Minnesota Employment Law Report - Observations on labor and employment law from FLFV

On Tuesday, August 10, 2010, Minnesotans will head to the polls to cast their vote in the state's primary.  Minnesota's Election Day Law, Minn. Stat. § 204C.04, which covers all "regularly scheduled" state primary or general election, including Tuesday's primary, was recently amended to give employees the "right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work."

It is important for employers to take a moment to review the new law's requirements and understand your obligations.

Expansion of the "Right to Be Absent from Work"

In 2010, the Minnesota Legislature expanded employees' opportunity to be absent from work without penalty to vote.  Legislators removed the provision that had previously allowed such absences only in the morning of Election Day.

Every employee who is eligible to vote has the right to be absent without penalty or loss of salary or wages.  Under the new law, employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election.”

Employers or "other persons" may not either directly or indirectly refuse or otherwise interfere with an employee’s right to take the time to vote on Election Day.  Violations of the statute are guilty of a misdemeanor.

Answers to Unanswered Questions

Other than prohibiting "penalties" or "wage and salary deductions," the Minnesota Election Day Law provides little guidance to employers.  Employers often ask very specific questions that are simply not addressed by the statute.

• Can I require an employee to provide advanced notice?

Probably.  While the statute does not directly address this issue, an employee would be hard pressed to argue that providing notice to his employer (at least at the time his or her shift starts) somehow interferes with the employee's right to be absent from work to vote and lack of notice is not a valid basis for taking disciplinary action.

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

Yes, although this will be difficult to enforce.  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. It does not provide for time off to stop at McDonalds 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?

Probably not.  While the statute does not address this question, deducting an employee's accrued leave or PTO may be viewed as a prohibited deduction or penalty.

• Can I coordinate an employee's time off with other employees who request time off to vote?

Probably.  Again, the statute does not address whether an employer may coordinate the employees’ time away to vote in order to minimize disruption or ensure proper staffing, it is likely that an employer can do so as long as the employer gives the employee sufficient time off to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work.

Take-away

Minnesota employers must provide employees time off with pay on election day (including state primaries).  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.

Social Networking Sites like MySpace and Facebook are an invaluable source of information in civil litigation--users’ pages often contain a wealth of personal facts, photographs, and videos, and links to other sites.  This information can be extremely helpful for employers in employment-related litigation where there is typically a huge imbalance between the amount of information produced by the employer versus the employee. 

On May 26, 2010, Central District of California in Crispin v. Audigier, Inc., Case No. 09-cv-09509 (C.D. Cal. May 26, 2010) addressed whether a defendant can subpoena Facebook and MySpace directly in order to obtain communications between the plaintiff and other parties.

The plaintiff had a Facebook and MySpace account and the defendants wanted Facebook and MySpace to produce communications between the plaintiffs and other parties.  The plaintiffs argued that the messages were subject to the Stored Communications Act, 18 U.S.C. § 2701, et. seq., which prevents a third party from acquiring the information directly from the service provider.

The key for the judge was whether the messages sent over Facebook and MySpace were "private" or "public" communications.  If the messages were public communications, like posted comments on Startribune.com, the information would not be protected by the Stored Communications Act.  Here, the judge found that the message features on Facebook and MySpace were not public and therefore could not be compelled by a subpoena.  Of course, the messages would be subject to ordinary discovery--that is, the defendant could request the information as part of its request for documents--but the defendant must request them directly from the plaintiff.

A final issue was whether wall postings (i.e., messages posted on a user's Facebook or MySpace "wall") were public or private communications under the Stored Communications Act.  The judge determined that more information was needed, including the user's privacy settings (i.e., whether every could view his "wall" or only the user's "friends"), and remanded the issue back to the magistrate. 

Even though social networking sites may contain game-changing information for employers faced with an employment-related suit, to ensure that the information is not lost or overlooked, it is important  for employers to consult with counsel familiar with social networking discovery.   Felhaber's Labor and Employment or Litigation Section members are experienced with social networking discovery, and more than qualified to assist you.

The new Federal Patient Protection and Affordable Care Act of 2010 snuck in a new federal requirement that all employers provide the following to nursing mothers:

• a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
• a place, other than a bathroom, that's shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

This new law provides two exceptions:

1. employers are not required to pay employees who take a breastfeeding break—unless a state law says otherwise; and
2. an employer with less than 50 employees is exempt if the requirements would “impose an undue hardship” by causing “significant difficulty or expense” as compared to the employer’s size, resources and business structure.

Minnesota has had a similar law for approximately 10 years but there are some important distinctions.  For one thing, the Minnesota statute simply requires “reasonable efforts” to provide a location, other than a toilet stall, for the mother to express the milk.  The new federal law, on the other hand, seems to make finding a suitable location mandatory by declaring that the employer “shall” do this. 

In addition, Minnesota merely requires that the location not be a “toilet stall” and that the employee be allowed to express milk “in privacy”.  The new federal law mandates a location “other than a bathroom” that is “free from intrusion.” Therefore, even a comfortable lounge area inside a women’s restroom might not be sufficient unless it was physically separated from the rest of the facility to prevent “intrusion.”

Finally, while the Minnesota statute specifically states that the break must, if possible, run concurrently with other scheduled breaks, the federal law contains no such limitation.  An argument can be made, then, that this new law authorizes an additional break from female employees who are nursing. 

Minnesota employers must be ready to accommodate these new and somewhat more expansive requirements the next time a nursing mother in the work force raises this issue.

Figures released by the DOL show that the pace of FLSA claims continues to rise. According to the DOL’s latest statistics, in fiscal year 2008, more than 197,000 employees received a total of $140.2 million in minimum wage and overtime back wages as a result of Fair Labor Standards Act (FLSA) violations. Wage and Hour Division (WHD) investigators examined FLSA compliance in over 24,500 of the 28,242 cases and found 19,000 FLSA violations and assessed $3.1 million in FLSA civil money penalties. The figures for fiscal year 2009 have yet to be released—probably because they are still counting!

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