Maybe not – a federal court in Minnesota recently denied a motion to dismiss against an employee who alleged that the employer denied her request for a bathroom break, forcing her to resort to peeing in a box, and then fired her.
In Prince v. Electrolux Home Products, Inc., the plaintiff worked on a manufacturing line and suffered from a medical condition that required her to use the bathroom frequently. Civ. No. 13-2316 (DWF/LIB) (D. Minn., Feb. 14, 2014). One day, at 12:45 p.m., the plaintiff motioned for her supervisor to relieve her on the production line so that she could use the restroom. The supervisor did not respond. At 1:20 p.m., after several more requests without a response from her supervisor, the plaintiff decided she could wait no longer. Because she feared retribution if she left the production line, the plaintiff resorted to urinating in a box behind a barrel near her station. The plaintiff alleged other employees had resorted to similar measures in the past. The plaintiff was terminated shortly after the incident.
After her termination, an arbitration was held to determine whether the employee was terminated for just cause. The arbitrator determined that there was no just cause for her termination and ordered the employee reinstated.
After the arbitration, the employee filed a lawsuit in state court, which the employer removed to federal court. In the lawsuit, the employee alleged violations of the Minnesota Occupational Safety and Health Act (MOSHA) as well as Minn. Stat. § 177.253, which requires employers to provide employees with “adequate time from work within each four consecutive hours of work to utilize the nearest convenient restroom.” The employer moved to dismiss the case for failure to state a claim.
The court denied the employer’s motion to dismiss with respect to both of the employee’s claims. With respect to the MOSHA claim, the court held that the employee alleged sufficient facts to show that the employer denied her access to toilet facilities and, therefore, failed to “provide” toilet facilities, as required by 29 C.F.R. § 1910.141(c)(1)(i). The court further held that the employee had a private right of action under MOSHA – specifically, Minn. Stat. § 182.654, subd. 9 – because she alleged she was terminated for exercising her rights under MOSHA (by having to resort to urinating in a box).
With respect to the claim under Minn. Stat. § 177.253, the court held that dismissal was not warranted because there was a question regarding whether the employer “provided adequate time” for the employee to use the restroom, as required by the statute.
Finally, the court concluded that the lawsuit was not precluded by the previous arbitration decision because: (i) the arbitrator did not specifically address the issues of whether the employer violated Minnesota law; and (ii) the case does not depend substantially on interpretation of a collective bargaining agreement.
Takeaway: The Prince case shows that an employee may be able to assert causes of action against an employer if the employee is forced to resort to urinating in a box or other receptacle because the employer denied the employee the ability to access a restroom. However, in cases in which an employee voluntarily chooses to urinate in an inappropriate area of the workplace, with no denial of access to restroom facilities by the employer, employers may likely still proceed with discipline or termination. This recently happened at a Pizza Hut in West Virginia.
Let’s say you are conducting a disciplinary investigation and have called in the employee at issue who, before you say anything, states “I want my Weingarten rights” – what is the employer to do? Employers not familiar with the term may feel like they have walked into a TV cop show.
Unlike Miranda (a la cop show) rights, Weingarten rights are limited in scope and application. Weingarten rights were established in a 1975 U.S. Supreme Court case, NLRB v. J. Weingarten, Inc., that made it an unfair labor practice under the National Labor Relations Act (NLRA) to ignore a properly made employee request to have a fellow union member present at an investigative interview that could result in employee discipline. 420 U.S. 251 (1975). Upon such a request, the employer must allow a union representative to be present (under certain controlled, non-adversarial rules) or discontinue the interview. Whether this NLRA procedural right applies to non-union employment has varied over recent administrations and changes in the NLRB (Carter – yes; Reagan – no; Clinton – yes; Bush – no; Obama – no change so far). These fluctuations in NLRB position can certainly create confusion.
Under the current law, if the employer facing the Weingarten demand is not dealing with a request from a union-represented employee, then the request is of no legal force and effect. If it is a union situation, then it is “full stop” requiring careful adherence to the Weingarten rule and NLRB guidance regarding how to respond to the request. Of course, nothing stops the “at-will” employer from voluntarily allowing a co-worker to be present at an investigative interview, although those situations should probably be rare, non-precedential, and carefully thought-out — likely with advice of counsel.
