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The Modern Workplace

Posts in Workplace Policies.

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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 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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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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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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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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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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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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*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, 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 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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 Journal article points out ...

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This week, the Minnesota Governor signed the Women's Economic Security Act (WESA) into law. The WESA makes a sweeping variety of changes and additions to Minnesota law aimed at protecting women's economic security. These changes include, among others, modifications to the length of Minnesota parental leave, a new required handbook notice regarding employees freedom to discuss wages and benefits, and the addition of a new protected class under the Minnesota Human Rights Act.  Some of WESAs provisions are effective immediately and others are effective later this year ...
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By now, you've probably heard of the audio recording of racist statements by L.A. Clippers owner Donald Sterling that has gone viral. Yesterday, the NBA commissioner announced that Sterling will be banned for life from the NBA and fined $2.5 million, the highest fine permitted by the NBAs constitution and bylaws. It also appears that Sterling stands to lose his ownership stake in the Clippers. 

Sterling's statements were recorded by a former girlfriend during a conversation in Sterling's home and later leaked to TMZ. There has been near-universal support for the NBAs swift and ...

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The Equal Employment Opportunity Commission (EEOC) has recently issued an informal guidance on the issue of religious dress and grooming. The guidance comes in wake of several suits accusing employers of religious discrimination for refusing to accommodate certain types of religious dress or grooming.

The EEOCs Religious Garb and Grooming in the Workplace:  Rights and Responsibilities guidance uses a question and answer format and covers a wide range of topics. In particular, the guidance notes the following:
 
       All employees covered by Title VII of the Civil Rights Act of 1964 ...
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A new labor agreement reached in France requires employers in certain technology and consultancy sectors to take steps to ensure employees are not plugging into work on their free time. France has had a 35-hour workweek for several years, and many believed it was being intruded upon by frequent out of office distractions caused by email and other technology. To combat this, French employers in these sectors are required to take steps to make certain that employees completely disconnect outside of their working hours. 

The invasion of work into personal lives is an international ...
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Across the country, federal government contractors are preparing to meet next weeks deadline for starting to comply with new affirmative action rules.  Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans.  Those new rules become effective next week on Monday, March 24, 2014.  Some of the new requirements imposed by the rules have a March 24th compliance deadline.  Others can wait until a contractor currently in the middle of its affirmative action plan ...

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The Obama Administration announced this week that it will give employers with more than 50 but less than 100 employees one more year to comply with the Affordable Care Acts employer mandate. (But beware: You cant lay off workers to ensure that you fall below the 100 employee mark!) That means that these employers have until 2016 to provide insurance to full-time employees before being subject to any penalties for non-compliance.

While employers covered by this extension may be breathing a sigh of relief, they shouldn't forestall putting in place one of the key action items for ACA ...
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Alabama State University is taking flak over the employment agreement it recently inked with its new president, Gwendolyn Boyd. No one seems concerned with the size of Dr. Boyd's salary and benefits. It is the clause restricting her ability to have slumber parties that is turning heads. The agreement provides that so long as Dr. Boyd is president and a single person, she shall not be allowed to cohabitate in the presidents residence with any person with whom she has a romantic relation.

Given the role college and university presidents play in wooing big donors and serving as chief ...

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While many Toronto residents spend their time wincing at the infamous antics of their elected (and possibly soon-to-be reelected) mayor, Rob Ford, I've been imagining what a Minnesota employer would do if he was its employee or, worse yet, a supervisory employee - not elected by the people. Are you cringing yet?

Fire Him! would likely be a common refrain. But for what exactly? His admitted use of crack cocaine? The death threats? The sexual comments? Knocking down a councilwoman and the viral video aftermath? There seems to be so much to choose from. Even when a termination ...

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Target Corp's data breach has been big news this holiday season, with as many as 40 million holiday shoppers across the nation exposed to potential credit and debit card fraud. According to the Identity Theft Resource Center, which tracks U.S. data breaches, the Target breach was one of over 600 data breaches in 2013. In our increasingly digital world, data breaches are a growing risk with many potential causes, including system failures, human error, employee misconduct, or outside theft. 

In the wake of the Target incident, many companies will be setting a 2014 new years resolution ...
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This week, Dropbox unveiled its new "Dropbox for Business" initiative, which gives employees a greater ability to establish digital work-life balance.  The product includes two data folders - one for business data and one for personal data so that businesses and workers have the ability to segregate digital work and personal data.  The Dropbox announcement came on the same day that Amazon unveiled a similar product. Airbnb also frequented the headlines this week, both for its new, streamlined app and for the scrutiny its vacation and home rental business is under from regulators.  ...

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The National Labor Relations Board (NLRB) appears ready to extend its jurisdiction over certain private and religious schools that were previously thought exempt from the NLRBs reach. If it does assert jurisdiction in these cases, the NLRB will act to protect union efforts to organize the schools faculty and other workforces. And just as significantly, an assertion of NLRB jurisdiction over these schools will clearly usher in the potential for direct NLRB involvement in deciding school policies.
The NLRB has several cases involving religious schools lined up for review, the ...
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Its Halloween, and we employment lawyers would be remiss if we didn't comment on the ways that workplace Halloween costumes can sometimes go wrong. The negative flack that celebrity Julianne Hough is receiving in the news for her blackface Halloween costume highlights the reality that, while Halloween revelry at work can be great fun, it can also come with a risk that an employee crosses over a racial, cultural, political, or other line and offends someone.


