Five Essential New Year Resolutions Every Employer Should Have for 2016 - 4

4. Becoming politically active to oppose an onslaught of proposed anti-business legislation and regulation (2016 is, after all, an election year) – 

In the current Minnesota legislative session, among the more controversial proposals to impact employers, include:

• Outlawing an “abusive work environment” (i.e., bullying), and providing a private cause of action for employees to bring a lawsuit. While most employers oppose bullying in their workplaces, most lawsuits do not have merit, and this right to a private cause of action would allow employees to bring lawsuits for frivolous claims of bullying; 
• Imposing fines on employers for discriminating against unemployed individuals; 
• Preventing employers from providing different pay or benefits to employees based on the number of hours worked; 
• Impinging on employers’ ability to set and change work schedules, as needed; and 
• Providing for paid family leave, as well as earned “sick and safe time,” which would allow the employee to use the earned leave for absences caused by the illness or injury of the employee or the employee’s family member, or for domestic abuse, sexual assault, or stalking of the employee or the employee’s family member. 

Employers who oppose these intrusions into their operations should resolve to become active in their local business groups in 2016 and otherwise contest these and other similar pieces of legislation.

Five Essential New Year Resolutions Every Employer Should Have for 2016 - 3

3.   Thoroughly preparing for anticipated DOL changes to exempt vs. nonexempt status and the explosion of rest and meal break wage/hour claims –

American businesses are bracing in 2016 for the DOL to issue its final regulations on minimum salary levels for white-collar exemptions, which potentially could convert over 6 million workers from exempt to non-exempt hourly employees, regardless of their exempt duties.  Proactive business and Human Resources professionals are auditing their current exempt employees and preparing contingency plans to deal with these regulations.  In the meantime, however, the onslaught of class action wage and hour lawsuits continues, unabated.  In addition to overtime suits based on employee misclassifications under the state and federal FLSA, claims of employers mishandling meal and rest breaks are proving to be fertile ground for plaintiff lawyers. 

Given the explosion of wage and hour lawsuits, coupled with what could well be monumental changes in employee classifications necessitated by the DOL’s regulations expected to issue sometime this year, resolving to conduct an internal audit of employee pay practices is one New Year’s resolution every employer ought to have high on its “to do” list.

Five Essential New Year Resolutions Every Employer Should Have for 2016 - 2

2.   Ensuring those regarded as “independent contractors” are not employees, again, under recent federal standards –

Last summer the Department of Labor (DOL) issued a new interpretation of when a worker is an independent contractor rather than an employee for purposes of wage and hour requirements under the Fair Labor Standards Act (FLSA).  According to the new interpretation, the key question is whether the worker is economically dependent on the employer or in business for him or herself, and can be determined by considering several factors.  The DOL boldly stated that under its new analysis, “most workers will be considered employees rather than independent contractors.” 

Workers that might be reclassified under this interpretation as employees rather than independent contractors could include subcontractors, salespeople, drivers, cleaners, nurses and caretakers, etc.   Companies that use these types of workers risk being held liable for tracking hours and paying minimum wage and overtime under the law.  Additionally, the DOL has signed an agreement with the Minnesota Department of Labor and Industry to share information and to coordinate investigations and enforcement with regard to the misclassification of workers as independent contractors.  Unwary companies could find themselves taken by surprise with liability under a number of laws for their assumed “independent contractors” when the DOL defines these workers as employees under its new stringent standard.

Given the DOL’s war on independent contractors, once again an audit of these relationships is in order.  

Minnesota Federal Court Finds Police Officer Required to Undergo Psychological Evaluation Was Not “Regarded As” Disabled

Can employees or applicants have a claim under the Americans with Disabilities Act, if they are not even disabled?  They can if they were “regarded as” disabled and were discriminated against on that basis.  In a recent case, a Minnesota federal court considered whether an employer regarded an employee as having a mental impairment when it required the employee to undergo psychological evaluation.  The court determined that the employer did not regard the employee as disabled, making the distinction between assuming an employee is not able to do his/her job (because of perceived anger issues) and assuming that the employee has a mental impairment that would fit the definition of a disability under the law.

