Employment Law

HR
SPECIALIST
Minnesota
Employment Law
Trusted compliance advice for Minnesota employers
In the News …
Minneapolis rated best
city for LGBT protection
Minneapolis earned the top spot in
the Human Rights Campaign’s (HRC)
annual rankings of American cities
with local laws and policies that
protect lesbian, gay, bisexual and
transgender (LGBT) people from dis­­
crimi­­na­­tion. Minneapolis scored a
perfect 100 on the gay-rights advocacy organization’s scale.
HRC’s Municipal Equality Index
ranked 353 cities nationwide on
several categories including nondiscrimination laws, relationship
recognition, employment practices,
municipal services and programs and
law enforcement practices.
Across the river, St. Paul scored
97, losing three points because the
city does not require city contractors
to provide equal benefits to LGBT
employees.
Rochester scored 70, while Duluth’s
score was 58. The national average
was 59.
Learn about the practices HRC considered at www.hrc.org/campaigns/
municipal-equality-index.
Starbucks customers to
see a latte more ink
In response to employee feedback,
Starbucks has changed its employee
appearance policy to allow employees
Continued on page 5
Minnesota Employment Law is published
by HR Specialist and edited by Megan
L. Anderson, Esq., an attorney with Gray
Plant Mooty’s Employ­­ment Law Practice
Group. Megan’s p­ ractice includes advising
employers in the full range of personnelrelated matters. Contact her at megan.
[email protected] or (612) 632-3004.
(800) 543-2055
•
www.theHRSpecialist.com
January 2015
Vol. 7, No. 1
Editor: Megan L. Anderson, Esq., Gray Plant Mooty, Minneapolis
Iron-clad misconduct proof not needed to fire
W
orried about terminating an
employee because the allegations against him amount to a
he-said, she-said situation? Relax.
Courts don’t want to become HR
departments and don’t want to
mediate every dispute.
Judges merely want to see that an
employer investigated the allegations before making a final decision
and that whoever made that decision
honestly believed it was the right
one. You won’t have to prove you
were right—just honest.
Recent case: Ethan, a white manager, was known as a strict supervisor. At one point, he reported an
incident between two of his crew
members during which a white
woman held a knife to the throat of
a black co-worker. Three years later,
the white woman reportedly told
Ethan, “Someone is going to pay for
telling on me for pulling a knife on
Earnest’s throat.”
Shortly after, the company investigated when two other women on
Ethan’s crew accused him of sexual
harassment. The company apparently
didn’t believe Ethan’s claim that
it was a set-up orchestrated by the
woman he had earlier reported in
the knife incident.
Ethan was fired and he sued, alleging race and sex discrimination. He
Continued on page 2
Never ignore lawyer’s advice on classification
E
mployers that violate the FLSA
overtime provisions and underpay employees are generally liable
for wage payments going back two
years. These are then doubled as
punishment for getting it wrong.
But add willfulness into the mix,
and the law adds an additional year
of unpaid wages to the tab, which
is also doubled. That’s a 50% bonus
for the employee.
If your lawyers have told you that
a particular classification you are
using is wrong, ignoring that advice
can be used as evidence against
you. The opinion becomes evidence
of a willful violation, making the
employee eligible for the bonus payment.
Recent case: Robert worked in
the auto racing industry. He performed mechanical work, helped run
a race team’s shop and sometimes
served as a personal valet and coach
for the primary driver.
After Robert was fired for alleged
insubordination, he sued, alleging
that he had been misclassified as
exempt.
He asked for back pay going back
three years instead of the standard
Continued on page 2
IN THIS ISSUE
Perils of not tracking hours worked . . . . . . . . . . 2 EEOC diagnoses trouble for wellness plans . . . 6
Pro-se litigant? Court will try to help . . . . . . . . . . 3 Paying employees for snow days . . . . . . . . . . . . 7
How to survive an ICE I-9 inspection . . . . . . . . . 4 The Mailbag: Your questions answered . . . . . . . 8
Business Management Daily
Proof not required
(Cont. from page 1)
argued that he had reported
the knife incident as a racial
attack and that the women had
all ganged up on him because
he was a male.
