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.
Showing posts with label Minnesota Supreme Court. Show all posts
Showing posts with label Minnesota Supreme Court. Show all posts
Wednesday, May 22, 2013
Sunday, October 14, 2012
Who's Entitled to the Prevailing Wage? Not the People Doing the Work...
The Minnesota Supreme Court recently engaged in some mental gymnastics to deprive some employees doing work for the City of Minneapolis the right to have a jury decide whether they were paid the prevailing wage for their work. The opinion in the case of Caldas v. Affordable Granite & Stone, Inc. (AGS) can be found here.
The City had hired the plaintiffs' employer, AGS, to repair some flooring in the Minneapolis Convention Center. Per the City's requirements, the contract between AGS and the City expressly stated that AGS's employees would be paid the "prevailing wage" for the work they were doing on behalf of the city. The 13 plaintiffs in this case argued that they were engaged in putting in the new floor, which entitled them to approximately $44 per hour which was the prevailing wage for the work. AGS argued that the plaintiffs were engaged in janitorial work. Two audits by the City into complaints by the plaintiffs found that they had been properly characterized as performing janitorial work.
The plaintiffs sued claiming breach of contract, among other things. Because the plaintiffs were not parties to the contract between the City and AGS that contained the prevailing wage requirement, they had to argue that they were intended third party beneficiaries to that contract. AGS, naturally, argued the plaintiffs were not intended beneficiaries so it could avoid paying these folks the prevailing wage. The court's decision turned on whether these plaintiffs were intended third party beneficiaries or not.
The test that is commonly used in Minnesota to determine if someone is a third party beneficiary states:
Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and ... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
So what does that legalese mean? Essentially, when a beneficiary of a contract is not expressly named in the contract, the court can look at the circumstances surrounding the contractual provision at issue to determine who, if anyone, may have been an intended beneficiary of the contract. If you are not an intended beneficiary, you cannot sue to enforce the contract.
So at this point you have to be asking yourself this question: If a prevailing wage provision was not meant to benefit the employees of AGS who were going to do the work , who the heck was it intended to benefit?
And that would be a great question. And logic would dictate that your instincts were correct. And you would be in good company in reaching that conclusion because the City of Minneapolis itself argued to the court that the plaintiffs were intended third party beneficiaries of the prevailing wage agreement.
But if you were a member of the Minnesota Supreme Court, you would have ended up on the losing end of this argument. The court held that AGS's promise to pay the prevailing wage was a "general promise to comply with the law, which does not confer upon AGS employees the right to enforce the law." The court went on to state that the City, not the employees, had a right to enforce that provision by conducting audits or investigations into whether AGS was complying with the prevailing wage provision of the contract. The City conducted those audits, concluded the plaintiffs were paid properly, and that was the end of it.
My feeling is that it was easy for the court to dismiss this case because the City itself had already concluded that these plaintiffs were properly classified and properly paid. As such, they did not present a compelling case that they had suffered some type of horrendous injustice. When the facts of a particular case do not engender some level of sympathy, it is often difficult to persuade the court that your side should win. But the problem here was that the only issue before the court was whether these folks were intended beneficiaries. It was a jury's job to first determine whether the provision had been breached.
Two of the six justices who decided the case dissented. In addressing the question of whether these plaintiffs were intended beneficiaries of the contract, they asked this question: “If Affordable Granite & Stone’s promise to pay its employees the prevailing wage for their work on the Convention Center was not meant to benefit these appellants, for whose benefit was it intended?”
For those of us who do this for a living, we think that is a really good question.
The City had hired the plaintiffs' employer, AGS, to repair some flooring in the Minneapolis Convention Center. Per the City's requirements, the contract between AGS and the City expressly stated that AGS's employees would be paid the "prevailing wage" for the work they were doing on behalf of the city. The 13 plaintiffs in this case argued that they were engaged in putting in the new floor, which entitled them to approximately $44 per hour which was the prevailing wage for the work. AGS argued that the plaintiffs were engaged in janitorial work. Two audits by the City into complaints by the plaintiffs found that they had been properly characterized as performing janitorial work.
The plaintiffs sued claiming breach of contract, among other things. Because the plaintiffs were not parties to the contract between the City and AGS that contained the prevailing wage requirement, they had to argue that they were intended third party beneficiaries to that contract. AGS, naturally, argued the plaintiffs were not intended beneficiaries so it could avoid paying these folks the prevailing wage. The court's decision turned on whether these plaintiffs were intended third party beneficiaries or not.
The test that is commonly used in Minnesota to determine if someone is a third party beneficiary states:
Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and ... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
So what does that legalese mean? Essentially, when a beneficiary of a contract is not expressly named in the contract, the court can look at the circumstances surrounding the contractual provision at issue to determine who, if anyone, may have been an intended beneficiary of the contract. If you are not an intended beneficiary, you cannot sue to enforce the contract.
