Is A Prescription For Medication Sufficient To Establish A Serious Health Condition Under the FMLA?

No – the Eighth Circuit Court of Appeals recently held that a single prescription for medication is not sufficient to establish a serious health condition under the Family and Medical Leave Act (FMLA), unless it is “under the supervision of a health care provider.” Johnson v. Wheeling Machine Products et al., No. 13-3786 (8th Cir., Feb. 20, 2015).

In Johnson, the employee left work early and went to the doctor on May 11, 2011, because he was not feeling well. A physician assistant gave the employee a prescription for high blood-pressure medication and told him to follow up with his regular physician, but the physician assistant did not tell the employee when he should schedule the follow-up appointment. The physician assistant also gave the employee a note excusing him from work and stating that he could return to work on May 16, 2011.

When the employee brought the note to work, the employer questioned its authenticity and stated that it was not sufficient under the employer’s policy because it did not state the reasons for the employee’s absences. The employee subsequently provided two more notes, but neither of them provided a more detailed explanation for the absences. The employer then suspended the employee on May 16, 2011, and terminated his employment on May 18, 2011. The employee later sued, alleging that the employer violated his FMLA rights. The district court dismissed the employee’s claims on summary judgment.

In analyzing the case on appeal, the Eighth Circuit explained that in order to demonstrate that the employer interfered with the employee’s entitlement to FMLA leave, the employee must first establish that he was entitled to FMLA leave due to a serious health condition. One way that an employee can establish a serious health condition is by proving a period of incapacity for three or more days plus “[t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider.” 29 C.F.R. § 825.115(a)(2). DOL regulations define “regimen of continuing treatment” to include “a course of prescription medication.” 29 C.F.R. § 825.113(c).

The Johnson court held that the employee failed to prove a serious health condition because, although he received prescription medication, it was not under the “supervision of a health care provider.” The court explained that:

We believe the supervision requirement must be given effect. To interpret the regulation as requiring only a single visit to a health care provider, followed by a course of prescription medication, would be to read the “supervision” language out of the provision . . .

If a person’s health condition is indeed “serious,” it follows that the patient’s regimen of continuing treatment would involve either supervision – for example a phone call with the health care provider to communicate updates on the patient’s condition and progress – or a follow-up appointment soon after the first visit (which, if fulfilled, could satisfy the two-treatment definition).

Because the physician assistant simply prescribed medication to the employee and sent him on his way, the court held that the plaintiff did not satisfy the “regimen of continuing treatment” definition of serious health condition.

The court also rejected the argument that the employee established a serious health condition by showing “[t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider . . . .” 29 C.F.R. § 825.115(a)(1). The court held that the employee did not satisfy this definition of serious health condition because the physician assistant “did not indicate a time period within which he should follow up with his regular doctor.” The court explained that “[v]ague assertions about a follow-up appointment without specificity as to its timing are not sufficiently probative to permit a finding in [the employee’s] favor . . . .”

Because the employee did not establish that he had a serious health condition under the FMLA, the Eighth Circuit affirmed the district court’s order dismissing the case on summary judgment.

Takeaway: An employee’s receipt of prescription medication, without “supervision” by a health care provider, is not sufficient to establish a serious health condition under the FMLA.  However, whether the supervision requirement is met will vary depending on the individual circumstances, so employers should continue to exercise caution whenever denying a request for FMLA leave.

What Does the Anthem Breach Mean For You?

In early February 2015, Anthem, Inc. reported that on January 29, 2015, it had discovered that it was the target of “a very sophisticated external cyber attack.”  Anthem believes the attack happened over the course of several weeks, starting on December 10, 2014.  Accessed information may have included the names, dates of birth, social security numbers, home addresses, email addresses, and income data of current or former members of one of Anthem’s affiliated health plans, or one of the health plans that Anthem provides administrative services to.  Anthem is one of the largest health insurance companies in the United States, and one of the largest service provider to self-funded group health plans and Blue Cross and Blue Shield plans across the country.  Over 300,000 Minnesotans may have been affected by this breach.

