in situations ...
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The uptick in new state laws prohibiting non-competition agreements with low-wage (and in some cases, not-so-low-wage) workers has remained steady throughout 2020. Most recently, Virginia, Rhode Island and Washington have joined a growing contingent of states prohibiting non-competition agreements with workers who do not meet certain earnings thresholds. For many employers, the earnings thresholds may be higher than expected and the penalties for violations of the new laws may be harsher than expected. This post is intended to provide a brief summary of certain new earnings ...
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We will undoubtedly remember 2020 for reasons completely unrelated to employment law. However, the State of Illinois experienced a few changes that went into effect on January 1, 2020. This post intends to provide a quick reminder of a few of the new requirements facing employers since the start of the new year.
Workplace Transparency Act

Candidly, the Workplace Transparency Act (WTA) deserves a post all its own, but since this is a blog post and not a treatise, I offer a few (but importantly, not all) of the highlights of the new WTA:

  • The WTA expanded the definition of discrimination under ...
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This week, the U.S. Supreme Court affirmed First Amendment protections for religious institutions in the hiring and firing of employees who play an important role in carrying out the institutions religious mission. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court upheld the dismissal of employment discrimination claims brought by two teachers against their Catholic school employers under the ministerial exception, a legal doctrine that prohibits courts from getting involved in employment disputes between religious institutions and their ministerial ...
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Two current developments could provide a boost to union organizing efforts. Even in normal times, a workforce that is unsettled and facing an uncertain future can be fertile ground for a union organizing effort. Employees looking for certainty and stability may be more receptive to a unions promise to solve the problems of the day. Employers should be on higher alert right now, because these are not normal times.  Workplaces may be at greater risk of union organization efforts due to the chaos in the economy caused by the COVID-19 pandemic, coupled with the following two ...

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On June 15, 2020, the United States Supreme Court handed the LGBTQ community a major victory. In Bostock v. Clayton County and companion cases, the Supreme Court held that an employer who terminates an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964.

 

The Courts ruling involved a trio of cases, with each employee filing a lawsuit under Title VII alleging discrimination based on sex. Title VII applies to employers with at least 15 employees in each of 20 or more calendar weeks in the current or preceding calendar year and makes it unlawful ...

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For many, January 1, 2020 was the start of a new decade, full of optimism and hope for the future. As of June 1, 2020, this year has brought troubling times that include fear and pain due to racial injustice, a pandemic, unemployment, and growing isolation. 

Employees across the nation are hurting. Some are grieving the loss of one or more loved ones from COVID-19. Against the backdrop of rampant unemployment, many are anxious about how long they might be employed, looming pay cuts, child care challenges, and the rising cost of food. Combined with intense feelings about injustices and other ...

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On May 18, 2020, the United States Department of Labor (DOL) implemented a final rule arguably giving employers more flexibility in the retail and service industries to exempt certain employees from overtime pay requirements. 

Generally, the Fair Labor Standards Act (FLSA) requires that employers pay employees at an overtime rate for time worked in excess of 40 hours in a workweek, unless the employees are exempt under Sections 7 or 13 of the statute. One of these exemptions applies to employees who work for a retail or service establishment if: (i) the employees regular rate of pay ...

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"The Modern Workplace" has taken on a new meaning during this time when many employees are working from home, social distancing, and, often, balancing increased responsibilities for homeschooling, childcare and caring for older relatives. My modern workplace often includes Zoom meetings while my daughter watches cartoons or plays in the same room. Telephone calls are sometimes interrupted by a request for a snack. I have a friend who starts her workday after her children go to bed and goes to sleep herself around 3:00 a.m., just to get a few hours of sleep before her kids are up again at ...
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Posted in Discrimination
The Equal Employment Opportunity Commission (the EEOC) announced yesterday that, due to the COVID-19 Pandemic, it would suspend the anticipated opening of its 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections. The EEOCs EEO-1 Component 1 data collection process requires an employer to report the number of employees working for a covered business and sort those employees by job category, race, ethnicity, and gender. In turn, the EEOCs EEO-3 data collection process requires race, ethnicity, and gender reporting by local unions and the EEO-5 data ...
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Posted in COVID-19

The COVID-19 pandemic has drastically changed the landscape for all employers. Most have had to lay off or furlough a significant number of employees and institute other cost-cutting measures, such as salary decreases, discontinuation of 401(k) matching programs, and hours reductions. For those still operating, they face the challenge of keeping their employees safe while still meeting their customers demands, priorities that are not always aligned. 

In this environment, labor unions have been fighting to insert themselves into these critical management decisions in the name ...

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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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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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We know that we are all feeling a bit overwhelmed by the fast-pace of information being circulated about employment related COVID-19 issues and laws. In an effort to help you organize and retain COVID-19 information in a concise way, you will find links below to each of the Employment Alerts, Blog Posts, and Webinars by Lathrop GPM on COVID-19 employment issues. We will continue to keep you up to date with Alerts and blog posts as the various federal and state agencies issues new laws, regulations, and answers to the questions posed by employers. Please check here on the Modern Workplace ...
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Public health officials and business leaders are grappling with how to respond to the increasing number of presumptive and confirmed cases of COVID-19 across the United States. Seattle has closed public schools for two weeks in light of coronavirus and banned large gatherings, including sporting events. This week, many higher education institutions, including the University of Minnesota, Duke University, Georgetown, and the University of Notre Dame, canceled in-person classes and announced that they are temporarily switching to an online learning environment. Nationally ...

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Posted in Discrimination
After a surge of unorthodox flight companions ranging from pigs, to squirrels, and even a peacock the U.S. Department of Transportation recently announced a proposed rule that would allow only specially trained emotional support dogs to qualify as service animals and to fly, free of charge, on domestic flights. This proposed rule change comes after multiple complaints from flight attendants, fellow passengers, and advocacy groups about the rise in untrained animals aboard domestic flights and the impact on others on flights. Such complaints have included allergies, safety ...
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Posted in Wage & Hour

Last week, the Minnesota Supreme Court issued a ruling that upheld the City of Minneapoliss $15 per hour minimum wage ordinance. Graco, Inc. sued the City over the ordinance back in 2017, arguing that the state of Minnesotas lower minimum wage law preempted the Minneapolis ordinance and seeking a permanent injunction against the ordinances enforcement. In a unanimous decision issued last Wednesday, the Minnesota Supreme Court held that the state legislature did not intend to occupy the field of minimum-wage rates. The Court also held that the City ordinance was valid, because it ...
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On January 12, 2020, the U.S. Department of Labor (DOL) published its final rule regarding joint-employer status under the Fair Labor Standards Act (FLSA), the federal wage and hour law. This final rule provides a more employer-friendly joint employer liability standard than previous guidance issued by the DOL under the Obama administration.


In recent years, many employment lawsuits have been brought against entities that do not technically employ the workers bringing the employment-related claims, but may exert some level of control or influence over their employment (such as ...
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Posted in Wage & Hour

Employers should be aware that the start of the New Year ushered in changes to federal, state and local government wage and hour laws. Some of those changes include the following:

  • The minimum salary for executive, administrative and professional employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) has increased from $455 to $684 per week ($35,568 per year). 
  • The annual compensation now required to meet the exemption under the FLSA for highly compensated employees has been raised to $107,432.
  • Several states increased the state ...
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Happy Thanksgiving! With the holiday season upon us, we wanted to give you a quick refresher on some tricky workplace issues that are common this time of year.


Holiday Parties


While holiday parties can increase morale and provide an opportunity for team building, without planning and forethought, holiday parties can cause human resources issues that will follow you well into the new year.


Wage and Hour Issues


If you require non-exempt employees to attend a holiday party, you must compensate them for the time they spend there. If the party occurs during normal work hours, non-exempt ...
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As Thanksgiving and the holiday season approaches, companies often look for ways to contribute to charitable causes within their communities. One way they might accomplish this worthwhile endeavor is by creating and encouraging their employees to participate in formal volunteer opportunities. This is a great way for companies to give back and for individual employees to take a break from the rigors of everyday business life and focus on helping others. Whether employees should be compensated for participating in these volunteer activities, however, is not always clear, and if ...
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The Occupational Safety and Health Administration (OSHA) recenty rolled out programs and publications aimed at encouraging employers to focus on programs related to safety on the roadways.


In its Guidelines for Employers to ReduceMotor Vehicle Crashes publication (Guidelines), OSHA states that every 12 minutes someone dies in a motor vehicle crash, every 10 seconds an injury occurs, and every five seconds a crash occurs. The Guidelines point out that many of these incidents occur during the workday or commute to and from work.


Employers feel the impact of employee motor vehicle ...
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The Supreme Court recently heard oral argument in a series of cases that will determine whether federal employment discrimination protection extends to sexual orientation and gender identity. The Courts decisions in the cases could have a far-reaching impact on employers nationwide.


Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex and national origin. At issue in the trio of cases currently before the Court is whether sex applies to sexual orientation and gender identity. If it does, gay, lesbian, and transgender ...
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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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A note of caution to Minnesota-based employers federal enforcement of the Fair Labor Standards Act (FLSA) should not be your only concern when drafting employee compensation plans; the Minnesota Department of Labor and Industry is actively auditing employers in search of those avoiding their overtime requirements under the Minnesota Fair Labor Standards Act (MFLSA). This past Wednesday, the Minnesota Supreme Court upheld a million dollar compliance order issued by the Department against an employer utilizing split-day compensation plans. The court heldthat an employer must ...
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Posted in Labor & Unions


The National Labor Relations Board (NLRB or the Board) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employers premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employers property when such activity would significantly interfere with the employers use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have ...
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Posted in Discrimination

The deadline for employers with annual EEO-1 reporting requirements to submit Component 2 pay data is just over a month away. Employers must file 2017 and 2018 Component 2 compensation data by September 30, 2019.


With the deadline approaching, the Equal Employment Opportunity Commission (EEOC) has released guidance to filing employers through answers to Frequently Asked Questions. Among other issues, the EEOC addressed reporting non-binary gender employees. Previously, the EEOC required an employer to list an employees gender for EEO-1 reporting as male or female. The EEOC ...
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Posted in Wage & Hour

As part of its ongoing efforts to assist employers in understanding their responsibilities under federal employment law, the Wage and Hour Division of the U.S. Department of Labor recently added publically available presentations to its website.  The presentationscover topics under the Fair Labor Standards Act, such as wage and hour requirements, child labor requirements, and an employers responsibilities to provide rest breaks and proper facilities for nursing mothers.


During the past year the Department of Labor has added other content to its online materials including the ...
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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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Posted in Wage & Hour

On the heels of the new Minnesota state wage theft law, which went into effect on July 1st, the Minneapolis City Council has proposed a city wage theft ordinance. The proposed Minneapolis ordinance mirrors the new state law in many respects, but includes some additional requirements. The Citys ordinance would require employers to put all pay agreements in writing and provide regular written or electronic earnings statements to workers. The proposal also includes a streamlined resolution process for wage disputes that does not require an employee to have an attorney and creates a ...
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Posted in Discrimination

Last month, the Seventh Circuit (which has jurisdiction over appeals from federal district courts in Illinois, Indiana, and Wisconsin) decided two cases with claims under the Americans with Disabilities Act (ADA). In one case, the Seventh Circuit joined multiple other circuits in holding that obesity, on its own, is not a protected disability under the ADA. In the other, however, the Seventh Circuit revived claims of an employee who alleges he was discriminated against due to his alcoholism.


