MN Employment Law Report

MN Employment Law Report

The Bottom Line on Labor & Employment Law

Supreme Court Revives Pregnant Employee’s Claim

Posted in Discrimination

Lowsection Of Pregnant Businesswoman With BriefcaseThe U.S. Supreme Court revived a pregnant employee’s discrimination claim against UPS, ruling that the employer’s policy of providing light-duty work only to employees meeting certain specifications (but not necessarily pregnant employees) may violate the Pregnancy Discrimination Act (“PDA”).


Peggy Young’s doctor restricted her to lifting no more than 20 pounds during her pregnancy.  As a UPS driver, however, her job required that she be able to lift parcels weighing up to 70 pounds.

UPS did have several reserved “light-duty” jobs that could have accommodated Young’s restriction but by internal policy, these jobs were limited to three classes of employees:

  • Those injured on the job,
  • Those with disabilities as defined by the Americans with Disabilities Act, and
  • Those who have lost their certification to drive commercial motor vehicles.

Since Young did not fall within any of these categories, UPS denied her a light duty position, leading her to sue UPS for violating the PDA.  UPS responded that its policy was “pregnancy-blind” in that the company’s limits on accommodation applied to everyone and did not single out pregnant workers for less favorable treatment.

The trial court granted UPS’s motion for dismissal and the U.S. Fourth Circuit Court of Appeals affirmed, leading to the Supreme Court’s review.

EEOC Issues Guidance Advocating Reversal

We reported in July 2014, that the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance advocating that policies limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA violate the PDA.  The Guidance contends that such policies ignore 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. Therefore, pregnant employees must be accommodated in the same manner as non-pregnant employees.

As a result, the case became a battle of two extremes – the EEOC Guidance contending that  pregnant employees must always be accommodated like other disabled employees, and UPS’s “pregnancy blind” policy that essentially excludes pregnant employees from such accommodations.  After all, the ADA excludes pregnancy from the definition of disability and it is highly unlikely that an employee would become pregnant on the job.

Supreme Court Forges Middle Ground

As is often the case, the U.S. Supreme Court took the middle ground in ruling that a “pregnancy-blind” policy may violate the PDA where a plaintiff can show that the policy “impose[s] a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden . . . .”  According to the Court, a plaintiff can make such a showing where she can show that “the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”

The Court rejected Young’s (and EEOC’s) argument, expressing doubt that the PDA was intended to “grant pregnant workers an unconditional most-favored-nation status.”  In fact, they rejected outright the idea that the PDA requires pregnant employees to be treated the same as other people.

However, the Court also rebuffed UPS’s position that so-called “pregnancy-blind” policies are immune from PDA scrutiny.  The Court explained that an employee could still claim that denial of an accommodation constituted discriminatory treatment under the PDA, requiring that the employer defend with “legitimate, nondiscriminatory” reasons for denying the accommodation.  The Court made it very clear that such reasons must be more than simple claims that the accommodations would be expensive or less convenient.  For this reason, the Court suggested that a pregnant employee could prevail by showing that “the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”

The Court remanded the case back to the lower court to determine whether Young came forward with sufficient evidence that UPS’s policy violated the PDA.

Bottom Line

The Court’s decision can be viewed as a win for both sides.  On the one hand, employers can no longer rely on “pregnancy-neutral” policies to avoid liability under the PDA.  On the other, the EEOC’s position that all such policies violate the PDA must go back to the drawing board.

While this case is significant generally, Minnesota employers are less affected by it for two reasons: (1) the Minnesota Human Rights Act has required accommodation of pregnancy for many years; and (2) the recently enacted Women’s Economic Security Act extended that protection to require certain accommodations even in the absence of a doctor’s note.

NLRB Issues Guidance on Employer Handbooks

Posted in NLRB

NLRB---GIF.gifOver the past few years, much has been written about the National Labor Relations Board’s (the “Board”) drive to scrutinize the provisions of employee handbooks.  The Board’s aggressive strategy rests on its holding in Lafayette Park Hotel, wherein the Board stated “[w]here the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.”  326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).   Thus, if the Board finds that an employee could “reasonably construe” an otherwise innocuous work rule in such a way as to limit that employee in pursuit of his or her rights under Section 7, the rule will be declared unlawful.

New General Counsel Memorandum

On March 18, 2015, the Board’s Office of the General Counsel released a Memorandum providing employers guidance as to what the Board deems lawful and unlawful handbook language.  The Memorandum reflects the Board’s continued interest in policies addressing employee use of social media, workplace conduct and decorum toward managers and co-workers, and employee confidentiality obligations.  However, the Memorandum also finds unlawful a number of novel policy areas that have not previously received such close scrutiny, including media and other outside communications; use of employer logos, copyrights or trademarks; restrictions on personal electronic devises, photography and recordings; restrictions on employee rights to leave work; conflict-of-interest policies; and handbook disclosure policies.  Some examples of Employer policy language deemed unlawful by the Board, includes:

  • Media Relations/Communications – “Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline.”