Takeaway: Just because an employee says “Weingarten” doesn’t mean that the employer needs to change course in an investigative interview. At the threshold is the determinative question of whether the investigation involves a unionized employee. Only then do somewhat complicated Weingarten rules apply to an investigative interview. But care is necessary – you never want the NLRB to say “Book’em, Dan-O” to you!
As the 2014 Minnesota Legislature comes into session, Minnesota Employer will keep you informed of bills that may affect the employer-employee relationship.
One such initiative will likely be a push to increase the Minnesota minimum wage. The initiative stalled in 2013, but many analysts and business chambers believe it will be renewed and passed into law in 2014. In 2013, the House bill would have increased the minimum wage to $9.50 an hour and tie automatic future increases to inflation. The Senate bill would have increased the minimum wage to $7.75 an hour. The federal minimum wage is $7.25, so if there are same or similar state law increases in 2014, they will trump the lower federal minimum wage.
Many employers object to the economic consequences of an increase in state minimum wage, of course. Some ameliorating proposals supported by some trade organizations are:
- A “Youth Wage” for employees under 18. This would set a lower minimum wage for a class of workers who, on the norm, are earning “first job” income.
- No city or county preemption: State law (the Minnesota Fair Labor Standard Act or “MFLSA”) would be state-wide and metropolitan area local governments could not create a separate, higher minimum wage.
- No automatic inflation adjustment.
- Tipped employee tier law: Unlike a “Tip Credit” by which employee tips are added to the employee compensation to determine actual, MFLSA wages, a tiered system works somewhat differently. Under this proposal, a tipped employee would still be paid the current minimum wage, and a “tier” would be set that would be higher than the new minimum wage. If the employee’s current minimum wage and accumulated tips meet the tiered number, the current minimum wage remains in place.
Takeaway: Minimum wage law will likely be the subject of important legislation in 2014. Minnesota Employer will keep you informed.
What Employers Need to Know About The Supreme Court’s Latest Donning and Doffing Case: Sandifer v. United States Steel Corp.
On January 27, 2014, the U.S. Supreme Court issued its opinion in Sandifer v. United States Steel Corp., addressing whether employees were entitled to pay for time spent “donning” and “doffing” protective gear. The Court held that the employees were not entitled to payment for the time because of an exception under the Fair Labor Standards Act (FLSA) that allows employers and unions to collectively bargain over whether time spent “changing clothes” is compensable.
The employees in Sandifer worked at a steel plant. At the beginning of each day, they were required to put on, or “don,” certain protective items, including: (i) a flame-retardant jacket, pair of pants, and hood; (ii) a hardhat; (iii) a “snood” (i.e., a hood that covers the neck and upper shoulder area); (iv) wristlets; (v) work gloves; (vi) leggings; (vii) metatarsal boots; (viii) safety glasses; (ix) earplugs; and (x) a respirator. At the end of the day, the employees were required to take off, or “doff,” all of these items.
In Sandifer, there was no dispute that the employees’ time spent donning and doffing the above-listed protective items would ordinarily be compensable work hours under the FLSA. However, the Court held that the time was not compensable under 29 U.S.C. § 203(o), a provision of the FLSA which states that:
In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
29 U.S.C. § 203(o). In other words, notwithstanding the general principles of the FLSA, employers who have employees subject to a collective bargaining agreement may bargain with the union over whether time spent “changing clothes” must be paid or not. This exception is not available to employers with non-unionized employees.
In applying § 203(o) in Sandifer, the Supreme Court held that whether time is spent “changing clothes” must be determined by asking “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’” As a result, even though the Court concluded that safety glasses, earplugs, and a respirator did not fit within the ordinary definition of “clothes,” the time the employees spent donning and doffing those particular items were covered by § 203(o) because, on the whole, that time was devoted “changing clothes.”
Takeaway: The Supreme Court’s decision in Sandifer reaffirms the ability of unionized employers to take advantage of 29 U.S.C. § 203(o) for time periods that, on the whole, can be characterized as “changing clothes or washing.” But § 203(o) is not available for employers with non-unionized workforces, who must continue to apply the general principles of the FLSA to determine whether donning and doffing time requires payment.
On February 12, 2014, President Obama signed an Executive Order raising the minimum wage for employees of federal contractors and subcontractors. Here’s what employers need to know about the Executive Order:
To Whom Does the Executive Order Apply? In general, the Executive Order will apply to federal contractors and subcontractors who are parties to federal contracts or subcontracts that are issued or solicited after January 1, 2015. The Executive Order directs the U.S. Secretary of Labor to issue more detailed regulations concerning the new minimum wage requirements by October 1, 2014.