Richardson v. Chicago Transit Authority


During an examination of his fitness to return to ...
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Posted in Wage & Hour

Governor Tim Walz recently signed into law expansive new wage theft protections for employees that will go into effect on July 1. The new law significantly changes a number of employer wage-related requirements. It also includes increased civil enforcement penalties, as well as new criminal penalties for intentional wage theft. The major requirements of the law are summarized below:


Earning Statements


The law requires that employers include additional information in the earning statements provided to employees at the end of each pay period. Employers must now include 1) the rate ...
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Posted in Discrimination

On Monday, the U.S. Supreme Court unanimously held that Title VIIs requirement that claimants exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) before suing is not jurisdictional. The decision, issued in Fort Bend County v. Davis, means that an employer that fails to timely assert a failure to exhaust affirmative defense to a lawsuit waives the ability to later seek dismissal of the suit on this ground. As a result of the Courts ruling, employers need to be vigilant in timely asserting any failure to exhaust defense at the ...
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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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Two recent developments have occurred in the seemingly constant struggle regarding the classification of independent contractors versus employees. The developments are examples of two very divergent paths that are being taken by various governmental entities and administrations. Some are tightening the requirements for independent contractor status. Others, however, are creating a more business-friendly loosened standard.


On Monday, April 29, 2019, the Wage and Hour Division of the United States Department of Labor (DOL) issued an opinion letter (Opinion Letter ...
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Posted in Discrimination

Pursuant to an April 25 court order, employers with annual EEO-1 reporting requirements will now have until September 30, 2019 to provide the new Component 2 pay data.


Background


As we discussed in our recent update, the Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race, gender, ethnicity, and job ...
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On April 9, 2019, the New York City Council passed a city ordinance that prohibits employers from requiring applicants to submit to drug tests for marijuana. The citys Mayor is expected to sign the ordinance in the next few weeks and it would take effect one year after it is signed into law. Importantly, the ordinance only applies to job applicantsit does not apply to current employees. This is the first law within the U.S. to prohibit employers from drug testing for marijuana.


While this is certainly uncharted territory, marijuana users should temper their excitement and employers ...
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Posted in Discrimination

Employers with annual EEO-1 reporting requirements can soon expect to have new pay data reporting requirements for 2018. The reporting deadline could be as early as May 31, 2019, but the deadline is more likely to be set for later this year.


Background


The Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race ...
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Posted in Wage & Hour
On March 7, 2019, the U.S. Department of Labor issued its new proposed rule on the white-collar exemptions under the federal Fair Labor Standards Act. The proposed rule (New Rule) sets new proposed parameters for the white-collar exemption salary requirements and would replace the final rule issued in 2016, which was blocked after a Texas court issued a permanent injunction. The New Rule would set the minimum white-collar salary at $679 per week ($35,308 annually) and is expected to become effective in January of 2020. For more information about the proposed New Rule, read our client ...
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The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.


New Yorks Gender Expression Non-Discrimination Act


Employers with New York operations should take heed of New Yorks Gender Expression Non-Discrimination Act (GENDA), which ...
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Posted in Hiring & Firing

The practice of running background checks on prospective and current employees has become commonplace in many industries. Companies should be careful, however, to ensure that their process complies with the hyper-technical requirements of the federal law governing the use of these background checks the Fair Credit Reporting Act (FCRA). Under the FCRA, before an employer may obtain a background check from a third party vendor for a fee, it must make a written disclosure to the subject of the background check. That written disclosure must be a stand-alone document that consists only ...
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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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In December of 2018, the 8th Circuit Court of Appeals addressed the interaction between a reasonable accommodation under the Americans with Disabilities Act (ADA) and a work attendance policy holding that unauthorized absences under an attendance policy can be used to terminate an employee for whom accommodations are being made under the ADA. In Lipp v. Cargill Meat Solutions Corporation, the 8th Circuit affirmed dismissal of an employees lawsuit alleging her employer discriminated against her when it failed to accommodate her need for intermittent absences under the ADA and ...
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Posted in Wage & Hour

If you have been following the attempts to change the exempt employee salary rule under the Fair Labor Standards Act (FLSA), you know that it has been a long, involved story that includes a series of court decisions and moves that have changed the trajectory of the story. In other words: a saga. We now have word that the saga is continuing.


The final ruleadopted by the U.S. Department of Labor (DOL) in 2016 would have increased the minimum salary level required for employees to qualify for the executive, administrative, and professional exemptions under the FLSA from $455 per week ($23,660 ...
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There is never a shortage of changes in employment law.  By now, Minnesota employers should be aware that Minnesotas minimum-wage rates changed on January 1, 2019.  For 2019, the states minimum wage is $9.86 an hour for large employers and $8.04 an hour for smaller employers.  As you may recall, large employers are those with annual gross revenues of $500,000 or more. 

Remember, also, that your Minnesota posting needs to be updated. The revised poster pack can be found online at 
www.dli.mn.gov/sites/default/files/pdf/mn_poster_pack.pdfand printed. For federal government ...
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Posted in Health Care

On December 14, 2018, a federal judge for the U.S. District Court for the Northern District of Texas ruled that the Affordable Care Act is invalid. The case before the Court was brought by 20 states, including Texas. The plaintiffs argued that the ACAs individual coverage mandate was no longer constitutional, because the Tax Cuts and Jobs Act of 2017 removed the tax penalty associated with being uninsured. The plaintiffs claimed that, as a result, the individual mandate could no longer be upheld as a proper exercise of Congress taxing power. In addition, the plaintiffs argued that the ...
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Posted in Wage & Hour

To make sure that the most wonderful time of the year stays that way, here is a quick refresher on how employers can sidestep certain employment law minefields that are common to the holiday season.


Religious Issues


December is home to Hanukah, Christmas, Kwanzaa, and Winter Solstice celebrations, among others. For this reason, a host of religious-related obligations can arise for employers under federal and state laws that prohibit religious discrimination and require reasonable religious accommodations.


Requests for Time Off


December is a popular time for religious ...
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Posted in Wage & Hour

After significant debate and discussion over a period of several months, the St. Paul City Council approved a new wage ordinance this week that will require a $15 minimum wage within the city of St. Paul for covered nonexempt workers. The City Council voted unanimously in favor of the wage change and St. Paul Mayor Melvin Carter signed it into law soon after.  


Covered Employers and Phase-In Requirements


Similar to the Minneapolis $15 minimum wage ordinance, the St. Paul ordinance will phase in the $15 minimum wage increase over time, and the wage requirement will apply to all time ...
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Posted in Leave, Wage & Hour

I have been watching the weather carefully, because my family will be doing some tree trimming this weekend. As you can imagine, I was a bit concerned when I heard about potential snowfall. The threat of snow reminded me that inclement weather often results in questions from employers about how to address the related wage and hour issues that arise when they shut down their business for weather or employees are unable to get to work. In preparation for the upcoming winter snowstorm season, I offer the following guidelines:
  • What to Do When You Shut Down Your Business Due to Inclement ...
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If you are an FMLA-covered employer or you conduct employment-related background checks, youll want to take note that federal agencies have issued updated forms that may need to be incorporated into your practices. In September 2018, the U.S. Department of Labor (DOL) issued new model Family and Medical Leave Act (FMLA) certification forms and, that same month, the federal Consumer Finance Protection Bureau (CFPB) updated its Summary of Rights form for use in conducting background checks falling under the federal Fair Credit Reporting Act (FCRA).



New Model FMLA Certification ...
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Posted in Labor & Unions

Joint employer liability under the National Labor Relations Act (NLRA) has been a hot topic in recent years, because the NLRA standard has been in flux and joint employer status can be a significant issue for employers. For example, under the NLRA, a joint employer may be required to bargain with a union representing jointly employed workers. In addition, a joint employer can be subject to joint and several liability for an unfair labor practice by the other joint employer and can face labor picketing that would otherwise be unlawful.

In August 2015, the National Labor Relations Board ...
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Posted in Leave

With the midterm elections less than a month away, it is a good time for employers to refresh on the laws related to employee voting leave. In these contentious political times, employers may see an uptick in employee voting absences on Election Day and preparing in advance can minimize business disruptions.

Many states have laws that entitle employees to take reasonable time off on election days to vote. For example, employees in Minnesota have a right to paid time off to vote. On election day, every Minnesota employee that is eligible to vote may be absent from work for the time necessary ...
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Posted in Discrimination

In the midst of the #MeToo movement, the wave of proposed and actual changes to state sexual harassment laws is continuing. Earlier this year, we posted on a proposed change to Minnesotas sexual harassment law that did not pass, but, as proposed, was intended to lower the legal standard for proving actionable sexual harassment in Minnesota. Now, California is pursuing a similar goal. Late last month, the California (CA) legislature passed a bill, SB 1300, that could have a significant impact on the ways in which employers need to seek to prevent and to respond to potential sexual ...
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The U.S. Department of Labor (DOL) has been busy. It recently issuedsix new opinion letters on various compliance issues. As described below, four of the letters involve the federal Fair Labor Standards Act (FLSA) and two of the letters involve the federal Family and Medical Leave Act (FMLA). While DOL opinion letters are issued in response to a particular employers submission of a question to the DOL, employers that rely on a DOL opinion letter in setting their practices have a legal safe harbor defense if faced with, as applicable, a FLSA or FMLA legal challenge. That being said, courts ...
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Posted in Education

Recent college graduates (and some not-so-recent ones as well) are often saddled with student debt to the point that they do not feel like they can afford more than debt service, rent, and living expenses. Certainly, they dont always feel they can afford 401(k) plan contributions. That means that, in many cases, the recent grads are leaving an important piece of compensation on the tableif you dont contribute to the 401(k) plan, you also miss out on the employer match.


And yet, 401(k) and matching contributions are particularly valuable when one is new in their career. The younger you are ...
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Several Members of Congress have introduced competing bills related to paid leave and flexible work schedules. The proposals have sparked debate at the federal level about whether and how to require paid family leave, paid sick time, and flexible scheduling.


The Economic Security for New Parents Act

The Economic Security for New Parents Act would give workers at least two months off at about two-thirds of their regular salary in order to care for newborn or newly adopted children. The workers would fund the bill themselves by deferring Social Security benefits for several months ...
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In the past week, I have been involved in two situations in which an employer received a cease and desist letter from a potential competitor. The employers had hired employees away from the potential competitors and were then notified by the potential competitors that the employees were subject to various restrictive covenant obligations. The potential competitors letters made various demands regarding the restrictive covenants and restrictions to be placed on the employees activities.

As many of you know, restrictive covenants prevent employees from engaging in various types ...
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In the #MeToo Era, employers who are focused on proactive sexual harassment prevention and response measures should also be mindful of other aspects of gender equity, such as pay equity. The Wall Street Journal recently reportedthat the U.S. Equal Employment Opportunity Commission (EEOC) is investigating Uber for potential gender discrimination in hiring and in its pay practices. The investigation is in line with the EEOCs 2017-2021 Strategic Enforcement Plan, which included a focus on equal pay protections as a strategic priority.


Uber is just one of a number of companies facing ...
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Non-competition and non-solicitation agreements can be useful tools for companies trying to protect their key client relationships and confidential information. Enforcing these agreements, however, can sometimes be difficult, given the laws general disfavor of them. A recent Minnesota Court of Appeals case illustrates how a thoughtfully drafted non-compete can protect a company in the event that a former key employee begins competing with his former company.


In Lapidus v. Lurie LLP, a former name partner of a well-known Minneapolis accounting firm was found to have solicited ...
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Posted in Leave

The City of Duluth, Minnesota recently became the third major Minnesota city to enact a local law providing eligible employees with paid leave for sick or safe time absences. On May 29, 2018, the Duluth City Council adopted Ordinance No. 10571 (the Ordinance), which establishes minimum standards for earned sick and safe time leave. The Ordinance is set to take effect on January 1, 2020. 


Covered Employers and Employees


The Ordinance is written to apply to employers with five or more employees nationwideregardless of where those employees are located. Employee eligibility, however ...
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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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Earlier this month, the U.S. Supreme Court addressed whether, after denial of class certification, a putative class member can file a new class action after the applicable statute of limitations has expired, as opposed to joining an existing case or pursuing an individual lawsuit. The Court held, in China Agritech, that this is not allowed, creating potentially significant ramifications for employers. Had the Court ruled the other way, claimants who were unsuccessful in obtaining class certification might have had the ability to perpetually file new class actions, one after the ...
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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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Posted in Discrimination

As our readers know, the Americans with Disabilities Act (ADA) addresses both physical and mental health disabilities of employees. Under the ADA, employers with 15 or more employees may not discriminate against an employee or applicant on the basis of a qualifying disability. In addition, in certain circumstances, the ADA requires employers to provide a reasonable accommodation to enable the employee or applicant to do the essential functions of the job.