What this means for you:

  • If you are one of the individuals that were directly affected by this breach, you should take advantage of the credit monitoring protection offered by Anthem and continue to watch your banking and other financial accounts for any potential suspicious activity. Anthem will contact affected individuals.  However, if you have not yet been contacted by Anthem, but believe you may have been affected by the breach, you can contact Anthem directly by calling (877) 263-7995.
  • If you represent an employer that sponsors a group health plan insured or administered by Anthem, you may need to provide notice to the participants in your plan, and may need to provide notice of the breach to the Department of Health and Human Services (HHS), as required by the Privacy Rule under the Health Insurance Portability and Accountability Act (HIPAA). Some state laws also require notifications in these types of instances.  As a result, you should contact your company’s employee benefits counsel to determine specifically what notice requirements apply in this case.  Anthem may take the lead in fulfilling any notice requirements that apply to your plan, especially if Anthem fully insures the plan.  However, as the plan sponsor, your company is generally ultimately responsible for making sure all HIPAA requirements are met, especially if the plan is self-insured and Anthem only serves as the claims administrator. In addition, you should consult your plan’s HIPAA privacy and security policies to determine if further actions are required due to this breach.  HIPAA generally requires all group health plans have privacy and security policies and procedures.  Therefore, you should make sure you have HIPAA compliant policies and procedures in place for your plan, and that you are following them.  Anthem will contact affected plan sponsors.  However, if you have not yet been contacted by Anthem, but believe your plan may have been affected by the breach, you can contact Anthem directly by calling (877) 263-7995.
  • If you represent an employer that sponsors a group health plan that is not insured or administered by Anthem, you should still familiarize yourself with this breach for two reasons. First, you still may get questions from employees wondering if they are affected.  Second, it can serve as a good test of your HIPAA privacy and security policies and procedures.  HIPAA generally requires all group health plans have privacy and security policies and procedures.  If you do not have such policies and procedures, this serves as a good reminder to implement such policies and procedures as soon as possible.  You can be thankful that your plan was not affected this time.  But you may not be so lucky next time.  In addition, even if your plan is never affected by a breach, HHS has the authority, and regularly exercises such authority, to audit group health plans for HIPAA compliance, and to assess significant fines for noncompliance.  Therefore, you should make sure you have HIPAA compliant policies and procedures in place for your plan, and that you are following them.
  • If your company provides services to another company, and in the course of providing such services, your company receives, transmits, stores, or otherwise has access to certain health information of individuals, your company may be considered a “business associate” under HIPAA. In that case, HIPAA imposes direct liability on your company for certain HIPAA requirements, and your clients will also expect your company to be HIPAA compliant.  As a result of the Anthem breach, your clients may be more interested in your HIPAA policies and procedures, since they do not want to risk being responsible for a HIPAA violation that was caused by your company.  Therefore, you should also make sure you have HIPAA compliant policies and procedures in place for your company, and that you are following them.

Takeaway:  Clearly if you were directly affected by the Anthem breach, either as an individual whose personal data may have been compromised, or as the representative of a company that sponsors a group health plan insured or administered by Anthem, you should take immediate action to obtain credit monitoring (in the case of an individual) or consult with your company’s employee benefits counsel regarding HIPAA notification requirements.  However, even if you were not directly affected by this data breach,  if you represent a company that sponsors a group health plan and/or your company is a “business associate,” this data breach serves as a good reminder to make sure you are in compliance with HIPAA.  At a minimum you should have, and be following, HIPAA compliant policies and procedures.  Two of the most important policies are to conduct a comprehensive security risk assessment and to conduct on-going employee training.  If you do not currently have HIPAA compliant policies and procedures, or you are not sure if they are HIPAA compliant, you should contact your company’s employee benefits counsel as soon as possible.

Adrian Peterson Prevails In Overturning NFL Suspension

On February 26, 2015, the U.S. District Court for the District of Minnesota vacated the arbitration decision upholding Minnesota Viking Adrian Peterson’s suspension from the NFL.  In challenging the arbitration decision, the NFL Players’ Association had a difficult legal standard to overcome, but the Association prevailed, and the court vacated the arbitration decision.

In the court’s decision, the court explained that although arbitrator’s decisions are entitled to substantial deference, the court must vacate an arbitration award if it fails to “draw its essence” from the parties’ collective bargaining agreement – including the “past practices of the industry and the shop.”  The court then explained that the arbitration decision upholding AP’s suspension was inconsistent with past practices because it was based on retroactive application of a new NFL policy.  The court noted that in another recent NFL disciplinary matter – the Ray Rice arbitration – the arbitrator “unequivocally recognized that the New Policy cannot be applied retroactively . . . .”  In contrast, the arbitrator who decided AP’s case “simply disregarded the law of the shop” by allowing the policy to be applied retroactively.  As a result, the court concluded that the arbitrator’s award did not “draw its essence” from the parties’ agreement.

The court also held that the arbitrator exceeded his authority under the parties’ agreement because he adjudicated the hypothetical issue of whether the suspension could be sustained under the NFL’s previous policy.  The only issue presented to the arbitrator was “whether the New Policy could be applied retroactively.”  There was no evidence in the record that the parties’ asked the arbitrator to decide whether the suspension could be upheld under the previous policy.  Accordingly, the court held that the arbitrator “strayed beyond the issues submitted by the NFLPA and in doing so exceeded his authority.”