The court tossed out his
lawsuit. It reasoned that the
employer was free to believe
the women and fire Ethan
rather than believe his conspiracy theory. (Moody v. Vozel,
et al., No. 13-3772, 8th Cir.,
2014)
Final note: It helps to conduct standard investigations,
but you don’t need a rigidly
standard process. Just use the
same steps each time. And
always give everyone a chance
to tell their side of the story.
Don’t ignore your lawyer
(Cont. from page 1)
two. The reason? He believed
that his employer’s violation
was willful.
And as part of the evidence
of that willfulness, he discovered that the team principal
had ignored a written legal
opinion from its legal counsel.
That memo included an opinion that the team’s mechanics
should be classified as hourly
employees and not as exempt
administrative, executive or
professional employees.
The company argued that
failing to follow its attorney’s
advice didn’t constitute evidence that it acted willfully.
The court said whether the
team acted willfully or not
could go either way. Since that
was the case, it ordered a trial
so a jury can decide the matter
after hearing all the evidence,
including the lawyer’s opinion letter. (Johnson v. Derhaag
Motor Sports, No. 13-CV-2311,
DC MN, 2014)
2
He who has the best time records usually
wins a wage-and-hour lawsuit
T
Greg sued, alleging he was due
he Fair Labor Standards Act
overtime pay because he wasn’t
(FLSA) and Department of
properly classified.
Labor (DOL) regulations require
Because his company didn’t track
employers to track all hours worked
his hours, he testified about what
so employees can be paid for all the
he called a typical day. He said he
time they spend working. That’s
“typically” worked two to three
especially true for hourly employees.
hours doing preparation work, and
But what about tracking hours
“typically” spent three to four hours
for so-called exempt employees who
traveling to locations daily. He also
aren’t eligible for overtime pay for
claimed he “typically” spent four to
hours worked over 40 per week?
five hours in the evening driving to
Your best bet is to track their
client sites or nearby hotels, three
hours, too. That’s true even if they
to four hours at a client’s site, three
work from home, are on the road or
to four hours
otherwise don’t
writing expense
show up in an
Track hours worked
reports, one
office to punch
to two hours
a time clock.
even for employees you
arranging travel
That’s because
consider to be exempt from
time. On top of
if an exempt
that, he said he
employee chalFLSA overtime rules.
“typically” spent
lenges the exemptwo to three
tion and sues, and
hours each weekend on administraif you can’t produce time records,
tive work.
the court will look to the employAll told, Greg testified that he
ee’s records. Don’t leave yourself
“typically” worked 62 to 70 hours a
defenseless. Track hours even for
week the entire time he worked for
employees you consider exempt.
the company.
Recent case: Greg worked as a
The court said it didn’t need to
field service engineer for six years.
decide whether Greg was misclassiHis employer classified Greg and
fied because it was clear that Greg
other field engineers as exempt
didn’t have any detailed records
employees.
to show how many hours he had
Greg’s job was to install and serworked in any specific week. Using
vice three-dimensional printers.
a “typical” week simply wasn’t speHe worked independently from his
cific enough. The case was dismissed.
home and was on duty during the
(Holaway v. Stratasys, No. 14-1146,
week waiting for assignments. When
8th Cir., 2014)
a client requested installation or serFinal note: The employer lucked
vicing, a supervisor would inform
out in this case. The DOL now
Greg, who would travel to the clioffers a smartphone app designed to
ent’s location and install or service
help employees keep track of their
a printer. Greg did not receive overtime and thus be in a good position
time if he worked more than 40
to challenge time records. The app is
hours in any given week.
currently only available for iPhones,
Greg sent an email to co-workers,
though an Android version is due
complaining that the company ex­­
out soon. It will track every minute
pected the field engineers to work
worked and even calculate how much
long hours without overtime pay.
the overtime check should be. For
When the company got wind of the
more info, go to www.dol.gov/
email, it fired Greg for violating its
dol/apps.
electronic communications p
­ olicies.
Minnesota Employment Law • January 2015 www.theHRSpecialist.com
Ask court to limit claims when
employee acts as his or her own lawyer
G
ood news for employers that are
sued by pro se litigants—employees who act as their own lawyers.