What Is The New Minimum Wage Under the Executive Order? Effective January 1, 2015, the minimum wage required for employees of covered federal contractors and subcontractors will be $10.10 per hour. Beginning in January of 2016, this minimum wage will be raised on an annual basis to reflect inflation.
What Is the New Minimum Wage for Tipped Employees Under the Executive Order? Beginning January 1, 2015, tipped employees of covered federal contractors and subcontractors must be paid at least $4.90 per hour. If the employee’s hourly wage plus the employee’s tips do not meet or exceed $10.10 per hour, however, the employer must increase the hourly wage accordingly to ensure the employee receives at least $10.10 per hour. Like the general minimum wage under the Executive Order, the minimum wage for tipped employees will also be increased annually beginning in 2016 to keep pace with inflation.
Takeaway: Employers who are parties to federal contracts or subcontracts should begin preparing for increased minimum wage costs beginning in January of 2015. In addition, those employers should pay attention when the U.S. Secretary of Labor releases more detailed regulations on this issue prior to October of 2014.
The answer is “yes, but . . .”: Over the years, the federal courts have stretched the scope of the Federal Arbitration Act to allow an employer, by a proper arbitration agreement, to compel the arbitration of discrimination claims brought under Title VII, the ADEA, the ADA, and the Equal Pay Act. Arbitration can provide a much faster and more cost-effective way to address these often volatile and expensive claims. These claims may be covered by a broader arbitration provision in an employment agreement. Arbitration can be a significant advantage to the employer.
Why the “but”? Courts have refused to recognize arbitration provisions in employment discrimination claims in certain circumstances; for example, when countervailing factors exist such as:
- Lack of mutuality – e.g., the arbitration clause applies to the employee but not the employer’s counter-claims.
- Inclusion in the employee handbook only – if the handbook is not a contract and there is no legal consideration for the agreement.
- Ambiguity – inclusion of discrimination claims need to be specific, not inferred.
There are other exceptions as well, and it’s important to note that an arbitration clause generally cannot prevent an employee from filing a charge of discrimination with the EEOC. But a mandatory arbitration requirement for federal discrimination claims can be established by an employer if drafted and implemented correctly.
Takeaway: An employer should give serious consideration to adopting agreements that allow for the mandatory arbitration of federal discrimination claims. The process of getting there has its legal complexities, but it may be well worth seeking legal counsel for analysis, advice, and drafting.
On Thursday, April 10, 2014, attorneys from Briggs and Morgan, P.A. will present “Safeguarding Employers in 2014 – Changes in Employment, Benefits, and Labor Law.” The seminar will occur from 8:00 a.m. to 11:30 a.m. at Windows on Minnesota in the IDS Center in downtown Minneapolis, and will be followed by a lunch. CLE and HRCI credits will be applied for. There is no charge to attend.
If you are interested in attending, please contact Dena Edmiston at (612) 977-8581 or firstname.lastname@example.org. Additional details about speakers and topics will be announced soon.
In a widely anticipated move, the National Labor Relations Board (NLRB) announced on February 5, 2014 that it was again proposing revised union election rules to dramatically shorten the timeframe to conduct union elections. According to the NLRB, the proposed rules are virtually identical to the changes that the NLRB originally proposed in June of 2011 and adopted in November of 2011. The 2011 proposed changes were challenged by various employers and employer groups as unlawful, and the District of Columbia District Court invalidated the proposed changes in May 2012. The appeal of that ruling was put in abeyance in February 2013, pending the Supreme Court’s Noel Canning decision on the NLRB’s broader lack of quorum issues.
Following the full Senate confirmation of all 5 NLRB members late last year, the NLRB dropped its appeal and withdrew the 2011 proposed rule, setting the stage for the newly proposed rule announced in a press release on February 5, 2014. The new rule was published the next day, on February 6, 2014, and is available here. The NLRB has invited comments on its proposed rule changes. The NLRB will hold a public hearing on the issue during the week of April 7, 2014. Additionally, while the NLRB said it will consider the 65,000 public comments previously submitted in 2011, interested parties may submit comments on the proposed rule changes until April 14, 2014.