Takeaway:  The NFL will likely appeal the district court’s decision.  For now, the AP case shows that it is possible to vacate arbitration awards, even though it is often difficult to do so.

Beyond At-Will: Fiduciary Rights of Shareholder-Employees

At-will employment is a bedrock concept – an employee can be discharged without proof of cause.  The principle exists at all employment levels, from rookie to veteran, from entry-level clerical to senior executive.  The common exception is when at-will employment is altered by a contract with just cause employment provisions, such as a collective bargaining agreement or an executive compensation agreement.  But employers also need to be aware of the limitations that result from the fiduciary obligations between partners or shareholder-employees.

Under the common law of many states, including Minnesota, partners or shareholders of a closely-held corporation owe each other a duty of good faith and fair dealing.  Minnesota courts have held that partners or shareholders of a closely-held corporation may not contract to change their relationship to each another in a manner that will “destroy its fiduciary character.”  Appletree Square I Limited Partnership v. Investmark, Inc., 494 N.W.2d 889, 893 (Minn. Ct. App. 1993).  In a closely-held corporation, shareholder-employees may have a reasonable expectation of continued employment and termination only for cause.  This legal concept is different from basic employment law wrongful termination – it is the more arcane concept of employment-based shareholder oppression.  It captures the idea of protecting a shareholder’s investment and reasonable expectation in ongoing employment in a closely-held corporation.  It is a complex doctrine with its own exceptions, but one clearly recognized by the courts.  See, e.g., Gunderson v. Alliance Computer Professionals, 628 N.W.2d 173, 192 (Minn. Ct. App. 2001).

Takeaway:  When dealing with a shareholder-employee, the concept of at-will employment and its basic contractual exceptions may not be sufficient to fully appreciate all legal rights involved in a termination.  Employment-based shareholder oppression is a living legal principle that, while found deep in the pages of the common law, can control the outcomes and resolutions of important employment termination matters.  Good legal counsel will be an important guide to this employment concept that goes beyond the at-will doctrine.

Significant New Legislation Introduced as Part of “Working Parent Act” in Minnesota

On February 19, 2015, DFL members of the Minnesota Legislature introduced new legislation that would impose significant new wage and hour requirements on employers in Minnesota, including new requirements for employers to provide advance notification to employees about their work schedules, to provide flexible working arrangements requested by employees, and to disclose detailed information to employees on an annual basis. See H.F. 1093.

This new legislation is in addition to the new paid sick and safe leave bill and the new paid parenting and caregiver leave bill recently introduced in Minnesota. Collectively, these bills are now being referred to as the “Working Parent Act” or the “WPA.” If passed, the legislation would represent one of the most significant changes in Minnesota employment law in recent history.

Here’s what employers need to know about the newest legislation under consideration:

Fair Scheduling Provisions: The new bill will require any employer with one or more employees to “give each employee the employee’s individual initial work schedule, in writing, at least 21 days before the first day of that work schedule,” including any on-call time that the employee will be required to be available for work. Employers will also be required to “contact each employee to notify the employee of any change in the employee’s work schedule before the change takes effect and must provide the employee with a revised written work schedule reflecting any changes within 24 hours of making the change.” The new bill will also require that:

  1. On or before the beginning of an employee’s employment, the employer must provide the employee with a written work schedule for the employee’s first 21 days of employment;
  2. An employer may not require an employee to work hours not included in the employee’s initial written work schedule without consent in writing by the employee;
  3. An employer must post a written schedule that includes the shifts of all current employees at a worksite at least 21 days before the start of each work week, whether or not they are scheduled to work or be on call that week. The employer must update that posted schedule within 24 hours of any change. The written schedule must be posted in a place that is readily accessible and visible to all employees at a worksite;
  4. An employee’s work week must begin on the same day of the week each week, unless the employer provides 21 days advance written notice of a change in the start day of the work week;
  5. An employee has the right to request a change in work schedule, request to limit his or her availability to work particular hours, or otherwise provide input into the employee’s work schedule; and
  6. An employer must not require an employee to seek or find a replacement employee for any shifts or hours an employee is unable to work.

Predictability Pay:  The new bill would require that, if an employer cancels or changes an employee’s scheduled shift within 21 days of the shift, but not less than 24 hours before the start of the shift, the employer would have to pay the employee one hour of pay as “predictability pay” in addition to the wages earned for each changed shift, if any.  If, within 24 hours of the shift, the employer changes the start or end times of the shift without changing the total hours of the shift, or adds hours to the shift, the employer would also have to pay one hour of predictability pay in addition to wages earned.  In addition, the new bill would require that, if an employer cancels the shift or reduces the hours in the shift with less than 24 hours notice, the employer would have to pay the employee the lesser of four hours of predictability pay or predictability pay equal to the number of hours originally scheduled for the shift.  No predictability pay would be required if the employee requested the shift change or if the employee voluntarily traded his or her shift with another employee.