So at this point you have to be asking yourself this question: If a prevailing wage provision was not meant to benefit the employees of AGS who were going to do the work , who the heck was it intended to benefit?
And that would be a great question. And logic would dictate that your instincts were correct. And you would be in good company in reaching that conclusion because the City of Minneapolis itself argued to the court that the plaintiffs were intended third party beneficiaries of the prevailing wage agreement.
But if you were a member of the Minnesota Supreme Court, you would have ended up on the losing end of this argument. The court held that AGS's promise to pay the prevailing wage was a "general promise to comply with the law, which does not confer upon AGS employees the right to enforce the law." The court went on to state that the City, not the employees, had a right to enforce that provision by conducting audits or investigations into whether AGS was complying with the prevailing wage provision of the contract. The City conducted those audits, concluded the plaintiffs were paid properly, and that was the end of it.
My feeling is that it was easy for the court to dismiss this case because the City itself had already concluded that these plaintiffs were properly classified and properly paid. As such, they did not present a compelling case that they had suffered some type of horrendous injustice. When the facts of a particular case do not engender some level of sympathy, it is often difficult to persuade the court that your side should win. But the problem here was that the only issue before the court was whether these folks were intended beneficiaries. It was a jury's job to first determine whether the provision had been breached.
Two of the six justices who decided the case dissented. In addressing the question of whether these plaintiffs were intended beneficiaries of the contract, they asked this question: “If Affordable Granite & Stone’s promise to pay its employees the prevailing wage for their work on the Convention Center was not meant to benefit these appellants, for whose benefit was it intended?”
For those of us who do this for a living, we think that is a really good question.
Tuesday, June 12, 2012
What Constitutes A "Hostile Work Environment?"
When people call and ask for me to take their case, they often claim they have been subjected to a "hostile work environment." We often hear the term used to describe situations where someone is being subjected to sexual harassment. Others believe that any time a boss or coworker have it in for us and take actions we think are meant to harm us at work that we are being subjected to a hostile work environment. However, a claim for a "hostile work environment" is not limited to situations involving sex harassment, but it does not include every negative or hurtful action taken against us in the workplace.
Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others. Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.
The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728. Carol LaMont was a custodian at the Elk River, MN high school. She reported to supervisor Doug Miner. According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace. These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place." Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place." Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.
The court in this case had to grapple with two issues. First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment. Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?
The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons. Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.
But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment. Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action. The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.
The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment. The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances." In sum, the court found the conduct non-actionable because it was infrequent and not severe.
Notably, two of the seven justices dissented from the opinion. They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.
In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex. At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment. But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.
Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others. Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.
The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728. Carol LaMont was a custodian at the Elk River, MN high school. She reported to supervisor Doug Miner. According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace. These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place." Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place." Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.
The court in this case had to grapple with two issues. First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment. Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?
The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons. Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.
But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment. Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action. The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.
The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment. The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances." In sum, the court found the conduct non-actionable because it was infrequent and not severe.
Notably, two of the seven justices dissented from the opinion. They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.
In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex. At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment. But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.
Monday, October 31, 2011
What does an employee have to do to garner the protections of Minnesota's Parenting Leave Act?
That is the question the Minnesota Supreme Court is scheduled to hear on November 1, 2011. At issue in the case is whether the plaintiff, Ms. Hansen, sufficiently put her employer on notice that she was requesting leave under Minnesota's Parental Leave Act (MPLA), which provides for a minimum of six weeks of unpaid leave to certain employees in Minnesota for pregnancy and childbirth. It also requires that those employees be returned to their former position upon completion of their leave. It is undisputed that Ms. Hansen's leave request forms identified "maternity" as the reason for her leave. I assume that she also discussed the fact she was pregnant with her supervisors and that her physical appearance may have provided a hint as to the type of leave she was requesting. The Defendant, Robert Half International, Inc. (RHI), claims that Ms. Hansen did not do enough to put it on notice that she was requesting leave under the MPLA. At issue is what is necessary to put an employer on notice that an employee is requesting leave under the MPLA.
I suspect that the court took this case because many other cases involving requests for leave and accommodations in the workplace do not require the type of formality the lower courts in this case required of the employee to invoke the MPLA. For example, an employee is only required to give the employer enough information to put them on notice that an employee is requesting leave under the Family Medical Leave Act or seeking a reasonable accommodation under the Americans with Disabilities Act. Moreover, the United States Supreme Court recently held that a verbal report under the Fair Labor Standards Act was sufficient to invoke the anti-retaliation provisions of that statute.
Stay tuned and we will find out how this one comes out.
Subscribe to:
Posts (Atom)