MN Employment Law Report

MN Employment Law Report

The Bottom Line on Labor & Employment Law

EEOC Announces Tougher Rules Protecting Pregnant Workers

Posted in Discrimination

Blog-Pic---EEOC-Seal.jpgEarlier this month, the Equal Employment Opportunity Commission (“EEOC”) published Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”). The Guidance focused on the Pregnancy Discrimination Act of 1978 (“PDA”), which “make[s] clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII.” The new Guidance is controversial because it dramatically expands the rights of employees under the PDA and may be negated by the Supreme Court next term. In fact, 2 of the 5 EEOC commissioners issued public statements expressing their dissent from the new Guidance.

While the new Guidance does not have the force of formal regulations, employers should be aware that the EEOC will be actively prosecuting cases in accordance with the new Guidance. For Minnesota employers, the new Guidance comes on the heels of the Women’s Economic Security Act, which requires employers to provide pregnant employees with certain accommodations even in the absence of a doctor’s note.

“Fundamental Requirements” of the PDA

The Guidance begins with what the EEOC considers to be the two “fundamental requirements” of the PDA: (1) an employer may not discriminate against an employee on the basis of “pregnancy, childbirth, or related medical conditions” and (2) women affected by those conditions must be “treated the same as other persons not so affected but similar in their ability or inability to work.” These tenets are the basis for the EEOC’s guidance.

Expansive PDA Coverage

The first question addressed by the EEOC Guidance is what constitutes “pregnancy, childbirth, and related medical conditions” under the PDA. Throughout the years, various lawsuits have raised questions of whether discrimination on the basis of contraceptive coverage, infertility, and lactation fall within the purview of the PDA.

The Guidance takes the position that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy. While an employer is not liable for pregnancy discrimination if the woman’s condition was neither revealed nor obvious, it is liable for adverse decisions based on stereotypes or assumptions about a pregnant woman’s capacity to work, as well as for decisions motivated by a past pregnancy. According to the Guidance, even before a pregnancy occurs, employers cannot discriminate on the basis of potential pregnancy or reproductive risk.  The Guidance also makes clear that employers cannot discriminate on the basis of a woman’s intentions to become pregnant.

The Guidance also weighs in on prescription contraceptives.  Specifically, because prescription contraceptives are available only for women, the Guidance states that an employer’s explicit refusal to offer insurance coverage for them constitutes unlawful sex discrimination.  In addition, although the PDA expressly states that employers do not have to provide insurance coverage for abortion, the Guidance states that “Title VII protects women from being fired for having an abortion or contemplating having an abortion.”  The Guidance also states that “it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.”

“Equal Treatment” Prohibits “Discriminatory” Light Duty Jobs

The second key issue addressed by the Guidance relates to an employer’s failure to accommodate pregnancy-related incapacity despite accommodating similar incapacity for at least some other workers. For example, an employer may have several light duty positions that it offers to employees who are injured on the job, but not to any other employees. While some courts have considered such a policy violative of the PDA’s command to treat pregnant employees “the same . . . as other persons not so affected,” other courts have found such policies to be lawful.

For example, in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), UPS had a policy limiting light duty to: (a) employees injured on the job, (b) employees who have disabilities within the meaning of the ADA, and (c) employees who have lost their certification to drive commercial motor vehicles. UPS denied a light duty position to a pregnant employee who had a lifting restriction during her pregnancy. The court noted that the policy was “pregnancy blind” and refused to transform “an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees.” Earlier this month, the Supreme Court agreed to review the case.

While the Supreme Court will ultimately determine whether a “pregnancy blind” policy is lawful under the PDA, the EEOC Guidance takes the position that Young should be overturned:

The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA. . . . This analysis is flawed because it rejects the PDA’s clear admonition that pregnant workers must be treated the same as non-pregnant workers similar in their ability or inability to work.

Instead, the EEOC Guidance concludes:

An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).

The EEOC does make clear that the employer can require the employee to follow the same set of procedures as well as evaluate the pregnant employee’s request for a reasonable accommodation in the same manner that it evaluates other potential accommodations:

[A] pregnant worker who needs changes in her duties or schedule would be responsible for conveying the request to her supervisor and for providing reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. Similarly, if a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a co-worker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an “undue hardship,” since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.

