MN Employment Law Report

MN Employment Law Report

The Bottom Line on Labor & Employment Law

Supreme Court Rules Workers Are Not Entitled to Pay for Security Screenings

Posted in Wage & Hour

Passengers going through airport security checkToday, the U.S. Supreme Court issued a unanimous ruling finding that employees of a staffing company who worked an warehouse were not entitled to compensation for time spent going through a mandatory post-shift security screening under the Fair Labor Standards Act (“FLSA”).  The decision, Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (December 9, 2014), reverses a lower court’s ruling that such time was compensable under the Act.

Pre- and Post-Shift Activities under the FLSA

In general, pre- and post-shift activities are not considered part of the work-day and are not compensable under the FLSA, as amended by the Portal-to-Portal Act.  However, such time is compensable if those pre- or post-shift activities are considered “principal activities” (e.g., the employee is actually performing work) or “integral or indispensable” to those principal activities (e.g., the employee is doing something that’s necessary in order to perform the work).

Security Screenings for Employees

Integrity Staff Solutions staffed employees for several warehouses across the country. Their employment duties consisted of retrieving products from warehouse shelves and packaging them for shipment. At the end of each shift employees went through a theft-detection screening.  The screening took approximately 25 minutes to complete, and employees were not compensated for this time.

The employees sued, claiming they were entitled to wages, under the FLSA, for this 25-minute period. The employees argued that the time was compensable because the screenings were mandatory and solely for the benefit of their employer — namely, to prevent theft.

The Ninth Circuit agreed with the employees that the time was compensable, relying on the fact that the screenings were mandatory and therefore necessary to complete the employee’s principal work.

Supreme Court Finds Screening Time is Not Compensable

In a unanimous, 9-0 decision, the Supreme Court ruled that the security screenings were not compensable because they were not “principal activity” nor were they “integral or indispensable” to principal activity.

The security screenings were not principal activity because Integrity Staffing did not employ its workers to undergo security screenings.  Thus, the screenings were not compensable as a principal activity.

As to whether the activities were “integral or indispensable” to principal activity, the Court first noted that, in order to be integral and indispensable to an employee’s principal work activities, the activity must be required in order to actually perform the employee’s actual job duties. Activities such as putting on and taking off specialized protective gear, preparing tools and showering after working with hazardous chemicals have all been found to be necessary in order to complete a work related task and therefore compensable under FLSA.

In this case, however, the Court noted that the screenings were not necessary for the employees to perform a principal work activity. Simply put, the screenings had nothing to do with being able to retrieving products from warehouse shelves and package those products for shipment to Amazon customers.

Bottom Line

While determining what constitutes a principal activity of an employee is relatively straight forward, figuring out what is “integral or indispensable” to those activities is often a more difficult question.  A helpful way to determine if an activity is integral is to do as the Court did here—look at what the work duties are and work backwards to determine which activities are required in order to initiate, perform or complete those duties.

Finally, today’s decision makes one other important clarification that is helpful to employers facing this situation—simply because a pre- or post-shift activity is mandatory or required by the employer, it is not automatically compensable under the FLSA.

Employees Head Back to the Polls on November 4th

Posted in Lesser-Known Employment Laws

Blog Pic - I VotedOn Tuesday, November 4, 2014, Minnesotans head back to the polls. As we’ve reminded employers in the past, Minnesota’s Election Day Law, Minn. Stat. § 204C.04, gives employees the right to time off to vote.

“Right to Be Absent from Work . . . Without Penalty or Deduction”

Under Section 204C.04, every employee who is eligible to vote has the “right to be absent from work” to vote on the day of the election, “without penalty or deduction from salary or wages because of the absence . . . .” Employees may be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work . . . .”

Employers or “other persons” may not either directly or indirectly refuse to grant the time off or otherwise interfere with an employee’s right to take the time to vote on Election Day. Violation of this statute is a misdemeanor.

Employer FAQs

While the Minnesota Election Day Law provides few specifics on how this law works, Minnesota Secretary of State Mark Ritchie provided some guidance in a recent letter to “All Minnesota Employers.” Based on that letter, here are some answers to commonly asked questions:

  • Can I request that employees provide advanced notice and coordinate their time off with other employees who need time off to vote?

