July 2016

You Can’t Make Me Be Positive!

As if we didn’t have enough constraints, the NLRB has now ruled that if you ask employees to maintain a positive workplace, you are acting unlawfully.

In an April 29, 2016, decision, T-Mobile USA, Inc. and Communications Workers of America and Communications Workers of America Local 7011, AFL–CIO, the Board confirmed administrative law judge (ALJ) Christine E. Dibble’s decision and overturned several of T-Mobile’s handbook policies. However, the Board then went even further than Judge Dibble and found additional policies and rules to be unlawful.

T-Mobile’s policy on positive work environment stated: “[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.” The Board’s response: “[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’”

T-Mobile’s policy on prohibited recordings in the workplace stated: “To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.”

The Board’s response: that the policy was overly broad and did not “differentiate between recordings that are protected by Section 7 and those that are not, and includes in its prohibition recordings made during non-work time and in non-work areas.”

Other T-Mobile policies struck down by ALJ Dibble and the Board were rules: declaring the employee handbook to be a confidential and proprietary document; prohibiting disclosure of the handbook to third parties without prior written permission; mandating that employees must maintain the confidentiality of the names of employees involved in internal investigations; and declaring employee salary information to be confidential.

Importantly, when striking down these rules, the Board was acting without evidence that these rules actually inhibited protected employee activity under Section 7, nor was there a union organizing campaign. This was just about the Board’s concern that something could happen. Now that’s what we call a clear directive with hard evidence (not).

RLG Takeaway
Review your handbook carefully. We’ve had some significant decisions in 2016. Thus, even if you just reviewed in 2015, please take the time to do so again.

Beware: Increased Penalties for Employing Undocumented Workers and I-9 Violations

The U.S. Department of Justice recently unveiled a rule that will increase possible penalties for unfair employment practices tied to immigration and employing undocumented individuals.

The minimum penalty for employing undocumented individuals will jump from $375 to $539, while the maximum will go from $3,200 to $4,313. Employers with multiple violations will face a new maximum penalty of $21,563 for unlawfully employing immigrants.

The new rule will also enhance paperwork violations related to I-9 verification documents, increasing the top penalty from $1,100 to $2,156. For unfair immigration-related employment practices, an initial violation could pose a new top penalty of $3,563 per charge.

The regulation takes effect on August 1, and the increases will apply to violations that took place after November 2, 2015.

If you have any questions regarding compliance or proper completion of I-9 forms, please contact us.

The New OSHA Regulation and its Effect on Drug and Alcohol Testing Policies

On May 12, 2016, OSHA published the final version of new reporting rules intended to “Improve Tracking of Workplace Injuries and Illnesses.” See 81 Fed. Reg. 29623 – 29694 (to be codified as 29 C.F.R. Parts 1902 and 1904). Among other revisions, the rules clarify “the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.”

In the final rule, OSHA cites to studies which suggest that “blanket” post-accident drug-testing policies (i.e. policies that require drug testing after every reported workplace accident or injury regardless of the circumstances) tend to discourage the reporting of workplace accidents/injuries and are viewed by employees as an invasion of privacy. To strike the “appropriate balance” between the duty to maintain a safe workplace, satisfy regulatory reporting requirements and respect employee privacy, OSHA advises that company “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

OSHA believes that, unless otherwise required by law, private employers should not maintain blanket drug testing policies that require drug testing after every reported workplace injury or accident. For example, it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a machine or tool malfunction.

This rule will not apply to government entities and it yields to an employer’s obligation to comply with other state or federal laws and regulations which may require post-accident drug testing

RLG Takeaway

OSHA advises that post-accident and/or post-injury drug testing should be limited to situations where the facts indicate that drug use likely contributed to the incident.
If drug tests accurately detecting actual impairment are available, they should be used over tests that only indicate past drug use.
With this change, many employer drug testing policies will violate OSHA’s new regulations. Therefore, employers should consider reviewing their drug testing policy prior to the effective date of August 10, 2016.
As an additional measure, employers may want to require testing after an employee safety violation that could have been caused by drug use, regardless of whether or not an injury occurred.
Additionally, employers can increase the frequency of random drug testing, where permitted.

