Category Archives: Performance and Discipline

For Whom the Statute Tolls: A Nuance in the Minnesota Human Rights Act Important to Employers

A distinguishing characteristic of employment discrimination claims in their short statute of limitations – for Minnesota Human Rights Act claims the statute is only 12 months. Defamation claims are two years and tort and breach of contract claims are six years, so a one year limitation period is very favorable to employers. Doubtless, the Minnesota Legislature (like Congress with Title VII and its 300 day limitation period) saw employment discrimination claims as volatile and problematic enough to set a short time to make a claim. And many a claim has fallen on a count to the 365th day between the alleged discriminatory act and the filing of a charge.

A recent Minnesota Supreme Court case highlights a nuance to the hard and fast rule of 365 days. There is built into the statute a tolling period for any internal arbitration process or “conciliation”:

The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under this chapter, including arbitration, conciliation, mediation or grievance procedures pursuant to a collective bargaining agreement or statutory, charter, ordinance provisions for a civil service or other employment system or a school board sexual harassment or sexual violence policy.  – Minn. Stat. 363.28, subd. 3(b).

In Peterson v. City of Minneapolis, the plaintiff brought an age discrimination claim through an internal report and the defendant employer started an internal investigation under a Workforce Policy that contemplated possible resolution. While the trial courts found otherwise, the Minnesota Court of Appeals and ultimately the Minnesota Supreme Court concluded that the internal process constituted “alternative dispute resolution” of the “conciliation” type that suspended the statute. While there was no neutral involved or actual mediation discussions, the Court found that the intentions of the Workforce Policy and possibility of resolution constituted “conciliation” under the tolling provision of the statute.

For Minnesota Employers, this means that the protection provided by the short statute of limitations can be affected by an internal “alternative dispute resolution” process. To offset this potential uncertainty, either there should be no alternative dispute process as defined by Peterson as part of the internal investigation or, if there is, there should be a distinct end so the added tolled period can be accurately calculated. The statute has certain reporting provisions as well.

Takeaway:  Like a referee in a Minnesota United football game, the Minnesota Courts will simply add to statute of limitations “regulation time” any tolled period. Minnesota Employers doing internal investigations should be savvy to this and consult with legal counsel about how best to know if a process likely tolls the one year period or design the process so there is no tolling or its impact is short.

Duty to Indemnify Bars Negligence Claim for Damages

Employees will on occasion negligently perform their duties and as a consequence can often be discharged. But what about any damages caused by their negligence? Who pays the bill for that?

This issue was recently decided by the Minnesota Court of Appeals which held that the employer was not allowed to seek damage payment from the employee. First Class Valet Services, LLC v. Gleason, No. A16-1242 (Minn. Ct. App. March 20, 2017).

In First Class, the employee twice negligently caused damage to customer cars in his position as a parking valet. After reimbursing the car owners for their damages, the company filed a negligence lawsuit against the employee seeking to recover those payments. While prior Minnesota common law suggested that an employer could bring a claim against an employee to recover such payments, the Minnesota Court of Appeals determined that the valet company’s claim was barred by its duty to indemnify the employee for the negligent performance of his duties.

In 1993, the Minnesota Legislature enacted Minn. Stat. § 181.970 which generally requires an employer to defend and indemnify its employee against damages if the employee was acting in the performance of his duties. Although this statute did not expressly abrogate the common law rule, the First Class court held that the common law was indeed abrogated by necessary implication. The court reasoned that indemnification means to “hold harmless” in all respects and that permitting the employer to bring a claim against the employee might lead to the absurd result of the employee circularly seeking indemnification from the company regarding its own claim.

Takeaway: If a claim for damages results from an employee’s negligent performance of his or her job duties, and the employee is not guilty of intentional misconduct, willful neglect of the duties of their position, or bad faith, then the employer is statutorily obligated to indemnify the employee. As a result, an employer claim against the employee to recover payment of those negligently caused damages is barred by the duty to indemnify.