Flexible Working Arrangements: The new bill would give employees the right to request a “flexible working arrangement” (such as a modified work schedule, a more predictable schedule, changes in start and end times, changes in job duties, or telecommuting) in writing at any time. The employer would then be required to “consider an employee’s request for a flexible working arrangement in good faith and engage in an interactive process with the employee to consider the request and determine whether the request can be granted in a manner consistent with the employer’s business operations or legal or contractual obligations.” The employer would have to begin this interactive process within two days after the employee’s request and would have to notify the employee of its decision, in writing, within two days of the last communication between the employer and the employee.

The new bill would also provide that “[i]f an employee requests a flexible working arrangement because of a serious health condition of the employee, the employee’s responsibilities as a caregiver, or the employee’s enrollment in a career-related educational or training program, or if a part-time employee makes the request for a reason related to a second job, the employer must grant the request.” The bill does not include any exceptions to this requirement, nor does it provide any mechanism for employers to verify whether one of the conditions mandating a flexible working arrangement is satisfied.

Right to Rest: The new bill would give employees a “right to rest,” which would allow them to decline work hours that occur either: (i) less than 11 hours after the end of the previous shift; or (ii) during the 11 hours following the end of a shift that spanned two days. If an employee works these hours voluntarily, the employer must pay the employee one-and-one-half time the employee’s regular rate of pay.

No Discrimination Based On Hours of Work: The new bill would prohibit employers from paying a different rate of pay or conditioning eligibility for raises or promotions based on the number of hours an employee is scheduled for employees whose jobs require “equal skill, effort, and duties, and that are performed under similar working conditions.” But the bill would allow different rates of pay or conditioning eligibility for raises or promotions to be based “on other reasons, such as seniority systems, merit, employee responsibilities, or systems that measure earnings by quantity or quality of production.”

The new bill would also prohibit employers from: (i) conditioning eligibility for “leave or time off based on the number of hours an employee is scheduled to work for employees whose jobs require equal skill, effort, and duties, and that are performed under similar working conditions;” or (ii) prorating “employee leave or time off based on the number of hours the employee works.”

Gratuities: The new bill would require employers to credit gratuities paid to an employee via a debit or credit card to the employee during the pay period in which they are received. The bill would provide that “[w]here a gratuity is given by a customer through a debit, charge, or credit card, the full amount of gratuity must be allowed the employee.” The new bill would also repeal the current Minn. R. § 5200.0080, subp. 7, which allows employers to deduct credit card processing fees from gratuities paid using a debit or credit card.

Rest Breaks: The new bill would amend Minnesota law regarding rest breaks to require an employer to provide an employee with “a rest break of at least ten minutes per four consecutive hours of work.” These rest breaks would need to be counted as hours worked.

Meal Breaks: The new bill would amend Minnesota law regarding meal breaks to require an employer to “permit each employee who works for five or more consecutive hours a meal break of at least 30 minutes, except that if the work period for the day is six consecutive hours or less, the employee and employer may waive the meal break by mutual consent.” This would result in a mandatory meal break for employees who work more than 6 hours, which employees could not refuse.

Employer Statements: The new bill would require employers to provide a statement to each new employee as well as an annual statement to each employee disclosing detailed information about the terms and conditions of employment, including:

  1. The full name, mailing address, and phone number of the employer;
  2. The federal and state tax identification numbers of each employer, but not including Social Security numbers of employers who are individuals;
  3. The place or places of employment;
  4. The hours of work per day and number of days per week that the employee will be required to work;
  5. The wages the employer will pay the employee per hour, day, week, or other measure and the frequency and nature of payment of those wages;
  6. The anticipated period of employment;
  7. The circumstances and rate for which an employee will be paid a premium for working in excess of a set number of hours per day, week, or month; or for working on designated nights, weekends, or holidays;
  8. A description of any provision to the employee by the employer, how long such provision will be provided by the employer, and any costs for such provision the employer will require the employee to pay, including, but not limited to: (i) transportation to and from work; (ii) housing; (iii) health insurance or health care; (iv) any paid or unpaid leave or holidays; (v) pension or retirement benefits; (vi) personal protective equipment required for the work; (vii) workers’ compensation policies, including information about the employer insurance policy or policies, and rules regarding the reporting of accidents or injuries; and (viii) unemployment compensation;
  9. The nature of the work to be performed by the employee;
  10. Information regarding any existing strike, lockout, or concerted work stoppage, slowdown, or interruption of operations at the place of employment; and
  11. Information regarding any known local, state, or federal investigations into the employer’s health or safety practices over the prior five years, and the outcome of such investigations, if known.