In summary, under the new EEOC Guidance, an employer that offers such light duty accommodations is required to provide a pregnant employee with a similar light duty accommodation, despite the fact that the employee’s inabilities are related solely to her pregnancy and have no relation to the workplace and may not even qualify as a medical disability. In fact, the EEOC specifically states that light-duty programs that are restricted to workers injured on the job violate the PDA.

Bottom Line

The take-away for employers is two-fold. First, employers should consider carefully all actions that may be taken, or not taken, if an employee situation involves pregnancy.  Second, employers that have a light duty program that is limited to employees who have work-related injuries may want to re-consider this policy – at least until the Supreme Court issues its decision in Young.

Fingerprints and Photos Will be Part of Background Checks at DHS-Licensed Facilities

Posted in New Legislation

Blog-Pic---Background-Investigation.jpgBeginning in January 2015, the Minnesota Department of Human Services (“DHS”) will require fingerprinting and photographs as part of the background studies required for all newly-hired employees who work with children and vulnerable adults.

In May 2014, Governor Dayton signed the new fingerprinting and photographing legislation into law.  The new law revises the DHS’s Background Studies Act, Minn. Stat. 245C, and goes into effect on August 1, 2014.  The legislation was enacted after the DHS was awarded a $3 million federal grant to enhance its background check procedures.

The new fingerprinting requirements are part of broader changes to DHS background studies that the Department has said will speed up the hiring process, essentially eliminate “repeat” background studies, and make sure DHS is accessing the most accurate information.

There is no change in the law regarding when a background study is required or who is required to have one.

Under the amended law, current employees generally will not have to be fingerprinted. Fingerprints will only be required for individuals who otherwise need a background study.

For most programs, the changes will apply only to people who provide direct contact services when they are hired or, in some instances, change jobs within an agency. The DHS license holder or program also must conduct a new background study when an individual changes his or her legal name.

The amendments also extend from 90 to 120 days the amount of time someone can be absent from a position without needing a new background study.

The fingerprinting will be done at “livescan” locations throughout the state, and applicants will not need to go to law enforcement agencies to be fingerprinted. The electronic fingerprinting takes between five and ten minutes.

DHS expects the cost to be $10.00 to $15.00, and the law does not specify whether the employer or employee must pay the fee. Neither DHS nor the Minnesota Bureau of Criminal Apprehension will maintain the electronic fingerprint images.

NETStudy™ 2.0—the Web-based system that will be implementing the background studies under the amended law—will roll out in a pilot phase with small groups of providers who volunteer to participate from now through January.

DHS will also be holding stakeholder meetings at eight locations statewide to provide an overview of the changes and the timelines. A DHS timeline is available here. By August, training materials and a user manual on the new system will be available online, with training videos available in September.

DHS expects to have statewide fingerprinting locations operational and will phase in the fingerprinting and photograph processes from January 2015 through April 2015.

According to the DHS, this new system will:

  • Allow people to choose to submit a background study request on themselves.
  • Permit providers to immediately hire people with cleared background studies (under the new system).
  • Allow providers to readily transfer people with cleared background studies across the programs that they operate and decrease related paperwork.
  • Keep background studies valid by using state court information to notify DHS if a person subsequently commits a crime that is disqualifying.
  • Streamline required provider screening and documentation requirements.
  • Reduce the amount of time it takes for DHS to complete certain background studies.
  • Eliminate, in most cases, repeating the background study determination processing on the same person.

The DHS has posted an FAQ page here.

The DHS will be required to notify the applicant and the prospective employer within three days of the background check results, or that the request needs more time to be completed.

Minnesota implemented its background study system in 1991 for employees who work with children and vulnerable adults. The department conducts more than 270,000 background studies annually.

Bottom Line

The DHS is overhauling its background study procedures, and DHS-licensed employers will soon be required to collect fingerprints from new applicants as part of their background checks. However, the agency will provide training and is implementing the new rules in phases. We will keep you updated as new information becomes available.

DOL Proposes FMLA Change to Cover Same-Sex Spouses

Posted in FMLA

Blog-Pic---DOL-Logo.pngProposed changes to the regulations of the Family Medical Leave Act (“FMLA”) may require employers nationwide to extend spousal leave benefits to all eligible employees in valid same-sex and common law marriages regardless of whether the state law recognizes the marriage.