No Employee Defections on the Day of Elections

All Minnesota Employers are statutorily obligated to provide employees, “the right to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot and return to work” without a pay or PTO deduction or any direct or indirect interference.  Minn. Stat. §204C.04. This applies to any time of day and to exempt and non-exempt employees scheduled to work during the time the polls are open. Violation is a misdemeanor.

Is this potentially a citizen’s “senior skip day?” No. The statute rests on a rule of reasonableness regarding the scheduling of time off, and the amount of time off. The employer has the right to be told when the employee will be gone and ask that absences be coordinated (but can’t so require). An employee who just doesn’t show up for work on November 7th can’t count on a statutory free pass.

How can an employer handle a suspected abuse? Preemptive, pro-active measures are likely not the best path to follow since warning and rules could well look to be prohibited indirect attempts to thwart the statutory time-off requirement. But after-the-fact, carefully handled individual investigations of suspected abuse can be consistent with the statute and its rule of reasonableness. The previous version of the statute allowed for the morning off and that may be a reasonable rule of thumb.

Takeaway:  An employer suspecting employee abuse, especially wide-spread abuse, of the paid time off to vote statute can, after the fact, determine if the employee(s) actually complied with the statutory rule of reasonableness. But proceed cautiously given the statute’s prohibition against indirect interference. Advice of legal counsel would be particularly helpful when the employer seeks to make sure election day doesn’t become defection day.

How To Deal With Hungover Employees

According to a recent study by the Center for Disease Control (CDC), employers in the U.S. lost approximately $77 billion in 2010 due to the impaired productivity of hungover employees. The figure is $90 billion if you include absenteeism due to hangovers, and it balloons to $249 billion if you add in the additional costs of health care, car crashes, and deaths. Here’s what employers should know about dealing with the costly problems posed by hungover employees:

Under the Americans with Disabilities Act (ADA), alcoholism can, in some circumstances, qualify as a disability. As a result, employers need to be careful about taking an adverse action against an employee solely because he or she is an alcoholic. In some cases, it may also be appropriate to offer a reasonable accommodation to an employee struggling with addiction, such as a leave of absence to attend a treatment program.

On the other hand, the ADA is also clear that an employer may discipline an employee for legitimate workplace performance problems relating to the use of alcohol or other drugs. The ADA regulations provide that an employer:

May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the entity holds its other employees, even if any unsatisfactory performance or behavior is related to the employee’s drug use or alcoholism.

29 C.F.R. § 1630.16(b)(4). Therefore, it is permissible for the employer to discipline or terminate an employee for any performance problems that occur in the workplace as a result of alcohol or drug use, so long as the discipline is not based on the employee’s status as an alcoholic or an addict alone.

Employers also need to be aware that certain states prohibit employers from disciplining or terminating an employee for his or her off-duty consumption of alcohol or other legal products, unless certain exceptions apply. For example, the Minnesota Lawful Consumable Products Act provides that an employer may not discipline an employee for off-duty consumption of alcohol unless the discipline is based on: (1) a bona fide occupational requirement and is reasonably related to the employment activities or responsibilities of the particular employee or group of employees; or (2) is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any of the responsibilities owed by the employee to the employer. Minn. Stat. § 181.938.

Like the ADA, lawful product laws provide an additional reason for employers to focus not on the employee’s consumption of alcohol, but rather on the employee’s poor performance in the workplace, when addressing performance problems due to hangovers.

Takeaway: When dealing with hungover employees, employers should generally focus on the employee’s workplace performance problems – such as lack of productivity, absenteeism, inattentiveness, or errors in work product – without passing judgment on the employee’s off-duty behaviors or whether the employee has an addiction problem.

Eighth Circuit Reverses NLRB Order Requiring Reinstatement of Employee Who Threatened a Co-Worker

The Eighth Circuit Court of Appeals recently reversed a decision by the National Labor Relations Board (NLRB), which held that an employer acted unlawfully by firing an employee who threatened a co-worker.

