MN Employment Law Report

MN Employment Law Report

The Bottom Line on Labor & Employment Law

Minnesota Appellate Court Rules that Employees Have Six Years to Bring Whistleblowers Lawsuits

Posted in Employment Litigation

Blog-Pic---Gavel.jpgIn a published decision overturning longstanding case law, the Minnesota Court of Appeals held that claims brought by employees alleging whistleblower retaliation under the Minnesota Whistleblower Statute, Minn. Stat. § 181.932, are subject to a six-year statute of limitations rather than a two year limitations period.  The decision, Ford v. Minneapolis Public Schools, — N.W.2d —- (Dec. 15, 2014), is the second recent decision issued by Minnesota appellate courts confirming that wrongful discharge claims created by a state statute may be brought within six rather than two years of discharge.

Facts of the Case

The plaintiff in the case, Yvette Ford, worked for the Minneapolis Public Schools. In her lawsuit, Ms. Ford alleged that during the summer of 2007, she reported financial improprieties and budget discrepancies to the school-district superintendent and another staff person. Then, the following April, Ms. Ford was notified that her position would be eliminated effective June 30, 2008. She subsequently brought her lawsuit on June 29, 2010—exactly two years after the termination of her employment—alleging she was terminated in retaliation for engaging in whistleblowing rather than for legitimate, business-related reasons.

The trial court in Ford originally dismissed the lawsuit, finding that Ms. Ford was required to bring it within two years of the date she was first notified that her position was being eliminated in April 2008, rather than within two years of the date of her termination at the end of June 2008. Interestingly, both the plaintiff and the defendant-employer agreed the two-year limitations period applied to Ms. Ford’s claim, in light of a 1995 Court of Appeals decision holding to that effect, Larson v. New Richland Care Ctr., 538 N.W.2d 915 (Minn. Ct. App. 1995).

On appeal, the Minnesota Court of Appeals initially agreed with the trial court that Ms. Ford’s lawsuit was correctly dismissed as untimely. Ms. Ford appealed again, this time to the Minnesota Supreme Court. Notably, Ms. Ford did not challenge either of the lower courts’ applications of the two-year limitations period. Although the Minnesota Supreme Court denied review on all issues raised in the appeal, including the decision to measure the limitations period from the date Ms. Ford received notice of her impending termination rather than the date of her actual termination, the Minnesota Supreme Court nonetheless remanded the case back to the Court of Appeals “solely for the purpose of reconsideration of the statute of limitations that applies to [Ms. Ford’s] claim in light of Sipe v. STS Mfg., Inc., 834 N.W.2d 683 (Minn. 2013).”

Sipe was the first in this new line of cases from the Minnesota appellate courts lengthening the limitations period for statutorily-created wrongful discharge claims. In Sipe, the Minnesota Supreme Court applied the six-year limitations period to wrongful discharge claims brought under the Minnesota Drug and Alcohol Testing in the Workplace Act, Minn. Stat. §§ 181.950, et seq.

On remand in Ford, the Minnesota Court of Appeals took the hint and held that the six-year statute of limitations period applied to Ms. Ford’s whistleblower claim.  Accordingly, the court reversed the district court’s decision dismissing Ms. Ford’s lawsuit as untimely.

Bottom Line

The Ford case has two primary takeaways:

  1. First, Minnesota courts must now apply a six-year rather than two-year statute of limitations to wrongful discharge claims created by state statute, including claims arising under the Minnesota Whistleblower Statute, Minn. Stat. § 181.932, and claims arising under the Minnesota Drug and Alcohol Testing in the Workplace Act, Minn. Stat. §§ 181.950, et seq., in the absence of statutory language providing for a shorter limitations period.
  2. Second, the limitations period for wrongful discharge claims arising under Minnesota law should be measured from the date an employee receives notice of his or her impending termination, rather than the actual date of termination.

McDonald’s Is Not-So-Happy about Getting Served

Posted in Labor Law, NLRB

Blog Pic - McDonaldsThe National Labor Relations Board (“NLRB”) ended 2014 by filing over a dozen complaints across the country charging McDonald’s franchisees and their franchisor, McDonald’s USA, LLC, with violations of the National Labor Relations Act (“NLRA”).  The allegations relate primarily to protest activities directed at McDonald’s and other fast food restaurants concerning pay and working conditions.  According to the complaints, McDonald’s employees were subject to unlawful discipline, threats, interrogations, etc., in retaliation for their participation in these activities.

Franchisor Named In Complaint

The inclusion of McDonald’s USA, LLC (the franchisor) as a named party in the complaints came after the Office of the General Counsel for the NLRB determined that, in its view, the franchisor is a “joint employer” with the individual franchisees.  Minneapolis and Chicago are among the locations where the NLRB issued complaints in mid- to late-December.

