Leave Requirements:  An employer must grant an eligible employee up to 16 hours of leave during any 12-month period to attend school conferences or school-related activities related to the employee’s child (including a foster child), but only if the conferences or school-related activities cannot be scheduled during non-work hours.  In addition, if the employee’s child receives child care services, or attends a prekindergarten regular or special education program, the employee may use the leave time to attend a conference or activity related to the employee’s child, or to observe and monitor the services or program, but only if the conference, activity, or observation cannot be scheduled during non-work hours.

Employee Eligibility for Leave:  In order to be eligible for school conference and activities leave, an employee must have worked at least 12 consecutive months immediately preceding the request for leave.

Scheduling of Leave:  When the leave cannot be scheduled during non-work hours and the need for the leave is foreseeable, the employee must provide reasonable prior notice of the leave and make a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer.

Unpaid Leave:  School conference and activities leave is unpaid under Minnesota law.  However, the statute states that an employee may substitute any accrued paid vacation leave or other appropriate paid leave.

The MHRA prohibits an employer from engaging in unfair discriminatory practices.  To bring a claim against an employer, a person must be an employee of the company.  Generally independent contractors are not considered employees.  The MHRA does, however, include independent contractors who are commissioned salespersons within its definition of employee.

Are other independent contractors left without a claim under Minnesota law?  Perhaps not.  The MHRA also prohibits “business discrimination.”  The MHRA provides that it is an unfair discriminatory practice for a business “to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person’s race, national origin, color, sex, sexual orientation, or disability, unless the alleged refusal or discrimination is because of a legitimate business purpose.”  Minn. Stat. § 363A.17.

An independent contractor who has contracted with the discriminatory company through a legal entity, such as a limited liability company, will not be able to bring a claim of business discrimination in their personal capacity.  Instead, as determined by the Minnesota Supreme Court, the claim must be brought by the contracting entity.  See  Krueger v. Zeman Construction Co., 781 N.W.2d 858 (Minn. 2010).

Takeaway:  While independent contractors generally may not be able to bring a discrimination claim against an employer under the MHRA, the contractor may have a claim for business discrimination.  Note that certain protected classes, such as age and religion, do not find protection under this part of the MHRA.

[A]n invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee’s own time, and (1) which does not relate (a) directly to the business of the employer or (b) to the employer’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by the employee for the employer.

Minn. Stat. § 181.78.  The statute further provides that any agreement for assignment of invention rights that purports to apply to inventions that meet the criteria listed above is “void and unenforceable.”

In addition, if an employment agreement contains a provision requiring the employee to assign or offer to assign any of the employee’s rights in any invention to an employer, the employer must, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to inventions that meet the criteria listed above.

Takeaways:  Employers who require assignment of employee inventions should:  (1) make sure that their agreements relating to the assignment of inventions comply with the statutory exclusions created by Minnesota law: and (2) make sure to provide the written notification required by the statute for employees who are subject to assignment agreements.

In Gillis, an employee went to see a co-worker’s private gun collection after hours during which the co-worker told her and her husband he could “easily pick them off with a sniper rifle.”  The co-worker was understandably shaken and complained to the employer who responded by transferring her.  The U.S. District Court found that, among other reasons, since the conduct occurred outside the workplace, was not work-related, and didn’t alter the employee’s work conditions, the hostile environment claim failed as a matter of law.

What are the practical implications of this “off-site” factor for employers dealing with hostile environment allegations?  For one thing, the investigation of a hostile environment complaint should carefully reconstruct what, when, and where if an alleged hostile environment claim arises.  Often employees will make claims in conclusory ways and build into their presentation their opinion about how an incident affects working conditions.  But especially when a run-in or exchange between employees occurs off-site, subjective impressions should take second place to the objective facts necessary to establish a valid hostile environment claim.  Factors that an employer should consider include, but are not limited to:

• Where did the incidents occur?
• Have they been replicated in the workplace?
• Were they related to the job?
• Was a supervisor involved?

Precise questions can make all the difference when an employee’s complaint involves fraternizing after-hours in conditions the employer does not create or control.  When addressing an “off-site” complaint, consider drawing a chronology of the complaint and carefully note what conduct, if any, was on-site and what conduct was off-site.

