Category Archives: Workplace Conditions

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.

The Evolving Law Regarding Restroom Access for Transgender Employees

Just as Caitlyn Jenner has brought renewed attention to the issue of gender identity, there have been several recent legal developments relating to restroom access for transgender employees.  Here’s what employers should know:

First, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) recently released a guide regarding best practices for restroom access for transgender workers. The guide explains that OSHA’s sanitation standard requires that all employees, including transgender employees, must have access to sanitary restrooms. The guide further states that:

[A]ll employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.

The guide further explains that the “best” employer restroom policies provide additional options, which employees may choose, but are not required to use. These options typically single-occupancy, gender-neutral facilities or multiple-occupant, gender-neutral facilities with lockable single occupant stalls.

Second, the EEOC decided a case in April of 2015 in which it held that an employer violated Title VII’s prohibition against sex discrimination by prohibiting a transgender employee from using the restroom that corresponded to her gender identity. The EEOC has interpreted Title VII to prohibit discrimination against transgender individuals since at least 2012.

In Lusardi v. McHugh, the employee worked for the U.S. Army and transitioned from male to female in 2010. (April 1, 2015). Following her transition, the employer restricted the employee from using the women’s restroom and required her to use a single-user restroom. The employee’s supervisor also continued to refer to her by male pronouns.

The EEOC held in Lusardi that even though other employees may be afraid or embarrassed to share a restroom with a transgender employee, “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.” The EEOC further explained that “[a]llowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.” The EEOC concluded that the Army’s restriction of the employee from the female restroom constituted discrimination on the basis of sex in violation of Title VII.

The EEOC’s Lusardi decision and the recent guidance from OSHA represents somewhat of a change in the law regarding transgender access to restrooms. For example, fourteen years ago, the Minnesota Supreme Court decided a case in which it held that the Minnesota Human Rights Act (MHRA) neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender. Goins v. West Group, 635 N.W.2d 717 (Minn. 2001). Although this remains good case law for purposes of the MHRA, the Lusardi case and the recent OSHA guidance show that this reasoning is arguably inconsistent with the requirements of federal law.

Takeaway: Restroom access for transgender employees is one area in which the law appears to be in transition. Employers should continue to monitor developments regarding this subject, such as the recent OSHA guidance and the EEOC’s Lusardi case, to ensure they are in compliance with the most recent legal guidance.

Minneapolis Bans Electronic Cigarettes In Workplaces

The Minneapolis City Council recently passed an ordinance that prohibits the use of electronic cigarettes in indoor public places, including places of employment, effective immediately.  In addition to workplaces, the ordinance will apply to other public areas such as stores and restaurants.  The only exception is for  electronic cigarette sampling in exclusive tobacco shops (including exclusive electronic cigarette shops) that restrict people under the age of 18 from entering.

In support of the ordinance, a press release from the City explained that:

Studies have shown that electronic cigarettes and their vapor contain toxicants and nanoparticles that may increase the risk of cardiovascular and respiratory disease. There have been no long-term studies conducted on electronic cigarettes, so the lasting impact on the health of users and those exposed to their vapor is unknown. While many people report that electronic cigarettes have helped them quit smoking cigarettes, electronic cigarettes have not been proven to be cessation devices, and the Food and Drug Administration has not approved them as one.

Other cities in Minnesota that have similar ordinances include Bloomington, Duluth, and Edina.

Even in cities that do not prohibit electronic cigarettes in the workplace, employers may adopt their own policies that prohibit them.  Potential reasons for adopting such a policy include the unknown health effects of electronic cigarettes, co-worker concerns, and the difficulty of enforcing a ban on traditional cigarettes, but not electronic cigarettes.

Takeaway:  If they have not already done so, employers in Minneapolis should implement policies that prohibit the use of electronic cigarettes in the workplace.

What Health Care Employers Can Learn From the Ebola Response in Dallas

The recent Ebola case at Texas Health Presbyterian Hospital in Dallas, Texas, provides some important lessons for health care employers.  As of today, only 3 cases of Ebola have been diagnosed in the United States (which has a population of approximately 319 million), so there is no need for alarm at this time.  The experience in Dallas shows that preparation, education, and training can go a long way in helping a health care employer maintain readiness and a positive working relationship with its staff.

Last week, CNN reported that the National Nurses’ Union raised concerns about an alleged lack of safety protocols for the Ebola response at Texas Health Presbyterian Hospital. Specifically, the nurses’ union complained that:  (i) the Ebola patient was not immediately isolated; (ii) nurses were not provided with appropriate protective gear; (iii) nurses did not have proper supplies to dispose of hazardous waste; and (iv) nurses were not required to attend training about Ebola.