Statute of Limitations: The new bill would amend the statute of limitations under Minnesota law to six years for any claims “for the recovery of wages, overtime or damages, fees, or penalties accruing under any federal or state law respecting the payment of wages, overtime or damages, fees, or penalties.” The current statute of limitations for wage claims in Minnesota is two years generally and three years for willful violations. See Minn. Stat. § 541.07(5).

Takeaway: The new employment legislation introduced so far this session as the “Working Parents Act” represents a potentially massive change for employers and includes numerous new obligations that will have substantial effects on employers throughout the state. As we’ve said before, if you feel strongly about this new legislation – one way or the other– contact your state representatives to let them know how you feel.

Employers Get Ready – The Biggest Change to FLSA Overtime Rules in Over a Decade Is About To Occur

The U.S. Department of Labor is expected to release new proposed regulations soon that will re-define the FLSA’s salary basis requirements and make millions of previously exempt employees eligible for overtime.

Last year, President Obama issued a presidential memorandum directing the DOL to update the salary basis requirements to make more employees eligible for overtime.  According to CNN, the DOL is expected to release the new proposed rules sometime between now and April.  The expectation is that the DOL will increase the minimum salary basis requirements for many FLSA exemptions from $455 per week (or $23,660 per year) to somewhere between $42,000 and $52,000 per year.  Depending on how high the minimum salary requirement is raised, it is estimated that an additional 3.5 million to 6.1 million employees will become non-exempt and eligible for overtime once the new regulations take effect.

Takeaway:  Employers with exempt employees earning salaries between $23,000 per year and $52,000 per year should start giving thought to how they will respond when the DOL’s new salary basis regulations take effect.  In general, affected employees will either need to receive a raise to satisfy the new salary requirements, or they will need to start receiving time-and-a-half pay for overtime.

New Federal Disabilities Guide for Employers

On February 3, 2015, the Curb Cuts to the Middle Class Initiative, a collaborative cross-section of various federal governmental agencies, including the Equal Employment Opportunity Commission and the Department of Labor, released a new resource guide for employers titled “Recruiting, Hiring, Retaining, and Promoting People with Disabilities.”  The purpose of the Guide “is to help employers implement commonsense solutions to ensure that people with disabilities, like all Americans, have the opportunity to obtain and succeed in good jobs and careers.”  The Guide notes that while approximately 35% of people are disabled, only less than 18% are employed.

The Guide principally provides links to various resources for employer use regarding the recruitment, retention, promotion, and accommodation of individuals with disabilities.  Where relevant, the Guide makes special note of mandatory practices applicable to covered government contractors and subcontractors.  The Guide also suggests best practices for all employers, such as targeted recruiting outreach, internships for disabled employees, accessible application and interview processes, tailored on-boarding programs, disability awareness and etiquette training, and accommodating return to work programs.

Takeaway:  Employers should be aware of the ongoing emphasis on hiring, retaining, and accommodating employees with disabilities.  Individuals who believe their rights have been violated do not hesitate to pursue claims.  In fact, in 2014 disability discrimination claims constituted almost 29% of all EEOC charges filed.  Accordingly, employers should familiarize themselves with helpful resources, like this new guide, and seek legal counsel as appropriate.

What Does Adrian Peterson Need To Prove To Vacate The Arbitration Order Upholding His Punishment?

Minnesota Viking Adrian Peterson has an uphill climb in trying to overturn his punishment from the NFL. In order to win, AP will need to show that the arbitrator clearly exceeded his authority under the collective bargaining agreement.

On Friday, February 6, 2015, attorneys from the National Football League Players Association (“NFLPA”) appeared in the United States District Court of Minnesota to argue that an arbitration order upholding the NFL’s punishment of AP for alleged child abuse should be overturned. The applicable legal standard is so deferential to arbitrators, however, that it will likely be difficult for the NFLPA to prevail.

For example, it will not be sufficient for AP to show that the arbitrator merely got the facts or the law wrong. The United States Supreme Court has held that the federal policy favoring the arbitration of labor disputes is so strong that courts should not review “claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.” Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987). Rather, “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Id.

Nor will it be sufficient for AP to show that the arbitrator misinterpreted the collective bargaining agreement.  Although an arbitrator may not ignore the plain meaning of a contract, courts have held that because the parties “authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract.”  Misco, Inc., 484 U.S. at 38.