Of course, troubling allegations, even if they occur off-site and after-hours, will require careful analysis before final disposition and may merit consulting with legal counsel or taking corrective action.  For example, incidents that occur during overnight business travel may be sufficiently work-related to merit employer action.

Takeaways:  After-hour interactions and socializing between employees is commonplace and can certainly give occasion to negative incidents with the potential of a hostile environment complaint.  But as the recent Gillis case out of Oregon illustrates, with the right investigation, an employer may be able to properly determine that what happened at happy hour can stay at happy hour.

Because the EEOC is a public agency, employers get to see the playbook.  The EEOC approved its Strategic Enforcement Plan (“SEP”) for 2013-16 at the end of 2012 and it can be found here.  The EEOC’s SEP focuses on six key areas:

1. Eliminating barriers in recruitment and hiring;
2. Protecting immigrant, migrant, and other vulnerable workers;
3. Addressing emerging and developing employment discrimination issues;
4. Enforcing equal pay laws;
5. Preserving access to the legal system; and
6. Preventing harassment through systemic enforcement and targeted outreach.

The SEP directs the EEOC to take an integrated approach throughout the private, public (state and local), and federal sectors.  Moreover, each EEOC district office must develop a district complement plan for enforcing the SEP locally.  In short, the 2013-16 SEP is very real and will directly affect enforcement actions and employer interaction with the EEOC.

Takeaways:  What does this mean for the typical employer?  Immediate general advice is:  pay attention to hiring obligations, which can be sometimes regarded as very secondary to obligations to current employees; make sure to be responsive to immigrant and vulnerable workers protection; and double-check compensation equity compliance with the Equal Pay Act.  Another important response to this renewed enforcement initiative is to be thorough and prompt in charge responses and compliant with EEOC investigations.  Legal counsel should play a critical role in addressing the real world impact of the EEOC’s 2013-16 Strategic Enforcement Plan.

In Rasmussen v. Two Harbors Fish Company, several female employees sued their former employer for sexual harassment under the MHRA.  No. A11-2178 (Minn., May 22, 2013).  Among other things, they alleged that their boss, a male, discussed his sex life with them, asked them questions about their sex lives, discussed the size of male genitalia in the workplace, propositioned them for sex, and showed them pornography.  The trial court initially held that this conduct was not sufficiently severe and pervasive to give rise to a sexual harassment claim, in part, because the manager directed his comments at both male and female employees.  The Minnesota Court of Appeals reversed, and the Minnesota Supreme Court affirmed.

In its opinion, the Minnesota Supreme Court explained that a claim for hostile work environment based on gender is a separate and distinct claim from a claim that sexual harassment created a hostile work environment.  This distinction is subtle.  One claim alleges that an employee suffered harassment because of his or her gender.  The other alleges that an employee was subjected to harassment of a sexual nature.  While the gender of the victim may be relevant in the context of determining whether someone was treated differently because of his or her gender, the Court held that it is not relevant in determining whether someone was subjected to sexual harassment.  The fact that the manager “directed inappropriate, sexual comments at both male and female employees, therefore, cannot support the district court’s determination that the conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment.”

Takeaways:  The fact that a manager is sexually harassing both male and female employees in the workplace will not protect an employer from liability under the MHRA.  Instead, it will likely double the employer’s potential exposure.  If an employer wants to reduce potential liability for sexual harassment, it should make clear to all employees, both in policy and in practice, that sexual harassment is strictly prohibited and will not be tolerated.

First, an employer must carefully comply with the federal Fair Credit Reporting Act, and any similar state law that is applicable, if the employer uses a third party consumer reporting agency to obtain the criminal history record.  Second, upon properly obtaining the record, the employer must comply with certain procedural safeguards before taking adverse action against an applicant or employee only as a result of information contained in a consumer report.

Many states have laws that limit an employer’s use of criminal history records.  For example, Wisconsin permits an employer to take adverse action only if the conviction offense is substantially related to the employment position at issue.  See Wis. Stat. § 111.335.  Similarly, Minnesota restricts public sector employers from taking action unless the crime conviction directly relates to the employment position.  See Minn. Stat. § 364.03.  Minnesota does not at this time impose similar restrictions on private sector employers.