In this case, the police officer in question removed his firearm prior to a meeting with his superiors, making a comment that he should not have his gun with him when he went upstairs to talk to people.  Upon learning of this, the employer became concerned with the employee’s ability to safely perform the duties of a police officer, and referred him for a psychological Fitness for Duty Evaluation.  The evaluation found no psychological impairment that would prevent him from safely performing his duties, but concluded that he should continue to see a therapist to process anger, frustrations and suspicions.  Based on this assessment, the employer directed him to participate in therapy for these purposes and to provide Human Resources with periodic written progress reports from his therapist.  Additionally, based on the opinion of another psychologist who suggested that he take part in stress management or counseling before returning to duty, the employer placed him on home duty.

The court found that these actions did not show that the employer regarded the employee as disabled; they just showed that the employer questioned whether he was too angry or erratic to carry a firearm or patrol the streets.  However, whether or not the employee was disabled or regarded as disabled, employers can only require medical examinations to make inquiries as to whether an employee has a disability or the nature and severity of a disability, if the examination or inquiry is “job-related and consistent with business necessity.”  In this case, the court found that the requirements to undergo a psychological evaluation and to continue with therapy and provide progress reports were job-related and consistent with business necessity, because of his troubling behavior and the assessments of the therapists, combined with the rigors of the job of a police officer. 

This is a very nuanced area of the law that often trips up even the most diligent employers and Human Resources professionals.  For assistance in dealing with an employee who has exhibited red flags regarding fitness for duty, contact Christine Beggan at (952) 746-1700 or chbeggan@wesselssherman.com to arrange a discussion with one of our experienced attorneys.

Minnesota Supreme Court Determines that Whistleblower Claimants Have 6 Years to Sue Their Employers

The Minnesota Supreme Court recently ruled, in Ford v. Minneapolis Public Schools, that lawsuits under the Minnesota Whistleblower Act (MWA) are subject to a 6 year statute of limitations.  The MWA prohibits employers from discriminating against employees for engaging in a number of activities related to reporting, refusing to engage in, or participating in investigations of suspected violations of the law.  Accordingly, lawsuits claiming “whistleblower” violations often involve allegations that an employee reported, either internally or externally, to authorities, that her/his employer was violating the law and the employer retaliated against the employee for making the report.  The state legislature did not include any deadline for employees to bring claims under the MWA, so the courts were left to fashion one.  As a result of the Ford decision, whereas many claims for employment discrimination or retaliation must be brought within 300 days under federal law (Title VII, ADA, ADEA), and within one year under the Minnesota Human Rights Act (MHRA), employees have 6 full years to bring whistleblower claims! What should employers do to protect themselves?    

Due to amendments to the MWA in 2013 that make it much easier for plaintiffs to bring and prevail in whistleblower claims, these suits are on the rise.  Now that plaintiffs have 6 full years to sue under the MWA, Minnesota employers can expect even more whistleblower lawsuits in 2016 and beyond.  The thought of being sued by a discharged employee, many years after the termination, should be very disconcerting to employers.  Employers may wish to deviate from their standard record retention practices, at least where a potential whistleblower employee may be involved.  A typical defense to any whistleblower claim is that the adverse employment action being challenged by the plaintiff, was unrelated to any report the individual may have made and instead was done for legitimate reasons.  Of course in court it takes evidence to defend against claims and so employers are now well advised to maintain such evidence for 6 years. 

Questions? Contact Attorney James Sherman at (952) 746-1700 or email jasherman@wesselssherman.com.

Five Essential New Year Resolutions Every Employer Should Have for 2016 - 1

1.  Avoiding “joint employer” status and liability under newly adopted federal agency standards –

Last year, the National Labor Relations Board (NLRB) overhauled the test to determine whether two (or more) employers are “joint employers” for purposes of labor law, with its Browning-Ferris Industries decision.  The new test makes it much easier to establish joint employer status and is now being used to pursue claims against McDonald’s Corp. for the actions of its franchisees.  The NLRB’s test is being used to hold multiple employers liable for unfair labor practices committed by one, as in the case of McDonald’s Corp. as a joint employer with its franchisees.  Joint employer status may also be used to impose collective bargaining and union contract obligations, as well as determining whom can be subjected to picketing and other strike activity or economic pressure, from unions. 