Recently, the Equal Opportunity Commission (EEOC) issued two new publications relating to mental health conditions under ...
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In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the companys tip policies, and the managements treatment of employees.


The case arose after an employee wrote an email upon her resignation complaining about managements treatment of employees, tip policies, work schedules, and more ...
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Posted in Wage & Hour

Employers that have operations or contractors working in California, beware. On April 30, 2018, the California Supreme Court issued an opinion establishing a new pro-employee standard in worker misclassification cases arising under California state wage and hour law. The opinion overturned three decades of precedent and will likely lead to more rulings that independent contractors have been misclassified and are actually employees.


California courts had long applied what is known as the Borello test for determining whether an individual is a contractor or employee under ...
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Last week, a bipartisan group of Minnesota legislators introduced legislation that, if enacted, would significantly alter sexual harassment law for Minnesota employers. The proposed legislation would amend the Minnesota Human Rights Act (MHRA) to eliminate the decades-old requirement that sexual harassment be severe or pervasive to be legally actionable. This proposed change comes amidst the #MeToo movement, which has prompted talk around the country about potential changes to harassment law to foster more respectful and nondiscriminatory work environments. The ...
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Tip pooling in the hospitality industry has been affected by a recent act of Congress and a Minnesota class action that have garnered significant attention. The Congressional act will have limited impact on Minnesota employers because they continue to be subject to substantial restrictions on tip pooling under state law. Tip pooling is the practice of sharing tips between front-of-house staff and back-of-house staff. On March 23, 2018, Congress passed a budget reconciliation bill that included a rider amending the federal Fair Labor Standards Act (FLSA) and related tip pooling ...
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Defending a wage and hour class or collective action is one of the most difficult employment law challenges facing companies today. Penalties are steep, attorneys fees are significant, and liability can be hard to avoid. Employers should be mindful, however, that they may also face liability under the National Labor Relations Act (NLRA) if they do not properly respond to collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability that employers may ...
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Although the Trump administration has signaled its intention to shift away from the prior administrations efforts to expand LGBTQ+ equity rights in the workplace, a federal appellate court recently held that discrimination based on an individuals status as transgender or gender-transitioning is prohibited by Title VII of the Civil Rights Act of 1964. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals held that discrimination based on an employees status as transgender or gender-transitioning is prohibited sex discrimination under Title VII. In ...
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On March 6, 2018, the U.S. Department of Labor (DOL) announced a new pilot program, the Payroll Audit Independent Determination (PAID) program. The PAID program encourages employers to self-report inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the DOL, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owedfaster.


The estimated ...
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On Wednesday, Feb. 21, 2018, the Supreme Court issued a ruling that significantly narrows the category of employees who may be protected whistleblowers under the Dodd-Frank Act.1 In a case entitled Digital Realty Trust, Inc. v. Somers, the Court held that Dodd-Franks prohibition on employer retaliation against whistleblowers only covers individuals who made reports of suspected violations of the securities laws to the Securities Exchange Commission (SEC).

Paul Somers was an employee of Digital Realty Trust, a San-Francisco based realty firm, whose employment was ...
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With many laws protecting workers classified as employees and not offering protection for those classified as independent contractors, a workers classification has broad implications for the worker and for the company using the workers services. In the rise of the sharing economy, companies like Uber Technologies, Inc. and Grubhub, Inc. have classified their drivers as independent contractors; and workers have turned to the courts to challenge that classification. 


In the first federal court decision on this issue, a federal magistrate judge in California ruled on February 8 ...
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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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Posted in Leave
The Minneapolis Department of Civil Rights has settled its first case of retaliation under the paid sick-leave ordinance that went into effect on July 1, 2017. The paid sick-leave ordinance requires that employers with six or more employees provide Minneapolis employees with one hour of paid sick leave for every 30 hours worked within Minneapolis. The ordinance applies to full and part time employees, temporary employees, and paid interns. Under the ordinance, retaliation against employees for exercising their sick leave rights is strictly prohibited.

In the recently settled ...
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Last week, in Boswell v. Panera Bread Co., the Eighth Circuit Court of Appeals held that Panera Bread illegally imposed caps on amounts paid to managers under its bonus program. In order to recruit and retain managers, Panera had created a program under which managers were eligible to receive a one-time bonus to be paid five years after the managers signed at-will employment agreements containing the bonus program. In order to receive the bonus, the manager had to be employed as a manager at the time of payment.

However, after a downturn in profits, Panera decided to place a $100,000 cap on ...
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In the midst of the growing Me Too movement, employers may find it more expensive to settle employment claims of sexual harassment or sexual abuse. A provision in the new tax law signed by President Trump on Dec. 22, 2017 (the Tax Cuts and Jobs Act) provides that, effective as of the signing of the law, a business can no longer deduct the costs incurred to settle employment sexual harassment or abuse claims if a nondisclosure agreement is included in the settlement.  This provision was added to the tax law in response to the Me Too movement and growing criticism of the historic practice of ...
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Posted in Discrimination
On the 20th of this month several well-known companies, including T-Mobile, Amazon, and Cox Media Group, were named parties in a class action lawsuit filed in California related to their online hiring practices. The plaintiffs in the lawsuit are seeking class-action status to represent Facebook users age 40 or older who may have been denied the chance to learn about job openings. The action alleges that advertisements were placed on Facebook that restricted who could see the advertisements by age. This new area of attack by the plaintiffs bar targets advertisements on all social ...
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Posted in Labor & Unions
Last week we blogged about which decisions of the Obama-era National Labor Relations Board (NLRB) might be most ripe for reversal under the NLRBs new membership and General Counsel.  This week, on December 1, 2017, we got further insight into those expectations when Peter Robb, the new General Counsel issued a memorandum containing insights into his initial agenda as General Counsel.  The memorandums identification of subjects for special consideration, along with its general tone, provide further strong indications about the likelihood of coming significant policy shifts at the ...
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Posted in Labor & Unions
In September 2017, the U.S. Senate confirmed William J. Emanuel to fill the last vacant seat on the National Labor Relations Board (NLRB). Emanuel joins recent appointee Marvin Kaplan and long-standing member Philip A. Miscimarra to form the first Republican-majority board since 2009. However, these weren't the only significant developments to come to the NLRB this fall. On Nov. 8, 2017, the U.S. Senate confirmed Peter Robb, a management-side labor lawyer, to replace President Obama-appointed Richard Griffin as the NLRB General Counsel. 
While many employers have long awaited ...
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Posted in Discrimination
On Nov. 1, 2017, the Equal Employment Opportunity Commission (EEOC) launched an online intake portal to allow individuals to quickly and directly submit inquiries and intake interview requests to the EEOC. It remains to be seen whether online access to the EEOCs intake and inquiry process will lead to an increase in discrimination charges, but the new reporting mechanism undoubtedly provides potential claimants with easier access to the EEOC.
 
Previously, in order to file a charge with the EEOC, an individual needed to visit an EEOC office in person, visit a state or local fair ...
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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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Sadly, the concerning news that's recently surfaced about sexual harassment and assault allegations in Hollywood is all too familiar. This year, we've seen a number of high-profile sexual harassment stories go viral involving the ride-sharing, music, Hollywood, and news media industries. These high profile stories should serve as a reminder to employers of the importance of having sound policies and practices in harassment prevention and response. Below are some suggested best practices for employers to consider.
1.  Implement and Effectuate a Sound Policy
 
Employers should ...
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As previously reported, a Hennepin County district court judge ruled earlier this fall in a class action case against Surly Brewingthat an employee tip-pooling agreement made with employer coercion or participation violates Minnesota's wage and hour law. Now, the Minnesota Supreme Court has found that Minnesota's wage and hour law expressly permits a private cause of action for an employee who is discharged for refusing to share gratuities.
 
The Minnesota Supreme Courts ruling was issued this week in Burt v. Rackner, Inc. d/b/a/ Bunnys Bar & Grill. The plaintiff, Todd Burt, alleged ...
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Posted in Wage & Hour
 

The last quarter of the calendar year is often a time when companies are busy with planning and budgeting for the following year. Minnesota employers doing budget planning for 2018 need to keep in mind that the state minimum wage rates will be adjusted as of January 1, 2018.

 
Under Minnesota law, the commissioner of the Department of Labor and Industry is required to determine and announce the inflation-adjusted minimum-wage rate each year by August 31. This year, the change in the price deflator is an increase of 1.56 percent.
 

The new state law rates as of January 1, 2018 will be as follows:
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    Posted in Leave
    This past Monday, September 18th, the Minnesota Court of Appeals upheld a lower courts refusal to enjoin the City of Minneapolis from enforcing its Sick and Safe leave ordinance as to Minneapolis employers while litigation challenging the ordinance proceeds.  The Court of Appeals did, however, affirm the lower courts order prohibiting enforcement of the ordinance as to employers located outside Minneapolis.
    The Minneapolis ordinance was passed in May 2016 and became effective on July 1, 2017. The ordinance has been challenged in Hennepin County District Court by the Minnesota ...
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    Last Thursday, August 31, 2017, a federal district court judge in Texas struck down the Obama administrations long-embattled federal overtime pay rule. The rule would have more than doubled the minimum weekly salary required to qualify for the federal Fair Labor Standards Acts (FLSA) white collar exemptions (from $455 per week to $913 per week). The rule was originally scheduled to go into effect on December 1, 2016, but the same Texas-based judge enjoined its implementation late last year.
    As a quick refresher, the FLSA requires non-exempt employees to receive no less than the ...
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    Hurricane Harvey has caused unprecedented damage in Texas, resulting in thousands of companies temporarily (or perhaps even permanently) closing down operations. While the main focus is and should be the safety of everyone affected by Harvey, this natural disaster brings with it a host of legal and practical issues for employers. Even if a company is not in the storms path, it should consider using Harvey as an opportunity to think through some of the preparations that can make disasters a bit easier to manage. Below are a few common questions employers may be faced with in an emergency.
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    Last week a federal judge in Washington, D.C. directed the Equal Employment Opportunity Commission to revisit its regulations governing employee wellness programs but did not vacate the regulations.  The court noted that striking down the regulations until they could be revised may have significant disruptive consequences and it assumed that the EEOC could address the failings it identified in short order.  Nonetheless, the decision not to stay implementation or vacate the regulations creates confusion for employer wellness programs.

    The EEOCs wellness regulations took ...

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    With the violent protest events in Charlottesville, Virginia last weekend, it seems particularly timely to address a recent Eighth Circuit Court of Appeals decision on potential labor law protections for racist behavior. While Judge Beam of the Eighth Circuit opined that no employer in America can be forced to employ a racial bigot, he did not persuade the rest of the Courts panel in the recent Cooper Tire v. NLRB decision.
     
    In the Cooper Tire case, the Eighth Circuit Court of Appeals examined tensions between behavioral protections for picketing workers under the federal National ...
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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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    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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    On June 30, 2017, the U.S. Department of Labor (DOL) filed a brief with the federal Fifth Circuit Court of Appeals in support of its appeal of a lower court ruling that enjoined implementation of its 2016 overtime rule under the Fair Labor Standards Act (FLSA). Had the rule gone into effect when scheduled on December 1, 2016, it would have raised the minimum salary threshold for white collar exempt employees from $455 per week to $913 per week. Under the new Trump administration, the DOL informed the appellate court that it plans to revise the overtime rule that was issued during the Obama ...
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    Just days after withdrawing some of its guidance on joint employer and independent contractor issues, the U.S. Department of Labor (DOL) indicated it will soon reconsider the much maligned Persuader Rule and white-collar Overtime Rule that were both enjoined last fall. The DOL wants to rescind the Persuader Rule and plans to seek additional public comment on the white-collar salary thresholds set forth in the Overtime Rules.
    As a reminder, the Persuader Rule would have required employers to publicly disclose when they use consultants (including lawyers) to obtain labor relations ...
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    Posted in Discrimination
    The Trump administrations proposed budget for the upcoming federal fiscal year contains a streamlining proposal that is evoking strong opposition from both employer and employee groups. Namely, the administration has proposed merging the federal Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP).
     