As such, it is a good idea to be thoughtful about office festivities and costumes. A little time spent on the front end can ...
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Lawyers often say that bad facts lead to bad law. Cases with outrageous fact patterns can drive a judge or jury to stretch the law and make outcome-based decisions in order to provide relief to a sympathetic party. Lawyers hate these types of decisions, because they can negatively skew the developing law based on one bad situation without enough consideration being paid to the legal implications for other, future cases.

 I recently read one of those decisions. In my frustration over the avoidable bad facts of the case, I had to draft this post. The decision, Lazette v. Kulmatycki, was ...
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Last week, this blog featured posts about the growth and reported benefits of workplace surveillance, as well as some of the legal risks that can arise from surveillance. Workplace surveillance can run the gamut from conducting targeted email searches to investigate potential misconduct by a particular employee to using complex software programs designed to detect theft, cyberloafing, or inappropriate internet usage by anyone in the workforce. As discussed in our previous posts, surveillance may create opportunities to decrease employee dishonesty and improve ...

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Earlier this week we blogged about employee surveillance and its potential to change employee behavior. As noted there, employee surveillance is a powerful tool that raises significant legal issues, including those discussed below. 
Discrimination Laws.  State and federal discrimination laws prohibit employers from obtaining information related to the protected class status of applicants or employees, such as information about national origin, religion or genetic or family medical history. Employers must take care not to search for such protected information, whether ...
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The Labor Day holiday is intended to celebrate the contributions of Americas working class. That turns out to be most of us, given the relative few who are independently wealthy and the decreasing percentage of Americans who are currently unemployed. Perhaps this Labor Day week is also an appropriate time to reflect on what makes workers feel valued, given that those who feel valued are likely to be more productive and to stay in their jobs longer. As noted in the Harvard Business Review Management Tip of the Day for August 9, 2013, When employees feel valued, they are more satisfied ...

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Electronic cigarettes or e-cigarettes have been in the news and are apparently growing in popularity. The New York Times recently published an online debate on the potential health benefits of e-cigarettes and their potential regulation. Other news outlets have published similar articles.  (see, e.g., here, here, and here). Many employers are wondering how to react to employees who want to use e-cigarettes  at work.

E-cigarettes are battery-powered devices that allow users to inhale nicotine vapors from a heated liquid. Proponents of e-cigarettes argue that they are a safer ...

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A recently-surfaced Advice Memorandum from the National Labor Boards (NLRBs) Office of the General Counsel opined that an employer social media policy prohibiting employees from photographing or video recording the employers facility unlawfully interfered with employees Section 7 rights. Before you run to revise any policies with a similar prohibition, we encourage you to take a deep breath and consider the consequences.
Many employers serve vulnerable populations, such as the elderly, the intellectually disabled, or those with mental health disabilities. In these ...
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The EEOCs Notification Letters have been sent and the lines are now open to complete the EEO-1 survey. Reports must be submitted by the September 30, 2013 deadline.
The EEO-1 is the form that the EEOC uses to collect workforce data from employers with more than 100 employees. Federal government contractors and first-tier subcontractors who have 50 or more employees and a contract or subcontract of $50,000 or more must also report. As the EEOCs websitemakes clear, employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. Qualifying ...
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Last week, I presented an employment law update at my firms annual Health Law Institute.  While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers.  I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments.   I thought the readers of this blog might appreciate a list too.  So here are some important employment law compliance to-do items:

     1.  Post the new FMLA poster, update your FMLA ...

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Effective August 1, Minnesota employers with 21 or more employees may have to change their sick leave policies. A change to Minnesota law, enacted during the 2013 legislative session, requires employers that offer paid sick leave benefits to allow the use of those benefits for absenses related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent. Previously, the law had required employers to allow use of paid sick leave only for absences due to the employee's own illness or the illness or injury of a child. The new legislation, which amends a ...

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As of July 1, 2013, the Federal Motor Carrier Safety Administrations Hours-of-Service Regulations relating to drivers of a commercial motor vehicle (CMV) are changing. These changes require some significant advance planning for employers of those who drive a CMV.

Who is affected by these new rules? 
First, the changes apply only to drivers of a CMV. A CMV is a vehicle that fits anyof the following descriptions:
       Weighs 10,001 pounds or more
       Has a gross vehicle weight rating or gross combination weight rating of 10,001 or more
       Is designed or used to transport 16 or more passengers ...
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What do discount retailer Dollar General and luxury automobile manufacturer BMW have in common? No, they haven't started selling BMWs at Dollar General stores. Rather, both companies were sued last week by the Equal Employment Opportunity Commission (EEOC) based on the agency's allegation that their criminal background check policies disproportionately impact black job applicants and employees. These are the first lawsuits brought by the EEOC since the agency issued guidance back in April 2012 (blogged about here) requiring employers to engage in an individualized ...