Courts really don’t want to waste time
on cases that no attorney has seen fit
to take on. However, they also don’t
want to let lack of legal representation sink an otherwise solid claim.
The solution is for the court to
conduct a preliminary assessment
of whether the claim has merit or is
frivolous or malicious.
Recent case: When Hayder was
fired, he filed his own lawsuit against
his former employer, the Minnesota
Department of Transportation and
a host of other individuals, including supervisors and co-workers in his
former department.
Hayder claimed that he had been
hired as a probationary employee
and then denied a permanent job
because of discrimination and retaliation for complaining.
He also claimed that co-workers
and supervisors harassed him because
he was of Iraqi national origin.
For example, Hayder alleged that
his supervisor called him an “Iraqi
insurgent or mercenary” and allegedly threatened to kill him if he
complained. He made various other
allegations against co-workers and
supervisors, essentially arguing that
they conspired to get rid of him by
concocting false allegations of unsafe
driving and other infractions.
The court quickly dismissed the
charges against the individual supervisors and co-workers because they
aren’t personally liable under Title
VII. His other claims move to the
next stage. (Abduljabbar v. MDOT,
et al., No. 14-3583, DC MN, 2014)
Court refuses to sidestep employee
notification of pending class-action lawsuit
T
he federal trial court with jurisdiction over Minnesota employers has refused an employer’s request
to streamline the FLSA collectiveaction process.
Essentially, the employer argued
that it should be able to discuss the
merits of the case before all its past
and present employees receive notifications about the lawsuit and have
a chance to opt in. The court nixed
the idea.
Recent case: Christopher and several other employees sued Minnesotabased national tile retailer The Tile
Shop, alleging that sales associates
and assistant managers had been
misclassified as exempt retail sales
employees.
The company wanted the court to
decide up front whether the employees were misclassified as part of the
collective-action certification and
www.theHRSpecialist.com
before it had to post notices inviting current and former employees
to join the litigation.
The court refused, saying that
while some other circuits do so,
it wasn’t going to join them. As a
result, Minnesota FLSA collective
actions will continue to be long,
drawn out and expensive. (Chin,
et al., v. The Tile Shop, No. 13-CV2969, DC MN, 2014)
Final note: Employers should try
everything possible to avoid misclassifying employees. Making a mistake
can be very expensive and take years
to resolve.
If in doubt about how your workers should be classified, get expert
help. A few thousand dollars spent
up front on good legal advice can
save you hundreds of thousands later
in legal fees, back wages, penalties
and lost time.
Legal Briefs
After firing boss accused of
harassment, zip your lips
If a court concludes that one of your
supervisors created a hostile work
environment, you probably don’t want
to retain him. But don’t go overboard
with the explanations.
Recent case: When a court upheld
a group of female firefighters’ sexual
harassment claims, the fire department’s board of directors voted to
terminate the officials they believed
were responsible for tolerating misbehavior. At a public meeting, two
directors said they acted because
the men created an environment rife
with “hostile discrimination against
female employees.”
After the fired supervisors read several online news articles that claimed
two board members accused them of
promoting a hostile environment, they
sued, alleging that the board members had harmed their reputations.
The court tossed out the case after
noting that the comments the board
members made simply quoted the
previous court’s decision. (Crews,
et al., v. Monarch Fire Protection
District, No. 13-3070, 8th Cir., 2014)
Jury trial approved for
retaliatory discharge claims
Employees who claim they were fired
for seeking workers’ comp benefits
are entitled to a jury trial. That can
result in big damages, as juries are
notoriously prone to making employers pay.
Recent case: Darell claimed he
hurt his back at work and was discouraged from filing a workers’ compensation claim. He said a supervisor
told him that the company took a dim
view of such claims and told him he
might even be fired. Darell filed anyway, and was in fact terminated.
He filed a retaliation claim and
demanded a jury trial.
The court agreed that he had that
right under the Minnesota state constitution, which guarantees jury trials
for damages. (Schmitz v. U.S. Steel,
No. A-12-0709, Supreme Court of
Minnesota 2014)
January 2015 • Minnesota Employment Law
3
Compliance Corner
Insight from TheHRSpecialist.com
Beat the chill of an ICE inspection: How to survive an I-9 audit
I-9 compliance Heed these 9 do’s and don’ts
Q
uick: Could you put your hands on all the necessary
records if U.S. Immigration and Customs Enforce­­
ment (ICE) officials announced they were about to audit
your I-9 Employment Eligibility Verification files? The
answer better be yes!
