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

Retaliation seems to be the new “go to” claim in employment law.  For example, it formed the basis for more than one-third of all discrimination charges filed last year with the Equal Employment Opportunity Commission ("EEOC"), surpassing race discrimination as the most frequently filed claim.  We may now be headed that way under the Fair Labor Standards Act ("FLSA") as well.

In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011), the United States Supreme Court reviewed the claim of an employee who was fired after complaining that the company’s time clocks violated the FLSA because they were positioned in a way that prevented workers from being paid for time spent donning and doffing protective clothing.  The Supreme Court upheld the claim, ruling that the FLSA’s anti-retaliation provision (which prohibits discharging or otherwise discriminating against an employee who has “filed any complaint”) applies to informal, oral complaints as well as more official, written reports.  Therefore, what used to be viewed as mere griping about hours or compensation might now be viewed as protected whistleblower activity.

The Court noted that not every grumbling remark is a protected “complaint.”  Instead, a complaint is “filed” only when “a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the FLSA.”  Unfortunately, the Supreme Court declined to explain how to evaluate when a complaint meets this standard – that will have to wait further decisions by the lower courts.

Many people have asserted that anti-retaliation provisions should only apply to actual complaints filed with governmental entities.  Unfortunately, the Supreme Court declined to address this issue because the litigants failed to raise it in the papers filed with the Court.  The dissenting judges wrote (quite justifiably) that it made “little sense” to decide the formal vs. informal distinction if they are just going to rule in a future case that neither complaint is valid unless it is actually filed with a governmental agency.

Bottom Line

Right now, employers have to be careful when dealing with employees who have made any sort of complaint about practices that they claim are prohibited under the FLSA.  Examples might include failing to give them adequate break time, not counting on-call hours as time worked for overtime, etc.   Of course, all of this could be moot if future cases limit protection to complaints just to those that are actually “filed” with the government.  We’ll be monitoring this for you.

As the economy remains relatively flat, employers continue to look at mandatory time off as a cost-cutting measure. While this works well for non-exempt (hourly) employees under the Fair Labor Standards Act (“FLSA”), mandatory time off for exempt employees poses a number of obstacles.

Potential for Loss of Exempt Status

In addition to requiring performance of bona fide exempt duties, the so-called “White Collar” exemptions (executive, administrative, and professional) require that employee be paid a salary of at least $455.00 per week. If this is not done, the employee will not be exempt and overtime pay will be owed for any excess hours worked.

Paying a salary means providing the full agreed-upon compensation in any week in which the employee performs any work at all. Thus an exempt employee who works only 30 minutes one day during the week must still receive the full agreed-upon salary for that entire week. For this reason, an employer can not save any salary by making exempt employees take some, but not all of a week off.

On the other hand, the FLSA tells us that an employee is not owed anything for any workweek in which no work was performed. This is true regardless of why the employee did not work or whether not working was voluntary or involuntary.

Employers hoping to reduce costs by requiring employees to take time off (a practice often referred to as “furloughing”), can use one of these three methods:

     1.     Mandatory Use of PTO for a Partial Work Week

Employees can be required to use accrued vacation, paid time off (PTO) or other paid leave for any absence, including a plant shutdown, without affecting their exempt status, provided they have enough accrued time to equal their regular salary amount. The reason this is acceptable is that the employee is still receiving the required salary amount and the law does not care what the payment is called.

If an employee does not have paid time off available, forcing a day off during a partial furlough will not work since the employee will not be paid the entire salary amount that week and, as explained below, an employer cannot require an employee to take a day off without pay.

     2.     Voluntary Furloughs

If an employee does not have any accrued paid time off available, the employer may ask employees to take one or more day off without pay. This must be purely voluntary with no pressure or hint of penalty for refusing.  Such time must be taken in full day increments.

     3.     Mandatory Furloughs for Entire Workweeks

As explained above, an employee need not be paid for any work week in which no work is performed.  If an employer wishes to shut down for an entire week, exempt and non-exempt employees alike may be given the entire week off without pay.  Remember – this applies only to actual workweeks.

If your workweek runs from Sunday through Saturday, you must furlough the employees during that precise period of time.  This would work for the Christmas to New Year time frame this year because both holidays fall on Saturday.  It won’t work in 2012, however, because both holidays fall on Tuesdays.  You would end up laying employees off for parts of two different workweeks and owing them their full salary in each of those weeks.

Bottom Line

Be sure to consult with a knowledgeable expert before planning to furlough your employees in order to anticipate and avoid the pitfalls that await 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.