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Food fight erupts into melee at Minneapolis South High School

  • Article by: KELLY SMITH and PAUL WALSH , Star Tribune staff writers
  • Updated: February 15, 2013 – 6:16 AM

200 to 300 students involved; some cited racial, ethnic tensions.

Food fight erupts into melee at Minneapolis South High School | StarTribune.com.

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Lawmakers’ views: DFL will bring a new focus to St. Paul | Duluth News Tribune | Duluth, Minnesota

This gallery contains 1 photo.

Lawmakers’ views: DFL will bring a new focus to St. Paul This Legislature will be focused, driven and dedicated to resolving what has become a perpetual cycle of repeated deficits. We will be inclusive of all and eventually reach a … Continue reading

Minnesota Employment Law Report : Minneapolis Lawyers and Attorneys for Labor Law

Employees Head Back to the Polls

Blog Pic - Vote Button.jpgOn Tuesday, November 6, 2012, Minnesotans will head to the polls to cast their vote.  As we’vereminded 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”

Pursuant to 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 . . . .”  Under the law, employees have the right to 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.  Persons who violate the statute are guilty of a misdemeanor.

Employer FAQs

While the Minnesota Election Day Law provides little specifics on how exactly the leave should work, Minnesota Secretary of State Mark Ritchie provided some guidance in a recent letter to “All Minnesota Employers.”

  • 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 it 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. Thus, it is safe to say that it does not provide for time off to 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.

Minnesota Employment Law Report : Minneapolis Lawyers & Attorneys for Labor Law.

Minnesota Employment Law Report : Minneapolis Lawyers & Attorneys for Labor Law

Court OK’s Change in Workweek to Minimize Overtime

Blog Pic - Timecard.jpgThe Eighth Circuit Court of Appeals (which covers Minnesota) ruled that the Fair Labor Standards Act (“FLSA”) does not prevent an employer from altering its designated workweek to minimize the potential for employee overtime.

The employees of Redland Energy Services in Arkansas worked seven, twelve-hour shifts, followed by seven consecutive days off. In May of 2009, Redland changed the standard workweek to from Tuesday through Monday to Sunday through Saturday. The employees sued, arguing that this caused them to earn less overtime even though they were working the same number of hours. In effect, they contended that any change designed to reduce overtime liability was a violation of the FLSA.

The trial court dismissed the employees’ claims and the Eighth Circuit affirmed in the case of Abshire v. Redland Energy Servs., LLC, No. 11-3380 (Oct. 10, 2012).

Overtime Provisions at Work

Since employees generally must be paid overtime for working more than 40 hours in a workweek, it is critical to know just what a workweek actually is. Department of Labor regulations, 29 C.F.R. § 778.105, define a workweek to be:

[A] fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. . . . Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him.

The appeals court noted first that the FLSA does not prevent employers from selecting a designated workweek that results in employees earning fewer overtime hours than if the workweek was “better” aligned with their shift schedules. In short, the law does not restrict the employer’s initial establishment of its workweek. Subsequently, if a change is to be made, the DOL regulations state that the change must be “permanent and . . . not designated to evade the overtime requirements of the Act.”

The Eighth Circuit observed that the employees’ chief complaint was that Redland intended to reduce the amount of overtime due to them under federal law. Perhaps so, but the court concluded that it was never the original purpose of the FLSA to “maximize the payment of overtime” to employees. Rather, “[s]o long as the change is intended to be permanent, and it is implemented in accordance with the FLSA, the employer’s reasons for adopting the change are irrelevant.”

Bottom Line

The FLSA does not mandate that employees be paid as much overtime as possible; it merely requires that overtime be paid when it is earned. While an employer may not make a series of changes that constantly evade the overtime requirement, a decision to implement a permanent change in the workweek to minimize labor costs is perfectly permissible under the law.

Minnesota Employment Law Report : Minneapolis Lawyers & Attorneys for Labor Law.

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California Supreme Court makes privatization harder for local governments

Score another win for California’s public-sector unions. Last year, the Orange County city of Costa Mesa moved to privatize a large swath of public services in order to reduce a deficit estimated at $15 million (largely because of pension and salary costs) for the upcoming fiscal year. When the city’s employees association filed suit, the courts sided with labor, holding that Costa Mesa didn’t have the authority to contract out for the work without following “the proper procedures” (which remained remarkably undefined).

