Wednesday, July 31, 2013

Are You Safer Than a Sherpa?

We often take for granted various workplace safety laws that have been put in place by the federal, state and local governments to prevent and compensate us for workplace injuries and death. It wasn't all that long ago that a safe work environment was not exactly the norm. From the Occupational Safety and Health Administration, which oversees safe working conditions to prevent workplace injuries, to our workers' compensation system that typically provide workers with pay to cover lost wages and medical bills, we are lucky to have these protections in place.

I was reminded of this fact when I read this blog post about Sherpas in Nepal. According to the post and the article it cites, being a Sherpa is the most dangerous service job in the world. This is another reminder that, despite how we typically feel about work, we don't have it so badly.

Tuesday, July 23, 2013

Is The Big Law Firm On Its Way Out?

While not directly related to Minnesota Employment Law, this article from the New Republic is a fascinating read for those interested in the history and/or business aspect of how large law firms have operated and why that model may become extinct.

Plus, they have a great picture of Bob Odenkirk in character as Saul Goodman from the AMC television series Breaking Bad. Saul is one of my favorite TV attorneys of all time. New season starts August 11. Stay tuned...

Friday, July 12, 2013

Minnesota Strengthens Whistleblower Protections

The Minnesota legislature passed, and the Governor has signed, significant amendments to Minnesota's Whistleblower Act, which prohibits employers from, among other things, retaliating against an employee for making a good faith report of a violation or suspected violation of law.

Through a number of poor court decisions, the law had essentially been filled with so many employer-friendly loop-holes and defenses so that almost no one was protected by the law anymore.

Specifically, the bill does the following:

  • It defines a "good faith" report as one that is not knowingly false or in reckless disregard of the truth. Prior court interpretations of the term "good faith" had excluded from protection reports made as part of one's job duties or reports that did not affect some larger public policy. Those cases are now obsolete.

  • It defines the term "penalize" as "conduct that might dissuade a reasonable employee from making or supporting a report including a post-termination conduct by an employer or conduct by an employer for the benefit of a third party." Prior to this, an employer arguably had to take a much more tangible adverse employment action, such as termination, demotion, or a pay cut, to violate the statute. This amendment recognizes that there are numerous other ways an employer can dissuade someone from making a report and makes sure all of those actions are illegal.
  • It defines a "report" as a "verbal, written, or electronic communication by an employee about an actual, suspected, or planned violation of a statute, regulation, or common law, whether committed by an employer or a third party." Previously, there was significant debate about what an employee had to do to actually "report" a violation of law. Furthermore, this provides protection to employees to report "planned" violations, not just violations after they have occurred. It also expands the types of legal violations an employee can report to violations of the common law, such as torts.
  • Finally, the amendments provide protection for public employees reporting unlawful conduct to their legislators or constitutional officers.
All of these amendments recognize the realities facing employees who want to do the right thing and prevent their employer from breaking the law. The additional protections afforded employees will hopefully result in increased corporate compliance with laws and regulations in Minnesota.

U.S. Supreme Court Deals Two Blows To Employees

The U.S. Supreme Court issued two recent opinions that negatively affect the rights of every employee in Minnesota and across the country.

In University of Texas Southwestern Medical Center v. Nassar, the issue before the court was the standard a plaintiff needs to meet in order to prove a retaliation claim under Title VII. As you may recall, Title VII is the federal law that, among other things, prohibits discrimination and retaliation in employment based on a person's race, color, religion, sex, or national origin. The court was presented with the question of what standard a plaintiff had to prove in order to succeed on a claim of retaliation. A claim of retaliation typically exists when an employee complains of discrimination in the workplace and then suffers some type of adverse employment action (termination, demotion, cut in pay, etc.) as a result.

As recognized in the SCOTUS Blog, Congress and the court have had a unique "back-and-forth" about what a plaintiff has to prove to succeed on a claim brought under Title VII. Like many employment law statutes, Congress approved Title VII and the Supreme Court then began narrowly interpreting it in a series of decisions. Specifically, the court had previously held that a plaintiff need to prove that "but for" their race, color, religion, etc., they would not have suffered the adverse employment action at issue. This meant that even if a plaintiff could prove an employer's decision was based in part on an improper motive such as sex, they could still lose if the jury believed the employer would have fired them anyway.

In 1991, Congress acted and overturned those decisions. Specifically, the court adopted a "motivating factor" test that, in essence, allowed the plaintiff to prevail if she could show an improper motive was one of many "motivating factors" in the adverse employment decision.

The issue before the court in Nasser was whether the motivating factor test applied to retaliation claims. The court held that it does not. Justice Alito, writing for the 5-4 majority, stated that retaliation claims are to be decided using the "but for" analysis. Justice Ginsberg, who read her dissent in court, specifically called on Congress to overturn this decision because the court has, on numerous occasions, held that retaliation is simply another form of discrimination.

In sum, this decision makes it more difficult for plaintiffs to prove a claim of retaliation under federal law. Employees in Minnesota still may bring a retaliation claim under the Minnesota Human Rights Act, which applies the motivating factor test.