    Employers and employee rights groups are rarely on the same side of regulatory matters, but in this case, there is almost unanimous opposition to the proposed agency merger. Presumably, the Trump administration believes ...
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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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    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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    Memorial Day signals the beginning of summer. Here in Minnesota, lake-goers open their cabins and put out their docks, and families gather for backyard cookouts. For many, Memorial Day has special meaning as we remember those who died in military service in our country's armed forces. In honor of Memorial Day, we take a look at USERRA and other laws that afford legal protections to service members, veterans, and their families.
     
    The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights to persons who must be absent from ...
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    Posted in Hiring & Firing
    On April 28, 2017, the Federal Trade Commission (FTC) published a post on its business blog advising employers to keep it simple when it comes to employment background check disclosure and authorization forms. While the blog post is not legally binding, it provides some useful guidance on how to comply with federal background check requirements.
     
    Employment background checks done by an outside vendor for a fee are considered consumer reports under the federal Fair Credit Reporting Act (FCRA). Pursuant to FCRA, employers are required to make a specific written disclosure to ...
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    While most of the nation has been focused on the potential repeal of the Affordable Care Act, the U.S. House of Representatives passed a bill this week that could, depending on its progression, drastically affect overtime pay practices in the private sector. The bill, dubbed the Working Families Flexibility Act, would allow private employers to offer paid time off instead of overtime pay to compensate non-exempt workers for overtime hours. Public employers already have the legal right to offer such comp time as a form of overtime pay, but private employers do not.
     

    Not surprisingly ...

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    On Thursday of last week, the U.S. Senate confirmed Alexander Acosta as the 27th Secretary of Labor, filling the final open seat in President Donald Trumps cabinet. With its secretary in place, the U.S. Department of Labor (DOL) will now be able to move forward with decisions on two major rule-making issues.

    The most widely watched decision to be made by the DOL is whether to defend or abandon the Obama Administrations FLSA rule that would, if effective, significantly increase the minimum salary required for white collar exempt employees. As we reported earlier, that rule was blocked by ...

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    Posted in Wage & Hour

    As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.

    After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOLs request, but ...

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    Posted in Leave

    A lot has happened since our last blog posts on the Minneapolis paid sick leave ordinance and the St. Paul paid sick leave ordinance. While the initial implementation dates for both ordinances are still scheduled for this summer on July 1, 2017, a Hennepin County District Court issued a temporary injunction in January 2017 prohibiting the City of Minneapolis from enforcing the Minneapolis ordinance against any employer based outside the geographic boundaries of the city. The Hennepin County District Court decision is being appealed by the City of Minneapolis. Nonetheless, the ...

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    Posted in Discrimination

    Last week, the United States Supreme Court ruled that appellate courts reviewing a lower court ruling on the enforceability of an Equal Employment Opportunity Commission (EEOC) subpoena must use an abuse of discretion standard. By requiring this deferential standard, the Supreme Court positions lower courts to be able to impose reasonable limits on the EEOCs investigatory powers.

    The Supreme Courts ruling was issued in the case of McLane Co., Inc. v. Equal Employment Opportunity Commission. The McLane case arose out of McLanes termination of Damiana Ochoa for her failure to pass a ...

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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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    The NCAA Men's and Women's Basketball Tournaments start this week. While these exciting college sports events bring exciting comebacks, underdog wins, and pride in employee alma maters, they also can usher in several weeks of reduced productivity, potentially contentious employee interactions, and believe it or not - legal risk.

    In 2016, 70 million tournament brackets were completed, many of which involved office pools. The first round of March Madness reportedly costs employers an estimated $4 billion in lost productivity. As part of this decreased productivity, employers ...

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    Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document ...

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    Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new presidents first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
     
    Department of Labor Developments
    When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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    Posted in Wage & Hour

    Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.

    The FLSA requires that employers pay their workers ...

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    On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.

    Mr. Acosta is Trumps first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta's confirmation less controversial and more ...

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    On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia's sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing.  Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia ...

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    Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance document on workplace harassment. The EEOC is seeking public comment on the guidance through February 9, 2017.

    Preventing systemic harassment is listed as a priority in the EEOCs Strategic Enforcement Plan for 2017-2021. In 2015, harassment charges represented over 30 percent of all charges filed with the EEOC. The same year, the EEOC created a task force to analyze workplace harassment and identify innovative and creative prevention strategies. The task force issued its findings ...

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    In our December 16, 2016, post, we reported that petitions for certiorari to the U.S. Supreme Court were filed with respect to five U.S. Circuit Courts of Appeals opinions concerning whether arbitration clauses requiring individual arbitration in lieu of class or collective lawsuits (class-action waivers) are invalid under federal labor law. There is a clear circuit divide on this issue, the resolution of which will impact thousands of employers and potentially millions of American workers.

    The Supreme Court granted certiorari on January 13, 2017, as to opinions rendered by the ...

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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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    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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    Well, what a year 2016 has been! As the retrospectives start pouring in, we want to get ahead of the curve and look back on some of the workplace and employment law developments of 2016.

    According to a recent Forbes article, innovations in the world of work this year have included Dutch desks that pull up to the ceiling at 5:30 pm, putting an exclamation point on the end of the workday, and desks in Greece that convert into beds for power naps or overnighters. We see the latter as especially rife with employment law risk. Overtime anyone? (Not to mention the potential for office romance gone awry ...

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    In our September 23rdpost, we reported that the National Labor Relations Board (NLRB) and the U.S. Department of Justice filed a petition for certiorari in NLRB v. Murphy Oil decided by the 5th Circuit Court of Appeals, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class-action waivers)are invalid under federal labor law. As we reported in September, the petition was filed in the face of a clear split among the federal Circuit Courts of Appeals. The U.S ...

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    Posted in Wage & Hour

    The December holiday season is, in many ways, a wonderful time of year. To make sure it stays that way, here is a quick refresher for employers on how to sidestep the panoply of employment law minefields that can crop up during the holiday season.

    Religious Discrimination and Accommodations

    December is home to multiple religious holidays, including Hanukkah, Christmas, Kwanzaa, and the Winter Solstice, among others. For this reason, it is important to remember that federal law and many states prohibit religious discrimination in employment and require religious accommodations ...

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    For those in the employment law and human resources fields, there are lots of moving targets to track this holiday season. Two of those moving targets include the temporary block placed on the U.S. Department of Labors (DOL) new federal overtime rules and a pending legal challenge to a new OSHA rule.

    DOL Overtime Rule

    As discussed in our post last week, a federal district court in Texas has issued a nationwide injunction blocking implementation of the new DOL overtime rules that were set to go into effect on December 1st. Yesterday, the DOL appealed the district courts ruling to the U.S ...

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    As we let you know last week, legal challenges to the new federal overtime pay rules scheduled to go into effect on December 1, 2016, are pending in federal district court in Texas. On November 22, 2016, the Judge hearing the Texas cases issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new rules. As such, employers who were busily preparing to comply with those rules have a reprieve at least for now- from having to comply.

    In his decision, Texas Judge Mazzant concluded that the plaintiffs established a prima facie ...

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    In the aftermath of President-elect Trumps victory, many employers are wondering how the president-elects priorities will impact their employment and labor law obligations. One immediate question on employers minds is whether they still must comply with the Obama administrations new federal overtime pay rules set to go into effect on December 1, 2016. It is highly unlikely that there will be any activity related to these rules by President-elect Trump prior to the December 1 deadline, although a later retraction or retrenchment of the rules is certainly possible. Employers ...

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    Posted in Labor & Unions

    The most powerful weapon a labor union can unleash against an unwitting employer, whether unionized or not, is a strike. Strikes, however, can take different forms and arise under different circumstances. Last month, the National Labor Relations Boards (NLRB) Office of the General Counsel (GC), the prosecuting arm of the federal NLRB agency, issued a short but powerful memorandum regarding an increasingly common union tactic: intermittent and partial strikes. While the Board has generally held that such strikes are not protected under the National Labor Relations Act, the GC ...

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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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    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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    Last week, the Equal Employment Opportunity Commission (EEOC) announced the approval of the new EEO-1 report form by the White House Office of Management and Budget (OMB). Beginning in March 2018, the EEOC will use the revised EEO-1 report to collect summary employee pay data from certain employers. Specifically, private employers with 100 or more employees are required to fill out the revised EEO-1 report on an annual basis. Federal contractors and subcontractors with 50-99 employees will not have to submit summary pay data, but they will continue to report demographic data ...

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    Insubordination is a term that shows up frequently in documentation and discussions about why an employee was, or should be, disciplined or terminated. According to the dictionary definition, insubordinate means not obeying authority or refusing to follow orders. Following direction from ones boss is a pretty important part of any job, so insubordination certainly sounds like it should be a terminable offense. However, it is risky for employers to accept a charge of insubordination at face value without analyzing the nature of the conflict that is driving it. Labor law protects a ...

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    On September 9, 2016, the National Labor Relations Board (NLRB) and the U.S. Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class action waivers)are invalid under federal labor law. Given the clear split on this legal issue among the federal circuit courts, the Supreme Court appears likely to accept review.

    What's the Split and Where Does Minnesota Stand?

    Class Action Waivers Are ...

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    Posted in Leave
    Nearly a year ago, we began discussing the growing movement from the local to the national level to require employers to provide employees with paid sick leave. Just last week, St. Paul became the latest city to pass an ordinance that guarantees paid sick leave for covered employees who work 80 hours or more in the city per year.
    Here are some key details of the St. Paul sick leave ordinance:
    • The ordinance will become effective July 1, 2017 for employers with 24 or more employees. The effective date is January 1, 2018 for employers with 23 or fewer employees.
    • The ordinance requires all
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    In our January 29, 2016 post, we informed you that the U.S. Equal Employment Opportunity Commission (EEOC) had published a proposed enforcement guidance on Retaliation and Related Issues for public comment. On August 25, 2016, the EEOC issued the final enforcement guidance, which is available here: 
    The new enforcement guidance replaces the retaliation section of the EEOCs 1998 Compliance Manual and addresses the issue of retaliation under various federal anti-discrimination statutes, including the ...
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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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    Its been a busy year for Minnesota employers on the wage and hour front. As discussed in prior posts, new salary requirements will go into effect for white collar exempt workers on December 1, 2016, and a new Minneapolis sick pay ordinance will become effective July 1, 2017. On the heels of these developments, employers may also need to prepare to address a potential $15 per hour minimum wage requirement in Minneapolis. Wage advocacy groups recently scored a victory when a Minnesota district court said that Minneapolis voters must be permitted to vote in November 2016 on the proposed $15 ...