Yes. While the statute does not directly address this issue, the Secretary of State believes that “employers may request that employees provide notification as to when they will be gone and request that employees coordinate their absences so as to minimize adverse impact on the workplace.”

Importantly, the Secretary of State uses the term “request” (not “require”), so it is likely not permissible for an employer to mandate that employees give advanced notice or that employees coordinate their absences.

  • Can I limit the amount of time the employee is absent from work?

Likely yes, but this issue is not directly addressed by the statute or the letter from the Secretary of State. It would also be difficult to enforce.

Specifically, the statute provides that the employee must be given time off for the time necessary to (1) appear at the employee’s polling place, (2) cast a ballot, and (3) return to work. Obviously, this would not also permit an additional stop at McDonald’s on the way. It may be difficult, however, to determine whether an employee who seems to be taking a long time to return to work is doing anything other than simply waiting in a long line at the polling place.

It is important to note that the statute makes it clear that the employee should be given sufficient time to vote at the “employee’s polling place.” Therefore, employees who travel great distances to get to work must be given enough time to travel to their polling place and back.

  • Can I require the employee to use accrued vacation or paid time off (PTO) to make up the difference?

No. The statute gives employees the right to be absent from work “without penalty or deduction from salary or wages.” According to the Secretary of State, this means that “employees cannot be required to use personal leave or vacation time for the time off necessary to vote.”

Bottom Line

Minnesota employers are required by law to provide employees with time off to vote on election day. The amount of time must be sufficient to (1) appear at the employee’s polling place, (2) cast a ballot, and (3) return to work. The time off must be paid, but employers can take some steps to minimize the disruption these absences may cause.


Office of Management and Budget Approves OFCCP’s Revised Scheduling Letter

Posted in Federal Contractors

Blog Pic - US Capitol On September 30, 2014, the Office of Management and Budget (“OMB”) announced its approval of the supply and service recordkeeping requirements for the Office of Federal Contract Compliance Programs (“OFCCP”).  Significantly, the announcement includes the approval of a revised scheduling letter, including the itemized listing (collectively the “Scheduling Letter”), which the OFCCP issues to federal contractors and subcontractors to commence the desk-audit phase of a compliance review.

A copy of the revised Scheduling Letter is available here.  The revised Scheduling Letter encompasses multiple revisions.  For instance, as to race and ethnicity, contractors are required to submit race and ethnicity information using five specified categories, rather than the current broad categories of minority and non-minority.

Moreover, the revised Scheduling Letter no longer requires contractors to submit annualized aggregate compensation data. Contractors, however, are required to submit individualized employee compensation data as of the date of the workforce analysis in the contractor’s affirmative action program. In addition to the individualized employee compensation data, contractors must also provide the job title, job group, and EEO-1 category for each employee.

Furthermore, the revised Scheduling Letter also defines compensation to include “consideration of hours worked, incentive pay, merit increases, locality pay, and overtime.” Additionally, electronic submission of responsive data to the revised Scheduling Letter is now required for contractors who maintain data electronically in a format that is useable and readable.

Finally, the revised Scheduling Letter reflects the new implementing regulations for Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era of Veteran’s Readjustment Assistance Act of 1974, including the new data collection, recordkeeping, and reporting requirements under both regulations.

Stay tuned for further developments.

Ninth Circuit “Unravels” FedEx’s Treatment of Drivers as Independent Contractors

Posted in Wage & Hour

Clipping path FedEx and UPS boxesIn two separate decisions, the Federal Ninth Circuit Court of Appeals court ruled that FedEx misclassified more than 3,000 delivery drivers in California and Oregon as independent contractors rather than employees. According to the court, this could “substantially unravel[ ] FedEx’s business model,” which uses a network of independent contractors to deliver packages throughout the country, and may have far-reaching effects for employers who use independent contractors.

FedEx Drivers Allege Misclassification

In both the California and Oregon cases, the drivers claimed that, between 1999 and 2009, FedEx forced drivers to purchase company-approved trucks, uniforms and other equipment as if they were independent contractors, while controlling minute details of their appearance and behavior.

FedEx argued that its contract with its drivers, called an “operating agreement,” offered entrepreneurial opportunities beyond those available to employees, and said that it controlled the drivers only to a point. In particular, FedEx noted that the contract did not require them to follow specific routes or deliver packages in order.