The Board explained that the language is unlawful because employees “would reasonably construe the phrase ‘company matters’ to encompass employment concerns and labor relations, and there was no limiting language or other context in the rule to clarify that the rule applied only to those speaking as official company representatives.”

  • Company Name and Logo Use Restrictions – “Company logos and trademarks may not be used without written consent . . . .”

The Board explained that the language is unlawful because it contains broad restrictions that employees would reasonably read to ban fair use of the employer’s intellectual property in the course of protected concerted activity.  By “fair use” the Board means referencing company names, logos, etc. on picket signs, leaflets or other “non-commercial” communications.

  • Restriction on Electronic Media – “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation . . . .”

The Board found this rule unlawful because employees would reasonably construe it to preclude, among other things, documentation of unfair labor practices, which it considers an essential part of the recognized right under Section 7 to utilize the Board’s processes.

  • Restriction on Electronic Media –  “Prohibition from wearing cell phones, making personal calls or viewing or sending texts ‘while on duty.’

The Board found this rule unlawful because it considers the limitation on personal recording devices to time “on duty” to be insufficient.  Specifically, the Board asserts that employees “reasonably” would understand “on duty” to include breaks and meals during their shifts, as opposed to their actual work time.

  • No-Call/No-Show/Job Abandonment Provision – “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift is prohibited.

The Board concluded that this provision could be understood by employees to unlawfully limit the employees’ protected right to engage in lawful strikes and walkouts.

  • Conflict of Interest Policy – “With this in mind, you should recognize your responsibility to avoid any conflict between your personal interests and those of the Company. A conflict of interest occurs when our personal interests interfere—or appear to interfere—with our ability to make sound business decisions on behalf of [the Company].”

Here, the Board inferred that an employee may believe his or her own interests (e.g., to form or join a union, or to discuss low wages, etc.) may be inconsistent with the company’s interests, and, therefore, found the rule unlawful because it was phrased broadly and did not include any clarifying examples or context that would indicate that it did not apply to Section 7 activities.

  • Handbook Disclosure Provision – “No part of this handbook may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system or otherwise, for any purpose without the express written permission of [management].”

The Board concluded that this provision was unlawful because it prohibited disclosure of the Employer’s handbook, which contains policies relating to the terms and conditions of employment, to third parties such as union representatives or the Board.

In summary, it is clear from the Memorandum that the Board will scrutinize every word of every policy document, handbook provision, form document, disciplinary communication, or any other written communication between an employer and its employees in an effort to uncover language that may unlawfully restrict employee Section 7 rights.

Implications of Maintaining Unlawful Policies

If an employer’s policy is found to be unlawful, the Board will typically require that the employer change the problematic handbook or policy and post a notice to employees explaining their rights.  Additionally, an employer who terminates an employee based upon overly-broad policies may be required to reinstate the employee with backpay.  See Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012).

The stakes are even higher for employers facing a union election.  Imagine that you’ve worked hard to prepare your organization to respond to an ambush election.  Even better, imagine that you’ve won that election.  Now imagine that the union files objections asserting that one or more of your company policies are unlawfully overbroad or restrictive.  After review, the Board agrees with the union and throws out the election results.  That’s exactly what happened in Jurys Boston Hotel, 356 NLRB No. 114 (2011), where the Board overturned the “no” vote of a majority of employees who voted because a handbook policy that had never been enforced or even at issue in the campaign was deemed unlawful by the Board.

Bottom Line

Employer’s should take the time necessary to review and revise policy documents, handbooks, etc. to reduce the risk that such documents contain language the Board would deem unlawful.  In reviewing policies, employers should be mindful of several major themes that consistently appear in Board decisions and guidance regarding the elements of lawful and unlawful policies:

  • Understand Protected Concerted Rights:  It will help you immeasurably to read your handbook like an investigator from the Board would by keeping the idea of “protected concerted activity” top of mind.  Most policy provisions can be revised to avoid the pitfalls described above, if you understand the rights conferred by Section 7.
  • Provide Examples of Prohibited Conduct: Providing examples of plainly egregious unprotected behavior to provide context and eliminate ambiguity about whether the policy could be interpreted to limit the exercise of Section 7 rights.
  • Define Confidential Information: Defining what types of confidential information should not be disclosed – i.e., business financial or trade secret information, or customer financial information, and not information about employees.
  • Include Limiting Language: While the Board has made clear that an otherwise unlawful policy cannot be cured by a general “disclaimer,” employers should consider including limiting language in any potentially offending policy or provision itself.