Nonetheless, Minnesota employers must be mindful of the 2012 EEOC Guidelines regarding use of arrest and conviction records.  These guidelines focus on possible race or national origin discrimination under federal law arising from use of criminal history records.  The EEOC notes that arrest and incarceration rates are markedly higher for persons of color.  In particular, the guidelines state that African American and Hispanic men are arrested at a rate 2 to 3 times the general population.  According to the EEOC, while 1 in 17 Caucasian men are expected to serve prison time in their life, 1 in 6 Hispanic men and 1 in 3 African American men can expect the same fate.

Because of these statistical racial disparities, the EEOC guidelines provide that employers should use caution in taking action based on criminal history records.  The federal agency notes that employers generally should take no action based on an arrest record alone.  When considering conviction records, the EEOC encourages reliance on the three factors set forth by the Eighth Circuit Court of Appeals in Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1293 (8^th Cir. 1975):

• The nature and gravity of the offense or conduct,
• The time that has passed since the offense or conduct and/or completion of the sentence, and
• The nature of the job held or sought.

The EEOC guidelines also encourage employers to engage in “individualized assessment” prior to taking any action.  Such assessment consists of providing the applicant or employee notice of the potential adverse action based on their criminal history, allowing the individual an opportunity to respond with pertinent facts, and considering whether the individual’s additional information merits avoiding the adverse action.

Takeaway:  Employers should rarely, if ever, take adverse action based solely on an arrest record.  Further, employers should generally avoid blanket exclusions based on any criminal conviction history, but instead should consider the relevance of the conviction to the job at issue.  Finally, employers should make sure to be aware of, and comply with, any applicable state laws regarding criminal history records, such as the new “ban the box” legislation in Minnesota.

• The “Ban the Box” fair hiring law passed;
• Childcare professionals and personal care assistants whose funding source is the state can now unionize under the State union law (many predict a legal challenge to the “forced unionization” aspects of the law);
• Certain employers such as schools, churches, and other organizations that work with minors may face the complications of the three-year window period for filing of otherwise expired sexual abuse claims (although the window period does not apply to vicarious liability and “respondeat superior” claims against the employer, which may significantly limit exposure);
• The State health insurance exchange was passed into law for 2014 in conjunction with the U.S. Affordable Care Act; and
• The same-sex marriage law will expand marital-status discrimination protections to same-sex couples.

Sometimes what didn’t pass is noteworthy, as well.  For example, the state minimum wage law did not change, and nursing staff ratios were rejected.

Takeaway:  All in all, the 2013 legislative potpourri has a direct impact on employers by way of legislative changes to the State’s employment laws and an indirect impact by way of the potential positive or negative impact on the business climate of state revenue, spending increases, and the lack of a bonding bill.  Minnesota Employer will look more closely at some of these topics in future posts.  On to 2014!

When the plaintiff’s husband was asked to serve on the local workforce-investment board, the employer suspected a conflict-of-interest in violation of its employment policies.  The Court noted that the workforce-investment board was made up of the members of its competitor’s board of directors as well as members of the local community and representatives of local employers.  Not surprisingly, the employer began an investigation and, after the plaintiff refused to discuss certain information concerning her husband, the employer ultimately terminated the plaintiff because of the conflict-of-interest and insubordination.

The plaintiff sued claiming the employer discriminated against her based on her marital status. The Minnesota Human Rights Act prohibits an employer from taking an adverse employment action against an employee because his or her marital status.  Minn. Stat. § 363A.08.  Two years ago, the Minnesota Supreme Court addressed this prohibition and stated that: “it is not necessary that the termination be ‘directed at the institution of marriage’ because the law protects against discrimination ‘on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.’”  Taylor v. LSI Corp. of Am., 796 N.W.2d 153, 156 (Minn. 2011) (emphasis added).  Against this backdrop, the Court of Appeals in this case addressed whether the employer had a “legitimate, non-discriminatory reason” for terminating the plaintiff.  And, if so, whether the plaintiff introduced sufficient evidence that the employers reason was “pretext” for unlawful discrimination.

The Court of Appeals held that applying the conflict-of-interest policy to the plaintiff’s spouse would not constitute a “legitimate, non-discriminatory” reason for termination because the termination would be based upon the actions of the plaintiff’s spouse.  But, the Court of Appeals agreed that terminating the plaintiff for failing to cooperate in the employer’s investigation would constitute a “legitimate, non-discriminatory” reason for termination.