A lower court initially ruled in favor of FedEx, finding that the drivers were indeed independent contractors. This court emphasized that drivers could “own and operate distinct businesses, own multiple routes, and profit accordingly.”

Ninth Circuit Finds Drivers to be “Employees” under State Law

The Ninth Circuit reversed and ruled that the drivers were employees, not contractors. The appeals court applied the “right-to-control” test, which analyzes whether the company has the “right to control the manner and means of accomplishing the result desired.”

The key element was the operating agreement between FedEx and the drivers. The court observed that this agreement gave FedEx significant control over the drivers’ employment, as shown by the following provisions:

  • The appearance of the drivers – “[FedEx] requires drivers to be ‘clean shaven, hair neat and trimmed, [and] free of body odor.’”
  • The appearance of the trucks – “FedEx requires drivers to paint their vehicles a specific shade of white, mark them with the . . . FedEx logo” and to keep their vehicles clean. FedEx also “dictates the vehicles’ dimensions . . . and the materials from which the shelves are made.”
  • The times drivers can work – “FedEx structures drivers’ workloads so that they have to work 9.5 to 11 hours every working day.” And, while drivers can hire third-party helpers, “managers may adjust drivers’ workloads to ensure that they never have more or less work than can be done in 9.5 to 11 hours.”
  • How and when drivers deliver packages – FedEx “assigns each driver a specific service area, which it ‘may, in its sole discretion, reconfigure. It tells drivers what packages they must deliver and when.”

While FedEx’s control of the drivers was not “absolute,” the court concluded control to that degree was not required, and that “employee status may still be found where a certain amount of freedom is inherent in the work.” The fact that FedEx did not exercise any of these was deemed irrelevant because, according to the court, “what matters is that the right exists.”

Another key factor was the court’s rejection of the “entrepreneurial opportunities” test to evaluate possible employee status. Courts in other jurisdictions have found workers to be independent contractors where they have “significant entrepreneurial opportunity for gain or loss.” However, the Ninth Circuit found such decisions irrelevant to their assessment of California and Oregon state law.

The court also found that certain “secondary indicia,” of employee status, such as the right to terminate at will and the provision of tools and equipment, insufficient to overcome the right-to-control test’s finding that FedEx’s drivers were employees under California and Oregon law.

Bottom Line

While the Ninth Circuit’s decision directly affects only those employers in California and Oregon, the decision will likely be cited in other jurisdictions where workers seek to claim that they have been misclassified as independent contractors.

In particular, delivery companies in Minnesota and all over the United States should review their arrangements with drivers to determine if they are at risk for being held to have misclassified these workers in the same manner as FedEx.

OFCCP Proposes Rules Ratcheting Up Contractors’ Pay Reporting Obligations

Posted in Federal Contractors

Blog Pic - W2 Wage InfoResponding to President Obama’s Presidential Memorandum dated April 8, 2014, the Department of Labor issued a Proposed Rule authorizing the Office of Federal Contractor Compliance Programs (“OFCCP”) to collect summary compensation data from companies with more than 100 employees that hold federal contracts and first-tier subcontracts worth $50,000 or more for 30 or more days.  The Proposed Rule is open for comment until November 6, 2014.

The Proposed Rule would amend the implementing regulations for Executive Order 11246 by requiring covered contractors and subcontractors to submit an Equal Pay Report.  Employers will have to report employee compensation data by sex, race, ethnicity, and job category as well as provide additional information regarding hours worked.

The Proposed Rule also creates two different filing periods for the EEO-1 and the Equal Pay Report.  Unlike the EEO-1, which presents a snapshot of data in the current year, the Equal Pay Report will cover a full year.  Accordingly, by requiring covered contractors and subcontractors to file total W-2 earnings paid as of the end of each calendar year, the Equal Pay Report cannot be filed simultaneously with the EE0-1, which must be filed by September 30th of the current survey year.  The proposed rule suggests using a January 1 to March 31 of the following year for filing the Equal Pay Report.

Bottom Line

The OFCCP’s Proposed Rule specifically seeks comments on the impact of creating two different filing periods for the EEO-1 and the Equal Pay Report.  If you are interested in reading the full text or commenting, click here. Otherwise, stay tuned for updates.

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.