On the other hand, an arbitrator’s power is not unlimited. The Federal Arbitration Act (“FAA”) authorizes a court to vacate an arbitration award in a limited number of circumstances, including fraud, corruption, “evident partiality,” or when the arbitrator exceeds his or her authority. 9 U.S.C. § 10. Under these circumstances, courts will vacate an arbitration award if it “fails to draw its essence from the agreement” or if it “manifests disregard for the law,” such as “where the arbitrators clearly identify the applicable, governing law and then proceed to ignore it.” Boise Cascade Corp. v. PACE, Local 7-0159, 309 F. 3d 1075, 1080 (8th Cir. 2002). Given the leeway allowed for arbitrators to determine the facts and interpret (or misinterpret) the collective bargaining agreement, these are relatively difficult standards to satisfy.

In the AP case, the NFLPA argued both that the arbitrator was biased (because he was a former NFL executive) and that he exceeded his authority under the collective bargaining agreement. To show that the arbitrator exceeded his authority by upholding the NFL’s punishment of AP, the NFLPA argued that:

  1. The NFL’s six-game punishment for players involved in domestic violence, which was announced in August and finalized in December of 2014, was retroactively applied to AP for conduct that occurred in May of 2014;
  2. The collective bargaining agreement did not authorize the NFL to require AP to participate in assigned counseling chosen by the NFL; and
  3. The NFL’s placement of AP on the special exempt list before he pled guilty to the offense in Texas court, and before the six-game punishment was imposed, was “pre-discipline discipline” that was not authorized by the collective bargaining agreement.

Although AP has stated that he wants to return to the Vikings, the NFLPA wants the court to issue a decision on the case before March 10, 2015, when the NFL’s free agency and trading period starts.  The matter is now before the court to determine whether the NFLPA met the high standard necessary to vacate the arbitration award.

Takeaway: Although it’s not impossible, the NFLPA has a difficult legal standard to overcome in its efforts to vacate the arbitration decision upholding the NFL’s punishment of Adrian Peterson.

New Paid Parenting and Caregiver Leave Legislation Introduced In Minnesota

On February 5, 2015, just a few days after the introduction of new legislation to require employers to provide paid “sick and safe leave” to employees, DFL members of the Minnesota legislature introduced legislation that would also provide paid parenting and caregiver leave for employees in Minnesota. See H.F. 580. Under the bill, paid parenting and caregiver leave would be funded by new taxes on both employers and employees. The benefits would be administered by the State in a manner similar to unemployment insurance benefits.

Here’s what employers need to know about the new bill:

Which Employers Would Be Covered By the Law? The law would amend the Minnesota Parenting Leave Act (MPLA) to apply to any employer in Minnesota with one or more employees. As a result, any employer with one or more employees will be subject to the MPLA’s 12-week parenting leave requirement, Minnesota’s new pregnancy accommodation requirements, and the new paid parenting and caregiver leave requirements. Currently, the MPLA and Minnesota’s pregnancy accommodation requirements only apply to employers with “21 or more employees at at least one site.” See Minn. Stat. § 181.940, subd. 3.

Which Employees Would Be Eligible For Leave? Employees would be eligible for paid parenting and caregiver leave if they have performed at least 680 hours of work for the employer or worked for the employer for at least 17 weeks. This new definition of “employee” will also apply to the MPLA and Minnesota’s pregnancy accommodation requirements, making it easier for employees to qualify for parenting leave or pregnancy accommodations. Currently, employees are only eligible for parenting leave or pregnancy accommodations if they have worked for the employer for at least 12 months preceding the request for leave and for an average number of hours per week equal to one-half the full-time equivalent position in the employee’s job classification. See Minn. Stat. § 181.940, subd. 2.

What Types of Leave Would Be Required? The bill would amend the MPLA to require an employer to provide up to 12 weeks of unpaid leave to any employee who is: (i) a biological, adoptive, or foster parent in conjunction with the birth, adoption, or placement through foster care of a child; (ii) a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions; or (iii) caring for a family member who has a serious health condition. The employee would then be eligible to apply to receive benefits from the State for up to six weeks of any of these covered forms of leave.

How Will The Paid Leave Be Funded? To fund the parenting and caregiver leave benefits, both employers and employees will be required to contribute to a fund administered by the State. Employees will be required to pay a premium equal to 0.1% of the employee’s first $78,000.00 in yearly wages, up to a maximum of $78.00 per year. Employers will be required to deduct the premiums from the employee’s wages and pay an additional premium equal to the amount paid by the employee. After the program has been in place for two years, the Commissioner of the Minnesota Department of Labor and Industry (“DOLI”) will be required to adjust the maximum annual premium amount to account for inflation.