In light of the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which struck down Section 3 the Defense of Marriage Act, the U.S. Department of Labor (“DOL”) announced last week that it is no longer prohibited from offering spousal leave benefits under the FMLA to individuals in same sex marriages, and has proposed to redefine the term “spouse” under the FMLA to include partners in same-sex and common law marriages.

The FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave for family and medical reasons. One provision of the FMLA extends leave benefits to employees who need to care for a spouse with a serious health condition. Since the FMLA applies state law to define whether an individual is a spouse, state law on same sex marriages determines whether an employee may take FMLA leave to care for a same sex partner.

The DOL is taking it one step further, in the Notice of Proposed Rulemaking (“NPRM”), the term spouse is re-defined to include individuals in same-sex and common law marriages regardless of whether the state law currently allows same-sex or common law marriage. This proposal would establish uniformity across the United States, according to the DOL, by focusing on the “place of celebration” to determine eligibility for spousal leave benefits. By using the “place of celebration,” an employee’s partner would meet the definition of a spouse if the state where the couple entered into marriage recognized that marriage as valid. Then, for the purposes of the FMLA, the employee’s partner would qualify as a spouse in all 50 states.

Bottom Line

While the proposed definition would apply to all states, the effect of any changes would be less pronounced in states like Minnesota which already recognize same-sex marriage. Since FMLA’s spousal leave benefits are currently tied to state law, employers in states with recognized same-sex marriages are already providing spousal benefits to same sex couples. If the DOL’s proposed definition is adopted, however, employers in the 31 states that currently do not allow same sex marriage would be required to allow married employees to use spousal leave benefits to care for a same sex partner.

The proposed definition of spouse under the FMLA has only just begun to work its way through the rule-making maze, so employers do not need take any action yet. We will continue to monitor this proposed change and provide updates as they become available.

Several WESA Provisions Will Go Into Effect on July 1st

Posted in New Legislation

Blog Pic - Gov Dayton Signing WESA

As we previously reported, on May 11, 2014, Governor Dayton signed the Women’s Economic Security Act (“WESA”) into law. While some of WESA’s provisions went into effect immediately, other provisions are set to go into effect on July 1, 2014. Employers must take immediate steps to ensure that their employee handbooks and policies are updated to comply with the new WESA provisions.

Pregnancy Leave Expanded from 6 to 12 Weeks

Effective July 1st, WESA increases the amount of pregnancy leave available to employees under the Minnesota Parenting Leave Act (“MPLA”) from 6 to 12 weeks. It is important to remember that the MPLA applies only to employers with 21 or more employees.

Nothing in the new law appears to prevent employees from taking an additional 6 weeks of unpaid parenting leave if the employee has already taken 6 weeks of parenting leave under the pre-WESA provision. However, the law does make clear that the leave “must begin within 12 months of the birth or adoption . . . .”

The MPLA, as amended, also makes clear that leave taken pursuant to the FMLA, as well as paid parental, disability, personal, medical, sick leave, and accrued vacation provided by the employer may be used to reduce the employee’s 12-week leave entitlement under MPLA as amended by WESA. Again, however, it is unclear how this provision would affect leave taken prior to the July 1 effective date.

Given the uncertainty in this area, employers who are subject to the MPLA should seek the assistance of counsel to ensure that their leave policies are properly updated and properly coordinated with other leave entitlements.

Expanded Uses of Employer-Provided “Sick Leave”

WESA also amends MPLA to expand the situations where employees may use employer-provided sick leave. First, effective July 1st, employees may use sick leave provided by their employer for the purpose of “providing or receiving assistance because of sexual assault, domestic abuse, or stalking.” Second, also effective July 1st, employers must permit employees to use their sick leave for “absences due to an illness or injury to the employee’s . . . mother-in-law, father-in-law, [and] grandchild.”

Under the new law, employers may limit employees’ use of “safety leave” and leave for extended family members, such as a mother-in-law, father-in-law, or grandchild to “no less than 160 hours in any 12-month period.”