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In an interesting convergence of events, two Minnesota employers recently found themselves on the wrong side of Minnesota's marital status discrimination law just as Minnesota is preparing for same sex marriages to become legal on August 1, 2013. These recent cases serve as an important reminder that Minnesota law prohibits employment discrimination based on marital status, including discrimination based on the situation or identity of an employees spouse. Minnesota employers should also be mindful that, come August, both opposite sex and same sex spouses will be protected by ...

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Many employers experience frustration and challenges when trying to obtain meaningful background check information. The cost to replace a terminated employee is high, and can add up quickly for an employer in a high turnover industry such as retail. Employers are wise to develop strategies, tools and resources that help them to recruit qualified workers who will be loyal and trustworthy employees. Background checks are common, and most employers rely on outside vendors to do them. Background check vendors - companies that specialize in gathering and reporting on criminal ...

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Later this month, Ill be giving a presentation on employee handbooks.  This has me thinking about what types of policies should be included in a handbook and which items might be better addressed separately and outside of the handbook.  In considering technology and social media policies in particular, I've concluded that it may be best to maintain these policies as stand-alone policies outside of the employee handbook and, in some cases, to incorporate technology and social media requirements into individual employment agreements.

One key reason for considering a stand-alone ...
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It turns out that Facebook can be used for more than just reconnecting with old friends and getting employees in trouble (though there is still plenty of that going on). Now, depending on who you are and where you live, you might be vulnerable to legal service via Facebook. A New York federal court recently ruled that the FTC may serve defendants in India using both email and Facebook. It reasoned that such service was proper under the Federal Rules of Civil Procedure and the Hague Service Convention. Similarly, Texas lawmakers are considering a bill that would allow for service via social ...
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In the news this week has been a story about a decision by a university to search email accounts of several staff members in an effort to determine the source of a leak to the media. Like many employers, the University did not seek the employees permission before reviewing their emails. The employees whose emails were reviewed were not aware of the University's actions until earlier this month. 

The fallout from this incident is a good reminder that employers and employees may have very different expectations regarding emails and other electronic information stored on the employers ...
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Is workplace flexibility a necessary casualty of difficult economic times?  When thinking about the innovations that make up the modern workplace for which this blog is named, employers embrace of flexible work hours and locations would be very near the top of the list.  Advances in technology particularly electronic connectivity have allowed employers to move away from traditional concepts of the workplace and the workday.  More employers permit telecommuting by their employees and allow flexible work hours. There are, however, signs in the business world that employees may have ...
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Recent Department of Labor statistics indicate that the majority of employers who have breached Fair Labor Standards Act ("FLSA") provisions related to breastfeeding mothers have failed to provide an appropriate space for new moms to express milk. The FLSA was amended by the 2010 Patient Affordable Care Act to require employers to provide reasonable break time and a private space for a nursing mother to express milk for one year after the child's birth. All employers are expected to comply with the law, but employers with fewer than 50 employees are not subject to the requirements if ...

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Class action can be a scary term for any employer. During the past decade, the number of wage and hour class actions brought against employers by large groups of employees claiming violations of wage and hour laws under the Federal Labor Standards Act (FLSA) has increased dramatically. These cases, also known as collective actions are expensive and time consuming to defend. For more than two decades, employers have increasingly relied upon mandatory arbitration agreements in an effort to reduce the risk of class action claims. These agreements require employees to waive their ...
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As we welcome 2013, its time to focus on New Years resolutions. With President Obamas re-election and governmental agencies announcing increased enforcement efforts in the employment area, 2013 is likely to be an active year for employers. Now is a good time to focus on what the year may bring and to position your company to minimize employment law risks. A few resolutions that should make your priority list include:
1. Update Your Employee Handbook: 2012 brought a number of legal changes, including an aggressive focus by the National Labor Relations Board (NLRB) on the enforcement of ...
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This week, states across the country were determined to start off the new year with their best foot forward. High on their lists of priorities? Protecting the rights of online users. In Michigan, the Governor signed into law the Internet Privacy Protection Act, which made Michigan the fifth state (behind Maryland, Illinois, California, and New Jersey) to prohibit employers from requesting social media sign-in information from their employees. In Arizona, the legislature is considering a bill that would make it a felony to threaten, harm, or defraud someone through online ...

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This week, there were a number of interesting developments in the world of employment labor law. A NLRB judge ruled that a union's Facebook page is not an extension of the picket line. The case involved striking workers' threatening comments on the union's Facebook page. The NLRB Acting General Counsel initiated the complaint against the union, arguing that the union, which did nothing to disavow the comments, should be held responsible for them, just like it would be if they were made out on the picket line. The NLRB judge disagreed and dismissed the complaint.

The other two ...