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    Posted in Labor & Unions
    Employers by now are likely accustomed to hearing about the National Labor Relations Board (NLRB) and its efforts to firmly insert itself into both union and non-union workplaces. For the past few years, the NLRB has issued countless decisions invalidating what have otherwise been deemed routine and sensible employment policies, such as requiring confidentiality of internal investigations, clarifying at-will employment, and prohibiting workplace bullying. Recently, however, the NLRB issued a decision involving corporate mergers and acquisitions that will impact ...
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    As discussed in prior posts, the Equal Employment Opportunity Commission (EEOC) has a strategic enforcement agenda focused on expanding Title VII protections to encompass gender identity and sexual orientation. Courts are weighing in, with varied results. According to the EEOCs website, a number of federal courts have sided with the EEOCs interpretation of Title VII, primarily in the context of gender identity. On July 28, 2016, however, the U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit precedent, Title VIIs anti-discrimination protections do not ...
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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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    I may be getting older, but it seems like I just wrote last years post about changes in Minnesota's minimum wage law. However fast it seems to you, on Monday, Aug. 1, 2016, Minnesota's minimum wage will increase again to $9.50 per hour for large employers. The increase stems from significant changes to Minnesota's minimum wage statute in 2014, providing for higher minimum wage rates over time indexed to inflation. Employers should ensure they are prepared for the change and that they are also preparing for the substantial change in salary requirements for white collar exempt employees ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and in light of the important changes to the DOL overtime regulations going into effect December 1, 2016, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals. The series has covered some basics of this important law and includes a discussion of the DOLs new regulations. This is the fourth post in that series.*
     
    As discussed in previous posts, determining the proper FLSA classification of an employee can be taxing. In addition to the white collar exemptions (e.g. Executive Employees
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    As we've discussed in prior posts, a top strategic enforcement focus of the EEOC is protecting LGBTQ individuals from discrimination in the workplace. The EEOC filed its first Title VII lawsuits alleging sex discrimination against transgender individuals in late 2014, and the EEOCs efforts in this area continue to make headlines.
    The EEOCs most recent suit, filed last week, is against Bojangles Restaurants, Inc., which operates a chain of fast food restaurants in the Southeast portion of the United States. In the lawsuit, the EEOC claims that a transgender woman, Jonathan Wolfe ...
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    The federal Occupational Safety and Health Administration (OSHA) issued a final regulation in May that establishes new electronic recordkeeping and reporting requirements. The overall purpose of the new regulation is to reinforce anti-retaliation protections for employees who report workplace injuries and illnesses. Electronic reporting requirements under the new rule go into effect on January 1, 2017, but employers must comply with the rules anti-retaliation provisions by August 10, 2016.

    Anti-Retaliation Requirements:
     
    The anti-relation provisions include three ...
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    The Minnesota Court of Appeals recently clarified that an employee who is fired for refusing to comply with an employers unlawful tip-sharing practice can sue for wrongful discharge under the Minnesota Fair Labor Standards Act (MFLSA) and seek monetary damages, including back pay. In Burt v. Rackner, an employee of Bunnys Bar & Grill (Bunnys) was told that he needed to give more of his tips to the bussers, and that there would be consequences if that did not happen. That did not happen and Bunnys fired the employee for not sharing his tips with other staff.
    The Court ruled that the ...
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    A Chinese employer made news last week for an unusual workplace discipline episode after a cellphone video revealed employees receiving public spankings for poor performance. The cellphone video shows a man with a wooden stick spanking eight employees four times each. The employer, a bank, claimed the spankings occurred during a team-building exercise facilitated by a corporate coach.
    Corporal punishment is illegal in China, and, not surprisingly, a spanking policy or team-building endeavor of this kind would raise serious legal issues for U.S. employers as well. 
    In ...
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    A white news anchor has filed a race discrimination lawsuit against her former employer, a Pittsburgh television station. Wendy Bell made headlines earlier this year when she was let go from her anchor position after posting controversial comments on a Facebook page sponsored by the television station. Now, Bell is making headlines again for her unusual race discrimination claims.

    Earlier this spring, the Washington Post reported that Bell was fired after she posted comments on Facebook about a mass shooting that Bell had recently covered on air.

    In her comments, Bell stated You ...

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    Posted in Wage & Hour
    As we reported last month, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions to the Fair Labor Standards Act (FLSA), which will go into effect on December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for the white collar exemptions. Many nonprofit employers are concerned about the impact the salary changes will have on their organizations.
    Neither the FLSA nor the regulations provide an exemption from the overtime requirements for nonprofit organizations. However, some nonprofit ...
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    Posted in Discrimination
    On May 16th, the Equal Employment Opportunity Commission (EEOC) released final regulations designed to reconcile contradictory rules for employers related to employee wellness programs and non-discrimination laws. An EEOC summary of the final regulations is available here, and you can find the final rules here and other commentary and coverage here, here, and here.
     
    The Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) include clear restrictions on an employers ability to collect and use employee health information. Just ask the ...
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    After ongoing discussions for more than a year, the Minneapolis City Council voted unanimously on Friday May 27, 2016, to become the first city in the Midwest and the 23rd city nationally to mandate paid sick leave for employees. Minneapolis Mayor Betsy Hodges first called on the Minneapolis City Council to pass a local sick leave ordinance in her April 2015 State of the City address. Since that time, numerous businesses, community members, and a fifteen-member task force named the Workplace Partnership Group have been studying and weighing in on the passage of a sick leave ordinance.
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    Last week, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions which will go into effect December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for most exempt employee statuses and also increases the total annual compensation amount for the exempt category of highly compensated employees.
     
    While the Fair Labor Standards Act (FLSA) requires most employers to pay mandatory minimum wages and overtime pay to employees, certain employees are exempt. These exemptions generally require ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and culminate in a discussion of the final changes to the regulation upon their release. This is the third post in that series.*
     
    Given the time-intensive and nuanced analysis involved in calculating hours worked by non-exempt employees, compensable and non-compensable working time, and the regular rate of pay, many employers ...
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    The Federal Defend Trade Secrets Act (DTSA), which was featured in our blog post last week, was signed into law by President Obama on Wednesday, May 11, 2016. As discussed in last weeks post, this important new federal law offers another avenue for employers to protect their valuable trade secrets. The DTSA creates two significant benefits for companies: (1) consistent and uniform law nationwide; and (2) guaranteed access to federal courts. It also provides for injunctive relief and additional monetary remedies. Now that the DTSA has been signed into law, companies seeking the ...
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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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    Posted in Wage & Hour
    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and culminate in a discussion of the final changes to the regulation upon their release. This is our second post in that series.*
    Additional contributions by Dorrie Larison.
    As discussed in our previous FLSA blog post, it is crucial for an employer to accurately calculate a non-exempt employees regular rate of pay. If you missed ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and end with a discussion of the final changes to the regulation upon their release.*
    As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 ...
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    *This is the first in a recurring series of You Cant Make This Stuff Up posts.  One fun part of working in the employment law or HR world is getting to track new and interesting employment law developments and navigate situations that sometimes are stranger than fiction. In our You Cant Make This Stuff Up posts, well bring to your attention some of the strange and sometimes unbelievable situations that employers and employees face.*
     
     
    In recent stranger than fiction news, a Mankato employer was raided Thursday by Minnesota drug agents because it allegedly gave its employees an unusual ...
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    Last week, we wrote about employer best practices with respect to responding to possible employee medical issues. A recent case out of the Eighth Circuit showcases one employers creative approach to thinking about possible future medical issues.

    BNSF Railway Company, based in Nebraska, reportedly has had a policy of not hiring any applicant for a safety sensitive position if the applicant has a Body Mass Index (BMI) of 40 or higher. According to the Centers for Disease Control and Prevention, a person with a BMI of 30 or higher is considered obese.  In the recent Eighth Circuit case ...

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    A helpful rule of thumb for employers trying to navigate compliance with the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other laws affected by employees health or medical conditions, is to leave the diagnosing to doctors. Employers are obligated to provide leave where appropriate, or accommodations when needed, but an employer who tries to determine on their own whether an employee (or an employees family member) has a real medical issue, what the cause of that issue is, or what it will take to accommodate that issue, puts itself at higher risk of ...
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    On March 22, 2016, the United States Supreme Court issued an opinion making it clear that employees can establish commonality through the analysis of an expert, and application of his representative sample evidence, for purposes of class certification of state law claims, under Rule 23, and certifying FLSA claims as a collective action, under 29 U.S.C. 216. Tyson Foods, Inc. v. Bouaphakeo, __ S. Ct. __, No. 14-1146, 2016 WL 1092414 (March 22, 2016).

    The plaintiffs in Tyson Foods worked in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa. To do their ...

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    Last week, the Eighth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) ruling that a Jimmy Johns franchisee engaged in unfair labor practices and violated the rights of workers under the National Labor Relations Act (NLRA), after the employees were terminated for staging a public campaign protesting the company's sick leave policy.

    In MikLin Enterprises, Inc. v. National Labor Relations Board, employees were fired after displaying posters which protested the company's sick leave policy at the franchisee's Jimmy John's sites. The employees had ...
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    The highly anticipated final white collar salary exemption rule (Final Rule) is one step closer to becoming reality. The proposed rule would raise the minimum weekly salary requirement for the FLSA white collar exemption from the current $455 per week amount ($23,660 annually) to $970 per week ($50,440 annually). You can read our earlier post about the proposed rule here.
    On Tuesday, March 15, the U.S. Department of Labor sent the Final Rule to the White House Office of Management and Budget (OMB) for review, ahead of the expected review and release schedule. The specific provisions of ...
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    As noted in a previous blog post, Justice Scalia's sudden passing last month will have a big impact on how key labor and employment cases are decided by the U.S. Supreme Court. On March 16th, President Obama nominated Judge Merrick Garland to fill Justice Scalia's seat. Judge Garland is currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The D.C. Circuit is a primary forum for challenges to administrative actions, including actions by the National Labor Relations Board (NLRB). This means that Judge Garlands judicial record is of ...
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    This week, the U.S. Equal Employment Opportunity Commission (EEOC) made the landmark announcement that it has sued two companies for sexual orientation discrimination under Title VII. On March 1, 2016, the EEOC filed suit against Scott Medical Health Center in federal district court in Pennsylvania and Pallet Companies d/b/a IFCO Systems in federal district court in Maryland.  Both cases allege that the defendant employers discriminated against the plaintiffs based on sexual orientation and, by doing so, violated Title VII of the Civil Rights Act of 1964. Title VII does not ...
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    Workplace wellness programs continue to grow in popularity, despite being an enforcement target of the Equal Employment Opportunity Commission (EEOC). We have previously posted some updates on the evolving law and regulations in this arena, as well as some compliance recommendations.

    Some popular wellness program features include financial incentives, disincentives, and data mining. According to some sources, more than a third of U.S. employers use financial incentives to encourage employees to participate in wellness programs. In addition, data mining and use of big data ...

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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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    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 Equal Employment Opportunity Commission (EEOC) is preparing to issue a new enforcement guidance on Retaliation and Related Issues. The impending guidance, available here, is not yet final, but has been published by the EEOC for public comment. Once the guidance is finalized, it will not technically carry the force of law, but it will feel like it does. While courts are not obligated to follow EEOC guidance, the EEOC itself relies on its own enforcement guidance documents when addressing discrimination charges or litigating on behalf of claimants. Employers should, therefore ...
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    In furtherance of pay equality and greater pay transparency, new requirements for federal contractors took effect on January 11, 2016, making it unlawful to discriminate against a party who inquires about, discusses, or discloses pay or compensation. (See 41 C.F.R. Part 60-1.) The executive order is intended to promote pay transparency and openness by permitting workers and job applicants the freedom to share information about pay or compensation without the threat of subsequent discrimination.

    The executive order is one of the methods the Obama administration has chosen to ...

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    In the early days of 2016, the Equal Employment Opportunity Commission (EEOC) continues its strategic enforcement focus on LGBT rights. Last week, the EEOC filed an amicus brief in a U.S. Court of Appeals for the Eleventh Circuit case, Burrows v. College of Central Florida.  In its brief, the EEOC argued that employment discrimination based on an individual's sexual orientation is a form of sex discrimination and unlawful under Title VII of the Civil Rights Act.


    In the Burrows case, the plaintiff, a college administrator, sued her former employer, claiming she was ...

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    The National Labor Relations Board (NLRB) has once again entered the confusing and inconsistent intersection between our technological ability to record almost anything and the rights of employers to restrict recordings in the workplace (the Gray Zone). (See our prior discussion about this topic in 2013). In a recent decision, the NLRB struck down a Whole Foods workplace policy banning employees from recording conversations or taking photographs in the workplace without approval.