There are two important limitations to this new law. First, as noted above, the MPLA applies only to employers with 21 or more employees. Second, the law does not require that employers provide employees sick leave benefits, either paid or unpaid. But, if they do, employers must permit employees to use these benefits in accord with the new law.

Wage Disclosure Protections

Effective July 1st, WESA creates a new section in Chapter 181, Section 181.172, which prohibits employers from “(1) requir[ing] nondisclosure by an employee of his or her wages as a condition of employment; (2) requir[ing] an employee to sign a waiver . . . which purports to deny an employee the right to disclose the employee’s wages; or (3) tak[ing] any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.”

The new law does make clear that it does not “create an obligation on any employer or employee to disclose wages” or in any way permit an employee to “disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege or protected by law.”

The new law requires all employers who provide employees with an employee handbook to “include in the handbook notice of employee rights and remedies” under this new law. While cutting and pasting a copy of the new law is likely sufficient to comply with this requirement, employers should consider drafting a wage disclosure policy. But, be sure to have an attorney review the policy before it is implemented. Interested employers can also obtain a copy of our model wage disclosure policy from any member of Felhaber Larson’s Labor & Employment Law Group.

Any violation of the new law may permit an employee to bring a civil action for reinstatement, back pay, restoration of lost service credit and the expungement of adverse employment records. Also, certain employers may be on the hook for attorneys’ fees.

All employers, including those who provide an employee handbook, should take immediate steps to comply with the new law. Employers also may want to consider defining (with examples) proprietary information, trade secret information and privileged information, so employees understand that this information may not be shared.

Amendments to Nursing Mothers Break Statute

Effective July 1st, WESA amends Minn. Stat. § 181.939 to enlarge the employer’s obligation to provide a separate space for nursing mothers to express milk.

Specifically, the new law sets forth that employers must provide nursing mothers with a room or other location, “other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.” WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.

Employers should be sure that their policies and practices relating to providing nursing mothers with breaks to express milk are updated by July 1 in order to comply with the specific requirements set forth in WESA.

Bottom Line

The time for action is now. These WESA provisions go into effect on July 1st, so employers must review and revise their employee handbooks and train supervisors on how to comply.

For more information on WESA, consider attending Felhaber Larson’s half-day seminar on July 23, 2014 entitled, “Assessing the Implications of the Women’s Economic Security Act.” For more information on the seminar, click here.

Supreme Court Invalidates President Obama’s NLRB Recess Appointments

Posted in NLRB

Blog-Pic---Supreme-Court-Facade.jpgToday, the U.S. Supreme Court issued a unanimous decision striking down President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (“NLRB” or “Board”).  The Court’s decision will likely have the effect of invalidating hundreds of Board decisions (including a number of controversial decisions) that were issued prior to July 30, 2013, when the Senate confirmed five NLRB nominees.

President Uses Recess Appointments to Keep “Quorum”

The NLRB is a quasi-judicial body with five members, appointed by the President and confirmed by the Senate, to five-year overlapping terms.  In 2010, the Supreme Court ruled that the NLRB does not have the authority to issue decisions (or adopt new rules) when its membership dips below three members (i.e., when it does not have “quorum”).

In January 2012, the NLRB was at risk of falling below the three-member quorum requirement because the Senate had failed to confirm any of the President’s nominations. In response, President Obama attempted to appoint three Board members – Sharon Block, Richard Griffin, and Terence Flynn – without the Senate’s approval, pursuant to use his authority under the Recess Appointments Clause to avoid the confirmation process.

Unfortunately for the President, after a lengthy litigation process, the Supreme Court has concluded that the President did not have the constitutional authority to make recess appointments in January 2012 because the Senate was not, in fact, in “recess.” Instead, the Senate was holding pro forma sessions every three days. According to the Court, “[t]hree days is too short a time to bring a recess within the scope of the [Recess Appointments] Clause.” Thus, the Supreme Court concluded that “the President lacked the power to make the recess appointments here at issue.”

The next step for the NLRB is to assess the damage. According to a press release, the Board is “analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.” Because the Supreme Court affirmed the D.C. Circuit’s decision to vacate the NLRB’s order, it is possible that all orders (and rules) issued by the Board during this time were invalid. Specifically, these invalid decisions would have been issued by the recess-appointed members who served from January 2012 until July 30, 2013, when the Senate confirmed five new NLRB members.