In Nichols Aluminum LLC v. NLRB, the employer fired an employee for making a threat to a co-worker shortly after the employee participated in a union strike. Nos. 14-3001, 14-3202 (8th Cir. Aug. 13, 2015). The employee participated in a strike that began on January 20, 2012, and lasted until April 6, 2012. After the strike was over, the employer asked the participating employees to sign a no-strike pledge and agree that they would not “strike again over the same dispute.” The employer also reviewed its longstanding “zero tolerance” workplace violence policy with the employees, which prohibited “harassing, disruptive, threatening, and/or violent situations or behavior” and warned that employees could be terminated for a first offense.

About two weeks after the strike ended, the employee made a threatening “cut throat” gesture towards another co-worker. The co-worker reported that the employee gave him a “death stare” while making the gesture and that he understood it to mean “I’m going to cut your throat.” The employer fired the employee, and the employee subsequently filed an unfair labor practice charge. The charge asserted that the employer unlawfully discriminated the employee for his participation in the strike in violation of the National Labor Relations Act (NLRA).

Initially, the administrative law judge (ALJ) found the employee’s charge to be without merit, reasoning that the employer “reasonably construed” the employee’s behavior as a serious threat. The NLRB disagreed, however, and found that the employee’s termination violated the NLRA. The NLRB emphasized that the no-strike pledge and the timing of the leave constituted evidence of anti-union animus. The NLRB further reasoned that the employer “failed to show it would have fired [the employee] regardless of his participation in the strike.”

On appeal, the Eighth Circuit reversed the NLRB’s determination on the grounds that the NLRB applied the wrong legal standard. The Court explained that under the Wright Line legal standard, the NLRB’s General Counsel must first prove that an employee’s protected conduct was a “substantial or motivating factor in the adverse action.” If and only if the General Counsel can make that showing, the burden shifts to the employer to show that it would have taken the same action for a legitimate, nondiscriminatory reason regardless of the employee’s protected activity.

The court explained that to prove anti-union animus is a “substantial or motivating factor in the adverse action,” simple animus toward the union is not enough. Although hostility towards the union is a factor that should be considered, the court stated that “general hostility toward the union does not itself supply the element of unlawful motive.” The court concluded that the NLRB misapplied the Wright Line standard and did not hold the General Counsel to its burden of providing that discriminatory animus towards the employee’s protected conduct was a “substantial or motivating factor” in the termination decision. Accordingly, the court refused to enforce the NLRB’s order.

Takeaway: The Nichols Aluminum LLC decision is a good reminder that the NLRB does not have the last word on labor law matters. When the NLRB reaches decisions that seem contrary to common sense (like this one or this one or this one), an appeal to a federal circuit court may be an effective means of recourse.

Is Employee “Free Speech” A Constitutional Right?

“Free Speech,” or “First Amendment Rights,” is a fundamental concept of modern society, but in the employment context, it has its limitations.

First and foremost, an employee of a private corporation cannot assert that restrictions on the employee’s verbal and non-verbal conduct violate his or her First Amendment rights.  That is for the simple reason that the First Amendment restricts governmental action, not the actions of private individuals or private corporations.  A public employer needs to observe the public employer’s First Amendment rights since it is a government entity.  But for a private employer, the First Amendment has no application.

Only if an employee’s verbal or non-verbal conduct impacts other statutory protections does his or her freedom of speech become an intelligible concept in the employment context.  For example, the NLRB has made clear that private employer restrictions on employee criticism of employers are limited as potential restrictions on the right to protected, concerted activity guaranteed employees under the National Labor Relations Act.  Another example of a “free speech” issue for a private employer would be a restriction on what an employee can or cannot say in response to a suspected illegality or violation of company policy since that could implicate Whistleblower Act protections.  In some cases, certain restrictions on speech could raise discrimination concerns.  But the common variety complaints that an employee may have about employer workplace restrictions on personal discussions, political talk, or other opinions do not fall under the category of constitutionally-protected First Amendment rights.