Regardless of whether these claims are true, they identify a potentially significant problem for health care employers – failure to maintain a good working relationship with the medical and nursing staff on the frontlines of an Ebola response can significantly impair a health care providers’ ability to respond effectively.  In a worst case scenario, a walk-off or strike could jeopardize a health care provider’s ability to operate or negatively impact public safety.

So what can a health care employer do now to avoid such a scenario?  While the answer to that question will vary depending on the nature of the clinic or hospital and its risk profile, here are some initial thoughts:

  • Designate an Ebola Leadership Team: Health care employers can designate a leader or leadership team to develop an emergency response plan, direct any necessary response for Ebola, ensure adequate preparation and supplies, and to answer any questions from employees.  The individuals designated should be responsible for staying up-to-date with respect to reported Ebola cases as well as the latest guidance from the Center for Disease Control (CDC) and other health organizations.
  • Ensure Adequate Supplies: Health care employers should make sure that they have adequate protective gear on hand in case a patient is diagnosed with Ebola, including personal protective equipment and supplies for disinfecting and disposing of hazardous waste.  It is important that employees know how to access these supplies if needed or how to request additional supplies.
  • Provide Training and Education: Health care employers should consider providing education and training to employees about how to recognize Ebola symptoms, how to respond to suspected cases (including where and when patients should be isolated), how to properly don and doff any required protective gear, how to interact with patients, or how to dispose of hazardous waste.  Because hands-on education is usually most effective, it may be helpful to run simulations so that employees can get first-hand experience and build their confidence.
  • Maintain Good Communication With Employees Or Union Representatives: Health care employers should maintain open lines of communications with employees or their union representatives to make sure that employee concerns are addressed.  For example, employers could establish a system for employees or union representatives to ask questions, make suggestions, report concerns, or identify additional training or guidance that would be helpful.  Alternatively, employers could establish an intranet site or another system to provide employees with up-to-date information about Ebola and the employer’s procedures.

Some resources for health care employers to learn about Ebola and how to respond suspected cases include the following:

Takeaway:  The current Ebola situation in the United States remains limited in scope and should not be a significant concern for the vast majority of employers.  For health care employers, however, investing in preparation, education, and training could be useful to help prepare the employer’s workforce to respond to an Ebola patient, if necessary, and to maintain a good working relationship with employees.  For more general information about Ebola and its employment implications, click here.

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.

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.

OSHA Proposes Significant Recordkeeping Changes

Recently, the Occupational Safety and Health Administration, (OSHA) announced a proposed rule concerning injury and illness recordkeeping requirements for employers that would make public employee records about illnesses and injuries.  78 Fed. Reg. 67254 (Nov. 8, 2013).

OSHA Assistant Secretary Dr. David Michaels stated that the proposed rule would require employers with 250 or more employees to electronically submit illness and injury records to OSHA on a quarterly basis.  Further, employers with 20 or more employees in certain industries with high injury and illness rates would have to electronically submit their injury and illness logs to OSHA electronically every year.  OSHA’s intent is to then post the data on its website once personally indentifying information has been removed.

Michaels explained OSHA’s view that the newly proposed rule would allow employers to compare safety records against employers in similar industries.  OSHA also says the other proposed rule will allow workers to know about the safety records of potential future employers.

Employers and business groups have expressed concerns about the proposed rule.  Under current law, employers have to post summaries of illness and injury reports in a common area where employees can see them.  OSHA also currently makes public raw numbers about incidents in workplaces without describing an injury or how it occurred.  Business groups are likely to oppose the proposed rule because employers claim that company-specific raw injury data may be misconstrued or misused as the mere recording of an injury does not tell the entire story about how an injury occurred or whether an employer has a good safety program.

The injury and illness data that is to be made public by the proposed rule won’t include information that explains how the injury occurred, such as whether an employee acted in an unsafe manner or failed to follow the employer’s safety rules.  The incomplete information OSHA intends to make public may allow competitors, plaintiff’s lawyers, unions, and others to distort this information and wrongly label employers as unsafe or as “bad actors.”  Further, given recent problems with federal government’s health care website and database under the Affordable Care Act, it is not much of a stretch to imagine that proprietary or personal information might inadvertently be disclosed to the public.

OSHA’s proposed rule changes will dramatically alter the potential for OSHA citations and fines as well.  Under current law, employers must report the death of an employee, or the in-patient hospitalization of three or more employees, within eight hours of learning of the fatality or hospitalizations.  But employers are not required to immediately report other illnesses or injuries.  Mandatory quarterly reporting of injuries and illnesses will allow OSHA to learn of significant injuries soon enough to get an inspection team to an employer’s facility before the six month statute of limitations for issuing a citation has expired.