In an effort to circumvent the courts, privatization advocates placed Measure V on this month’s ballot — a proposal that would have converted Costa Mesa into a charter city and freed it from the restraints on its employment decisions. Even in this relatively conservative corner of Southern California, the proposal was decisively defeated at the polls. Now, based on a new ruling out of California’s Supreme Court, it looks like privatization efforts could become non-starters statewide.
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Is Reassignment to Another Job a Required Accommodation under the ADA?

Posted by Grant T. Collins on September 14, 2012

Blog Pic - Application.jpgThe answer depends on where you live. For Minnesota employers, the Federal Eighth Circuit Court of Appeals ruled in a case entitled Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), that an employer is not required to reassign a disabled person to a vacant position ahead of better qualified applicants.

The Equal Employment Opportunity Commission(EEOC) believes otherwise, having asserted way back in 1999 that “reassignment means that the employee gets the vacant position, if s/he is qualified for it.” Courts in other federal circuits, including those in Colorado (10th Circuit), D.C. (D.C. Circuit), and Florida (11th Circuit), have agreed with the EEOC’s reading of the ADA.

The Seventh Circuit in Chicago had previously sided with the Eighth Circuit’s view on this issue, explaining that the ADA merely requires a level playing field and is not “an affirmative action statute.”  However, last week they reversed course and ruled:

[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” EEOC v. United Airlines Inc., No. 11-1774 (Sept. 7, 2012).

The court was not persuaded by the company’s “disability neutral” policy of hiring only the best applicant for a vacant job. They found that while an employer probably does not have to disregard a full-fledged “seniority system” (e.g., a system established by a collective bargaining agreement), a simple rule or policy does not create an “automatic exemption” from an employer’s duty to accommodate under the ADA. Instead, the employer must be prepared to show that “fact-specific circumstances” particular to the employer’s employment system would create an undue hardship and render mandatory reassignment of a disabled employee into a vacant job unreasonable.

Bottom Line

Remember that this is a Seventh Circuit decision so it does not directly impact Minnesota employers. However, the EEOC’s success in getting the Seventh Circuit to flip flop almost certainly will spur them to seek the same from the Eighth Circuit. Therefore, while the law governing Minnesota says that we can remain “disability neutral” and not give preference to a disabled employee over more qualified applicants for a vacant job, we definitely can sense a possible change in the wind.

We will keep you up to date as this emerging issue continues to develop.

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Court: Union contract limits arbitrator’s role

In a union workplace, the collective bargaining agreement (CBA) outlines rights for both employees and the employer. It also defines the powers an arbitrator may have if called on to interpret the contract. If the arbitrator goes too far, a court can reverse his or her decision.

Recent case: Ruben’s union job at a Corpus Christi door manufacturer required him to operate a tool that, if misused, could cause serious injuries. It was equipped with a guard to protect employees’ hands from harm.

The company had a progressive discipline system that allowed management to skip steps if employees violated serious safety rules. The CBA didn’t define “serious.”

Ruben was caught reaching around the guard. He admitted he regularly did so, even though he knew it was against safety rules. Ruben’s employer fired him, skipping several steps in the progressive discipline system because it considered his violation so serious.

The union took the case to arbitration, where the arbitrator concluded that Ruben broke the safety rules, and that his violations were indeed serious.

But then the arbitrator went further. He compared the violation to other violations and concluded management hadn’t fired everyone who broke serious safety rules. He ordered reinstatement.

The company immediately appealed. It won when the court concluded the arbitrator wasn’t authorized to do anything other than decide whether the rule in question dealt with a serious safety hazard and whether the employee broke the rule. Any­­thing else was outside his authority. Man­­age­­ment had the exclusive right to decide what the punishment should be. (Horton Auto­­matics v. The Indus­­trial Division of the Com­­mu­­ni­­ca­­tions Workers of America, et al., No. c-11-381, SD TX, 2012)

Final note: Labor law isn’t a do-it-yourself project. Get expert legal help when negotiating union contracts. An experienced labor attorney can help you preserve as much management authority as possible.

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EEOC Issues New Enforcement Guidance on the Use of Arrest and Conviction Records

Posted by Grant T. Collins on May 10, 2012

Blog Pic - Handcuffs.jpgOn April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued newEnforcement Guidance on using arrest and conviction records when making employment decisions. The EEOC is aggressively pursuing this issue, as reflected by EEOC Commissioner Ishimaru’s remark at a recent public meeting that the EEOC is currently investigating hundreds of cases where employers unlawfully used criminal history in employment decisions.

What an Employer Can Ask?

The Guidance recommends that employers not ask about convictions on applications. When such questions are asked during other parts of the pre-employment process, they should be job-related.