    In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by ...

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    Wage and hour issues heated up earlier this year when the U.S. Department of Labor (DOL) released a proposed rule that would more than double the salary threshold for employees to be classified as exempt under the "white collar" exemptions to the federal overtime requirements. You can read our post from July of this year to learn more about the proposed rule, which would raise the minimum weekly salary requirement for the white collar exemptions from $455 per week to $970 per week.

    The increased salary issue was expected to reach the boiling point with the release of the final DOL rule in ...

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    The Star Tribune reported Wednesday that a former high-ranking Starkey employee has sued the company for retaliation, claiming that she was wrongfully fired for raising questions about potential improprieties in the company's business practices. The suit continues a long-standing trend of mounting whistleblower and retaliation claims against employers. As discussed in an earlier post this year, retaliation claims continue to be the most commonly filed Equal Employment Opportunity Commission (EEOC) charge.

    Retaliation claims are increasingly common, because virtually ...

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    We've previously posted on the growing social and legal movement for transgender equity. In recent developments, a Minnesota-based federal court ruled that Lisa Scott, a transgender woman, could proceed to trial on a claim that her rejection as a plasma donor was unlawful transgender discrimination under the Minnesota Human Rights Act (MHRA). The MHRA prohibits employment discrimination based on gender identity, but also contains provisions that prohibit business discrimination based on gender identity. Scotts lawsuit is based on the business discrimination provisions of ...
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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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    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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    The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

    • Are employees entitled to time-and-a-half pay for holidays worked?  No unless time worked on a holiday includes overtime ...
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    Posted in Labor & Unions

    When picturing a union organizing campaign, you might picture a contentious battle between a justice-seeking union and the supposedly big bad corporate employer. But, this week we saw one example of unionization in a more cooperative work environment . . . literally.

     
    On Monday, workers at the Wedge Community Co-op in Minneapolis voted 76-31 to be represented by the United Food and Commercial Workers Local 1189, becoming the first cooperative grocery in the Twin Cities to unionize.
     
    Co-ops tend to be all about democracy and the coming together of community members for a common ...
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    Last week, President Obama made headlines when he announced a forthcoming executive order to ban the box on federal job applications. The President directed the federal Office of Personnel Management to modify its rules for federal agency hiring decisions to delay questions about an applicants criminal history until later in the hiring process. While many federal agencies have already taken this step, the Presidents action will make the ban the box practice universal for federal government hiring. In making his announcement, President Obama cited statistics indicating that 70 ...
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    Even for employers with the best of intentions, workplace wellness plans carry risk. We have previously posted about some of the perils and pitfalls that can result from corporate efforts to help employees stay well. We also wrote about a local company that found itself in the Equal Employment Opportunity Commissions (EEOC) crosshairs because of its wellness plan.

    After facing increased EEOC scrutiny, employers may soon be receiving some welcome news from the EEOC. Last week, the EEOC issued a Notice of Proposed Rulemaking for a rule that, if finalized, would amend regulations ...
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    The National Labor Relations Board (the "Board") continues to focus on protecting employee activity in social media outlets, as reflected by the Board's protected concerted activity page.  Last week, the Second Circuit Court of Appeals decided a case that will likely further that enforcement activity.
    In Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. National Labor Relations Board, the Second Circuit upheld the Board's decision that an employee's use of the Facebook "like" and comment features can be protected activity under the National Labor Relations Act ("NLRA").  ...
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    Posted in Wage & Hour
    In the midst of busy work days, it can be helpful to revisit important fundamentals. As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.
    An employees regular rate is, however, not necessarily the employees set hourly rate of pay. Instead, the regular rate of pay is the hourly rate that the employee has, in fact, received for each weeks work. Because overtime pay is normally ...
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    Posted in Leave, Wage & Hour
    The Star Tribune reported today that the Minneapolis mayor and city council have, at least for now, tabled a controversial proposal to require businesses to adopt predictable scheduling practices or face monetary penalties. As discussed in last weeks post, the City's earlier proposal would have penalized Minneapolis-based employers for failing to give substantial advance notice of work schedules or changing schedules on short notice. The proposal faced significant opposition from Minneapolis businesses and even some of the workers that the proposal was intended to help (see ...
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    Throughout the year, we've posted about efforts at the federal and Minnesota legislative level to enact paid sick leave laws.  So far, there's no federal or Minnesota state-wide law, but there is clearly a growing movement afoot around the country to pass such laws. And now, the Minneapolis City Council is getting in on the action. The City Council is considering an ordinance that has been referred to as one of the most far-reaching paid sick leave initiatives in the nation. The proposed ordinance, known as the Working Family Agenda, would require every business in the city of Minneapolis ...
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    Three former University of Minnesota-Duluth coaches filed suit against the University Board of Regents on Monday in federal court. Former women's hockey coach Shannon Miller, former softball coach Jen Banford, and former women's basketball coach Annette Wiles allege that University administrators discriminated against them based on their gender and sexual orientation and failed to properly investigate reports of harassment and discrimination. The lawsuit also claims disparities between the men's and women's athletic programs at the University.
    This lawsuit comes at a ...
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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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    As anticipated, President Barack Obama celebrated Labor Day by issuing an executive order mandating that federal contractors provide paid sick leave to their employees. The executive order requires that federal contractors and subcontractors provide their employees up to seven days of paid leave per year for themselves, to care for a sick family member, or to address domestic violence and stalking situations.

    President Obamas order is the latest in a series of executive orders aimed at federal contractors as the administration tries, so far unsuccessfully, to get broader ...
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    Nearly every employer has dealt with a difficult employee, a tense termination, or a particularly serious workplace conflict. In the wake of a tragic event like the recent Roanoke news station shooting, many employers are looking for better ways to handle employee conflicts and protect employees. According to OSHA statistics, each year nearly two million Americans report being victims of workplace violence (which includes physical violence, threats, harassment, and abuse). While no policy, procedure, or safety measure can guarantee security, employer policies and ...
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    The Minnesota Court of Appeals has made it a bit tougher to enforce certain non-competition agreements, but, with careful drafting, employers can safeguard themselves against the Court's ruling. In J.A.B., Inc. v. Naegle, 867 N.W.2d 254 (Minn. Ct. App. 2015), the Court of Appeals held that a two-year non-solicitation agreement that did not expressly recite the legal consideration for the agreement was unenforceable in light of Minnesota's statute of frauds, set forth at Minn. Stat. 513.01.

    Under fundamental principles of contract law, a contract must be supported by ...

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    Third party employers of home companionship or care workers may soon be required to pay those workers overtime pay under the federal Fair Labor Standards Act (FLSA). Last week, the United States Court of Appeals for the District of Columbia Circuit issued a ruling upholding the U.S. Department of Labors (DOL) Final Rule on the Application of the Fair Labor Standards Act to Domestic Service (the Final Rule). As a result, domestic service workers employed by third parties may soon be subject to FLSA overtime pay requirements.

    The Final Rule
     
    The DOLs Final Rule was issued some time ago and ...
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    Like most law firms, we interview current law students in the fall to identify those we will invite to work with us the following summer. Those who join us are summer associates, and we have just bid adieu to a terrific group from this summer. Summer associates who accept offers from the firm for attorney positions will rejoin us after they complete their last year of law school and take that little test called the bar exam.

    Millennials all, our recent summer associates didn't fit the negative stereotypes so often cast upon workers of their generation. This should really come as no surprise; ...

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    Continuing his pen and phone approach to effecting change, The New York Times announced last week that President Obama is considering using his executive authority to mandate paid sick days for federal government contractors and subcontractors.

    The draft executive order, which is marked pre-decisional and deliberative, would require a minimum of 56 hours (or seven work days) per year of paid sick leave for employees of federal contractors and subcontractors. Under the draft executive order, the paid sick leave would allow an employee to take paid time off to care for themselves or a ...
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    The EEOCs current strategic plan includes, as an enforcement priority, a focus on the employment rights of lesbian, gay, bisexual and transgender (LGBT) individuals. On the heels of prior EEOC rulings and lawsuits aimed at expanding LGBT workplace protections, the EEOC recently issued a lengthy opinion on July 16, 2015, in which it concluded that Title VII prohibits sexual orientation discrimination. While the decision involved a federal government employer, the ruling has practical implications for private employers that are required to comply with Title VII. The decision is ...
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    Its that time of year again.  On Saturday, August 1, 2015, Minnesota's minimum wage will increase once more to $9 per hour for large employers.  Minnesota's minimum wage statute was changed significantly in 2014 resulting in new definitions of large and small employers, higher and changing minimum wage rates over time, and indexing to inflation.  Employers should ensure that they are prepared for the changes to come.

    Minnesota's minimum wage is based on the size of the employer as determined by gross sales, with large employers paying more than small employers.  Under the amended 2014 ...
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    Posted in Discrimination
    There's only a few more sleeps ahead of us before the Americans with Disabilities Act (ADA) turns 25 years old. The law was signed by President George H.W. Bush on July 26, 1990. If you want to take a trip down memory lane, you can find a video of the Presidents signing ceremony here. As the ADAs historic moment approaches, you can also watch for one of the various celebration events going on around the country and track the ADA Legacy Bus as it nears the completion of its year-long celebration and awareness tour.
     

    Since the ADA was enacted, the landmark law has been expanded by the enactment of the ...

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    The U.S. Department of Labor (DOL) yesterday issued Administrators Interpretation 2015-1, providing guidance on the classification of employees and independent contractors. The DOL identifies the misclassification of employees as independent contractors as a high priority enforcement issue, labeling it one of the most serious problems facing affected workers, employers, and the entire economy. The DOLs guidance is intended to help employers in classifying workers and to curtail misclassification.

    The fifteen page document outlines the familiar multi-factor economic ...
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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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    The U.S. Supreme Court announced another eagerly anticipated decision last Friday, ruling that gay and lesbian couples have a fundamental right under the U.S. Constitution to marry. The Courts decision in Obergefell v. Hodges follows decades of advocacy by groups favoring and opposing same-sex marriage, as well as ramped up legislative activity and court battles over the legality of same-sex marriage in recent years.

    The cases before the Supreme court involved state laws from four states Kentucky, Michigan, Ohio, and Tennessee -- that defined marriage as the union of a man and a ...

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    The U.S. Supreme Court announced its much awaited decision today in the case of King v. Burwell. In its ruling, the Court upheld a key provision in the Affordable Care Act (ACA) that provides government subsidies for health care insurance for all Americans who qualify, regardless of whether the coverage is obtained through a federal or state run health care exchange. The Courts decision affirmed an earlier decision in the case by the U.S. Court of Appeals for the Fourth Circuit and endorsed the view of the Obama administration that subsidies should be available for all lower and ...
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    As distribution of medical marijuana is set to begin in Minnesota on July 1, 2015, a new ruling from the Colorado Supreme Court further clouds the air for employers attempting to handle the employment ramifications of marijuana use in the twenty-four jurisdictions now permitting marijuana use.
     

    On June 15, 2015, the Colorado Supreme Court held that an employer was permitted to discharge an employee due to his licensed medical use of marijuana at home during nonworking hours. In the case, Coats v. Dish Network, the employee had worked for the employer for three years before he tested ...

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    A hiring policy based on looks is like nails on a chalkboard to an employment lawyer. So it comes as no surprise that the "Look Policy" of an Abercrombie & Fitch (A&F) store caused A&F trouble before the Supreme Court last week when the Court found in favor of the EEOC on a charge of religious discrimination against the clothing retailer. However, the decision has implications that reach beyond image-based hiring and sets standards of proof for religious accommodation claims and Title VII generally.

    The Court's 8-1 opinion held that an employer need not have actual knowledge of an ...