Minnesota OSHA (“MN OSHA”) essentially follows OSHA’s recordkeeping requirements.  Thus, it seems likely that any proposed recordkeeping changes adopted by OSHA will also be adopted by MN OSHA for Minnesota employers.

Employers and other interested parties have until February 6, 2014 to submit written comments on the proposed rule.  Employers may also voice their concerns at a public meeting that OSHA will hold in Washington, D.C. on January 9, 2014.  OSHA must take employer comments into consideration before issuing a final rule.

Takeaways:  Employers should pay attention to this proposed rule change on recordkeeping requirements.  Concerned employers may want to consider submitting written comments on the proposed rule, or may want to contact any trade or industry groups they are a part of to consider possible joint comments on the proposed rule.  If the recordkeeping changes are adopted in their current form, employers will need to be even more vigilant to ensure that they have good safety programs in place to reduce the risk of workplace injuries, and to ensure that OSHA recordkeeping is done correctly and timely to minimize the risk of OSHA citations and fines.

New Mandatory OSHA Training Required for Hazardous Chemicals

OSHA has a revised Hazard Communication Standard (HCS) that requires most employers to conduct mandatory training on new requirements for chemical labeling, as well as the Safety Data Sheets, by December 1, 2013.

OSHA’s revised HCS went into effect on May 25, 2012.  OSHA revised the standard so that it is in accordance with international standards.  The United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS) is an internationally accepted method of classifying and labeling hazardous chemicals, and the revised HCS adopts many of the GHS criteria for doing so.  Any employer that uses any type of hazardous chemicals in the workplace is subject to the communication and training requirements of the HCS.  OSHA has estimated that the revised standard impacts over 43 million workers in the United States.

Minnesota employers are also covered by the revised HCS since MN OSHA has adopted it.  Generally, training on hazardous chemicals and labeling in Minnesota is covered by MN OSHA’s Employee Right to Know (ERTK) law.  MN OSHA has information on its website about how Minnesota employers can incorporate the required HCS training into the already-required ERTK training, or as a stand-alone training program.  More information about the HCS and the required training can be found here and here.  Information about the requirements in Minnesota can be found here (click on the “Presentations” tab and see “HazCom training/PDF”).

Takeaway:  Minnesota employers should take note of this new mandatory training requirement and ensure that the required training is completed by the December 1, 2013 deadline.  It is common for MN OSHA to review employer training records to ensure that employers are complying with MN OSHA’s standards whenever MN OSHA conducts an inspection of an employer’s workplace.  Failure to complete required training and maintain appropriate records can, and often is, the basis for a citation by MN OSHA.

Electronic Cigarettes in the Workplace

When employees now talk about “lighting up,” they may not be referring to smoking a traditional cigarette.  The latest development is the electronic cigarette or e-cigarette.  These devices generally consist of a tube into which a cartridge is inserted that contains a chemical solution.  The solution may or may not contain nicotine.  When the battery-operated heating element in the device is “lit” and the user draws a breath through the device, the solution vaporizes and forms a mist simulating the sense of smoking.  In common parlance, the practice of using an e-cigarette is known as “e-smoking” or “vaping.”

As a result of the increasing popularity and use of e-cigarettes, employers are determining whether or not their workplace policies and practices should permit smoking of e-cigarettes at work.  A first point of reference in this determination is whether such use is permitted under state or local law.  Some states, such as New Jersey, have amended their smoke-free laws to expressly prohibit the use of e-cigarettes in the workplace.  Minnesota’s Clean Indoor Air Act has not been similarly amended.  In 2010, the Minnesota legislature did, however, authorize municipalities to license and regulate the retail sale of e-cigarette devices.  Minn. Stat. § 461.12, subd. 1.  The Star Tribune reports that the St. Paul city council is currently debating this issue.  Minnesota law also bans the sale of e-cigarettes to minors.  Minn. Stat. § 609.6855.

Even if applicable law does not ban the use of e-cigarettes in the workplace, some employers are deciding not to allow their use in the workplace.  Reasons for such a policy or practice include, for example, the difficulty of monitoring the use of tobacco cigarettes given the similar appearance of e-cigarettes, resulting confusion among tobacco smokers as to why smoking is restricted while e-cigarettes are allowed, and the unknown health effects of the vapor emitted by e-cigarettes.

Takeaway:  Employers should determine whether applicable law in their area restricts the workplace use of e-cigarettes.  If no such law exists, but an employer nonetheless determines that such use should be restricted, companies should amend their employee policies to clearly communicate that decision.