The Department of Labor (DOL) recently issued its own definition of “joint employers,” amid allegations from some United States Congressmen of collusion between the two agencies.  Although some of the factors in the two tests are similar (the DOL definition is actually broader than that of the NLRB), the consequences of finding a joint employer relationship by the different agencies differ significantly.  The DOL’s guidance is relevant for the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).  Under these laws, the hours worked for joint employers will be aggregated for purposes of determining if an employee has worked overtime during a workweek.  In either case, both joint employers will be jointly liable for any violations under these laws.  

Because of the severe ramifications at stake and the current heightened focus on the issue, we highly recommend that employers make the New Year’s resolution of auditing any potential joint employment relationships with the help of someone knowledgeable in these areas.   

Legislative Update: Illinois Mandates Child-Care Employees be Vaccinated or Provide Proof of Immunity

January 2016
By Anthony J. Caruso, Jr.

Recent outbreaks of contagious diseases at childcare facilities in Illinois have brought fear to the parents of children along with concerns of potential liability to the operators/employers of these child care centers.

An amendment to the Illinois Child Care Act of 1969 imposes new requirements on child-care employees, effective January 1, 2016.

What EMPLOYERS are covered under the law?

Any Illinois child-care facility that cares for children ages 6 and younger.

What must child-care EMPLOYEES do under the law?

Employees must provide proof of two doses of the Measles, Mumps and Rubella (MMR) vaccine or provide proof of immunity along with providing proof of having received the tetanus, diphtheria and pertussis vaccine (Tdap). As such the law does NOT provide any exemptions to employees due to medical or religious reasons.

Under this new law, employers at child care facilities now have a legal basis to demand vaccination or proof of immunity of their employees. Such medical records should be kept in a medical file, separate from the employee’s personnel file to comply with medical privacy laws.

Questions? Contact Anthony J. Caruso, Jr. of Wessels Sherman’s St. Charles office at (630) 377-1554 or via email at ancaruso@wesselssherman.com.

FMCSA Prohibition Against Coercion of Drivers Becomes Effective

January 2016
By Alan E. Seneczko, Esq.

On January 29, 2016, motor carriers, shippers, receivers and transportation intermediaries (e.g., brokers, freight-forwarders, etc.) become subject to a new regulation (“The Coercion Rule”) that prohibits them from “coercing” drivers of commercial motor vehicles to operate their vehicles in violation of federal motor carrier safety regulations, including drivers’ hours-of-service limits; commercial driver’s license (CDL) regulations; drug and alcohol testing rules; the hazardous materials regulations, and commercial regulations applicable to, among others, interstate household goods movers and passenger carriers.

Under the new regulation, “coercion” occurs when one of the above entities (or their agents) threatens to withhold business, employment or work from, or to take adverse employment action against a driver in order to induce him to operate his vehicle in violation of any of these regulations, or to punish her for refusing to do so. In order for a violation to occur, the carrier, shipper, etc. must request a driver to perform a task that would require the driver to violate a regulation; the driver must object (i.e., inform the carrier, etc. that the violation would occur); and the entity must threaten or take action against the driver to get him to take the load despite the violation. The rule allows drivers to report incidents of alleged coercion to the FMCSA, which is authorized to issue civil penalties against violators and, for willful violations, to potentially revoke a carrier’s operating authority.

Although drivers have always been protected against such retaliation under the Surface Transportation Assistance Act, the regulations themselves have always focused on the supply side of motor carrier industry (i.e., drivers and carriers). Now, under the Coercion Rule, the demand side of the industry (i.e., shippers, brokers, travel groups, etc.), whose actions also impact transportation safety, has been brought into the fold.

For more information on the Coercion Rule, go to http://www.fmcsa.dot.gov/safety/coercion or contact Attorney Alan E. Seneczko at (262) 560-9696 or alseneczko@wesselssherman.com.