How Will The Paid Leave Be Administered? DOLI will administer the paid leave fund and pay benefits to eligible employees on covered parenting or caregiver leave. To obtain benefits, an employee will need to file an application with DOLI, which may require a certification from the employee’s health care provider. Employees who make willfully false statements or misrepresentations to obtain benefits may be required to repay any erroneous payments and may be disqualified from receiving benefits for up to one year.

How Much Pay Will Employees Receive While On Leave? The amount of benefits that employees will receive while on leave will vary depending on how much the employee makes in comparison to the median family income in the employee’s county. Although the current bill does not define specific thresholds, the amount of wages will vary from 66% of the employee’s weekly wage to 95% of the employee’s weekly wage, up to a maximum of $1,000.00 per week for six weeks. After the program has been in place for two years, the Commissioner of DOLI will be required to adjust these weekly benefit amounts to account for inflation.

Takeaway: Like the new paid sick and safe leave bill, the paid parenting and caregiver bill represents another potentially significant change to Minnesota employment law, which employers should continue to monitor. If you feel strongly about the proposed paid parenting and caregiver leave bill – one way or the other – contact your state representatives to let them know how you feel.

Eighth Circuit Rejects Minnesota Whistleblower Claim

On January 6, 2015, the Eighth Circuit Court of Appeals affirmed summary judgment dismissing a former employee’s claims under the Minnesota Whistleblower ActSee Pedersen v. Bio-Medical Applications of Minnesota, No. 14-1284 (8th Cir., Jan. 6, 2015). The Court did so principally because of the employer’s careful recording of the employee’s multiple performance and conduct issues.

The employer operates dialysis clinics and employed Lisa Pedersen as a registered nurse. As part of its treatment regimens, the clinics collect and transport patient blood samples for analysis. Ms. Pedersen had reported to her employer that a box of blood samples had been left overnight properly packed in ice, but in the wrong type of shipping box. The clinic investigated the matter and concluded the samples had not been compromised and that it was not necessary to order a redraw of any of the affected patients. Ms. Pedersen also later complained to several others that she feared retaliation for reporting the incident and her belief that clinic management was covering up the issue.

Ms. Pedersen was subsequently suspended for three days while an internal investigation was conducted regarding her performance and conduct, including impersonating a clinic manager, inappropriately documenting a patient’s treatment, failing to obtain doctor’s orders for treatment, and slapping a patient. After its investigation, the clinic offered Ms. Pedersen a return to her position under a corrective action plan, but she did not return to work. Several months later Ms. Pedersen had still not returned to work and the clinic terminated her employment as a voluntary resignation.

After filing her lawsuit, the District Court dismissed Ms. Pedersen’s claims. On appeal, the Eighth Circuit affirmed that dismissal. Although the District Court had determined that Ms. Pedersen’s complaints did not constitute an actionable report under the Minnesota Whistleblower Act, the Eighth Circuit declined to rule on that point. Instead, the Eighth Circuit concluded that Ms. Pedersen had failed to show that the clinic’s legitimate reasons for disciplining and terminating her were a pretext for retaliation. The Court of Appeals stated that Ms. Pedersen’s speculation about an ulterior motive by the clinic was “unsupported and contradicted by other undisputed facts in the record.”

Takeaway: It is a best practice for employers to inform employees about, and maintain a record of, performance and conduct concerns. In addition to providing the employee an opportunity to correct any shortcomings, this record will, if needed, help an employer effectively rebut later claims of retaliation.

New Paid Leave Legislation Introduced In Minnesota

On February 2, 2015, DFL members of the Minnesota legislature introduced a bill that would require private employers to provide paid “sick and safe leave” to employees. See S.F. No. 481. This legislation was anticipated as a follow-up to last year’s Women’s Economic Security Act (WESA). It is also part of a broader national trend regarding paid leave.

The new bill would replace Minnesota’s current sick leave law, which does not obligate employers to provide paid leave, but requires employer who do provide paid leave to allow employees to use it to care for family members. If passed, the new bill will not only require employers to provide paid leave to employees, it will also result in some changes for the Minnesota Parenting Leave Act (MPLA) and the pregnancy accommodation requirements of WESA.

Here’s what employers need to know about the new sick and safe leave bill:

What Employers Would Be Subject to the Law? The law would apply to any employer in Minnesota with one or more employees. The law would also amend the definition of “employer” in Minn. Stat. § 181.940 to include any employer with one or more employees. The effect of this amendment is that any employer with one or more employees would not only be subject to the new sick and safe leave law, it would also be subject to the MPLA and the pregnancy accommodation requirements of WESA, which currently only apply to employers with “21 or more employees at at least one site.”