Negligent Retention – When is Workplace Violence Reasonably Foreseeable?

Unfortunately, incidents of workplace violence are increasingly common.  One major risk for employers associated with workplace violence is the potential for a negligent retention claim.

Under Minnesota law, liability for negligent retention is “predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”  See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440 (Minn. Ct. App. 1996).

The case of Yunker v. Honeywell is instructive about what kind of evidence is necessary to establish that an employee’s violent actions were reasonably foreseeable by the employer.  496 N.W.2d 419 (Minn. Ct. App. 1993).  In Yunker, the court held that there was sufficient evidence that an employee’s murder of another employee while off-duty was reasonably foreseeable to the employer because:

While at the Golden Valley facility, Landin sexually harassed female employees and challenged a male coworker to fight.  After his transfer to St. Louis Park, Landin threatened to kill a coworker during an angry confrontation following a minor car accident.  In another employment incident, Landin was hostile and abusive toward a female coworker after problems developed in their friendship.  Landin’s specific focus on Nesser was demonstrated by several workplace outbursts occurring at the end of June, and on July 1 the words “one more day and you’re dead” were scratched on her locker door.

Landin’s troubled work history and the escalation of abusive behavior during the summer of 1988 relate directly to the foreseeability prong of duty.

Id., at 424.

Takeaways:  The Yunker case shows that an employee’s violent behaviors and threats towards other employees may be sufficient in certain circumstances to make violence towards co-workers reasonably foreseeable to an employer.  To avoid liability, employers who confront violent behaviors or threats by employees should be prepared to take action to prevent harm, if necessary.  What type of corrective actions may be necessary will likely depend on the circumstances of each case.  In some cases, discipline or termination of the employee may be sufficient.  In more severe cases, it may be necessary to call the police or take other security precautions.

Can Employers Ban Guns in the Workplace?

Yes, Minnesota law allows public or private employers to “establish policies that restrict the carry or possession of firearms by its employees while acting in the course and scope of employment.”  Minn. Stat. § 624.714, Subd. 18.  This is true even for employees who have lawful “conceal and carry” permits.  However, an employer may not prohibit employees from carrying or possessing firearms in a “parking facility or parking area.”

Employers may also prohibit non-employees from bringing firearms into a Minnesota workplace by prominently posting a sign that reads “[COMPANY] BANS GUNS IN THESE PREMISES.”  The lettering for the sign must be in black arial typeface at least 1.5 inches in height against a bright contrasting background that is at least 187 square inches in area.  See Minn. Stat. § 624.714, Subd. 17.

Takeaways:  Employers in Minnesota who are concerned about employees or non-employees potentially bringing guns into the workplace should adopt policies and post signs warning that guns are banned on the premises.  Employers should take caution, however, that the ban against firearms does not extend to any parking areas or parking facilities.

Employee Emotional Distress Claims – Usually More Bark Than Bite

If an employee claims he or she is suffering “emotional distress” on the job, a good employer takes the situation seriously since it can affect morale, productivity, and turnover.  But from the legal liability standpoint, the employer can take some solace in the narrow definition and high bar to bringing an intentional infliction of emotional distress claim against an employer.

To bring such a claim, courts require proof of the following:

  • Extreme and outrageous conduct that was;
  • Intentional or reckless; and
  • Caused severe emotional distress.

That is a high burden for the employee to prove.  One noted Minnesota case characterized “extreme and outrageous” conduct as conduct which is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.”  Hubbard v. United Press Int’l., 330 N.W. 2d 428, 438-39 (Minn. 1983).  That is a rare occurrence and a very tough standard.

What does this narrow definition mean in practical terms?  Let’s say you are facing an upset employee with a credible claim that he or she has been treated in a hostile or negative manner by a supervisor or co-worker.  The employee is using the terms “emotional distress” and talking legal rights.  The conduct described seems unprofessional, harsh, or rude – but not “atrocious” or “utterly intolerable to the civilized community.”  In such a case, you do not need to go on legal “red alert.”  Rather, you can step back a bit from the situation with some confidence that you are not dealing with a legal cause of action and take measured, corrective action based upon good principles of human resource management rather than adopt immediate steps to defend against a lawsuit.

Takeaways:  Emotional distress is certainly a “five dollar word” and can be easily used by an upset employee.  But as a successful legal claim, it is rare.  An employer should consult with legal counsel when there is a possibility that “severe” or “atrocious” conduct occurred, but run-of-the-mill incidents of negative interactions or nasty misconduct can usually be addressed on their own terms and without an underlying concern about legal liability.