Ineligible Employee Still Gets FMLA Leave Due To Incomplete Policy

Posted in FMLA

Blog-Pic---Employee-Handbook.jpgWe all know that to be eligible for FMLA leave:

  1. The employee must be employed by a covered employer for 12 months.
  2. The employee must have worked 1,250 hours in the past 12 months.
  3. The employee must work at or within 75 miles of a worksite employing 50 or more employees (the “50/75 rule”).

What if the employer’s FMLA policy does not list one or more of these eligibility factors? According to one Federal Appeals Court, if an employee takes FMLA leave in reliance upon an incomplete list of FMLA eligibility requirements, that employee may be entitled to FMLA protection despite not actually being eligible under the law.

The Missing Eligibility Requirement in the FMLA Policy

In Tilley v. Kalamazoo County Road Commission, employee Terry Tilley had already received a final warning and was under a directive to deliver certain completed work assignment to his supervisor by August 1 or he might be terminated.

On the morning of August 1, Tilley began experiencing what he felt were symptoms of a heart attack and he left work to seek medical treatment. He then returned home and had his wife call the employer to say that he would not be returning to work until August 5. He applied for FMLA leave but the employer denied it, stating that since he worked at a job site that did not meet the 50/75 rule, he was ineligible for FMLA leave. Tilley was then terminated for failing to meet his August 1 work deadline.

The Court Eliminates The Road Commission’s Eligibility Defense

Tilley sued for interference with his FMLA rights. The employer countered, of course, that Tilley had no FMLA rights since he did not meet the 50/75 rule and therefore was ineligible for FMLA protection. Tilley replied that the employer’s FMLA policy only listed the first two eligibility criteria set forth above and omitted the 50/75 rule. He thought he was covered by the policy when he took his leave, and had he known that he was not protected by FMLA, he would have returned to work to finish off the last few details of his assignment.

Though the court acknowledged that Tilley technically be ineligible for FMLA, the absence of the 50/75 rule in the written policy prevented the employer from relying upon it to deny Tilley FMLA coverage. The appeals court reasoned that since Tilley had no independent knowledge of the 50/75 rule, “a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA” based on the FMLA policy as written. Therefore, fairness demanded that the employer be barred from using the 50/75 to deny Tilley’s eligibility for FMLA and allowed Tilley to pursue his FMLA claims despite not actually meeting the legal requirements for FMLA protection.

Bottom Line

Although Sixth Circuit decisions do not actually apply to Minnesota employers, the federal courts in this state could elect to borrow the reasoning of this case. Even if you feel that the 50/75 rule will never come into play because you only have one work site, don’t take the chance on an inadequate policy if and when your business circumstances change. Make sure that your FMLA policy properly lists all three eligibility requirements to avoid surprises like the one that the Sixth Circuit served up to the employer in this case.

FMLA Leave Extended to Same-Sex and Common Law Marriages

Posted in FMLA

Blog-Pic---Same-Sex-Marriage.jpgThe Department of Labor (DOL) has now changed their interpretation of who is a “spouse” under the Family and Medical Leave Act (FMLA).  Instead of looking at the law of the state in which the couple lives, people in same-sex or common law marriages will be considered spouses under FMLA if the employee’s marriage is lawfully recognized by the state where the same-sex or common law marriage took place.  The regulation incorporating this new interpretation goes into effect on March 27, 2015

This adoption of the “state of celebration” principle will allow more employees to access such FMLA privileges as taking take time off to care for their ill spouses, to take time due to exigent circumstances created by their spouse’s military obligations,  and take leave to care for stepchildren with serious medical condition.

This new definition is part of the DOL’s response to the landmark Supreme Court decision in United States v. Windsor,  570 U.S. 12 (2013), which invalidated a portion of the Defense of Marriage Act (DOMA) that restricted the definition of marriage for purposes of federal law to opposite-sex marriages.

What Does This Mean for Minnesota Employers?

Minnesota has legally recognized same-sex marriages since 2013 so Minnesotans in same-sex marriages would see no real impact of this new interpretation unless they live in other states that do not recognize same-sex marriage.  However, Minnesota does not recognize common law marriage, so Minnesotans who previously entered into a common law marriage in a state that still recognizes it are now considered spouses in regard to FMLA.  Of course, Minnesota employers with employees residing in other states must be sure that their FMLA determinations are based on where the law of the state where the employee was married rather than where they live and/or work.

The new rule may require some inquiry by the employer whenever an employee is claiming protected FMLA leave based on spousal status.  The DOL webpage answers a key question about what, if any, documentation an employer may require to verify a valid same-sex or common law marriage?  The DOL affirms that employers are still permitted to require “employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship.”   An employee must be given the opportunity to satisfy the request through formal documentation such as a license or court document, or through a personal statement asserting the qualifying relationship and location of marriage.  It is important for employers to remember that the employee determines what form of proof to submit.   Adopting a consistent policy regarding requiring proof will be essential for employers to maintain non-discriminatory administration of FMLA leave.

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 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.