As expected, McDonald’s USA, LLC will contest the NLRB’s position as to joint employer status, arguing that, as a parent company, it helps provide “resources” to its franchisees – through things like brand name recognition and operating material – but lacks meaningful control over workplace conditions.

The complaints filed by the NLRB allege that a joint employer relationship exists where McDonald’s USA, LLC has “a franchise agreement with [the franchisee], possessed and/or exercised control over the labor relationship policies of [the franchisee] and has been a joint employer of the employees of [the franchisee].” The complaints filed in Minneapolis (Region 18) and Chicago (Region 13) offer little factual support for the assertion that McDonald’s has “extensive influence over the business operations of its franchisees.” McDonald’s has already filed motions requesting more information and claiming that the NLRB’s complaints are unconstitutionally vague. Without additional facts, McDonald’s says it cannot appropriately defend itself and it will be denied due process of law in violation of the U.S. Constitution and federal law.

In a McDonald’s Fact Sheet published by the NLRB on its website, the Agency has summarized its joint employer theory as follows:

Our investigation found that McDonald’s, USA, LLC, through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees, sharing liability for violations of [the NLRA]. This finding is further supported by McDonald’s, USA, LLC’s nationwide response to franchise employee activities while participating in fast food worker protests to improve their wages and working conditions.

Only time will tell if this argument is factually and legally supportable.

Bottom Line

The concern for McDonald’s, and other franchisors, is the potential for liability where they have not been directly involved with workplace decisions and conditions such as hiring, firing, discipline and supervision at each franchise location.  A hearing is scheduled to commence in Chicago on March 30, 2015, where we are likely to learn more of the NLRB’s factual basis behind its joint employer theory.

We will keep you updated as to any significant developments.

Labor Board Rules that Employees Have Right to Use Employer-Provided Email

Posted in Labor Law, NLRB

NLRB---GIF.gifOn December 11, the National Labor Relations Board (“NLRB”) issued a decision finding that employees who are given access to an employer-provided email account have a right protected by federal labor law to use the employer’s e-mail system to engage in protected communications on non-working time. This 3-2 decision reverses a 2007 decision, and will require employers to seriously consider whether and to what extent they need to alter or amend their electronic communications and/or usage policies.

Register Guard Decision

In 2007, the Board issued a decision in Register-Guard, 351 NLRB 1110 (2007), which held that employees have no statutory right use their employer’s email systems for engaging in conduct protected by the National Labor Relations Act (“NLRA”). Such activities include union organizing and other concerted activities for mutual aid or protection.

Accordingly, employers had been able to promulgate and enforce policies that prohibited employees from using company-provided email systems for all non-work related activities, such as selling a car or soliciting donations. The fact that these blanket prohibitions included activities protected by the NLRA was of no consequence, provided that the employer did not enforce the policy in a way to target union or other activities protected by the NLRA.

Right to Use Company-Provided Email for Activities Protected by NLRA

In its decision in Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), the Board ruled that employees who have been given access to a company email system must presumptively be allowed to use the system during their non-working time for communications that are protected by the NLRA. In short, according to the NLRB, federal labor law prohibits employers from implementing or maintaining policies that prohibit all non-work related use of its email system.

Because the right is subject to a “presumption,” it may be possible for the employer to rebut the presumption in certain cases. According to the Board, “[a]n employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” However, the Board made clear that it would be a “rare case” where an employer’s business interests would justify a total ban on non-work email use.

Another limiting aspect of the decision is that it only applies to “non-working time.” Therefore, employers can continue to prohibit use of its email systems for non-work related purposes during the employees’ working time. (However, employers are not permitted to discriminatorily enforce a prohibition against non-business use by selectively prohibiting email communications that constitute NLRA-protected discussions.) In addition, the Board made clear that its decision applies only to company email and not to other forms of electronic communication, such as employer-provided instant messaging services or social media.

Bottom Line

Although not unexpected, the Board’s decision represents a “sea change” for employee email use. According to the Board, employers can no longer maintain an electronic communications policy that generally prohibits all non-work related use of the employer’s e-mail system.

Employers with such policies should, with the assistance of counsel, consider whether and to what extent changes need to be made. Considerations include the following: (1) the possibility that the Board’s decision will be reversed on appeal, (2) the fact that maintaining an unlawful policy may be grounds for setting aside a union election, (3) the possibility that managers who are not expected to keep up with these legal nuances may independently authorize the termination of an employee in reliance upon a policy that the NLRB considers to be unlawful for engaging in NLRA-protected communications (which raises the stakes of an adverse outcome), and (4) the fact that the NLRB cannot force an employer to change its policy unless a charge is filed.

Employers with questions should feel free to contact any of Felhaber Larson’s experienced Labor Law attorneys. We will continue to monitor this issue as it develops.

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 Amazon.com 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 Amazon.com 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.