Thursday, March 26, 2015

Important News on the Equal Opportunity Jerk: Minnesota Workplace Bullying Bill Is Reintroduced

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 legislators are, however, trying to raise the legal stakes surrounding bullying. On March 20th, the Minnesota legislature introduced a bill that proposes to make workplace bullying unlawful. The bill would prohibit employees from engaging in "abusive conduct" in the workplace. In addition, the law would make employers liable for such conduct unless the employer can establish an affirmative defense, such as prompt and appropriate action to stop and remedy the behavior. The proposed law defined "abusive conduct" as "conduct, including acts or omissions, that a reasonable person would find hostile, based on the severity, nature, and frequency of the conduct."  The definition goes on to provide some examples that seem targeted at severe, egregious mistreatment of others. You will, however, find no mention of legally protected-class status as a condition of liability.

So, it looks like our equal opportunity harasser is in big trouble, right? Well, not so fast. The "new" bill is actually a reintroduction of a bill that was proposed in 2011 and, at that time, went nowhere. The proposed Minnesota bill is modeled after the "Healthy Workplace Bill"—a bill that has been introduced in 29 states over the years—including 8 states in 2015. So far, none of these proposed state laws have passed, and the chances of the proposed Minnesota bill becoming law seem slim given that Republicans control the Minnesota House.

So, our equal opportunity harasser is in the clear again, right? Again, ... not so fast.  The movement to pass workplace bullying law is growing and, at some point, it might succeed. In the meantime, there are other serious issues to consider.  As discussed in a previous post, workplace bullying is bad for business, negatively impacting morale, attendance, productivity, work quality, customer service and the bottom line. Given these serious business costs, employers don't need to and shouldn't wait to prohibit bullying and to discipline bullies.  Shortly before the first Minnesota workplace bullying bill was introduced in 2011, my colleague gave wise advice in our earlier post about the steps an employer should take to reduce workplace bullying. These are steps that still make sense and can be made today to crack down on and get rid of the bad effects of an  equal opportunity "jerk."

Thursday, March 19, 2015

Are More Protections for Minnesota Working Parents on the Way?

We recently alerted you to proposed legislation that, if passed, would expand last year’s Minnesota Women’s 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 referred to as the “Working Parents Act.” 

If enacted, the Working Parents Act would considerably expand WESA and impose a number of significant new obligations on all Minnesota employers related to work schedules, pay, breaks, and flexible work schedules. While most of the proposed changes appear to be the type that would normally be aimed at non-exempt employees subject to timekeeping and overtime pay requirements, the legislation is drafted to extend to all employees – whether exempt or non-exempt. As currently proposed, the “Working Parents Act” would include the following new requirements:

Fair Scheduling: All Minnesota employers would be required to:
  • Provide each employee a written work schedule, including any on-call time, at least 21 days in advance; 
  • For new employees, provide a written work schedule on or before the beginning of employment covering the employee’s first 21 days;
  • Notify each employee of any changes in his/her work schedule before the change takes effect and provide a revised written work schedule reflecting the changes within 24 hours of making the change;
  • Post a written schedule of the shifts of all current employees at the worksite, whether or not they are scheduled for work or on-call that week, at least 21 days before the start of each work week and update the posting  within 24 hours of any change;
  • Start an employee’s work week on the same day of each week;
  • Not require an employee to work hours not included in the employee’s written work schedule without the employee’s written consent; and
  • Not require an employee to seek or find a replacement employee for any shifts or hours the employee is unable to work.
Predictability Pay: All Minnesota employers would be required to provide compensation to an employee for certain changes made to the employee’s work schedule less than 21 days in advance, as follows:
  • If the change or cancellation is made less than 21 days but more than 24 hours in advance, the employer would pay the employee one hour of “predictability pay” in addition to the wages earned during the changed shift;
  • If the change is made less than 24 hours in advance, but does not reduce the total hours of the shift, the employer would pay the employee one hour of “predictability pay” in addition to the wages earned during the changed shift; and
  • If the change or cancellation is made less than 24 hours in advance and reduces the total hours of the shift, the employer would pay the employee “predictability pay” equal to the lesser of four hours or the number of hours originally scheduled, in addition to the wages earned during the changed shift.
Nondiscrimination Based on Hours of Work: Minnesota employers could not pay employees a different rate of pay based on the number of hours the employee is scheduled to work. In addition, employers could not condition eligibility for leave, time off, raises, or promotions on the number of hours an employee is scheduled to work, but would be able to pro-rate employee leave or time off based on hours worked.