Bottom Line

For the second time in four years, the Supreme Court has issued a decision that will likely nullify hundreds of NLRB decisions. Because the Board now has five members, the Board will likely go through the invalid opinions and issue a new decision either affirming, amending, or overturning the orders that were issued by the improperly-constituted Board. While that’s not great news for an employer who received an adverse ruling from the Board from January 2012 to July 30, 2013, it may give the employer an opportunity to convince the current Board of the merits of its case.

Echoing White House Mandate, Senate Dems Release Proposal to Overhaul FLSA Exemptions and Overtime Regulations

Posted in Wage & Hour

Blog Pic - US CapitolComing on the heels of President Obama’s recent order to the U.S. Department of Labor to revise the “white collar” overtime exemptions under the Fair Labor Standards Act (“FLSA”), Democrats in the U.S. Senate this week introduced a bill that would amend the FLSA to potentially achieve the same result.

The bill, entitled the Restoring Overtime Pay for Working Americans Act, would make it more difficult for employers to classify workers as exempt under the FLSA’s executive, administrative, professional, outside sales, and computer exemptions.

According to the lawmakers’ press release, the proposal would boost overtime protections by guaranteeing coverage to approximately 47 percent of salaried workers nationwide.  Currently, 12 percent of salaried workers are guaranteed overtime pay based on their salaries.

While the proposed legislation is given virtually no chance of passing the Senate, it does reflect the administration’s continued effort to narrow the white collar exemptions and may provide insight into what the DOL’s forthcoming revisions might look like.

As we previously reported, the President’s executive order in March directed the agency to modernize and streamline the existing overtime regulations.”  The President’s memorandum provided few details on what the overhaul would entail, but made clear the administration’s position that the FLSA’s executive, administrative and professional exemptions have not kept up with the modern economy, and that because of that, millions of workers lack overtime protections.

An accompanying Fact Sheet that the White House released at the time specifically highlighted the weekly pay threshold an employee must meet to qualify for the white collar exemptions, noting that the DOL set the threshold at $250 in 1975 and raised it to $455 in 2004.

Commentators had predicted that the new regulations could increase that salary level to as high as $1,000 per week (or about $52,000 per year).  There also had been speculation that the new rules would establish a minimum amount of managerial duties that a worker would have to carry out in order to be exempt under the executive exemption. As the regulations currently stand, employees need not necessarily spend more than 50 percent of their time performing managerial functions in order to qualify for the exemption.

Based on the proposed legislation, the conjecture appears to be well-founded.  While the details of the DOL’s regulatory revamp have not been made public, the Senate’s legislation likely reflects the agency’s priorities.

Key provisions of the proposal include:

  • Raising the overtime salary threshold for executive, administrative and professional to $1,090.  The new threshold would be phased in over several years and indexed to inflation after that.
  • Raising the threshold for “highly compensated employees” from $100,000 to $125,000, and indexing it to inflation after that.
  • Creating a “common sense” definition of the term “primary duty.”  This term is used in regulations to determine if a worker’s duties are eligible to be overtime exempt. Prior to 2004, a primary duty was that which was performed the majority of the time.  Regulations issued in 2004 removed that 50 percent threshold, allowing a worker to be exempt even if he or she only spends a few hours a week supervising or doing other exempt duties.  This bill would restore a 50% threshold.
  • Establishing recordkeeping penalties. The penalties would be the same as for violations of minimum wage or overtime: up to $1,100 if the violation is willful or repeated.

We will continue to monitor this story as it develops.

WESA Requires Employers to Update their Handbooks this Summer

Posted in New Legislation

Blog Pic - MN Capitol (Day).jpgAs we previously reported, on May 11, 2014, Governor Dayton signed the Women’s Economic Security Act (“WESA”) into law. The law includes some amendments that went into effect immediately, while other amendments will go into effect on July 1, 2014 and August 1, 2014. In order to comply with the newly-enacted changes, Employers need to begin taking steps to update their employment policies and practices.