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    Government contractors continue to be the target of increased regulation. As part of implementing President Barack Obamas Fair Pay and Safe Workplaces Executive Order (E.O. 13673), the U.S. Department of Labor has issued proposed guidance and the Federal Acquisition Regulatory Council has issued proposed regulations. The Presidents Executive Order, issued last summer, requires federal contractors to disclose adverse judgments in lawsuits, administrative/agency proceedings, and arbitration to the contracting agency under fourteen federal employment and ...
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    The US Department of Labor has finally issued new versions of its sample Family and Medical Leave Act (FMLA) notice, provider certification, and military certification forms. The old DOL forms expired some time ago, leaving employers to wonder when they would receive the DOLs new blessed versions of the forms. Well, they are finally here!
    Employers are not required to use the DOLs new sample FMLA forms, but using them can give employers the peace of mind that they are asking for information they are allowed to obtain without over-reaching, and that they are providing all the FMLA ...
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    Posted in Discrimination
    This month, the EEOC began to roll out ACT Digital, the agency's first step to a digital charge system. ACT Digital will enable electronic transmission of documents filed between the parties to a charge and the EEOC. Implementation began on May 6 with EEOC offices in the Charlotte and San Francisco areas. EEOC offices in Denver, Detroit, Indianapolis, and Phoenix will also begin implementation by the end of May. The remaining EEOC offices will roll out implementation in stages, with the EEOC expecting ACT Digital to be available in all offices by Oct. 1, 2015.

    Phase 1 of implementation ...
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    A recent court order in a case in Iowa reminded me of how easy it is for employers to waive the attorney-client privilege by disclosing (deliberately or inadvertently) the advice they receive from their attorneys. The order shows that a careless reference indicating that a decision was based on the advice of counsel opened the door and required the disclosure of conversations between the attorney and the client. Whitney v. Franklin General Hospital (U.S. District Court for the Northern District of Iowa, Ruling on Motion to Quash, April 23, 2015).
    One of the oldest recognized ...
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    Two recent articles pose interesting questions regarding recruiting and retaining younger workers. The first, at Fortune.com, and a related Wall Street Journal blog post, consider whether an employment advertisement seeking digital natives is evidence of age discrimination. The article notes that the term digital native was coined by author Marc Prensky and refers to individuals who grew up with technology, becoming native speakers of the digital language of computers, video games and the Internet.

    Fortune found, however, that employers have used the term in a way that could ...
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    Posted in Discrimination
    Earlier this week, the U.S. Supreme Court issued a much anticipated ruling on the question of whether courts have the authority to review the adequacy of the Equal Employment Opportunity Commissions (EEOC) pre-lawsuit efforts to settle a case under Title VII of the Civil Rights Act of 1964. The EEOCs website contains a press release declaring the Courts Mach Mining ruling a step forward for discrimination victims, but other commentators have declared the ruling to be a victory for employers. This mixed reaction likely stems from the fact that the Courts opinion, when read carefully ...
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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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    The Equal Employment Opportunity Commission (EEOC) forged new ground earlier this month when it ordered the U.S. Army to pay damages to a transgender employee based on a discriminatory restroom policy. We have reported in past posts on the EEOCs increased enforcement focus on transgender rights in the workplace under Title VII of the Civil Rights Act of 1964, as well as the increased societal focus on this issue. (See, prior posts here and here.) The EEOCs recent April 1st ruling in Tamara Lusardi v. John M. McHugh, Secretary, Department of the Army reflects this trend and sets forth ...

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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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    The federal National Labor Relations Board (NLRB) is at it again. This time, the Boards general counsel has issued a March 18, 2015, Report Concerning Employer Rules. The Report is a detailed document setting forth the NLRBs position on the types of employee handbook policies that comply with or run afoul of Section 7 of the federal National Labor Relations Act (NLRA).  Under Section 7, all non-management employees have a legally protected right to engage in group activity aimed at improving their terms and conditions of employment. Many employers are surprised to learn that ...
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    In an update to a previous post, the highly anticipated United States Supreme Court decision in UPS v. Young was announced last week. In a 6-3 decision, the Court vacated rulings of the district court and the Fourth Circuit Court of Appeals, both having issued summary judgment in favor of UPS. The Court remanded the decision to determine whether the policies of UPS were legitimate and nondiscriminatory. The Court stated the Fourth Circuit had not yet considered the combined effects of UPS' other accommodation policies or the strength of UPS' justifications for the ...
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    When I present harassment training, I tell my audience that harassment is usually unlawful only when based on a protected-class status, such as race, gender, age, disability, etc. During the training, I often tell the story of the "equal opportunity harasser" the individual in the workplace who is a jerk to everyone and does not discriminate in picking the targets of his/her jerkiness (that's my technical term). This is the person who is a jerk to everyone. Because this person's behavior is status-blind, it doesn't violate discrimination or harassment laws.

    Some Minnesota ...

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    We recently alerted you to proposed legislation that, if passed, would expand last years Minnesota Womens Economic Security Act (WESA) by requiring paid sick and safe time off benefits for almost all Minnesota employees and extending pregnancy accommodation and parental leave obligations to all Minnesota employers.  You should be aware that Minnesota lawmakers are at it again. Late last month, additional legislation (HF 1093 and SF 1085) was proposed that is aimed at benefiting working parents. Together with the earlier proposed sick and safe leave bill, the legislation is being ...
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    Two big news items this week have affected people near and dear to me. First, I am an alumnus of the University of Oklahoma (OU). OU made national news this week due to the deplorable actions of now former members of its chapter of the Sigma Alpha Epsilon (SAE) fraternity, who were filmed chanting a racist song on the way to a party. The video went viral online, prompting a local and national outcry. OUs President, David Boren, moved swiftly to denounce the students actions and shut down the fraternity chapter. The second big news event occurred just down the street from my downtown ...
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    As we previously reported, the EEOCs targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower courts grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employers background checks, because the EEOCs expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOCs background check ...

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    On February 23, 2015, the Department of Labor (DOL) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.

    The changes to the rules are the result of last years U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (DOMA) which defined marriage for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined marriage for FMLA purposes as ...

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    Posted in Discrimination
    The EEOC released its FY2014 (Oct. 1, 2013 Sept. 30, 2014) enforcement statistics last week.

    Overall, the EEOC reported a decrease in filed charges compared with recent years.  The agency attributed the 5.2 percent decline from FY2013, at least partially to the government shutdown in October 2013. However, it also appears that apart from the shutdown, charges are slightly declining in recent years with FY2013 showing a 5.7 percent decline from the prior year.
    As in prior years, retaliation claims were the most frequently filed charge in FY2014. As such, it may be timely to ...
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    In conversations with clients and employment law colleagues, I have dubbed 2014 the year of the employee handbook. In the wake of the passage last year of the Minnesota Women's Economic Security Act (WESA), Minnesota employers were required to update employee handbooks and practices to address new wage disclosure rights, new anti-discrimination protections, and, as applicable, expanded protections for pregnancy, parental leave, and the use of employer-provided sick time.

    If certain Minnesota DFL Senators have their way, Minnesota employers may need to pull out those ...

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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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    It seems as though every other week brings news of a new social media hack. Last week, Crayola had hackers post inappropriate content on its Facebook page, and the official Twitter feed of U.S. military's Central Command was briefly taken over by ISIS sympathizers. Such incidents inevitably bring with them bad publicity, as well as a panicked scramble by the hacked entity to try to regain control of its account.

    The problem is that having just one layer of password protection makes an account ripe for hacking. A potential hacker can either guess or learn the answers to secret questions to ...

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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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    As we all get started on our New Years resolutions, employers should add one more to their list revising any email policies. In the waning days of 2014, the National Labor Relations Board (NLRB) issued an important email ruling that affects all employers, whether unionized or not. In the Purple Communications case, the NLRB held that non-management employees with access to their employers email system have a presumptive right to use that system during non-working time to communicate about union organizing or about other topics related to improving their wages and working ...

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    Posted in Labor & Unions

    Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for ...

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    Posted in Hiring & Firing
    If you are like many employers, you use an online job application or are considering switching to an online process. Online applications have many benefits, and there are numerous vendors prepared to help you set up an online site, populate it with forms, and set up applicant tracking and background check processes. Employers should be wary, though, of adopting stock background check forms provided by vendors. However well-intentioned, vendors do not always provide stock forms that comply with the federal Fair Credit Reporting Act (FCRA) or other applicable laws.
    A recent ...
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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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    For the uninitiated, Dropbox and other similar tools such as SkyDrive, Google Drive, or Cubby allow a user to log in to an account, upload documents or files to the cloud, and then access or download them from any device, anywhere at any time. Users can sync folders across devices and share or sync files with others.
     
    Chances are, more than a few of your employees have discovered the ease and utility of cloud-based storage and file sharing tools. They are incredibly useful. But, along with the upsides that these tools offer like increased efficiency and team collaboration they also ...
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    2014 has been a big year for pregnancy protections in employment law. In May, Minnesota enacted a new pregnancy accommodation law, and in July the federal Equal Employment Opportunity Commission (EEOC) issued an updated pregnancy discrimination guidance document. Developments in this area are set to continue in the upcoming year. Last week, the U.S. Supreme Court heard oral arguments in the Young  v. UPS case a highly watched case involving an employers potential duty to accommodate pregnant workers under the federal Pregnancy Discrimination Act (PDA). It is well-settled ...
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    Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labors regulatory agenda that you will want to track:


    We've been on the look-out for proposed revisions to the Fair Labor Standard Acts (FLSA) white collar exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to modernize and streamline the existing regulations and increase the minimum salary for the white collar exemptions. The Department of ...

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    On Monday, the current Ranking Member of the U.S. Senate Committee on Health, Education, Labor and Pensions (and chairman in the next Congress) Lamar Alexander issued a report critical of the Equal Employment Opportunity Commissions (EEOC) litigation tactics and management. Among other concerns, the report found that:
    Todays EEOC . . . is pursuing many questionable cases through sometimes overly aggressive means and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOCs litigation tactics to be so ...
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    On Monday a federal jury in California awarded $185 million to a former AutoZone store manager who alleged that throughout her employment she had been discriminated against, demoted, and ultimately terminated because of her gender and in retaliation for complaining about discrimination. Rosario Juarez worked at an AutoZone retail store in San Diego from 2000 to 2008. Although she received promotions and advanced in positions within the store, these allegedly occurred only after she raised complaints about disparate treatment of women employees. 

    After Juarez informed the ...

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    For the first time in weeks, online news reports have been relatively Ebola free. This week, the last Ebola patient in the U.S. was declared Ebola free and released from the New York hospital where he had been quarantined. There are currently no known Ebola cases in the U.S. 


    Nevertheless, I am continuing to field questions about how employers can keep their workplaces free of the potentially deadly Ebola virus. In addition to being concerned about their employees well-being, these employers are mindful that federal and state OSHA laws require employers to take reasonable ...

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    As we mentioned in a post last month, the EEOC has a clear agenda to target employer wellness programs. In our earlier post, we discussed two lawsuits against employers in Wisconsin. Now, the EEOC has set its sights on one of our local employers - Honeywell. Last week, the EEOC sued Honeywell over a wellness program that involves employees and their spouses being asked to participate in biometric screening and a determination of body mass index. According to the EEOCs complaint, employees who don't participate along with their spouses are assessed a surcharge of up to $500 on ...
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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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    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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    I love wellness programs. I am a sucker for discounts of any sort, and I especially like the idea of rewarding healthy behavior. My bicycle has a tag that logs my work commute when I pass the electronic stations throughout the Twin Cities, and I smile every time I hear its gratifying beep.

    So, I understand why employers like wellness programs. What's not to like about incentivizing healthy lifestyle changes while also lowering health insurance costs, decreasing absenteeism, and increasing productivity? As is so often the case, however, the devil is in the details.  If wellness ...