A New Claim for Wrongful Discharge in Minnesota?

In an unexpected and surprising broadening of employee rights under the Minnesota Fair Labor Standards Act (MFLSA), the Minnesota Court of Appeals held, on June 27, 2016, that an employee who is discharged for refusing to obey an employer’s directive that violates the Act can sue for “damages normally associated with a wrongful-discharge cause of action” and not merely lost wages. Burt v. Rackner, Inc. d/b/a/ Bunny’s Bar & Grill, No. 12-CV-15-11477 (June 27, 2016).

Here, the employee was fired for refusing to share tips with other employees, which the employer made a condition of continued employment. This tip-sharing request violates Minn. Stat. § 177.24, subd. 3, which prohibits employers from requiring their employees to share or pool tips. The District Court granted judgment in favor of the employer, holding that the MFLSA does not include damages for wrongful discharge.

The Court of Appeals reversed, reasoning that “[t]he statute also broadly permits a wronged employee to ‘seek damages and other appropriate relief. . . as otherwise provided by law.’” Id. at 4. The Court of Appeals interpreted the statute to provide that where an employee has been discharged in violation of the MFLSA, available remedies include the wrongful-discharge monetary damages.

RLG Takeaway
It will be interesting to see if the Supreme Court upholds this ruling. If this decision is not overturned it will be more important than ever for all employers to ensure compliance with the MFLSA.

Little Known (But Important!) Facts about the Connection Between WESA and FMLA

Employers covered by the Minnesota Parenting Leave Act (MPLA) must provide eligible employees with up to 12 weeks of unpaid leave for the birth or adoption of a child, or for female employees needing time away due to prenatal care or incapacity due to pregnancy, childbirth or related health conditions. The Act covers employers with 21 or more employees on at least one site. An employee is eligible for leave under the MPLA if the employee works at least half-time, as defined by the employer, and has been employed with the employer for at least 12 months. Prior to changes made under the Women’s Economic Security Act (WESA), which took effect in July 2014, only employees who had been employed for the 12 consecutive months immediately preceding the request were eligible for leave.

Under the MPLA, employers may require employees seeking leave to provide reasonable notice of the date leave will commence and estimated duration of the leave. For leave occasioned by the birth or adoption of a child, the leave must commence within 12 months of the birth or adoption except in circumstances where the child must remain in the hospital longer than the mother. In these instances, the leave must begin no later than 12 months after the child leaves the hospital.

One little known fact is the use of intermittent and reduced schedule leave under the FMLA versus only intermittent leave under the MPLA. Under the FMLA, an employee must take leave for birth and bonding with a child as a continuous block unless the employer agrees to allow intermittent leave or reduced-schedule leave. Under the MPLA, however, an employee is entitled to intermittent leave, not reduced-schedule leave.

Though Minnesota does not define intermittent leave, federal regulations define it as “leave taken in separate blocks of time due to a single qualifying reason.” This is distinguished from a reduced leave schedule, which is “a change in the employee’s schedule for a period of time, normally from full-time to part-time.”

Accordingly, a Minnesota employee who qualifies for MPLA can take leave for the birth and bonding with a child either continuously or intermittently, but not on a reduced-schedule unless the employer agrees. Under FMLA, the employee is only entitled to leave taken in a continuous block of time.

Another little known fact is that employees may take up to 12 weeks of unpaid leave upon the birth or adoption of their child. However, under the MPLA, leave must be begin within 12 months of the birth or adoption. Thus, an employee could conceivably take six weeks of FMLA after the birth of his/her child and then another six weeks almost 12 months after the birth of the child – extending into a period of time more than 12 months after the birth.

RLG Takeaway
While appropriate notice is required, employers should be clear with employees about the type of leave they are taking when they qualify for both FMLA and MPLA. Remember, they do run concurrently, but there is no case law on the provisions of the MPLA. Thus, communications to employees when on leave about the type and amount of leave will be critical evidence should an issue arise.

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.