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The U.S. Supreme Court heard oral arguments on Monday in Vance v. Ball State University, a case that could create a more uniform legal standard for determining when an employee is a supervisor under federal harassment law.
 Fourteen years ago, the Supreme Court ruled that employers can be held strictly liable for sexual harassment and other forms of unlawful harassment by a supervisor. When a supervisor engages in unlawful harassment that results in a tangible, adverse action against an employee, an employer is automatically liable for that harassment. In contrast, employers ...
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Three states held votes earlier this month about legalization of the recreational use of marijuana. In two of the three, Washington and Colorado, the measures were approved.  Oregon voters defeated the initiative in their state.  
What does this mean for employers doing business in states where recreational marijuana use is now legal? Its a little too early to tell, it seems, although it appears that at least in Washington, employers can continue to enforce their drug use and drug testing polices as before, at least for the time being.  Our Washington partner in the Employment Law ...
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Its hard to watch or read the news without being bombarded with the story of General Petraeus affair and resignation. The story has expanded beyond General Petraeus conduct to include allegations of inappropriate conduct by an FBI agent involved in the investigation (sending a shirtless picture of himself to Jill Kelley) and General John Allen (exchanging thousands of possibly "inappropriate" emails and other documents with Jill Kelley). As an employment lawyer, I'm continually amazed at the personal content that employees will send in emails and text messages, even from ...
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Election Day is almost upon us. The good news is that election ads and calls will soon be over.  For employers, however, one last challenge remains as they figure out how to deal with the many workplace issues surrounding elections.  For an overview of the potential free speech, labor law, social media, and voting leave implications for the workplace, please read my colleague Angela Ruds post from last month.
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In August, I wrote about NLRB decisions which found that certain at-will disclaimers in employee handbooks were unfair labor practices. In a Halloween surprise, the NLRB has now provided some not-frightening news for employers in the form of guidance on at-will disclaimers that do not violate the NLRA. 
The Board has now advised that the following disclaimer was lawful under the NLRA: 
Employment with [the Company] is employment at-will.  Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in ...
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The United States Department of Labor recently announced the creation of a virtual workplace flexibility toolkit designed to provide employers, employees, policy makers, and others with information and resources about workplace flexibility.
October is National Disability Employment Awareness Month, and the Toolkit is designed in part to assist employers of disabled workers who seek accommodations. The Toolkit web site makes clear, however, that it is intended to address all kinds of complex employment situations, including the circumstances of parents of young ...
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Finally, the NLRB has sided with an employer in a Facebook firing case. On October 1st, the NLRB issued its decision in the Karl Knauz Motors, Inc. case, upholding a car dealerships decision to fire a sales employee based on his Facebook postings.
As mentioned in a previous post the NLRB filed a complaint against the Knauz BMW dealership in May 2011 after the dealership fired a sales employee who had posted critical comments on Facebook about the dealership serving low-end food and drinks at an event promoting a luxury car. Other dealership employees had access to the Facebook page.
In its ...
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It's official. In California, you may now eat, read, or even sleep while driving to work. That is, if you are riding in a self-driving car. On Tuesday, the California governor signed a law that permits and regulates the driving of autonomous cars on California roads. While some may be skeptical, Google co-founder Sergey Brin touts these cars as improving transportation safety, increasing mobility of persons with disabilities, and making commutes more productive. He expressed hopes that these cars will be on the roads in less than five years.


On the other side of the country, states are ...

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With a tough economy, efficiency and productivity are often paramount for keeping a business afloat. While technology has certainly aided that cause, it has also provided workers with many time-consuming distractions. The productivity-stealing culprits this week: fantasy football, flirty emails, and co-worker impersonation. Check out the links below to learn more about the cost and benefits of allowing fantasy football teams in the workplace and the potentially unexpected effects of using emoticons in office emails (hint: you may find yourself a new admirer).

Another ...

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The blogosphere has been buzzing over recent actions taken by the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) to limit employer requests for confidentiality during workplace investigations. Confidentiality has long been viewed as a hallmark of a good investigation for important reasons, including preserving evidence, encouraging witness cooperation, and reducing retaliation risks. In light of recent NLRB and EEOC activity, however, employers will need to think more carefully about when and how to make confidentiality ...
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Theres a new and surprising issue employers should be aware of when updating their employee handbooks this year:  the scope of their at-will disclaimer. A few months ago, in American Red Cross Arizona Blood Services Region and Lois Hampton, an NLRB administrative law judge (ALJ) held that the acknowledgement form contained in an employers handbook violated the National Labor Relations Act, which applies to almost all private employers. The language in question stated:
 
I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
 
The ALJ ...
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A recent survey conducted for CareerBuilder.com is a good reminder that our words matter. Employers and employees were asked about swearing in the workplace. 51% of workers surveyed said they swear at work, although they reported being much less likely to swear in front of superiors than in front of their co-workers.  81% of employers said that swearing brings an employees professionalism into question, 71% said that it indicates lack of control, and 68% said it indicates a lack of maturity. Overall, 64% of employers reported that they would think less of an employee who repeatedly ...
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Okay, I couldn't resist the headline. The Star-Tribune recently ran an article with the headline: "Pedestrians distracted by electronic devices stumble into danger, raising safety concerns." As a lifelong klutz, I just had to read the article. Sure enough, statistics show a rise in the number of injuries sustained by those walking while using a cellphone or other electronic device. People are running into telephone poles, falling off subway platforms, falling into ditches, falling off curbs, and being clipped by cars while focusing on their electronic devices.  Some of the ...
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While reading a recent article in the Wall Street Journal, I was reminded how important it is for companies to be sure that the right people within their organization are informed of new and ongoing litigation and of the company's obligation to preserve potential evidence. When a lawsuit commences, your attorney should send you a litigation hold letter, informing your company of its obligation to preserve documents that may be relevant to the lawsuit. Most people understand that this means that they cant go shred a bunch of documents that might be relevant. What not everyone ...
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For as long as I can remember, I have advised employers that they have a right to monitor employee electronic communications, including emails, if the emails are sent or received on company equipment or company time. I ask the client about whether or not they have a clear policy putting employees on notice that they have no expectation of privacy in emails or other online activity done at work or on work equipment. If such a policy is in place, the employer is generally free to monitor employee activities, with or without other advance notice. This can be important when ...
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Yesterday investigators, led by former FBI Director Louis Freeh, published their independent report concerning Penn States response to reports of suspected child abuse by former football coach Jerry Sandusky. Sandusky was arrested in 2011 and convicted last month of 45 counts of sexual abuse involving 10 boys over a 15-year period. 
 