Right to Rest: Employees would have the right to decline work hours that occur either: (1) less than eleven (11) hours after the end of the employee’s prior shift or (2) during the eleven (11) hours following the end of a shift that spanned two days.  Employers would be required to compensate employees who do work such hours at one and one-half times the employee’s regular rate of pay.

Rest and Meal Breaks: The new law would require one paid rest break of at least 10 minutes for every four consecutive hours of work and one unpaid meal break of at least 30 minutes for employees who work at least five consecutive hours.

Interactive Process for Flexible Work Arrangements: All Minnesota employers would be required to engage in an “interactive process” in response to an employee’s request for a “flexible working arrangement,” such as a modified work schedule, changes in start and end times, a predictable and stable schedule, part-time employment, job sharing, telecommuting, changes in job duties or work site, or partial-year employment. If the employee’s request is based on the employee’s serious health condition, responsibilities as a caregiver, enrollment in a career-related educational or training program, or, in the case of part-time employees, second job, the employer “must grant the request.”

In addition, the proposed Working Parents Act would:
  • Require employers to offer additional hours of work available in existing positions to current qualified employees before hiring new employees or contractors.
  • Require employers to provide written statements with detailed information about the terms and conditions of employment to employees annually and at the time of hire.
  • Increase potential penalties for violations of Minnesota wage and hour laws and potential criminal liability for some violations of the Minnesota Fair Labor Standards Act. 
  • Increase the statute of limitations to six years for any claims for the recovery of unpaid wages or overtime.
Stay tuned for developing information about this proposed Minnesota legislation. If so inclined, readers can contact their state representatives to voice their opinions on the Working Parents Act.

Wednesday, March 11, 2015

Leadership Lessons From Bad News

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. OU’s 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 Minneapolis office when, Tuesday morning, Target Corporation told approximately 1700 headquarters employees that they no longer have jobs.  It was a somber day downtown.

What do these two events have in common? Aside from being big news, they remind me that being a leader is hard and that your actions can be highly visible. In my view, though, OU President David Boren’s response to the OU SAE members’ disgraceful actions was spot-on. President Boren did exactly what I would advise an employer to do if employees engaged in similar conduct with evidence on film. He did not wait until the outcome of a full investigation to condemn the actions. He also did not dismiss or diminish the cultural importance or impact of the behavior by chalking it up the misguided actions of a few individuals or saying “boys will be boys.” News reports confirm that specific students identified as leading the chant have been expelled

The SAE house really was home to some True Gentlemen in my day. It is unfortunate that the inexcusable actions of recent SAE members has sullied the reputation of their chapter. But, leaders have to act for the organization as a whole. President Boren did that, apparently recognizing that pulling punches and lowering standards does not do anyone any favors. In the employment context, excusing intolerable or poor conduct on one occasion makes it all the more difficult to take necessary and appropriate action if a similar future incident occurs.

Target CEO Brian C. Cornell has also had to take bold and visible action this week. He is likely not the most popular figure in some Minnesota households this week, but leadership often means making tough choices with the long-term view in mind.

As an employer or leader, are there difficult tasks you have been avoiding? Are you inviting greater legal risk or increased difficulty because of your delay and possible personal discomfort? If so, here are a few reminders to help you keep your house in order:
  • Be Thoughtful: Use documented decision-making processes that are as objective as possible and that can be clearly explained and defended if necessary.
  • Be Consistent and Fair: Inconsistency and a sense of unfairness increase the practical risk of legal claims and can create problems in defending against claims that do arise.
  • Take Your Time: Employment decisions should not be made in haste or out of emotion. No one does his or her best thinking in the heat of the moment.
  • Be Respectful: Treat employees with respect, even when you have to make and implement tough decisions. This can help reduce the risk of legal claims. No one likes to receive bad news, but it will be received more poorly if delivered without respect.