Essentially, the NLRB’s proposed rule changes will make it much harder for employers to defeat a union in an election. The proposed rule would wreak havoc with the current union election process as it dramatically shortens the timeframe between the filing of a union election petition and the election. Some of the major changes proposed include the following:
- Elections are expected to occur within 10 to 21 days after a petition is filed rather than the current 42-day time period.
- Most disputes about issues such as which employees are eligible to vote in an election, including whether an employee is a statutory supervisor and part of management and therefore ineligible to vote, will now be left until after the election is over instead of being addressed before the election.
- A pre-election hearing to resolve any disputes about which job classifications should be covered by the election and whether the election will include multiple employer locations will also occur much faster, usually within 7 days of the filing of a petition instead of the current practice of holding these hearings within 14 days of the filing of a petition.
- Employers will be required to provide the union involved in a petition with a list of its employees, work location, shift and job classification by the time of the pre-election hearing.
- Once the election has been scheduled by the NLRB, employers will have only 2 days, rather than the current 7-day period, to give the union an alphabetized list of all voters that has the voters’ home address, email address, and phone number.
- Finally, any disputes about the election must be heard by the appropriate regional NLRB office within 14 days of the election, and appeal to the NLRB will be discretionary, instead of mandatory.
It is difficult to understand the need for these changes. Unions have been winning over 60% of all union representation elections for most of this century. In fiscal year 2013, unions won 64% of all union elections conducted, and for the past 4 years, elections were held in a median of 38 days after the filing of a petition.
John Kline (R-MN), Chairman of the House Education and the Workforce Committee, and Phil Roe (R-TN), Chairman of the Subcommittee on Health, Employment, Labor and Pensions, have already denounced the NLRB’s proposed rule in a press release. They stated that “this ambush election scheme will make it virtually impossible for workers to make an informed decision in union elections,” and that “this flawed proposal will stifle employer free speech and worker free choice, and that the only entity that stands to gain is Big Labor.”
It is a virtual guarantee that there will be a legal challenge mounted by employers and various employer groups and trade associations once the NLRB issues a new final rule following the public comment period. Whether the NLRB will suspend implementation of the rule pending any legal challenges, or whether a court will enjoin implementation of the rule pending the final outcome of any legal challenges, is yet to be determined. Suffice it to say that the union elections and the NLRB are going to remain hot topics in the news and in the courts for the foreseeable future.
Takeaway: The NLRB’s proposed rules will make it much more difficult for employers to resist union organizing attempts. Employers will have very little time to train supervisors regarding how to lawfully deal with union organizing once an election petition is filed with the NLRB. More importantly, less time than ever before will be available to explain the facts about unions to employees so that employees can make a fully informed decision about whether a union is necessary or desirable in the workplace. Employers that want to remain union-free need to be proactive rather than reactive. Now is the time to start focusing on union prevention efforts and to make sure that supervisors are trained on the do’s and don’ts of dealing with union organizing. Stay tuned as we will keep you posted on the latest developments.
The Minnesota Federal District Court recently dismissed on summary judgment an employee’s claim of whistleblowing under Minn. Stat. § 181.932 for two reasons. See Pedersen v. Bio-Medical Applications of Minnesota, Civ. No. 12-2649 (D. Minn., Jan. 10, 2014). First, the court held that the employee’s complaint did not constitute a “report” under the statute. Second, the employee failed to articulate what law was implicated by the at-issue conduct.
The nurse employee claimed that she had been terminated in retaliation for informing a doctor at the clinic that a blood sample had been allegedly mishandled. As noted by the court, this conversation occurred days after the incident had already been investigated and resolved. Minnesota cases have confirmed that telling an employer about a suspected violation that it already knows about generally does not constitute a “report” under the whistleblower statute. The Minnesota legislature’s recent amendment to the statutory definition of “report” did not address or alter this point of common law.
The court also analyzed whether the employee had identified a federal or state law that was suspected of violation based on the allegedly mishandled blood sample. See Minn. Stat. § 181.932, subd. 1(1). Employers should note that effective May 24, 2013, the whistleblower statute now defines a report as concerning a suspected violation of “a statute, regulation, or common law.” The court further determined whether the alleged incident had been identified by the employee as potentially violating a health care services standard established by a professionally recognized national clinical or ethical standard. See Minn. Stat. § 181.932, subd. 1(4). The court determined that the employee had not identified any such law or ethical standard and dismissed her claim.