Freehs 267-page report is scathing in its criticism of the University and its leaders. Freeh said in a statement that [t]he most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized. Messrs ...
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As America turns another year older this week, the government, just like its citizens, struggle to keep up with technological change. While the Executive branch and its agencies are embracing the crime-fighting advantages technology has to offer, the other two branches are pushing back. Legislatures in Delaware and Pennsylvania are working to protect the privacy rights of their citizens by enacting new social media laws. In New York, a judge showed that social media sites are not above the law by ordering Twitter to turn over subpoenaed Tweets of an Occupy Wall Street protester. With ...

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While the powers of technology often spell trouble for employers and employees, they sure do make for interesting Weeks in Review. And this week is no different. Drag-queen Facebook photos, surreptitious surveillance, and anonymous emails all led to employee terminations this week. Perhaps the most noteworthy is the Oklahoma publisher who fired 25 employees over an anonymous, company-wide email that spoke of alleged outsourcing and mass layoffs. Not knowing the exact source of the email, the owner fired those he thought might be involved. To make matters more ...

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Employers these days have a lot of obligations. They have bills to pay, workers to manage, customers to satisfy, and laws to follow. But what happens when two obligations conflict? What is an employer to do?   When in doubt, follow the law right?  But one Minnesota employer recently discovered things aren't that simple, especially when the law may be telling the employer to do two different things.

A company in southeast Minnesota had approximately 30 Somali workers walk off the job on Monday morning to protest the companys new dress code policy. The policy, which prohibits women from ...

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Although employers rightfully appreciate the efficiency and responsiveness of employees who use cell phones (and smart phones) to get their work done, they must also be aware of the financial and safety risks created by the use of these devices while driving. Numerous media reports have trumpeted the increase of distracted driving including the use of a cell phone as a cause for automobile accidents. A recent article in the Washington Post noted multi-million dollar jury awards against employers in accidents involving death or serious injury, when the negligent driver was talking ...
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April 2012 was a busy month for the EEOC.  In addition to issuing new Guidance on discrimination against ex-convicts, the EEOC strengthened discrimination protections for another traditionally marginalized group - transgender individuals. In the case of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC found, for the first time, that transgender discrimination is illegal sex discrimination under Title VII of the Civil Rights Act of 1964.
Gender identity and sexual orientation discrimination is already unlawful under Minnesota state law and in a number of ...
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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on the use of criminal history information in making hiring and other employment decisions. This Guidance furthers the EEOCs strategic focus on eradicating systemic race discrimination, as discussed in earlier blog posts (4/25/12 and 1/27/12). Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To ...
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There is a chance that what your employees actually do in the day-to-day performance of their jobs isn't what's written in their job descriptions. This may not appear to be a problem if the work is getting done, but inaccurate or incomplete job descriptions can and do create problems for employers, especially if the EEOC or the Department of Labor comes calling. Employers are wise to include routine review and updating of job descriptions on their list of spring cleaning priorities. In addition to being part of a good defense against some claims of unfair or unlawful treatment, accurate ...
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All employers have had a request from a potential new employer for a recommendation about a prior employee. I use the term recommendation loosely, because often the potential new employer really wants to find out if there is anything wrong with the candidate they're considering. Providing information about prior employees, or even current employees, may create the risk of claims for defamation or create other types of liability. As a result, many employers try to limit their risk by declining to provide any recommendations for employees or former employees. Other employers modify ...
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If you know anything at all about the NFL, you know that Peyton Manning is one of the leagues great quarterbacks. What you may not know about Peyton is that he's a very generous tipper. Jon, a (former) server at the Angus Barn in Raleigh, NC, wanted the world to know. (Deadspin has the story here). Courtesy of Jon, a photo of Mannings restaurant receipt, showing an extremely generous tip, made it online. And now Jon, who obviously didn't think before he posted, provides a good example of why employers should educate employees on social media use and consequences.
Employees often fail to make a ...
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For more than 60,000 workers in America, March 5-9 will be the week that the "modern workplace" is at home. This week is the second annual effort of Telework Exchange to encourage workers and employers to save time and resources through telework. Telework Exchange describes itself as "a public-private partnership focused on demonstrating the tangible value of telework..." and describes Telework Week as a "win-win opportunity for agencies, organizations, employees, and the environment."


By the end of last week, 62,322 employees had pledged on Telework's website that they ...