Wednesday, March 4, 2015

The EEOC Experiences yet Another Background Check Court Loss


As we previously reported, the EEOC’s targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court’s grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employer’s background checks, because the EEOC’s expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOC’s background check lawsuit against Kaplan Higher Education failed last year before the US Court of Appeals for the Sixth Circuit. In fact, the same EEOC expert testified in that case as in the Freeman case, and the Sixth Circuit questioned his expertise and methodology. 

These court losses are important, because to prevail on a claim that an employer’s background check process or decisions are racially discriminatory, the EEOC must show a statistically significant disproportionate impact on applicants or employees of color. So far, the EEOC is struggling to make this showing.  Nevertheless, the EEOC is unlikely to retreat from its background check lawsuits. The EEOC identified eliminating barriers in recruitment and hiring as its top priority in its latest strategic enforcement plan. Consistent with this priority, the EEOC has additional background check cases pending against BMW Manufacturing Company and Dollar General. 

While employers might find some relief in the EEOC’s recent losses, they should continue to take care when conducting and making decisions based on background checks. As discussed in a prior post, there are procedural requirements to be followed to conduct background checks and discrimination law considerations to bear in mind. Employers should avoid automatic employment exclusions based on background check data, and instead conduct an individualized assessment that considers the conviction data and any actual, current risks posed based on the nature and needs of the position at issue. Additionally, employers should be mindful of state law requirements, as many states, including Minnesota, have laws regulating background checks and the timing of when an employer may make criminal history inquiries.

Wednesday, February 25, 2015

Under Final FMLA Rule, Rights for Same-Sex Spouses Will Be Based On "Place of Celebration"

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 year’s 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 male-female. With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence. That is because Section 2 of DOMA, which was not addressed in the Windsor decision, says that a state does not have to recognize a same-sex marriage, even if it was valid in the state where it was entered.

Under the new rule, “place of residence” will be replaced with “place of celebration” to determine the validity of a marriage for FMLA purposes. In other words, if a same-sex couple was validly married in any state, they are spouses for FMLA purposes regardless of where they live. If same-sex couples are married outside of the United States, they will be considered spouses for FMLA purposes as long as the marriage:  1) was valid where entered, and 2) would be considered valid in at least one state.

The Supreme Court announced in January of this year that it has decided to review the right of states to ban same-sex marriage. As a result, the changes to the rule may prove to be unnecessary if the Supreme Court overrules Section 2 of DOMA and rules that a valid same-sex marriage must be recognized by other states.

Wednesday, February 11, 2015

Government Shutdown Leads to Fewer EEOC Charges, But Retaliation Claims Continue to Lead the Pack



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

Overall, the EEOC reported a decrease in filed charges compared with recent years.  The agency attributed the 5.2 percent decline from FY2013, at least partially to the government shutdown in October 2013. However, it also appears that apart from the shutdown, charges are slightly declining in recent years with FY2013 showing a 5.7 percent decline from the prior year.

As in prior years, retaliation claims were the most frequently filed charge in FY2014. As such, it may be timely to revisit your anti-retaliation policies and other prevention measures.The EEOC reported the FY2014 breakdown of charge allegations nationwide as follows:

  • Retaliation under all statutes: 37,955 (42.8% of all charges filed)
  • Race (including racial harassment): 31,073 (35%)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3%)
  • Disability: 25,369 (28.6%)
  • Age: 20,588 (23.2%)
  • National Origin: 9,579 (10.8%)
  • Religion: 3,549 (4.0%)
  • Color: 2,756 (3.1%)
  • Equal Pay Act: 938 (1.1%)
  • Genetic Information Non-Discrimination Act: 333 (0.4%)
Minnesota bucked the national trend of declining charge numbers with a near-level total of 981 total charges compared with 982 in FY2013.  State charge allegations generally followed the national trend, but with higher rates of retaliation, disability, and age charges.

