Wednesday, November 25, 2015

Holidazed and Confused: Answers to Common Holiday Employment Questions

The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

Thursday, November 19, 2015

The Uncooperative Workplace: When the Union-Friendly Employer Faces Unionization

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

On Monday, workers at the Wedge Community Co-op in Minneapolis voted 76-31 to be represented by the United Food and Commercial Workers Local 1189, becoming the first cooperative grocery in the Twin Cities to unionize.

Thursday, November 12, 2015

Federal Ban the Box Law May Be On the Way for Federal Agencies

Last week, President Obama made headlines when he announced a forthcoming executive order to “ban the box” on federal job applications. The President directed the federal Office of Personnel Management to modify its rules for federal agency hiring decisions to delay questions about an applicant’s criminal history until later in the hiring process. While many federal agencies have already taken this step, the President’s action will make the “ban the box” practice universal for federal government hiring. In making his announcement, President Obama cited statistics indicating that 70 million Americans (nearly one in five Americans, and one in three Americans of working age) have some sort of criminal record.

Thursday, November 5, 2015

Is the EEOC easing up on employer wellness plans? New GINA regulations are coming.

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 Commission’s (“EEOC”) crosshairs because of its wellness plan.

Thursday, October 29, 2015

Second Circuit Says Clicking “Like” on Facebook is Protected Activity

The National Labor Relations Board (the "Board") continues to focus on protecting employee activity in social media outlets, as reflected by the Board's protected concerted activity page.  Last week, the Second Circuit Court of Appeals decided a case that will likely further that enforcement activity.

In Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. National Labor Relations Board, the Second Circuit upheld the Board's decision that an employee's use of the Facebook "like" and comment features can be protected activity under the National Labor Relations Act ("NLRA").  In Triple Play, two employees were terminated after engaging in social media activity on Facebook that was negative towards their employer. The first employee "liked" a Facebook status update by a former employee who stated, "[m]aybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...!!!!" The second employee commented on the same status update, referencing the owner by stating, "I owe too. Such an [a**h***.]"

The Board found, and the Second Circuit agreed, that the conduct of both employees was concerted protected activity under the NLRA, because it involved current employees discussing working terms or conditions. The Second Circuit also agreed with the Board's conclusion that the comments at issue were not so disloyal or defamatory as to lose protection under the NLRA. The Second Circuit noted that the comments "did not even mention Triple Play's products or services" and were not defamatory.

Importantly, the Second Circuit refused to accept Triple Play's argument that the comments at issue lost protection under the NLRA based on the comments containing obscenities and having been viewed by customers.  The Court stated that, because almost all Facebook posts have some potential to be viewed by customers, holding that this causes a loss of NLRA protection would have the undesirable result of chilling virtually all employee speech online.

In light of the NLRA's continued focus on protected concerted activity, employers should continue to exercise caution in implementing social media policies that may "chill" protected activities, as we discussed earlier this year in our post on employer handbook rules.   In addition, employers should be cautious before taking adverse actions against employees if their social media activities appear to include discussions related to their employment terms, conditions or environment.

Wednesday, October 21, 2015

FLSA Refresher: Calculating the Regular Rate of Pay for Overtime Purposes

In the midst of busy work days, it can be helpful to revisit important fundamentals. As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (“FLSA”) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.

Thursday, October 15, 2015

Minneapolis Drops Predictability Pay Proposal, Continues Push for Paid Sick Leave

The Star Tribune reported today that the Minneapolis mayor and city council have, at least for now, tabled a controversial proposal to require businesses to adopt predictable scheduling practices or face monetary penalties. As discussed in last week’s post, the City’s earlier proposal would have penalized Minneapolis-based employers for failing to give substantial advance notice of work schedules or changing schedules on short notice. The proposal faced significant opposition from Minneapolis businesses and even some of the workers that the proposal was intended to help (see, for example news reports at and Opponents argued that the predictability pay proposal would have dramatic negative effects on small businesses and decrease flexible scheduling favored by some workers.