The Guidance states in no uncertain terms that use ofarrest records is not job related.  However, when an applicant or current employee is arrested, the underlying conduct that led to the arrest can be considered if it renders the individual unfit for a position and only if the conduct is verifiable and not based solely on the fact of an arrest.

What Factors Should Employers Consider?

The EEOC has long declared that decisions based on a criminal conviction must consider these factors: (1) the nature and gravity of the offense(s), (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought. The new Enforcement Guidance, adds substance to these declarations.

Considering the nature and gravity of the offense(s) requires evaluating the harm caused, the legal elements of the crime, and the classification (i.e, misdemeanor or felony). As to the amount of time that has passed, employers should evaluate each case individually and consider studies of the risk of recidivism. As to the nature of the job, the EEOC says to look beyond the mere job title to analyze the duties, essential functions, and work environment.

Is an Individual Assessment Required?

While stopping short of saying that an individualized assessment is needed, the EEOC makes clear that “the use of a screen that does not include individualized assessment is more likely to violate Title VII.” An individualized assessment generally means that an employer (a) informs the individual that he may be excluded because of past criminal conduct, (b) provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him, and (c) considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

Employer Best Practices

The Guidance suggests several “Best Practices” for employers who are considering criminal record information when making employment decisions.

    • Eliminate policies or practices that exclude people from employment based on any criminal record;
    • Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination;
    • Develop a narrowly tailored written policy and procedures for screening for criminal records;
    • Identify essential job requirements and the actual circumstances under which the jobs are performed;
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs;
    • Identify the criminal offenses based on all available evidence;
    • Determine the duration of exclusions for criminal conduct based on all available evidence;
    • Record the justification for the policy and procedures;
    • Note and keep a record of consultations and research considered in crafting the policy and procedures;
    • Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII;
    • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and
  • Keep information about the criminal records of applicants and employees confidential.

Bottom Line

The use of criminal records in hiring or employment decision making is not illegal, but the EEOC has made it very clear that employers using them must demonstrate that such use is “job related and consistent with business necessity.” The practices outlined above would be a good start in meeting that standard.
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http://www.minnesotaemploymentlawreport.com/

Minnesota Court Confirms that Handbook Disclaimer Trumps Contract Claim

Posted by Randi J. Winter on May 25, 2012

Blog Pic - Important Stamp.jpg

In Barker v. County of Lyon, — N.W.2d —-, 2012 WL 1570133 (Minn. Ct. App. May 7, 2012), the Minnesota Court of Appeals recently held that it is unreasonable as a matter of law for an employee to rely on provisions of a personnel handbook if the handbook also contains a disclaimer warning that the employer can modify or eliminate any of the policies at any time.

The case involved the Lyon County personnel manual, which had been altered numerous times over the years.  In 1985, the manual guaranteed retiring employees certain benefits.  In 1991, the manual was amended to include a provision stating that the county reserved the right “to change any of these policies, after notice to and input from employees.” In 1995, the county added a clause on the front of the manual in large, bold-face capital letters stating, “THIS POLICY MANUAL IS NOT AN EMPLOYMENT CONTRACT.”

In 1999, the manual was amended yet again to cut off the retirement benefit for employees hired after May 1, 1997.  Finally, in 2009, another change to the manual capped the retirement benefit for all employees, including those hired before May 1, 1997.

Several current and former employees who lost benefits as a result of the amendments brought suit based on the theory of promissory estoppel, which is a legal term meaning “detrimental reliance.”  To succeed with such a claim, the employees needed to show that (1) the county made a “clear and definite promise”; (2) the county intended to induce the employees to rely on the promise; (3) the employees reasonably relied on the promise to their detriment; and (4) the promise must be enforced to prevent injustice.

Like the district court, the appellate court ruled against the employees, finding that their reliance on the pre-2009 versions of the manual was unreasonable because of the disclaimer.  The court further rejected the employees’ argument that they could rely on oral promises made by county representatives.  The court reasoned that “any reliance on oral promises that contradicted provisions in the policy manual was, as a matter of law, unreasonable” because such representations explicitly contradicted the manual’s disclaimer.

Bottom Line

The Barker decision appears to be the first published decision arising from Minnesota’s state courts declaring that it is unreasonable as a matter of law for an employee to rely on a provision contained in an employee handbook where the handbook contains a disclaimer warning it can be changed at any time.  If you haven’t already, employers should consider adding a similar disclaimer to their handbooks and manuals.