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This week technology once again helped and hurt the workplace.  Companies are using cloud computing to save thousands of dollars, but employees still waste countless hours on email and the web.  Meanwhile, new technology is making headlines this week, from Google goggles to an app that locates your iPhone for you.  Plus, rumors are circulating about Microsoft Office on the iPad.  Even if it's not true, a new app will give you access to a Windows 7 desktop from your iPad.

Technology and the Workplace
Should You Send That Email? (FastCo)
Your Facebook Profile Can Predict Your Job ...

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I was researching cupcake places for an upcoming trip to New Mexico (I have a thing for cupcakes) when I came across the following advertisement for an unpaid internship on a cupcake shops website:

We're looking for interns! While these positions are unpaid, there is potential to lead to paid employment with [XYZ Bakery]. An internship with us is a great opportunity to learn all aspects of working in a scratch bakery, you'll have the opportunity to learn about cake batters, fillings, buttercream, fondant, gum paste, cake decorating and tiered cake construction.

No, I wasn't thinking of ...

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This week both Washington and the workplace paid close attention to technology.  Congress plans to approve a bill that will auction public airwaves in order to help cover the payroll tax cut extension.  The Federal Trade Commission called for better privacy notices for apps directed at kids.  App developers came under scrutiny by members of Congress after reports that many developers were gathering information from phone address books without the owner's knowledge.  And workplaces are realizing how mobile technology saves both time and money.
Technology and the Workplace
Why ...
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Many companies purchase smartphones or cell phones for employees use, or pay all or part of their employees phone service fees.  Employees see this as a great job perk, and employers like the increased productivity and accessibility that results.
So, what happens when an employer needs to do an investigation -- perhaps because of a complaint of harassment, or worries about leaks of confidential information -- and  wants access to the data? Many employers assume that because they pay for the service, they can gain access to the text messages and emails that have been sent from their ...
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In Minnesota, we've known that employee handbooks can be contracts since the Pine River State Bank case in 1983. Since then, courts have continued to find that the policies and statements in employee handbooks to employees can, in fact, be the terms of an enforceable contract between employer and employee. Employees have been awarded significant damages for breach of contract when policies outlined in a handbook are not followed, or promises made in a handbook are not kept.

Minnesota courts have held that employers can protect themselves from contractual liability by including ...

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Employees are more active on Facebook and spending more time browsing Twitter at the workplace, according to new research.  Employees were three times more active on Facebook at the office compared with activity during the same period in 2010, and they also browsed Twitter seven times more often. Does this mean employees are wasting more time and slacking? The report suggests the answer is not necessarily. A growing number of companies ask workers to use Facebook and Twitter to market products, monitor competitors, and communicate with customers. And they are encouraging this ...
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This week was nothing short of historic in the context of technology and the law. Wikipedia, Google, and others blacked out or censored their sites in protest of anti-piracy bills in the House and Senate.  Apple unveiled technology that could change the world of education.  Facebook introduced new apps that help users share even more information about themselves - yes, apparently it is possible. 
Technology and the Law
Internet Blackout Causes 18 Senators to Flee from PIPA (Forbes) (NYTimes) (FastCo)
U.S. Shuts Down MegaUpload, Charges Kim Dotcom, 6 Others with Piracy ...
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A recent article in the New York Times highlights an interesting lawsuit about a Twitter account. The lawsuit deals with legal and practical issues of interest to employers whose employees engage in social media on the employers behalf.
As reported by the Times, Noah Kravits, an employee of PhoneDog Media L.L.C., and its mobile phone website called Phonedog.com, opened a Twitter account and began regularly tweeting under the name Phonedog_Noah.  The company sells phones and related items and also posts articles and commentary.
After the Phonedog_Noah account amassed 17,000 ...
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If the large numbers of crashes by distracted drivers is not enough, companies that employ drivers of commercial motor vehicles (CMVs) have one more reason to prohibit the use of cellular telephones by drivers while driving:  The United States Department of Transportation recently announced the issuance of the final rule that prohibits commercial drivers from using hand-held mobile telephones while operating their vehicles. 


The final rule, issued jointly by the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety ...

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Twitter has been in the news this week, they've launched the first update to their website since its creation, and with 100 million followers and 250 million tweets per day, the social media tool has been providing fodder for the judicial system. Twitter has a propensity to show up regularly in the media, poor tweet judgment has repeatedly been shown by celebrities and politicians. Twitter feeds are easily subscribed to, available to the public, and almost intractable. These qualities can lead to a host of legal issues.  Once statements are sent out to the world at ...
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On November 18, 2011, the animal rights group Mercy for Animals released a video that was secretly recorded at several farms owned and operated by Litchfield, Minnesota-based Sparboe Farms, the fifth largest shell egg producer in the United States. The video shows the mistreatment of select hens used in the production of eggs. The video was obtained by ABC News and was used as part of a story for the ABC News Magazine television show 20/20.  That story and the surrounding media attention caused a ripple effect in the food industry. Within days of the release of the video, customers of ...
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During a recent training that I provided on hiring dos and don'ts, one of the managers attending the training asked if his company should continue to call previous employers for references.  The manager expressed frustration that most often, previous employers will only confirm dates of employment.  He wondered whether it is really worth the effort to continue to make these calls.  Short answer: I believe it continues to be a worthwhile step in the hiring process.