It’s more likely than ever that you will receive an ICE
Notice of Intent to Audit (NOI). In fiscal year 2013, ICE
inspected the I-9s of 3,127 employers. That’s a fivefold
enforcement increase in just five years. The total fines generated by federal I-9 audits have grown from just $1 million in 2009 to more than $15 million last year.
The audit process starts when an ICE agent serves an
NOI. In addition to I-9 documentation, the NOI typically
requests other information, including lists of all current
and former employees and payroll records. You usually
have only three business days to respond to an NOI.
What happens in an audit
Once the requested documentation has been turned over
to ICE, an auditor reviews the records and notes any I-9
deficiencies. If any technical or procedural irregularities
are found, ICE allows 10 days to correct them. Most
problems identified at this stage are easily corrected clerical errors.
However, employers do not get a chance to correct
substantive I-9 violations. Those might include failing to
reference a document number or relying on documents
not listed as acceptable identity or employment authorization documents. The difference between the two types
of violations is that a substantive violation is more likely
to lead to the hiring of an unauthorized worker.
Penalties for violations
Employers are generally fined between $110 and $1,100
per substantive or uncorrected technical violation (the
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4
amount depends on the number of total violations).
In addition, if, during the course of an audit, an em­­
ployer is found to have knowingly hired or continued
to employ unauthorized workers, it will face additional
fines. Also possible are criminal sanctions and debarment
from future government contracts.
What employers must do
So, what is the takeaway? Don’t wait for an ICE audit to
take I-9 compliance seriously. Implement an effective and
workable compliance plan. Conduct regular I-9 audits on
your own, making any necessary corrections to forms.
Finally, provide training on the proper procedures to use
to all staff who complete I-9s.
STAFF
LEAP 2015
When: April 8-10, 2015
1. Do require new hires to complete and sign Section 1 on
their first day of work.
2. Don’t ask an applicant to complete an I-9 prior to making a job offer.
3. Do review each employee’s documents to make sure
they’re on the I-9’s list of acceptable documents.
4. Don’t ask new hires for any particular documents or
for more documents than the I-9 requires. The employee
chooses the documents, not you.
5. Do establish a consistent procedure for completing I-9s.
6. Do retain copies of I-9 documentation.
7. Don’t forget to keep a tickler file to follow up on expiring
documents that limit an employee’s authorization to work.
8. Do keep I-9s and copies of documents for three years
after the employee’s hire date or one year after his or her
termination, whichever comes later.
9. Don’t put the I-9 in an employee’s personnel file. Set up
a separate file.
To register:
LEAP2015.com
or (800) 543-2055
Editor: Megan L. Anderson, Esq.,
Gray Plant Mooty, Minneapolis,
(612) 632-3004
Editorial Director:
Patrick DiDomenico
Contributing Editor: Anniken Davenport, Esq.,
[email protected]
Associate Publisher:
Adam Goldstein
Senior Editor: John Wilcox, (703) 905-4506,
[email protected]
Production Editor: Nancy Asman
Publisher: Phillip Ash
Customer Service: [email protected]
BusinessManagementDaily.com,
(800) 543-2055
Vol. 8, No. 1
HR Specialist: Minnesota Employment Law (ISSN 1940-8072) is published monthly by
Business Management Daily, 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA
22043-2004, (800) 543-2055, www.theHRSpecialist.com. Annual subscription price: $299.
© 2015, Business Management Daily, a division of Capitol Information Group, Inc. All rights
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rendering legal service. If you require legal advice, please seek the services of an attorney.
Minnesota Employment Law • January 2015 www.theHRSpecialist.com
In the News ...
‘Ban the Box’ still a struggle
for some Minnesota employers
­­­
Starting Jan. 1, Minnesota em­­ployers’
job applications could no longer ask
candidates about past criminal convictions. But some employers, including
some of the state’s largest, have not
completely adapted to the new legal
landscape.