The second case is Vance v. Ball State University. In that case, the court further defined who constitutes a "supervisor" in claims for workplace harassment. Specifically, the court held that a supervisor is limited to someone authorized to take “tangible employment actions” like hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The court went on to hold that “the ability to direct another employee’s tasks is simply not sufficient” to call someone a supervisor. Limiting who constitutes a supervisor is significant because the burden to prove harassment against a supervisor is less burdensome than against a co-worker.

In the big picture, these cases materially limit employees' rights in the workplace.

Wednesday, May 22, 2013

Prevailing Wage Update: Good News For MN Employees!

Last year I wrote about the case of Caldas v. Affordable Granite & Stone, Inc. (AGS), in which I explained how the Minnesota Supreme Court held that the employees who actually did work for the City of Minneapolis were not the intended beneficiaries of the prevailing wage provision of the construction contract.

I am happy to report that my friend, attorney Justin Cummins, almost singlehandedly pushed through new legislation to amend the applicable statutes, Minn. Stat. sections 181.13 and 181.14, to overturn this decision and provide greater protections for Minnesota employees as it relates to their pay. The laws, as amended, can be found here.

The amendments themselves do a number of things. First, they clarify that employees who are hired to do the work are the intended beneficiaries of a prevailing wage rate provision in a contract between the employer and a third party, or when otherwise set by law. So when someone hires a your company to perform a service, and the contract or some other law provides for how much you will be paid, you have the right to seek relief.

Second, the amendments also restore an employee's substantive right to sue an employer when it fails to pay wages or commissions the employee has earned. The Minnesota Supreme Court had previously held that these were nothing more than "timing" statutes that did not provide a party with a substantive claim to recover these amounts.

Third, the amendments define when wages and commissions have actually been earned. As crazy as it sounds, employment lawyers used to fight over this and the courts did not apply our common sense understanding in most cases. Now, wages and commissions are earned when the employee was not paid for all time worked.

Finally, the amendments clarify that employers cannot deduct amounts from your final paycheck for alleged amounts owed to it by the employee. Occasionally, employers would come up with any number of excuses not to pay an employee what they were owed at the conclusion of employment.

This is all good news for Minnesota employees.

Thursday, May 16, 2013

Same Sex Marriage And The Minnesota Human Rights Act

Governor Dayton recently signed into law a bill recognizing same-sex marriage in Minnesota. During debate, opponents of the bill introduced an amendment (which was subsequently defeated) to the bill that would have allowed any individual to refuse to conduct business with someone in a same-sex relationship if that relationship clashed with their sincerely-held religious beliefs. In support of this amendment, State Senator Warren Limmer was quoted as saying: “The question for this body is do we offer protection for all or only a few." Later he added: “I’m sorry we don’t have room in our statutebooks for people of faith anymore.”

You may be guessing that the direction that this blog post is heading is to explain the nuances of the Establishment Clause. Or that I may be about to analogize this argument to those people who have sincerely-held religious beliefs which might make them uncomfortable doing business with Blacks, Hispanics, Muslims, etc. You would be mistaken, despite the fact these would be very persuasive arguments against Senator Limmer's position.

Rather, I want to simply point out that refusing to do business with someone based on their sexual orientation has been illegal in Minnesota for years. The Minnesota Human Rights Act (MHRA), which I have referred to repeatedly in this blog because of the protections it provides employees in Minnesota, also includes a provision that specifically prohibits business discrimination. Minn. Stat. § 363A.17 states in relevant part:

"It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of a service... to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person's race, national origin, color, sex, sexual orientation, or disability, unless the alleged refusal or discrimination is because of a legitimate business purpose."
This, of course, makes Senator Limmer's argument factually erroneous. And the dearth of complaints by people whose religious beliefs oppose homosexuality during the years the MHRA has legally required them to do business with gays and lesbians doesn't help his argument.
As a side note, Senator Limmer's statement that "we don't have room in our statebooks for people of faith anymore" is false as well. Numerous laws exist in Minnesota to protect people's religious freedoms and prohibit discrimination based on religion. The MHRA itself provides a myriad of protections for people based on their faith. (See here, here, here, and here.) Moreover, the last time I checked (which was a few minutes ago), Article I, Section 16 of the Minnesota Constitution still provides for religious freedom in Minnesota.
In sum, I just thought this was a nice way to provide some information on a portion of the MHRA that is rarely discussed or considered.

Thursday, January 3, 2013

Flipping Off The Cops Is Not A Crime!

File this one under "The stuff everyone should know in dealing with cops."  While not related to employment law or Minnesota, I think this is a story that needs to be told.

A federal court recently decided the case of a couple who were arrested for flipping a cop the bird.  While the criminal case was thrown out for procedural reasons, the couple sued the officer for stopping their vehicle without reasonable suspicion of criminal activity.  The court held that the "ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."  Therefore, the stop was unreasonable.

The best part of this story is how the court completely threw this cop under the bus for trying to sell one whopper of a lie.  The cop tried to explain that he pulled the couple over because he thought they were simply trying to flag him down for help.  The court rejected this line of BS out of hand stating that the "nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

That is about as big of a smackdown as you can receive from a federal judge.