Pregnancy-Related Accommodations

This provision of WESA, which is already in effect, requires that employers provide: “reasonable accommodations to an employee for health conditions related to pregnancy or childbirth if she so requests . . . unless the employer demonstrates that the accommodation would impose an undue hardship . . . .” These accommodations include may include a temporary transfer to a less strenuous or hazardous position and limits on heavy lifting. WESA does provide that an employer is not “required to create a new or additional position in order to accommodate an employee . . . .”

WESA specifies that certain accommodations are not an “undue hardship.” These accommodations are “(1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.” In fact, employers are prohibited from requiring a doctor’s note with respect to these accommodations.

If you have not already done so, employers should update their workplace accommodation policies to reflect that certain accommodations, namely “(1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds,” will be provided to pregnant employees, upon request, without requiring a doctor’s note. Also, employers should seriously consider any pregnant employee’s request to be transferred to “less strenuous or hazardous position,” if such a position is available, or document reasons why such a request is an undue hardship.

“Familial Status” Added as a Protected Status to MHRA

This provision of WESA, which is also already in effect, amends the Minnesota Human Rights Act (“MHRA”) to add “familial status” to the list of protected statuses. “Familial status” is already defined in the MHRA as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.”

Employers should ensure that their Equal Opportunity Statements (and other handbook provisions) include a provision specifying that the employer does not discrimination on the basis of “familial status” as defined by the MHRA.

Increasing Pregnancy Leave to 12 Weeks

This provision of WESA, which is effective July 1, 2014, increases the amount of pregnancy leave available from 6 to 12 weeks. It is unclear from the text of the bill whether an employer would be required to provide an additional 6 weeks of leave if the employer has already provided the employee with 6 weeks of leave. Nevertheless, there is nothing in the bill to suggest that employees are not entitled to a total of 12 weeks of leave simply because they already took leave before July 1.

Another provision of WESA makes clear that leave taken pursuant to the FMLA, as well as paid parental, disability, personal, medical, sick leave, and accrued vacation provided by the employer may be used to reduce the employee’s 12-week leave entitlement under WESA. Again, it is unclear how this provision would affect leave taken prior to the July 1 effective date.

Given the uncertainty in the area, employers should seek the assistance of counsel to ensure that their leave policies are properly updated and properly coordinated with other leave entitlements.

New “Safety Leave”

This provision of WESA, which is effective July 1, 2014, amends Minnesota’s sick leave law to provide that employees may use sick leave provided by their employer for the purpose of “providing or receiving assistance because of sexual assault, domestic abuse, or stalking.”

Employers that provide paid sick leave to their employees should be sure that their policies are updated by July 1 to permit employees to use sick leave for these new purposes.

Wage Disclosure Protections

This provision of WESA, which is effective July 1, 2014, makes it unlawful for an employer to prohibit its employees from disclosing their wages. This law also prohibits an employer from taking “any adverse employment action” against an employee for “disclosing the employee’s own wages or from discussing another employee’s wages which have been disclosed voluntarily.” This provision does not permit employees to disclose other proprietary, trade secret, or other privileged information. WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.

Although much of the conduct prohibited by this provision of WESA is already prohibited by federal labor law, employers should be sure that their policies do not prevent employees from voluntarily discussing or disclosing their wages. Employers also may want to consider defining (with examples) proprietary information, trade secret information and privileged information, so employees understand that this information may not be shared.

Amendments to Nursing Mothers Break Statute

This provision of WESA, which is effective July 1, 2014, amends Minn. Stat. § 181.939 to enlarge the employer’s obligation to provide a separate space for nursing mothers to express milk. Specifically, the new law sets forth that employers must provide nursing mothers with a room or other location, “other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.” WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.

Employers should be sure that their policies and practices relating to providing nursing mothers with breaks to express milk are updated by July 1 in order to comply with the specific requirements set forth in WESA.

Equal Pay Certificates for Certain State Contractors

This provision of WESA, which is effective August 1, 2014, provides that, with certain exceptions, businesses with more than 40 employees seeking contracts of at least $500,000 with the state must first obtain an “equal pay certificate of compliance” in order to do business with the state. This provision also provides that the state may audit the business’s pay practices at any time to ensure that they are in compliance with equal pay laws.

Employers with state contracts should begin assessing whether they are covered by this provision and how they will obtain the certificate.