According to a Minneapolis Star
Tribune report, the state Depart­­ment
of Human Rights (DHR) has investigated approximately 50 complaints.
In most cases, the job applications
violated state law.
DHR sent warning letters to the
companies explaining that their applications were not in compliance and
giving them 30 days to make corrections. More than 40 responded that
they had changed the application, but
DHR is still waiting to hear from 16
employers.
Minnesota-based Target and 3M
Starbucks tattoo policy
(Cont. from page 1)
to show more of their tattoos.
The move comes after Starbucks
received an online petition signed
by 25,000 employees requesting the
change.
Under the new policy, employees
may show tattoos as long as they are
tasteful and not located on the face
or throat.
Specifically, the policy advises
employees to treat tattoos like
speech: Their ink shouldn’t expose
co-workers and customers to anything profane, hateful or lewd.
Employees are allowed piercings
within limits.
Ear piercings are to be kept small
and no more than two per ear. Ear
gauges are permitted, but limited to
10 millimeters in diameter. A small
nose stud is permitted, but no septum
piercings or rings.
Note: Starbucks charted a middle
course with its tattoo policy by listening to its employees, but limiting the
changes to those it felt its customers
would be comfortable with.
www.theHRSpecialist.com
EEOC charges, settlements fell last year
The number of EEOC charges declined slightly in fiscal year 2014, but employers
wound up paying dramatically less for workplace discrimination, harassment
and retaliation than they did in 2013.
The EEOC obtained just $296.1 million for employees and job applicants in FY
2014, down sharply from a record-setting $372.1 million in FY 2013. The federal
fiscal year runs from October to September.
The number of EEOC charges dropped less dramatically—88,778 privatesector discrimination, harassment and retaliation charges in 2014, about 5,000
fewer than in 2013.
The EEOC attributed much of the decline to lower federal funding. An EEOC
statement said enforcement activities were hampered by the 16-day federal
government shutdown that started the fiscal year on Oct. 1, 2013, as well as the
effects of sequestration—mandatory budget cuts triggered in March 2014 by a
2011 federal budget deal.
were among those that received letters. Both claim that out-of-date
applications were inadvertently still
in use. General Mills was cited for an
online application that failed to list
Minnesota as a “ban the box” state.
Employers that don’t comply with
the “ban the box” law are subject to
$500 fines.
Amazon, NLRB reach accord
on ‘disrespectful, loud’ speech
Online retail giant Amazon and the
National Labor Relations Board
(NLRB) have resolved an unfair labor
practices claim with an agreement that
could lead to unionization of many of
the company’s warehouses. The move
was prompted by a heavy-handed
response to an employee complaint
during an employee meeting.
During an all-staff meeting at an
Arizona warehouse, a worker voiced
concerns about a safety issue in the
employee parking lot. After the meeting, supervisors took the man aside
and told him he was disrespectful and
spoke too loudly during the meeting.
He responded that he had to speak
loudly to be heard. He was given a
verbal reprimand.
The employee filed a grievance with
the NLRB, which eventually found
that Amazon’s rule requiring employees to always act “in the best interests
of Amazon” overly broad. The NLRB
said the rule could have a chilling
effect on employees discussing work-
ing conditions in violation of the
National Labor Relations Act.
Amazon admitted no wrongdoing
under the settlement, but agreed to
post statements telling workers they
have the right to discuss workplace
conditions and organize into unions
if they so desire.
Amazon is rumored to be planning
construction of a distribution center
in Minnesota.
Disabled SSA employees
settle for $6.6 million
Current and former employees of the
Social Security Administration (SSA)
will receive $6.6 million to settle
charges the agency failed to accommodate disabled workers and denied
them promotions. A federal judge
in Baltimore has given preliminary
approval to the deal.
SSA employees first filed complaints with the EEOC in 2005.
They alleged a pattern of discrimination throughout the SSA. EEOC
investigators found that some disabled employees were denied promotions as many as fifteen times.
The deal will compensate 570 current and former employees affected
by the SSA’s actions. Additionally,
SSA will create a supervisory board
responsible for ensuring the settlement
is carried out fully. The SSA will also
overhaul its reasonable accommodation process and create a centralized
office to handle disability issues.