Takeaway: While the Minnesota legislature arguably expanded potential claims by its amendment of the whistleblower statute last year, employees must still satisfy basic burdens of proof in asserting their claims. Employers should continue to take any claim of retaliation seriously and conduct proper investigations.
President Obama’s State of the Union Address highlighted several legislative initiatives that potentially affect the employer/employee relationship. Two of the more noteworthy are:
- Supporting workplace fairness for women by passing the Paycheck Fairness Act, which would strengthen the Equal Pay Act; and
- Advancing workplace equality for Lesbian, Gay, Bisexual, and Transgender (LGBT) workers by adding sexual orientation and gender identity to the list of statuses that are federally protected from employment discrimination. The Employment Non-Discrimination Act, which has passed the U.S. Senate, but not the House of Representatives, would provide such federal protections for LGBT workers.
The Equal Pay Act (EPA), once a dominant force in federal anti-discrimination law, could well be revitalized if President Obama’s Paycheck Fairness Act strengthens the EPA. Some argue that the EPA, which protects against gender-based discrimination in pay, has been weakened by the Court-expanded exception for “differential factors other than gender.” The Paycheck Fairness Act would try to close or narrow this loophole by requiring such a factor to be strictly job-related and increasing the level of proof required. An old lion may roar again.
The expansion of Title VII protection to LGBT workers would be a significant broadening of federal anti-discrimination protection. But employers should recall that sexual orientation and gender identity discrimination are already prohibited by many state laws, including the Minnesota Human Rights Act, so proactive measures already in place may make a change in federal protection of lesser impact in some states than it may be in other states.
Takeaway: The President’s State of the Union Agenda was decidedly domestic in its focus, and federal discrimination protection is a traditional domestic policy point. Indeed, both of the legislation initiatives discussed above have been tried and defeated in the legislative process in this and previous administrations. But their renewal has the potential of a real impact on employment law. Minnesota Employer will keep you updated.
The Minnesota Federal District Court recently reviewed an employee’s noncompete agreement and determined its terms were unenforceably vague and over broad. See Gavaras v. Greenspring Media, LLC, et. al., Civil No. 13-3566 (D. Minn., Jan. 13, 2014). The terms of the seventeen year old agreement (the company had been sold twice since that time) were conditioned on compliance with the terms of a written employment agreement, which the court found was never clearly defined or executed. At best, the company relied on a proposal setting forth possible benefits rather than certain employment terms. Further, the court found the agreement lacked a geographic limitation and left “the employee guessing” as to the scope of the noncompete.
The company urged the court to exercise its discretion to “blue-pencil” or edit the agreement to make its terms reasonable and enforceable. See Bess v. Bothman, 257 N.W.2d 791 (Minn. 1977). The court refused, however, to do so and stated: “Modifying this agreement would require more than modifying the duration and territorial scope. The Court would need to rewrite the agreement wholesale, and rewriting would require the Court to divine the parties’ intent at the time of contracting, seventeen years after the fact, and with a different employer.”
Takeaway: Minnesota employers should make sure any noncompete agreement it uses is drafted to contain reasonable and articulate terms. While a court has the inherent authority to blue-pencil overbroad terms, it will not do so if such modification requires the court to comprehensively rewrite the agreement. Further, successor employers should conduct due diligence on existing employee noncompete agreements and, where appropriate, update or amend the terms of such agreements to enhance enforceability.
Minnesota employers are now dealing with a series of significant changes in the state whistleblower law. Suffice it to say, the statutory changes (which came with little forewarning or employer input, but now are getting significant attention) make it much easier for a current or former employee to assert whistleblower claims for a greater range of conduct and lower obligations of proof.
But the fundamental elements of a whistleblower claim and employer response have not changed. First, the employee must have engaged in protected activity (although that has now been broadened in scope to include reports of common law claims, among other things). Second, there needs to be an adverse employment action (although that has been broadened to include “penalizing” an employee). Third, there needs to be sufficient evidence of a causal connection between the alleged protected activity and the adverse employment action, including employer knowledge of the protected activity and a reasonable proximity in time between the alleged protected conduct and the adverse employment action.
Takeaway: For Minnesota employers the whistleblower “times are a-changin,” but the fundamental elements of the claim hold firm. These elements provide the basic framework for an employer and its legal counsel when responding to a potential whistleblower matter or defending against a whistleblower suit.