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    If you do business with the federal government, chances are that you're feeling weighed down by the various new requirements placed on you over the past year. We've discussed these requirements in past posts here and here. That's why you may be surprised to hear that the US Department of Labor's Veteran Employment and Training Service (VETS) published a final rule last week that actually makes something easier for federal contractors. The rule modifies and simplifies the reporting requirements under the Vietnam Era Veterans' adjustment Assistance Act (VEVRAA) for federal ...

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    If you're an Amazon Prime member or you've shopped online at Amazon lately, you've probably heard that Amazon launched a new TV series last week, "Transparent," about a 70 year old divorced father who announces to his children that he intends to transition from a man to a woman. The "Transparent" series is getting rave reviews and comes at a time of increased societal and legal focus on the rights of transgender individuals.


    Indeed, just before the launch of the "Transparent" series, the U.S. Equal Employment Opportunity Commission (EEOC) filed its first ever lawsuits alleging sex ...

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    Another Sunday has come and gone and with it, somewhat predictably, another Vikings loss. What's remarkable about this week, however, is that the team was without its star player, Adrian Peterson. Mr. Peterson has been barred from team activities pending the resolution of his criminal indictment for child abuse. Mr. Peterson has admitted to disciplining his 4-year-old son with a wooden switch and injuring the child in the process. The Vikings organization has been widely criticized for its initial response to Adrian Petersons indictment. The Vikings initially planned ...

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    Unless you were unplugged, you probably saw all the high profile names that made legal headlines last week. Included in that list was David Letterman. In a quick whirlwind of activity, a CBS intern filed a wage and hour lawsuit against CBS News and Letterman's production company, Worldwide Pants, only to drop the suit a short time later with a public apology. In the lawsuit, the CBS intern claimed that unpaid Late Show student interns were employees and that the failure to pay them wages violated wage and hour laws. The suit, had it proceeded, would have sought to recover back wages ...
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    I was sitting by a campfire last night and, although it was a beautiful night, I could not help but notice that there are signs of fall everywhere. The leaves are beginning to change, the evening air had a slight nip, and darkness arrived much earlier in the evening. These reminders of fall mean that, because of Minnesota's participation in Daylight Savings Time, we need to think about the semi-annual ritual of the changing of the clocks. Each spring we Spring Ahead by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each fall, when Daylight Savings Time ends, we Fall ...

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    Wage theft is becoming a popular phrase in the media. A New York Times article recently announced that More Workers Are Claiming Wage Theft. Other news outlets are using the phrase to describe lawsuits brought by workers of a wide mix of employers, ranging from Jimmy John's to NFL franchises. Wage theft even has its own website.

    At its core, wage theft is simply a catchphrase designed to draw attention to violations of wage and hour laws. The use of the term wage theft appears to be a relatively recent phenomenon. There were more references to wage theft in U.S. newspapers during the ...

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    Some popular online services made legal headlines this week. After years of litigation, a federal appeals court held that Yelp did not extort businesses by manipulating user reviews to coerce advertising purchases. While Yelp still faces other legal claims for false advertising and securities fraud, this case is significant given that Yelp's handling of user reviews has been widely criticized.

    While Yelp was presumably busy celebrating good news, the ride-sharing service, Uber, received bad news on its efforts to expand its services overseas. A German court banned Uber's ...

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    The National Labor Relations Board continues to focus on employer social media policies and employee discipline for online activity.  In a ruling this week involving Triple Play Sports Bar & Grill, the Board concluded that Triple Play unlawfully fired two employees for their response to a co-worker's Facebook post.  One of these employees had only responded to the post by clicking the Facebook like option on the post.  The Facebook post at issue related to the employer paying taxes, and the Board concluded the exchange about the post, including the like response, was a protected group ...

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    Last week we learned in Olson v. Push, Inc. that Minnesota's Drug and Alcohol Testing in the Workplace Act (DATWA) does not apply to a West Virginia employee working for a Wisconsin company. While at first blush this may seem like a no-brainer, there were facts in this case that made it a closer call. The plaintiff, Shawn Olson, applied for employment with Push while he was living in Minnesota. Push arranged for Olson to take a pre-employment drug screen, and for convenience sake, the test was arranged at a testing facility in Minnesota. Olson argued that because DATWA applies to employers ...

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    Posted in Leave

    When I conduct employment trainings, I often caution executives and managers to think before they email. In my experience, people tend to be more casual and to use poorer judgment when they email than when they write a memo or letter that, by its nature, seems more formal.

    Now, it turns out, that you better be careful before you snail mail too. In what some commentators are calling a game changing decision, the U.S. Court of Appeals for the Third Circuit recently held that a former employee could proceed to trial in her lawsuit under the federal Family Medical Leave Act (FMLA) based on her ...

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    Significant electronic data breaches made headlines again this week. Supervalu announced that millions of customer credit card numbers were stolen at various stores. In addition, one of the nations largest hospital chains - Community Health Systems - announced that the personal data of up to 4.5 million patients was taken when hackers bypassed the company's security measures. These latest breaches come at a time when a private research report is indicating that the medical sector has had more data breaches in the last two years than military and banking sectors combined. As we've ...
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    I recently read an article about how college football recruiters are using twitter to screen out potential players for their teams. Its becoming a somewhat common practice for recruiters to monitor the twitter accounts of high school players that they are scouting to see whether any red flags are raised. Based on some of the inappropriate tweets, colleges have decided not to pursue particular players and, in at least one instance, have even withdrawn a scholarship offer. Some of these college coaches are encouraging high school coaches to teach players that they need to be careful ...

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    As a follow up to our last Week in Review, wage and hour claims are still making headlines this week. Another technology company, SpaceX, has been sued for allegedly failing to provide employees with required breaks or to properly pay employees for off the clock work.  SpaceX also faces a separate lawsuit alleging that it failed to give former employees proper advance notice of their layoffs under California law.  Another big legal headline this week is the announcement that a federal judge has rejected a proposed $325 million settlement agreement between Apple, Google, Adobe, Intel and ...

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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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    Its been an interesting week on the wage and hour legal front. One of the big names in social networking, LinkedIn, made headlines this week when the U.S. Department of Labor announced a settlement of allegations that LinkedIn failed to properly record, account for, and pay certain employees for all of their hours worked. You can read the link below for lessons learned from this settlement. In other news, a federal judge ruled that critical federal government employees who worked during last year's government shutdown may be owed additional pay under the Fair Labor Standards Act ...

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    Businesses that support the sharing economy continue to grow, as evidenced by this week's news headlines. Airbnb announced it is partnering with Concur, a commonly used expense account management software. This partnership, which will include Airbnb as an expense booking option within Concur's software, is expected to introduce Airbnb to the business traveler market. Airbnb is also making legal headlines, as users of the site expose legal loopholes.  Read the link below to learn how a thirty day Palm Springs condo rental through Airbnb evolved into renters claiming tenant rights ...

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    Dust off your handbooks and rethink your employment policies the EEOC has just announced some significant changes in how it is going to investigate and litigate pregnancy discrimination claims.

    In its first comprehensive pregnancy guidance update in thirty years, the EEOC issued new pregnancy discrimination guidance in mid-July. The updated guidance is effective immediately, superseding the prior guidance and addressing the application of many laws passed since 1983 - including the 1990 Americans with Disabilities Act (ADA) and the 1993 Family Medical Leave Act (FMLA) - to ...

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    Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn't only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year.  And, for ...

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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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    Some high profile companies, including two technology giants, made headlines this week after former employees filed lawsuits against them alleging discrimination and harassment.  The case against Yahoo is likely to be particularly interesting, because the executive accused of harassment is alleging that she's being defamed by false allegations. You can read more about each of these lawsuits below, and you can revisit one of our recent prior posts for more information on the same topic.  In other news from Silicon Valley, Google is making headlines this week for its work on ...

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    Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...

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    Last week a New York federal court certified a class of approximately 250,000 African-American job applicants in a race discrimination case against the U.S. Census Bureau. The plaintiffs allege that they were unlawfully excluded from consideration for door-to-door census positions due to arrest records that never resulted in convictions. In other instances, applicants were allegedly rejected based on convictions for minor crimes or convictions that were so old they should not have been considered. The lawsuit alleges that the Census Bureaus practices disparately ...

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    According to an article in The New York Times this week, high level executives make up the majority of tablet users in the workplace. That may change, though, as in the workplace tablet usage increases.  It was predicted this week that, during 2015, manufacturer shipments of tablets will exceed shipments of desktops and laptops. This suggests more tablet use in the workplace going forward. While this is good news for the tablet industry, employers should be mindful of new data security issues in the headlines this week. A cyber forensic expert revealed this week that Google Glass wearers ...

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    We hope you had a happy 4th of July weekend!  Last weeks news included more employees making headlines for their misuse of social media.  The links below highlight three cases in which employees social media activity or misuse of company computers led to a loss of employment or litigation.  For other recent headlines on the same topic, check out this link to our Week in Review from a few weeks back.  These news stories are great reminders of why all employers should have a robust social media and computer usage policy in place.  So, as you're digging back into your work post-holiday, consider ...

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    On August 1, 2014, Minnesota's new minimum wage law takes effect. The new law changes the states minimum wage requirements in several ways, including new definitions of large and small employers, progressively increasing rates over time, and indexing to inflation.

    Minnesota sets its minimum wage based on the size of the employer as determined by gross sales. Under the new law, a large employer is one that has gross sales over $500,000 in annual business. Small employers are defined to have gross sales under $500,000 in annual business. Prior to the change, the gross sales ...

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    Technology's impact on privacy took center stage in news headlines this week. The New York Times and National Public Radio (NPR) both reported on alternative software tools to track employees in the workplace - one tool identifies inside security threats and another tracks employee productivity. Our blog post earlier this week also discussed this issue, highlighting both upsides to employee monitoring and some of the downsides and risks. In addition, there was big privacy news coming out of the United States Supreme Court this week. In a highly anticipated ruling, the Court ruled ...

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    Technology increasingly creates opportunities to monitor employee performance and workplace behavior. Monitoring is generally considered to be a tool that is likely to increase employee productivity and performance. Interestingly, though, the New York Times recently highlighted a Harvard Business School paper on the topic describing what it calls the Transparency Paradox. 

    Researchers conducted an experiment at a large factory in China, surrounding four of its 32 assembly lines with curtains to give a measure of privacy to the four lines. After five months, researchers found ...

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    Can you imagine receiving just a few work-related emails a day? Click the link below to read about the innovative communication solutions that companies are exploring to try to reduce the biggest distraction for their employees the volume of their inbox. Speaking of distractions, as we mentioned in last week's Week in Review, were in the midst of the 2014 World Cup. Much like March Madness, the World Cup is a month-long event that can create productivity concerns for employers. Since the 2010 World Cup, technology advances have created greater challenges for employers who seek to ...

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    June 2014 is Lesbian, Gay, Bisexual, and Transgender (LGBT) Pride month, and President Obama is set to mark the month by using his pen and phone approach to expand workplace protections for LGBT individuals. Frustrated with the inability to get various employment-related laws through Congress, President Obama has taken to using his executive authority to make progress where he can primarily with federal government contractors.  So far this year, President Obama has issued executive orders raising the federal minimum wage for federal contractors and requiring contractors to ...
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    Move over World Cup. Discipline based on employee social media activities is taking center stage this week. Well, maybe the World Cup has a few more headlines, but you can follow the links below to read four articles from this week about employees getting into employment trouble based on their social media activity. Also, a recent survey shows that 70 percent of employers have disciplined employees for on-the-job misuse of social media. One lawyer is making news, though, for his drastic protests of workplace discipline based on employee social media postings.  

    Don't worry . . . we ...
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    In a recent Week in Review post, we referenced a Wall Street Journal article about Zappos.com. It has abandoned job postings in favor of a radically different approach. Instead of posting job descriptions at online career sites, Zappos will maintain a social media network of Zappos Insiders. Through social media, people interested in working at Zappos will network and connect with current employees and provide (sometimes public) information about their skills and interests in hopes of being tapped to work in a specific job. As the Wall Street