January 2015 • Minnesota Employment Law
5
In the Spotlight
by Meghann F. Kantke, Esq., Gray Plant Mooty, Minneapolis
The EEOC is diagnosing trouble for employer wellness plans
ADA, GINA compliance critical
T
he EEOC is increasingly tar­­
geting employer wellness programs that it believes run afoul of
federal law. While employers look
on wellness programs as an im­­
portant insurance cost-saving vehicle, a program that is implemented
without sufficient due diligence can
lead to expensive legal claims that
defeat the employer’s cost-savings
goals.
In recent months, the EEOC has
sued several employers for allegedly
maintaining illegal wellness programs.
Two of the EEOC’s recent suits
were filed in Wisconsin. In one of
those actions, the EEOC is alleging
that the employer illegally required
an employee to undergo a health risk
assessment and biometric test or have
his medical insurance canceled.
In the other case, the EEOC
alleges an employee was wrongfully
fired for objecting to medical inquiries and exams as part of a wellness
program.
The EEOC maintains that both
wellness programs involve improper
disability-related inquiries and nonparticipation penalties that run afoul
of the federal ADA.
Impact in Minnesota
The EEOC has also recently sued a
Minnesota-based company, Honey­­
well, over a wellness program that
involves em­­ployees and their spouses
being asked to participate in biometric screening and a determination of
body mass index.
According to the EEOC, Honey­­
well employees (and their spouses)
who don’t participate are assessed a
surcharge, and company contributions to their health savings accounts
are reduced by as much as $2,000.
The EEOC alleges that penalizing
employees for not participating in
the program is unlawful under the
ADA and may also violate the federal
Genetic Information Non­­dis­­crimi­­n­­a­­
tion Act (GINA). 6
These recent EEOC actions highlight the importance of crafting any
wellness program carefully to ensure
that it complies with the ADA, GINA,
and other laws that place limits on
medical inquiries and exams.
Under the ADA, employers can
only require medical exams or make
disability-related inquiries if the
inquiry or exam is:
1. job-related and
2. consistent with business necessity.
More often than not, employer
wellness initiatives do not meet those
requirements.
There is, however, an ADA exception that applies to wellness programs.
The ADA allows the collection of
medical information for “voluntary
programs aimed at identifying and
treating common health problems,
such as high blood pressure and cholesterol.”
The key to this ADA exception is
the word “voluntary.” In the actions
mentioned above, the EEOC is taking the position that imposing
non­­­participation penalties makes a
wellness program involuntary.
Avoiding disability bias
Another important ADA consideration is the law’s prohibition on disability discrimination. Under the ADA,
a “disability” is defined broadly to
include any physical condition that
substantially limits a major life activity.
An employee with a health condition may not have the ability to satisfy
the standards of a wellness program.
If an employee’s health condition
constitutes a “disability” and he or
she cannot participate in the wellness
program and obtain any incentives
tied to the program, the program
may run afoul of the ADA.
It is important, therefore, to either
set standards that everyone can meet
or grant reasonable accommodations
to disabled employees.
Regardless of the outcome of
the EEOC’s pending lawsuits, you
should exercise caution and consider
the impact of existing employment
laws on wellness initiatives.
Wellness issues to consider
Wellness programs must be truly
voluntary: A wellness program must
truly be voluntary to stay on the
right side of the law. A program is
arguably not voluntary if it involves
penalties for nonparticipation, such
as canceling insurance coverage or
shifting an insurance premium to the
employee.
Employee health information
must be kept private: Health information must be kept confidential
under the federal HIPAA law and
disability discrimination laws. Store
employee health information securely
and separately from other personnel
documents so it isn’t accessible to
decision-makers such as supervisors.
Wellness programs should not
regulate lawful behavior outside
of work: Many states, including
Minnesota, have a lawful consumables product law which protects
employees’ use of lawful substances,
like tobacco and alcohol, outside of
the workplace. Some states have even
broader laws that also protect any
lawful activity outside of work. To
avoid running afoul of these laws,
wellness programs should not involve
any adverse actions based on lawful
employee behavior outside of work.