Although it is frustrating to a prospective employer to be given only basic information, theres a reason it happens that way ...
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This week we see the push and pull between the benefits that new technology can provide and the difficulties it creates when we try to integrate it into our current systems. A number of problems have arisen recently based on the availability of cell phone GPS data and the security of data organizational and protection software. These, and other technological issues affecting our lives, have been collected below.
Technology and the Law
Conflict Between Circuit Courts on Legality of Cellphone Tracking (SecurityNewsDaily)
Legality of Malls Tracking Shoppers Using their ...
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Technology definitely changes faster than the law. It can take anywhere from several months to several years for the law to recognize and sort out causes of action created by new technology. In the news this week, we see that courts and legislatures are getting more up-to-date on technology, and that problems sometimes result. Below are some links showing how the law has and hasn't kept up, as well as what has been changing in the world, the workplace and the law.
Technology and the Workplace
Who Owns Your Company's Twitter Account? (DelawareEmploymentLaw)
Most Hospitals ...
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Recent news coverage of Republican Presidential Candidate Herman Cain reminds us that sexual harassment in the workplace is still a powerful issue.  The events alleged by Mr. Cain's former employees took place before social media emerged as the force it is today, so its doubtful that email, text messages, or other forms of electronic communication were relevant to the investigations done by the National Restaurant Association back in the 90s.  In todays technology-saturated workplace, however, any and all forms of electronic communication may be critical sources of information in ...
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Performance reviews can be a managers least favorite part of the job. They can be uncomfortable, confrontational and emotional. So, often, instead of addressing incidents of misconduct or poor performance with the employee, managers avoid the issue, and may even give a neutral or positive review. Then, when the manager concludes that discipline or termination are warranted, there is no documentation to back-up assertions of negative job performance, which can make things difficult if an employee later claims the action was taken for unlawful reason.  But even leaving aside the ...
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When confronted with an intensive, time-sensitive writing project, there's nothing I like more than taking a day out of the office to set up shop at my kitchen table and crank the thing out in my jammies.  Apparently, I'm not alone.  According to a CareerBuilder survey, more American workers are working from home on a regular basis, and 30 percent like to do so in their pajamas (41 percent of females and 22 percent of males).  The more startling statistic in CareerBuilders report is that nearly one in five Americans who work from home spends less than an hour per day doing actual work.  This ...
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In the course of defending employment discrimination claims, I've had the opportunity to review thousands of emails produced by clients.  Most often, were hoping that the emails will provide documentation of performance concerns or otherwise validate the company's legitimate, non-discriminatory reasons for its actions.  Many times, we find ourselves in luck and are able to do just that.  More often though, we find emails that aren't very helpful. Those types of emails can range from content that makes the supervisors frustration with an employee quite obvious (i.e. forwarding an ...
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This summer the Office of Management and Budget (OMB) issued a memorandum to the heads of executive departments and agencies in the federal government about implementing security guidelines relating to the Telework Enhancement Act of 2010. It is a good reminder that, while there are lots of benefits to allowing employees to telecommute, employers need to be cognizant of protecting their systems and data from the risks associated with telecommuting.  It is also a good starting place for thinking about what should be in your policies and procedures.
In December of 2009, President Obama ...
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Okay - technology has done some wonderful things for all of us, including giving us the ability to store lots and lots of information.  But, do you really want to do that?

Many employers are looking at ways to be more efficient by using technology to gather and store information about employees and applicants.  Employers store everything from names to social security numbers to discipline data on electronic systems.


You may say, well that's just being efficient.  I'm all for efficiency, but employers need to be aware that they have to balance their need for information with the employees ...
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The General Counsel (GC) for the National Labor Relations Board (NLRB) plays a major role in deciding which cases the agency will prosecute and which legal theories it will apply in making those prosecutorial decisions.  This means the GCs recent analysis of fourteen separate social media cases (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) is highly instructive for the many employers and their lawyers who have been closely watching the NLRBs enforcement activity in this ...
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Our last post set out some of the key points for employers from the recently-published analysis of social media cases by the General Counsel (GC) for the National Labor Relations Board (NLRB).  (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases)  In this post we set out some of the key points about employer policies and employee handbooks gleaned from the GCs analysis. 
Most private employers are covered by the National Labor Relations Act (NLRA) and need to be mindful of the GCs ...
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The proliferation of social media has presented businesses with many challenges as well as many opportunities.  To address the challenges, employers have adopted policies aimed at guiding employees on appropriate use of social media.  Due to the slow pace at which cases make their way through our legal system, there is a dearth of published court opinions analyzing the propriety of such policies.  A recent Minnesota Court of Appeals decision is one of the first in this state to provide such guidance.  Although the case involved a student disciplinary matter at a public university, the ...
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The U.S. Chamber of Commerce just released a Survey of Social Media Issues Before the National Labor Relations Board (report available here and reported on here). The report summarizes of NLRB actions involving social media and related issues. According to the Chambers review of more than 129 cases: 
The issues most commonly raised . . . allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
Technology provides employees and unions with ...
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If you're a non-union employer, you may be under the impression that the machinations of the National Labor Relations Board are not relevant to you and your business. You may be wrong. For one thing, employees have rights under Section 7 of the National Labor Relations Act whether the workforce is unionized or not. The Board has made it clear that it will pursue charges against non-union employers for violating these rights, specifically for policies that interfere with employees right to engage in concerted activities for the purpose of . . . mutual aid or protection. What that means is ...
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From Merriam Webster: Luddite -one of a group of early 19th century English workmen destroying laborsaving machinery as a protest; broadly : one who is opposed to especially technological change.