  • Retaliation under all statutes: 567 (57.8% of charges filed in Minnesota)
  • Disability: 376 (38.3%)
  • Race (including racial harassment): 360 (36.7%)
  • Sex (including pregnancy and sexual harassment): 260 (26.5%)
  • Age: 266 (27.1%)
  • National Origin: 122 (12.4%)
  • Religion: 41 (3.8%)
  • Color: 37 (3.8%)
  • Equal Pay Act: 17 (1.7%)
  • Genetic Information Non-Discrimination Act: 6 (0.6%)

Thursday, February 5, 2015

Minnesota WESA – Round II: Are Paid Sick Leave and Expanded Family Leave Protections on the Way?

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 handbooks and update their policies and practices all over again. Earlier this week, several DFL Senators introduced a proposed bill (SF 481) that would require all Minnesota employers to provide paid sick and “safe” time off benefits to most employees. In addition, the proposed bill would expand the pregnancy accommodation and parental leave provisions enacted as part of WESA last year.

Paid Sick and Safety Leave?

Starting with sick and “safe” leave, neither federal or Minnesota law currently require Minnesota employers to offer paid time off in the form of vacation, sick time, or PTO (e.g. combined sick and vacation time) benefits to employees. There is, however, a growing movement throughout the U.S. to increase employee pay and job security, including through the provision of mandated paid sick time. Currently, only a handful of states and a small number of municipalities mandate paid sick time, but grass roots organizers want this to change.

This pay and benefits battle is now playing out on the Minnesota stage. While it is not clear that SF 481 will successfully pass through Minnesota’s Republican-controlled House of Representatives, the bill, if enacted, would have a significant impact on employers. It would apply to all employers, regardless of size, and impose the following requirements:
  • All Minnesota employers would be required to provide paid sick and “safe” time off to any employee who has performed at least 680 hours of work or worked for the employer for at least 17 weeks.
  • The new law would require the accrual of at least one hour of sick time for every 30 hours worked. The total accrued time would be capped at (1) 40 hours per calendar year for employers with fewer than 21 employees; and (2) 72 hours per calendar year for employers with 21 or more employees. Paid sick and safe time would begin accruing at the start of employment, but could not be used until after 90 days of employment. Employees, regardless of non-exempt or exempt status, would have to be allowed to use accrued time off in one hour increments.
  • Sick time could be used by the employee for (1) his or her own illness or medical appointments; (2) to care for an eligible sick family member; (3) when necessary due to domestic abuse, sexual assault, or stalking of the employee or an eligible family member; or (4) when the employer shuts down due to weather or an emergency.
  • If an employee’s absence lasted at least three consecutive days, an employer could request certain “reasonable documentation” to verify the need for the absence.  In addition, the employer may require seven days’ advance notice for foreseeable time off.
  • Employers with existing paid time off policies could continue those policies as long as the policies satisfied the minimum requirements of the new law.
  • Employees taking paid sick or “safe” leave would have job protection and anti-retaliation rights.
  • An employer would be prohibited from requiring an employee using paid sick or safe time benefits to seek or locate a replacement worker to cover the employee’s hours.
  • An employer would be required to provide notice of available paid sick and safe time benefits in its employee handbook.
Pregnancy Accommodation and Parent Leave Expansions?

The new proposed bill would also revisit and expand pregnancy and parental leave protections put in place last year as part of WESA. Under WESA, employers with at least 21 employees are obligated to grant reasonable accommodations to eligible pregnant employees. In addition, employers of this size must grant eligible employees up to 12 weeks of parental leave for prenatal care, pregnancy-related health conditions, or the birth or adoption of a child. SF 481 would expand these WESA protections to employers of all sizes, requiring a Minnesota employer with one or more employees to comply with WESA’s pregnancy accommodation and parental leave provisions.

What to Do?

As noted above, it remains to be seen whether SF 481 will gain any traction in the Minnesota legislature. The bill does, however, reportedly have some bipartisan support. Employers should be sure to stay tuned and, if inclined, can contact members of the Minnesota state legislature to voice their opinion on SF 481. Here at GPM, we will be keeping our eyes open and our ears to the ground, and we will update you if SF 481 ends up becoming new law.