Don’t forget about disability
accommodations: It can violate disability discrimination laws to deny a
disabled employee the opportunity
to participate in and obtain incentives tied to a wellness program. So,
when implementing a program, be
sure to consider and comply with
any reasonable accommodation obligations to disabled employees.
Meghann F. Kantke is an associate in
Gray Plant Mooty’s Employment Law
and Labor practice group. Contact her
at [email protected] or
(612) 632-3414.
Minnesota Employment Law • January 2015 www.theHRSpecialist.com
Nuts & Bolts
Let it snow! But make sure you know how to pay employees
P
arts of New York were inundated
with feet of snow well before
Thanksgiving. Buffalo businesses
have dug out from under the lake
effect by now, but they may still be
dealing with lingering pay issues.
executive, administrative and professional workers are exempt. Cer­­tain
highly skilled computer workers are
also exempt. Confer with your attorney to ensure your classifications
comply with the FLSA.
THE LAW The Fair Labor Stand­­
ards Act requires employers to pay
exempt personnel their regular salaries if they worked any part of the
workweek. Nonexempt employees
are generally paid for only the hours
they work.
Several states have enacted laws
that entitle employees to receive pay
if they show up for work and the
business is closed due to weather. In
most cases, employers can avoid the
situation by informing employees
of the closing.
For example, New York law
requires employers to pay workers
who show up for work for at least
four hours. California has a similar
statute that requires two to four
hours of pay depending on a number of variables.
Formulate a policy
WHAT’S NEW Much of North
America, including areas not accustomed to harsh weather, have
experienced extended cold spells
and higher than normal winter precipitation. Should the pattern hold,
employers throughout much of the
country will have to make decisions
about when to open, when to close,
liberal leave and telecommuting
policies.
Additionally, the IRS and Depart­­
ment of Labor have been scrutinizing employers’ classification of
employees as exempt or nonexempt.
Those agencies are also looking
closely at employers that classify em­­
ployees as independent contractors in
order to avoid payroll taxes, benefit
costs and workers’ compensation costs.
HOW TO COMPLY Employers
should review which employees are
exempt and which are not. Gen­erally,
www.theHRSpecialist.com
Employers should determine which
operations must continue during
inclement weather. From there,
decide which workers have to report
to work under those circumstances.
Some functions can be performed
remotely. Employees asked to work
from home must be paid as if they
came into work. For nonexempt
workers, you must have a way to
track employees’ time—it’s up to the
employer to maintain time records.
If an exempt employee performs any
work during the week, he or she
is entitled to a full week’s salary.
Most telecommuting policies
include a list of jobs that can be
done remotely. It’s important to
coordinate your hazardous weather
policy with your telecommuting
policy.
You may wish to designate only
some positions to operate remotely
during emergency conditions. If so,
note that in your policy.
Establish notification protocols
Especially if you operate in a state
where employees are entitled to
some pay if they show up for a regularly scheduled shift, you need a
notification protocol. This can be
via phone or email. The laws in your
state may have specific requirements.
Check with your attorney to ensure
your practices comply with the law.
Travel liability
Requiring employees to come to
work during hazardous weather
could potentially subject you to
liability. Employers are potentially
responsible for auto accidents in­­
volving employees who are on the
clock.
Include in your policy a limitation
on travel during hazardous conditions. Again, include in your plan
a protocol for notifying traveling
employees when to stay in place.
You may have to send employees home early if weather becomes
inclement during the day. In certain
cases, providing lodging for employees may be a better option. For
example, last year a severe winter
storm hit the Atlanta area. Because
this was such a rare event, the state
and city had no means to clear the
roads and the entire area skidded
to a halt. Many employers wisely
opted to house employees at nearby
hotels so they could easily get to
work without incurring potential
employer liability.
Liberal leave policies
Depending on how long an em­­
ployee’s commute may be and what
conditions the employee will face
while commuting, employers should
remain flexible.
Many employers have liberal leave
policies that allow employees to stay
home from work if they determine
commuting would be unsafe. (As a
practical matter, parents often appreciate a liberal leave policy to care for
their kids when inclement weather
causes schools to close.)
The absence is typically charged
against employees’ available leave.
Some make other arrangements, such
as allowing workers to come in a
specific number of hours late without docking their leave total.