Takeaway:  When an employer is confronted with an employee complaining that his or her “First Amendment” or “Constitutional Free Speech” rights have been violated, unless the employer is a public employer, the employee has not raised a legal right.  Only if the verbal or non-verbal speech restrictions at issue tie into other employee legally-protected conduct does the concept of “free speech” have any workplace relevance.  If it comes up, the employer should exercise its “right to counsel” and talk it through with an employment lawyer.

Are Racist and Profane Comments Made During Union Picketing Protected Under the NLRA?

Yes – according to an administrative law judge for the National Labor Relations Board (NLRB), racist and profane comments made during union picketing qualify as protected concerted activity under the National Labor Relations Act (NLRA).

In Cooper Tire & Rubber Co., the employer and the union reached impasse during collective bargaining, and the employer locked out the employees and hired replacement workers. No. 08–CA–087155 (June 5, 2015). In response, the union employees picketed outside of the workplace. When vans of replacement workers arrived, the union employees made obscene gestures and shouted multiple racist and profane statements at the replacement workers. These statements included, but were not limited to, the following:

  • “Hey, did you bring enough KFC for everyone?”
  • “Go back to Africa, you bunch of f***ing losers.”
  • “Hey, anybody smell that? I smell fried chicken and watermelon.”

Consistent with the employer’s policies against racial harassment, the employer discharged the employee who made these statements. The employee then filed an unfair labor practice charge with the NLRB.

Because the comments were made during picketing related to a labor dispute, the ALJ concluded that the comments were protected concerted activity under the NLRA. The ALJ then considered whether the comments were so egregious as to lose their protection under the NLRA. The ALJ decided that because the statements did not tend to coerce or intimidate other employees in the exercise of their rights under the NLRA and did not raise a reasonable likelihood of imminent physical confrontation, the statements were not so egregious as to lose their protection.

The ALJ explained that while the comments were certainly “racist, offensive, and reprehensible, . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property.” In addition, the comments were “unaccompanied by any threatening behavior or physical acts of intimidation.”

The ALJ also explained that picket-line activity is judged by a different, more lenient standard than activity in the workplace. Because the ALJ determined that the conduct was protected by the NLRA, it ordered the employer to reinstate the employee and pay him back-pay.

Takeaway: Although potentially subject to appeal, the Cooper Tire & Rubber Co. case is another in a series of cases (like this one) in which either an ALJ or the NLRB has found that reprehensible employee conduct is protected by the NLRA.

Do Lawful Consumable Product Statutes Protect The Off-Duty Use of Marijuana?

No – the Colorado Supreme Court recently held that because medical marijuana remains illegal under federal law, an employee’s off-duty use of prescribed medical marijuana was not protected by the state’s lawful activity statute.

In Coats v. Dish Network, the employer fired an employee who tested positive for marijuana after using medical marijuana during non-work hours.  The medical marijuana used by the employee was lawfully prescribed under Colorado law, which also recently legalized the recreational use of marijuana.  2015 CO 44 (Colo. June 15, 2015).  The employee sued and alleged that the termination violated the Colorado lawful activity statute.  Unless limited exceptions apply, the Colorado lawful activity statute prohibits employers from terminating “the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”  See Colo. Rev. Stat. 24-34-402.5.

The Colorado Supreme Court held that the lawful activity statute did not protect the employee’s lawful use of medical marijuana because even though it was legal under state law, it remained illegal under federal law.  The court held that the term “lawful” in the statute only applied to “those activities that are lawful under both state and federal law.”  Although not necessarily binding in other states, the Colorado Supreme Court’s decision is persuasive precedent that suggests that off-duty marijuana use may not be protected under many states’ lawful consumable products statutes.

Like Colorado, Minnesota has a lawful consumable product statute, which generally allows employees to use “lawful” products during non-work hours.  See Minn. Stat. §181.938.  Under the reasoning of Coats, this statute likely does not protect off-duty marijuana use.  Therefore, if an employee tests positive for marijuana because the employee used recreational marijuana in a state where recreational marijuana was legal (such as Colorado or Washington), the lawful consumable products act would arguably not protect that employee.