Which Employees Would Be Eligible For Sick and Safe Leave? Employees would be eligible for sick and safe leave if they have performed at least 680 hours of work for the employer or worked for that employer for at least 17 weeks. This new definition of “employee” will also apply to the MPLA and the pregnancy accommodation requirements for WESA, making it easier for employees to qualify for parenting leave or pregnancy accommodations. Currently, employees are only eligible for parenting leave or pregnancy accommodations if they have worked for the employer for at least 12 months preceding the request for leave and for an average number of hours per week equal to one-half the full-time equivalent position in the employee’s job classification. See Minn. Stat. § 181.940, subd. 2.

How Much Sick and Safe Leave Would Be Required? The new law would require that employees must accrue “a minimum of one hour of earned sick and safe time for every 30 hours worked,” up to a maximum of 72 hours in a calendar year for employers with 21 or more employees. For employers with less than 21 employees, employees could accrue up to a maximum of 40 hours of sick and safe leave in a calendar year. The leave would begin accruing at the commencement of employment, and employees would be eligible to use it after 90 days of employment.

When Could Employees Use Sick and Safe Leave? Employees would be permitted to use sick and safe leave for an employee’s or an employee’s family member’s: (i) mental or physical illness, injury, or health condition; (ii) need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; (iii) need for preventive medical or health care; or (iv) when necessary due to the domestic abuse, sexual assault, or stalking of the employee or employee’s family member (e.g., medical appointments, legal actions, counseling, relocation, etc…). In addition, employees would be permitted to use sick and safe leave due to “closure of the employee’s place of business due to weather or other emergency, or an employee’s need to care for a child whose school or place of care has been closed due to weather or other public emergency.”

What Notice and Verification Requirements Would Apply? Employers would be able to require employees to give up to seven days’ advance notice for foreseeable leave or to provide notice as soon as practicable for unforeseeable leave. Employers would be permitted to request reasonable documentation to verify sick and safe leave absences only if the absence lasts for more than three consecutive days.

Would Employees Need To Be Paid For Earned Sick and Safe Leave At Termination? No, the bill provides that employers would not be required to pay employees for accrued but unused sick and safe leave upon termination.

What Other Requirements Would Apply? Other requirements of the bill include the following: (i) after using sick and safe leave, employees would be entitled to reinstatement to a comparable position; (ii) employers would be required to maintain information relating to sick and safe leave confidential; (iii) employers would be prohibited from retaliating against employees for using sick and safe leave; and (iv) employers would have to notify employees of their sick and safe leave rights, including in their employee handbooks.

Takeaway: The new sick and safe leave bill represents a potentially dramatic change to paid leave requirements for employers under Minnesota law. It will also substantially broaden the requirements of the MPLA and WESA’s pregnancy accommodation requirements. As a result, employers should continue to monitor this legislation. If you feel strongly about the proposed sick and safe leave bill – one way or the other – contact your state representatives to let them know how you feel.

Is a Labor Union Preventing You From Buying Beer on a Sunday in Minnesota?

Minnesota is one of the few remaining states to prohibit alcohol sales on Sunday, and a labor union is fighting to keep it that way – but not for reasons that have anything to do with the merits of the legislation.

Every year, there is talk of a legislative effort to repeal Minnesota’s ban on Sunday alcohol sales, and every year, the effort fails. Minnesota first banned Sunday alcohol sales in 1858 for religious reasons. The law was renewed in 1933 after prohibition ended, and it has remained the same ever since. The law only prohibits liquor stores from selling alcohol on Sundays – it does not affect alcohol sales in bars or restaurants.

The Minnesota liquor industry opposes Sunday sales because they claim that Sunday sales would result in extra operating expenses without significant additional sales. But the many Minnesotans who drive to Wisconsin to buy alcohol on Sundays seems to undercut that argument.

Another major opponent of Sunday sales in Minnesota is the Teamsters Union. The Teamsters’ opposition to Sunday sales has nothing to do with religion, the health effects of alcohol, or the business of running liquor stores. Instead, the Teamsters oppose the possibility of Sunday sales in Minnesota because a change in law might allow some employers in the liquor industry to reopen their contracts with the Teamsters for bargaining.  Last year, the Teamsters lobbied the legislature to prevent any repeal of the Sunday sales ban, and the repeal effort failed.

Advocates of repealing the ban on Sunday sales, on the other hand, argue that: (i) the ban puts Minnesota at a competitive disadvantage to surrounding states and Canada; (ii) repealing the ban would generate an extra $10.6 million in tax revenue for the state; and (iii) repealing the ban would help support the growing craft beer industry in Minnesota. Governor Mark Dayton has previously said that he would sign a bill repealing the law if it was passed by the legislature.

Takeaway: Sometimes labor issues can have broader effects than employer-employee relations. If you feel strongly about the Sunday sales issue in Minnesota – one way or the other – consider contacting your state representatives to let them know how you feel.