Generally, liberal leave is triggered
when the employer determines that
travel is hazardous enough to warrant it. Employees may not claim
it unless the employer authorizes
liberal leave for specific locations on
specific days.
The keys to handling winter
weather are to plan in advance and
have clear lines of communication
in place.
January 2015 • Minnesota Employment Law
7
The Mailbag
Should we have employees sign time cards?
Q
Is there merit to having employees sign their time
cards? Is there any liability if the employee simply
uses an automated system and never “approves” their
time?
A
It is a best practice to have employees review and sign
their time cards showing hours worked, regardless of
whether the employee is signing a handwritten summary
or reviewing a summary kept by mechanical or electronic
means. Employees can file claims for unpaid overtime up
to three years after the actual time was worked. To avoid
surprises and lawsuits, most employers ask employees to
certify that the hours worked are correct.
Software that tracks employee hours is very convenient.
But, for example, if it’s set to automatically deduct meal
breaks and the employee actually works through a break,
the employee may have good cause to later claim he or
she was underpaid. For that reason, it’s wise to ensure
that each employee affirms the time card accuracy.
Worker withholding medical info: Any recourse?
Q
One of our general managers hired a person to lift
metal parts off a table to place on pallets. We just
learned the new hire is suing his former employee over
an alleged back injury. Can we terminate the employee
for not letting us know he had a back injury? He said
he was qualified to do the work and has been lifting
the parts for a week.
A
I’d advise against taking adverse employment action
against this employee. First, you can’t ask job applicants about their medical history until after you’ve
extended them a conditional offer of employment (other­­­­
wise, you’ll violate the ADA). And once you have that
medical information (assuming he volunteered it or you
ask the same questions of all new hires), you can act
upon it only to the extent it’s job-related and consistent
with business necessity.
It’s possible he has an open workers’ comp claim for
a back injury that has healed or doesn’t impact his current work. If you have reason to believe the employee
has a current injury and he may pose a direct threat to
himself (or others), you can reach out to his physician
and ask if he can work safely, or is in need of an accommodation. Absent some reason to believe he is struggling with an existing injury, however, I would proceed
cautiously.
What does ‘at-will employment’ really mean?
Q
Our supervisors believe they can terminate an
employee at any time by referring to their “at-will”
status. Please explain what this actually means. For
example, I believe we can fire at will unless the firing
violates a law like the FMLA, ADA and the like.
A
You are correct. “At-will” employment means, at its
base, a contract for employment that has no fixed
duration but continues only as long as both the employer
and the em­­­ployee agree to work together. That means
the employee can leave for any reason, and the employer
can terminate that employment for any reason—as long
as it is not an unlawful reason.
So, for example, employees who take FMLA leave are
entitled to return to their same position at the conclusion of the leave. And, with few exceptions, you cannot
terminate a person because he or she is disabled. Each
jurisdiction usually offers additional protections. Training
for managers could be helpful.
Megan L. Anderson is an attorney with Gray
Plant Mooty’s Employment Law Practice Group
in Minneapolis. Concentrating her practice in
employment law counseling and litigation, she
­regularly advises employers and provides training
on a variety of employment law issues. Contact her
at [email protected] or (612) 632-3004.
To submit your question to Minnesota Employment Law,
email it to [email protected]
FYI
Ebola panic subsides, but plan for next epidemic
While the Ebola fear factor ran high this fall, your organization’s odds of having to deal with the disease are
extremely low. However, it’s a timely reminder that even
relatively common maladies (such as the flu) can wreak
havoc on business operations. Several federal laws affect
how employees deal with such issues and collect medical
information from employees.
Learn more about setting a policy, leave issues,
quarantine issues, telecommuting and more at www.
theHRSpecialist.com/epidemic.
8
New white-collar OT rule delayed until February
Look for the Department of Labor (DOL) to release a
new proposed rule for paying overtime to white-collar
workers in February, a roll-back of the department’s
original, self-imposed November deadline.
The proposed rule could make overtime pay available
to as many as 3.1 million more managers who are now
considered exempt executive, administrative and professional employees under the Fair Labor Standards Act.
President Obama directed the DOL to revise the managerial exemptions last March.
Minnesota Employment Law • January 2015 www.theHRSpecialist.com