Bottom Line

As you can see, employers have to begin taking action now to update their policies and procedures to comply with the provisions of WESA. Employers should not hesitate to contact any of the attorneys in Felhaber Larson’s Labor & Employment Group with compliance-related questions.

We will continue to monitor this issue as is develops.

OFCCP Announces 5-Year Moratorium on Enforcement for TRICARE Subcontractors

Posted in Discrimination

Blog Pic - Army Hospital.jpgIn a temporary win for health care providers, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) recently acknowledged the “difference in understanding” over the definition of a TRICARE subcontractor and announced a 5-year moratorium on enforcement of obligations related to affirmative action programs and recordkeeping for most health care providers affiliated with TRICARE.

Prior to the moratorium, the OFCCP asserted jurisdiction over health care providers that entered into subcontracts to provide medical services on behalf of TRICARE, the U.S. Department of Defense’s healthcare program for military personnel and their families. According to the OFCCP, health care providers’ contractual relationship with a TRICARE administrator rendered them “federal subcontractors” subject to OFCCP oversight. Health care providers, however, vigorously contested the OFCCP’s oversight, arguing that their TRICARE subcontracts did not cause them to become covered subcontractors.

OFCCP to Spend Next 5 Years  Educating TRICARE Subcontractors

In DIR 2014-01 – TRICARE Subcontractor Enforcement Activities, the OFCCP announced the five-year moratorium and the OFCCP’s plan to focus on “outreach and technical assistance to educate [the] TRICARE subcontractor community about their affirmative action obligations.” During this time, the OFCCP also will attempt to clarify who is a covered subcontractor by “working with other federal agencies.”

While the OFCCP will continue to investigate complaints of discrimination, all enforcement related to affirmative action programs and recordkeeping will cease, effective immediately, for the next 5 years. The OFCCP will administratively close any open cases within 30 business days. If a TRICARE subcontractor receives a desk-audit letter from the OFCCP, the entity should send a copy of its agreement to participate in the TRICARE program along with a written request to administratively close the audit to the local OFCCP office.

Bottom Line

Health care providers who are currently subject to an OFCCP audit solely because they are a TRICARE subcontractor are “off the hook.” Moreover, during the next five years, the OFCCP will not initiate any audits of TRICARE subcontractors. During the moratorium, TRICARE subcontractors should pay careful attention to the OFCCP’s “outreach and technical assistance” as the assistance will likely foreshadow the OFCCP’s post-moratorium definition of a subcontractor.

Stay tuned for further developments.

The Women’s Economic Security Act is Now the Law in Minnesota

Posted in New Legislation

Blog Pic - MN Capitol Flowers.jpgOn Mother’s Day, Governor Mark Dayton signed the Women’s Economic Security Act (“WESA”) into law. WESA is an amalgamation of changes to Minnesota law that are designed to “close the gender gap” by breaking down barriers to economic progress for women.

In addition to the creation of various grant programs, WESA contains numerous changes to Minnesota’s employment laws. Provided below is a brief summary of the most significant changes. Some of these changes were “effective upon enactment,” which means that they went into effect on May 11, 2014, while others will not go into effect until July 1, 2014 and August 1, 2014.

Provisions Already in Effect

  • New Pregnancy Accommodations – WESA provides that “[a]n employer must provide reasonable accommodations to an employee for health conditions related to pregnancy or childbirth if she so requests . . . unless the employer demonstrates that the accommodation would impose an undue hardship . . . .” WESA defines certain accommodations as not imposing an “undue hardship,” including “(1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.” Other accommodations, such as temporary transfer to a less strenuous or hazardous position, must be granted unless they impose an “undue hardship.” However, WESA does provide that an employer is not “required to create a new or additional position in order to accommodate an employee . . . .”
  • “Familial Status” Added as a Protected Status to MHRA – WESA amends the Minnesota Human Rights Act (“MHRA”) to add “familial status” to the list of protected statuses. “Familial status” is already defined in the MHRA as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.”

