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

On December 23, 2011, the National Labor Relations Board announced that it is delaying implementation of its new rule which requires employers to post a notice of employee rights under the National Labor Relations Act.  The rule was scheduled to take effect on January 31, 2012.  The new effective date of the posting requirement is April 30, 2012.

The Board has agreed to delay the posting requirement at the suggestion of the Federal District Court in the District of Columbia.  The Court is currently considering a pending lawsuit challenging the legality of the new rule.  While the Agency has argued that the posting requirement is a mere statement of employee rights under the law which the Board is empowered to enforce, opponents claim that the posting requirement is outside the Board’s grant of authority from Congress.

If the Court does not enjoin the rule, employers will be required to comply with the posting requirement starting on April 30th.  Note that this is the same day that the Board’s new procedures for representation cases are scheduled to go into effect.  (An article on that topic is available here.)

This is the second time the Board has delayed the implementation of the new posting rule.  The first delay was on the Board’s own initiative and was intended to give employers more time to prepare for the implementation process.  (See our previous report that is available here.)

The posting rule may or may not survive legal challenge.  For now, however, there is no urgency in clearing off that bulletin board space or uploading a copy of the notice to your intranet page for employees.  April 30th is the earliest date on which compliance will be required.

Stay tuned for further developments.

At present, there are as many as 25 million workers age 18 to 64 who do not have a high school diploma or a General Educational Development (GED) equivalent.  Many employers – likely without even thinking – include a diploma requirement as part of their standard set of qualifications for a position.  But, a recent Informal Discussion Letter from the Equal Employment Opportunity Commission (EEOC) should cause employers to think carefully before including such a requirement.

In its letter, the EEOC points out that “some individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.”  As a result, a diploma requirement may have the effect of screening out individuals with learning disabilities.

Under the Americans with Disabilities Act (ADA), “a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity.”   A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant's ability to perform the fundamental responsibilities of the job in question.

But, that measure is simply the first of two steps.   Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with a reasonable accommodation.

The EEOC suggests the following accommodations in its letter: (a) “considering relevant work history” and/or (b) “allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process.”  But, in the end, the EEOC makes clear that the employer is by no means required to prefer a learning disabled applicant over other applicants who are better qualified.

Bottom Line

While this is not an official opinion letter from the EEOC, it should cause employers who automatically include a high school diploma as a baseline requirement for positions to reconsider the business necessity of this requirement.  Moreover, even where the diploma requirement is job related and consistent with business necessity, employers need to be prepared to accommodate learning disabled applicants who lack a diploma, but who are capable of performing the essential functions of the job.

The letter does not address whether the EEOC will go so far as to require employers to affirmatively notify applicants that the employer will accommodate applicants who lack a diploma. Otherwise, learning disabled applicants would likely not apply to a position where a diploma is required.   Further guidance is needed to clarify this issue.

‘Tis the season for questions about holiday parties and the associated risk of having one.  Beyond deciding what to call the party, employers are often concerned about potential fallout from parties – in particular, “If my employee is injured at the party, is the company on the hook for work comp benefits?”  The worry can be enough squelch the festive mood.

Minn. Stat. § 176.021, subd. 9, provides that injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties and picnics, do not arise out of and in the course of employment.  The exceptions typically are: (1) When an employee is ordered or assigned by the employer to participate in the program or activity; or (2) When the employer-sponsored party is intended to serve some other business objective, i.e. promoting goodwill or marketing between the employer and its customers.  In these circumstances, the injuries sustained are generally covered by the Workers’ Compensation Act.  Sometimes it can be hard to determine what is truly “voluntary” when it comes to the company holiday party.

Case in point, in Boraas v. Strand-Saboe VFW #5247, the employer would host an annual Christmas party for employees and their guests (no customers).  An employee slipped and fell while dancing with a coworker at the party and the judge found, and the appellate court agreed, that because the attendance was not “entirely voluntary,” the employee’s injury was covered under the Act.   The evidence showed that there was a notice and sign-up sheet for the party, and that the employer questioned employees who were not signed up to obtain a reason for not attending.  Further, the employees who decided not to attend, though not disciplined, were subject to sarcasm and ridicule.  At the party, there was an attendance/sign-in sheet and the employee testified at hearing about the overall importance placed upon the employee’s attendance by the employer and her belief that she was expected by the employer to attend the function.  These facts were sufficient to make the Christmas party injury compensable under the Act.

Say you want to forego the party and just give out the holiday ham or turkey – that’s safe, right?  Not necessarily.  An employee who had been on a leave and received notification that she could come to pick up her holiday turkey, and then slipped and fell in the parking lot, was held to have a compensable injury.  The court likened it to situations where an employee is injured on the employer’s premises while picking up a paycheck.  It appears that the enticement of the “turkey bonus” was an anticipated benefit on the part of the employee and attributable to the employment relationship and the injury sustained while collecting the turkey was covered under the Act.

Bottom Line

You don’t have to be like Scrooge and ban the holidays from work, just remember that when it comes to parties, do not require and police attendance – voluntary must be voluntary.  And, if you are giving your employees the holiday goose, turkey or ham, think about sending them a gift card instead.