Why do I start with a definition of the word Luddite? Quite simply, I'm probably at least in part a Luddite. I use technology every day; yet, I am reluctant to embrace much of the new technology. That may sound strange coming from a person who is writing on a blog about technology, but alas, it is true. Interestingly, every time I have been forced to use a new technology I have eventually embraced ...
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As I personally lament Netflix's unbundling of its online services and its price hikes, it occurs to me that the price increase could be good news for employers at least those with employees who find it appropriate to watch TV shows and full length films on the job. A recent study conducted by Harris Interactive and Qumu revealed that 17% of those surveyed watch videos at work, consisting of, in order of the most viewed videos: news clips (25%), viral videos (15%), videos on social networking sites (12%), sports clips (11%), TV shows (9%), full length films (4%), and porn (3%).

The June 2011

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The recent attention given to Apples announcement of its iCloud internet-based online storage service is yet another indicator of the growing popularity of cloud computing, or using online data storage for files that can be accessed and managed anywhere using an internet connection. Instead of saving your files and data to your own device, you save them in a cloud, or web-based file cabinet. Google has offered this service to consumers since 2005 with its Google docs service. Now Apple is joining in, offering a free service that will basically allow users to mirror their iTunes ...

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The subject of employees' email privacy comes up a lot, both in this blog and in employment law and litigation generally.  Last week's Week in Review, for example, cited a federal court judge's decision that an executive's emails, sent to his wife from his work computer,  were not protected or privileged, and could be used as evidence in a securities fraud case.  Evidence gleaned from emails shows up in many, if not most, harassment cases, and emails are a common source of evidence about the legitimacy of an employer's "non-discriminatory business reason" for an adverse personnel ...
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Last week, I provided some training to a clients HR team on conducting investigations.  As we were working through some hypothetical situations, the discussion turned to accessing employees emails.  The group knew that their company's policy addressed accessing the emails of current employees, clearly warning company email is not private and that it could be accessed or monitored by the company.  That being said, one individual raised concerns about accessing a recently departed employees emails.  She was concerned about who should have access to the email, and for what purpose and ...
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This Week in Review highlights the divide between on-duty and off-duty conduct of employees. Several articles from the last week involve stories about employee use of work computers to check Facebook and personal email, look at pornography, and access confidential medical information. This weeks round-up also features articles addressing the uncertainty faced by employers who attempt to regulate the off-duty conduct of employees. Although a recent NLRB Advice Memorandum upheld discipline of an employee for controversial statements on Twitter, another article asks whether ...

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The news last week about iPads and iPhones regularly recording geographic locations in a hidden file raises yet another challenge for employers. Consider the possibilities:
An employee complains that a supervisor who has her iPhone number in order to reach her for work reasons has been calling her repeatedly asking her out on dates and he is showing up where she goes after work with her friends. She suspects he may be tracking her every move using her number.

A line supervisor reports to HR that an employee has been lying about illness as the reason for frequent absences and shares that he ...
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We all knew schoolyard bullies, and, if we were lucky, they left us alone.  The less fortunate, however, sometimes suffered devastating and long-term effects from bullying.  Society has increased its focus on school bullying over the years.  New challenges have also arisen, however, as bullying has moved into cyberspace with widespread impact.  We continue to strive, however, to provide children with safe, healthy environments in which they can flourish and meet their full potential.

 
But what about our workplaces?  Does your company's environment allow employees to thrive and ...
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We increasingly live in an electronic world where entertainment news articles about movie and TV stars are featured adjacent to articles about important technology, political, legal, and world events. No star is in the limelight these days like Charlie Sheen, and his recent antics have the mainstream media telling us that Sheen can teach us a thing or two about how to conduct ourselves in the workplace in this increasingly electronic age.

This week, Charlie Sheen was fired from his hit TV show, and CNN.com posted an article stating that Sheens conduct demonstrates the perils of ...

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You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...

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The Gray Plant Mooty attorneys behind The Modern Workplace are devoted to exploring current issues in employment and labor law. We are particularly interested in The Next Big Thing, our shorthand for the many ways that technology is revolutionizing both the world we live in and the workplace. Each week, we will provide a summary of interesting news and blogs involving technology and law, especially the law of the workplace. This week marks the first of our TNBT: Week in Review features on The Modern Workplace.

The buzz this week in the world of technology is Watson, the IBM computer that ...
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Today we celebrate Saint Valentines Day, the annual commemoration of the martyrdom of Saint Valentine at the hands of the Roman Emperor Claudius II. Of course, we now celebrate this holiday by giving our loved ones heart-shaped candy and greeting cards! Although this may seem a strange cause for celebrating love, there is a romantic legend behind this otherwise morbid holiday. According to legend, the Christian priest Valentine was executed because he was performing marriage ceremonies for young men and women in violation of Roman law. Although this legend is now widely ...

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