Although the Court of Appeals agreed that a legitimate reason existed for termination, it was required to examine whether the plaintiff could produce evidence that the employer’s stated reason was not its actual reason for termination.  In doing so, the Court of Appeals noted that the plaintiff had claimed that certain decision-makers favored termination based solely on the conflict-of-interest and that her termination letter stated the reason for termination as “a conflict of interest or potential conflict of interest because of [her] husband serving on the board of [the employers] primary competitor.”  Based upon these allegations, the Court of Appeals reversed the trial court’s decision, holding that the plaintiff presented a genuine issue for trial.

Takeaway: Even appropriate and well-intentioned conflict-of-interest policies can create problems for employers if not properly drafted and applied.  Under Minnesota law, an employer might be held liable for discrimination if it takes an action against an employee based upon the actions of the employee’s spouse, even if those actions possibly create a conflict-of-interest for the employee.  And although the Minnesota Court of Appeals did not find the conflict-of-interest policy to be discriminatory on its own, it called into question how such policies could be applied when it comes to conflicts created by spouses.  Consequently, it will be important for Minnesota employers to have well-drafted conflict-of-interest policies.  More importantly, Minnesota employers should consult counsel before taking action based on a conflict-of-interest policy when the conflict relates to the employee’s spouse.

In releasing Directive 307, the OFCCP emphasized that it intends to address compensation issues on a case-by-case basis rather than using a rigid analytical approach.  The OFCCP states that it will review pay discrimination issues based on Title VII principles without relying on inflexible formulas.

Directive 307 will apply to all OFCCP compliance evaluations scheduled on or after February 28, 2013.  Desk audits will begin by conducting preliminary analysis on the compensation data obtained by the OFCCP pursuant to Item 11 of the Scheduling Letter.  Depending on the results of the preliminary analysis, the OFCCP may request individual level employee data from the contractor.

The OFCCP apparently intends to begin a compensation analysis by first comparing large groups of similarly situated employees to determine whether systemic discrimination exists.  The agency may then proceed to analyze a smaller unit or group of employees and, eventually, individual employee situations.  Each audit will be case specific.

Takeaway:  Affirmative action contractors or covered subcontractors should be aware that the OFCCP is taking a new approach to analyzing compensation practices and should anticipate higher agency focus on compensation compliance.

In essence, the law will ban private employers from inquiring into a job applicant’s “criminal record or criminal history” before an interview or, if there’s no interview, before a conditional offer of employment:

A public or private employer may not inquire into or consider or require disclosure of the criminal record or criminal history of an applicant for employment until the applicant has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the applicant.

S.F. 523 (to be codified at Minn. Stat. §364.021).  Violation does not give rise to a private cause of action, but rather the potential of fines for unremedied violations to be imposed by the Minnesota Department of Human Rights during a one year “introductory” phase.  After the first year, higher fines may be imposed for violations, depending on employer size.

The legislation specifically prohibits causes of action by applicants, which was  apparently an important part of the political compromises in the new law:

The remedies under this subdivision are exclusive.  A private employer is not otherwise liable for complying with or failing to comply with section 364.021.

This legislation places Minnesota at the vanguard in this “ban the box” movement (only 3 other states have the ban).  But the prohibition against private causes of action should help reduce employer concerns about its misuse by otherwise unsuccessful applicants.

Takeaways:  Employers need to revise their application to take off the “box” (whether literally a “box” or in another form) or any questions about “criminal records or history” and move the inquiry to the interview or conditional offer stages of the hiring process.  Since Minnesota is at the forefront, “off the shelf” application forms generated by national-offices for local Minnesota offices need particular attention.  And remember, this is really a “fair crack at it” legislation, meaning that criminal history may still be relevant to a hiring decision, but only when the applicant has been able to demonstrate his or her qualifications despite the criminal history.  In weighing the impact of such background information, it will be important to consult with legal counsel on the ultimate question of relevancy and the potential of discrimination.  While this new legislation doesn’t allow for a private lawsuit, the EEOC is still very interested in the potential misuse of criminal background questions when investigating possible protected class discrimination.