Employers need to be careful, however, because some states explicitly protect the off-duty use of medical marijuana.  For example, under Minnesota’s new medical marijuana law, which will take effect on July 1, 2015, an employer generally cannot discipline an employee for the lawful, off-duty use of medical marijuana.  If this law had been in effect in Colorado, the Coats case likely would have turned out differently.

Takeaway:  The Coats case suggests that off-duty recreational use of marijuana will not be protected by Minnesota’s lawful consumable products statute even if the use occurs in a state where it is legal.  On the other hand, Minnesota law generally prohibits employers from disciplining employees for the lawful use of medical marijuana, so employers will still need to exercise caution when disciplining employees for marijuana use.

Can You Fire An Employee For Peeing in a Box?

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.

“I Want My Weingarten Rights” – How is the Employer to Respond?

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!

What Employers Need to Know About “Battery” and “Assault”

This is not the “battery” or “assault” in your flashlight or next to the pepper shaker.  The “battery” and “assault” that employers need to understand in the HR context has to do with actual or threatened physical misconduct allegations in the workplace.  When an upset employee presents such a complaint, use of the term “assault” or “battery” in the investigation report or management discussions requires precision.  Employers can potentially be vicariously liable for an assault or battery that occurs in the workplace if it was reasonably foreseeable and occurred at or in relationship to the workplace.  Damages for assault and battery may not be covered by workers compensation exclusive remedy provisions.  Potentially, there could also be defamation issues as well and unemployment compensation implications.  So understanding the precise definition of these common terms is important.

In essence, an “assault” is an intentional act made with intent to cause reasonable apprehension or fear of immediate harmful or offensive physical contact.  A “battery” is intentional, unpermitted physical contact.

Many actions that are sometimes given the inflammatory and legally relevant characterization as a “battery” or “assault” are not.  For example:

  • There needs to be intent.  A negligent physical act cannot be an assault or battery.
  • The maxim “words will never hurt me” applies – strong words or threats alone are not an assault or battery – unless they are exhibited with such anger as to provide the reasonable apprehension that can sustain an assault.
  • There is an element of reasonableness in a reported assault as well as a question of permission in the context of a battery that should be part of an investigation.

Takeaway:  Reports of alleged “assaults” and “batteries” in the workplace are often communicated in an emotional and upset atmosphere.  The employer should keep in mind the technical, legal definitions of these terms in the investigation, response, and reporting process.

Stacked Employee Ratings: Emerging Legal Pros and Cons

In HR circles, there has been a growing discussion of “stacked employee ratings” by which management determines pre-set percentages of employees to be rated in the categories of “excellent,” “good,” “fair” and “poor,” or similar such rankings.  It is somewhat like the beloved grading curve in school.  Like the grading curve, stacked employee ratings are designed to force specificity in evaluations and avoid “grade inflation.”

It’s a hot topic and one where considerations of effectiveness, employee morale, and fairness bear consideration.  Microsoft recently ended its “hated” stacked employee rating system.  But other employers continue to use and improve this system at least on a pilot basis.  Stacked employee rating HR software programs are beginning to appear on the market.

From a legal perspective, a well designed stacked rating system could help prove up legitimate, non-discriminatory bases for employee discipline better than a more easily “fudged” traditional performance review.  Some legal considerations for Minnesota employers considering stacked employee ratings include:

  • Maintaining employee privacy rights by following clear segregation of personnel records and separate supervisor files as allowed by Minnesota law.
  • Determining what to do with the “bottom” rankers: It is potentially risky to pursue discipline for just some of the “bottom” rankers, but not others, without raising concerns about protected category discrimination.
  • Weighing the possibility of disparate impact discrimination when a rating system codifies employee placement in categories and thereby influences the terms and conditions of employment, such as raises or promotions.

Takeaways:  These concerns are not to say that stacked employee ratings are illegal or even legally inadvisable.  But “nothing is new under the sun,” and the traditional legal pros and cons used to analyze all employment policies need to be weighed and reviewed before embarking on a stacked employee rating system.  Right now, I would give the concept a C+/B-.