Provisions Effective July 1, 2014

  • Increasing Pregnancy Leave – WESA increases the amount of pregnancy leave available from 6 to 12 weeks. The amendments also include a provision stating that an employer “may require an employee who plans to take a leave under this section to give the employer reasonable notice of the date the leave shall commence and the estimate of the duration of the leave.”
  • “Safety Leave” – WESA amends Minnesota’s sick leave law to provide that employees may use sick leave provided by their employer for the purpose of “providing or receiving assistance because of sexual assault, domestic abuse, or stalking.”
  • Wage Disclosure Protections – WESA also makes it unlawful for an employer to prohibit its employees from disclosing their wages. This law also prohibits an employer from taking “any adverse employment action” against an employee for “disclosing the employee’s own wages or from discussing another employee’s wages which have been disclosed voluntarily.” This provision does not permit employees to disclose other proprietary, trade secret, or other privileged information. WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.
  • Amendments to Nursing Mothers Break Statute – WESA amends Minn. Stat. § 181.939 to enlarge the employer’s obligation to provide a separate space for nursing mothers to express milk. Specifically, the new law sets forth that employers must provide nursing mothers with a room or other location, “other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.” WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.

Provisions Effective August 1, 2014

  • Certain State Contractors Must Obtain an “Equal Pay Certificate of Compliance” – WESA provides that, with certain exceptions, businesses with more than 40 employees seeking contracts of at least $500,000 with the state must first obtain an “equal pay certificate of compliance” in order to do business with the state. This provision also provides that the state may audit the business’s pay practices at any time to ensure that they are in compliance with equal pay laws.

Bottom Line

As you can see, there are a number of changes contained in WESA that will require action by Minnesota employers – and some actions must take place immediately. In the next few weeks, attorneys at Felhaber Larson will analyze each of these major changes, and provide employers with guidance on how to move forward.

Stay tuned for further developments.

Wisconsin Establishes Restrictions on Employer Access to Employee Social Media Accounts

Posted in Recent Legislation

Blog Pic - WI Capitol.jpgWisconsin has joined twelve other states in adopting restrictions on an employer’s ability to access the social media accounts of job applicants and employees.

Specifically, Wisconsin Act 208 prohibits employers from “request[ing] or requir[ing] an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.” The law took effect on April 9, 2014.

What Constitutes “Access Information”?

Under the statute, “access information” means user name and password information, or any other security information “that protects access to a personal Internet account.” The law also imposes these restrictions on educational institutions with regard to current and prospective students, as well as on landlords in the context of tenants and prospective tenants.

Additionally, the statute prohibits employers from discharging, discriminating against, suspending, refusing to hire, or retaliating against applicants and employees for exercising their rights under the statute.

Employer Compliance with Wisconsin Public Act 208

While the statute does present new restrictions for employers, it also sets forth permissible acts to aid employers in compliance. For instance, the statute allows employers to require employees to allow access to an “electronic communications device” paid for in whole or in part by the employer. This means that an employer could access the mobile phones it provides to employees. Employers also may demand access to an account the employer has provided as a result of the employment relationship “or used for the employer’s business purposes.”

Moreover, employers can discipline or discharge employees for transferring confidential or otherwise proprietary information—without authorization—to their personal accounts. Employers can also require access to information in order to conduct an investigation relating to the alleged transfers of information and other issues of alleged employment-related misconduct “if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred.” In such cases, employers can require employees to grant access or otherwise allow observation of their personal Internet accounts. However, employers cannot require employees to disclose access information for the account(s) in question.

Finally, an employer is not subject to liability if it inadvertently accesses information for an employee’s personal Internet account by monitoring the company’s network, provided that the employer does not utilize the information to access the account. Employers that violate the law “may be required to forfeit not more than $1,000.”

The other states that bar employers’ access to employees’ social media accounts are Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington.

Bottom Line

Wisconsin now prohibits employers from requesting or requiring access to the personal Internet accounts of employees and job applicants. While the statute places new restrictions on employers’ ability to require access to this information, it also provides a thorough explanation as to what constitutes permissible employer conduct when investigating alleged employee misconduct.

In Minnesota, the Legislature has tried (unsuccessfully) for the past several years to pass similar legislation.  Although no similiar law exists in Minnesota, employers should be very cautious when requesting or requiring access to the social media accounts of employees or applicants because federal privacy laws may prohibit the activity. 

If you have any questions about employee social media use, feel free to contact anyone from Felhaber Larson’s Labor & Employment practice group.