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Legal Happenings in MN
- Minnesota legislature adds clarity to earned sick and safe time
- Employee Grieves Alleged Supervisor Harassment; Employer Directed to Cease and Desist
- Nationwide Trend Reaches Federal Government: Federal Trade Commission Bans Non-Competes
Minnesota employers spent about a year preparing for the beginning of ESST, and our representatives in the legislature heard the cries for clarity in the law. Along with clarifying a few things, additional language has been added for everyone to consider in their policies, even though the ink on those policies is barely dry. The changes can be found in the massive omnibus bill that was approved by the Governor last week. Here are some highlights:
With regard to “base rate”, the updated ESST law provides that an employee earns ESST at the same “base rate” as they earn in their employment. For employees with multiple hourly rates, it is defined as “the rate the employee would have been paid for the period of time in which the leave was taken.” For salaried employees, the base rate is “the same rate guaranteed to the employee as if they had not taken the leave.”
The concern public safety employers had pertaining to their employees calling in during snow emergencies has been slightly alleviated. Firefighters, peace officers, 911 telecommunicators, correctional officers, and CDL drivers are now exempt from being eligible to use ESST during weather events. However, in order for the exception to be effective, represented employees must explicitly waive application of the “weather event” portion of the ESST statute through bargaining. For those unrepresented public safety employees, there must be a written policy explicitly referencing the statute for which employees have notice.
Employees can now use ESST in the “same increment of time for which employees are paid”, and employers are “not required to provide leave in less than 15-minute increments.” To balance it out, employers cannot “require use of earned sick and safe time in more than four-hour increments.”
Employers are no longer required to provide paper paystubs showing the amount of accrued ESST. Rather, they can elect to use a “reasonable system for providing this information,” which includes providing access to “an electronic system where employees can access this information.” Employers must hold on to these records for three years, and make them readily available for inspection by the DOLI commissioner.
Now, for the bad news. Many employers made the decision to allow for the use of already established PTO as ESST for employees’ first 48 hours of leave in a year, and require the employees to revert to their regular PTO policy thereafter. Well, someone at the legislature caught wind of employers not providing additional leave to their employees and decided to make the following change:
All paid time off and other paid leave made available to an employee by an employer in excess of the minimum amount required…for absences from work due to personal illness or injury, but not including short-term or long-term disability or other salary continuation benefits, must meet or exceed the minimum standards and requirements provided in (the ESST statute).
What does this mean for those who already provided sick leave at a more generous rate than the ESST statute provided? Employees may now use all of such leave in the same manner as ESST. The can use it for the same purpose, duration, relatives, and provide as much notice as is required by the ESST statute. Thanks for your generosity!
Finally, the legislature updated the consequences for those employers who do not provide ESST as required, or who do not allow the use of such ESST. Employers can be held liable to employees denied those hours or their use for an amount equal to all ESST “that should have been provided or could have been used, plus an additional equal amount as liquidated damages.” Employers must maintain adequate records of accrued ESST, or hours worked, or can be held liable to that employee for an amount equal to 48 hours of ESST for each year it was not provided, “plus an additional equal amount as liquidated damages.”
Note: Above was prepared by Ben Reber, Attorney at Wiley Reber Law and MPELRA Board Legal Counsel
Harassment allegations can go in many different directions. Employees may complain to their supervisors, who address the situation immediately and bring it to a stop. They may report the conduct to Human Resources, resulting in an investigation. They can also report the conduct to the EEOC or Minnesota Department of Human Rights if they feel their voice isn’t being heard. In International Brotherhood of Teamsters, Local 320 and Public Works Highway Department, Chisago County, the employee grieved the behavior all the way to arbitration.
The parties agreed to language that is fairly common in collective bargaining agreements. The contract stated, “The Employer and the Union believe that all employees have a right to work in an atmosphere free of harassment…Any employee who believes that he/she has been subject to improper harassment is urged to consult the most recent adopted policy.” The “policy” was the employer’s “Policy Against Offensive Conduct, Harassment and Violence.” It contained the usual prohibitions as well as a reporting and investigation procedures.
The grievant, an equipment operator, was also a union steward, and alleged that the harassing conduct towards him began in 2017 after he filed a complaint reporting the inappropriate removal of materials from a worksite and improper use of equipment. He then went on to make several allegations of harassing assignments from supervisors to perform unpleasant work. In addition, the grievant also had vacation requests denied (which was grieved), and was asked about his productivity by his supervisor. Also put into evidence was the fact that the union took four separate grievances over the past two years to arbitration. However, only two of those contract grievances were sustained by an arbitrator. Finally, the union presented testimony from the grievant’s co-workers, who stated that the grievant’s supervisor had a vendetta against him.
In his analysis of the evidence, Arbitrator David Paull stated that “employer action allegedly motivated by union related activity or union animus requires close scrutiny by collective bargaining arbitrators.” At the same time, the arbitrator stated that clear proof was necessary to sustain a charge of harassment by a supervisor.
Looking at the record as a whole, the arbitrator found that the conduct towards the grievant constituted harassment based on union activities. In support of this decision, he stated that the employer was aware of the grievant’s union activities, that the grievant was singled out for unpleasant mowing duties for extended periods of time, that he was denied vacation requests, that he was threatened with discipline for not meeting productivity standards, and that he was isolated from the rest of the highway crew by a supervisor.
The arbitrator found that the investigation performed in response to the grievance by the County did not foreclose the union from pursuing its grievance. The parties had not laid out the procedure for resolving alleged violations of the applicable contract sections, and nothing in the contract stated that an employer investigation would bring the matter to a close.
With that, the grievance was sustained. The department was ordered to cease and desist from any “improper treatment of the grievant,” and to post the arbitrator’s opinion in various workplaces maintained by the employer.
While the remedy provided was relatively minor, this award is somewhat concerning for employers who attempt to work with employees and unions regarding their harassment complaints. In this case, the employer had a policy in place for the processing of harassment complaints and performed an investigation into the harassment, but was still required to go through the arbitration process. In addition, it appears the union was being rewarded for its “litigious” nature, by filing several grievances, only half of which were meritorious, and then alleging it to be part of the employer’s harassment. Time will tell if this approach will lead to an increase in these sorts of grievances for employers in the state.
As always, arbitration is never a sure thing.
Note: Above was prepared by Ben Reber, Attorney at Wiley Reber Law and MPELRA Board Legal Counsel
Last year, Minnesota took a step towards increased competition and freedom for workers when it banned the use of non-compete agreements for employees. It was part of a nationwide trend (in employee-friendly states) in reducing restrictions on employees who leave an employer but wish to continue working in their chosen field. Well, the federal government has caught up to the states, and in effort to reduce the “widespread and often exploitative practice imposing contractual conditions that prevent workers from taking a new job or starting a new business,” banned non-competes for employers, with some exceptions.
The ban is comprehensive with regard to new non-compete agreements. However, already existing non-competes for senior executive employees are allowed to remain in effect. Any agreements in effect for non-senior executive employees will be no longer enforceable after the rule’s effective date, which is 120 days after the final rule was published in the federal register.
Non-compete clauses are defined as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work in the U.S. with a different person where such work would begin after the conclusion of the employment that includes the term or condition, or (2) operating a business in the U.S. after the conclusion of the employment that includes the term or condition.”
Employers are prohibited from attempting to enter into a non-compete clause, enforcing or attempting to enforce a non-compete clause, or representing that a worker is subject to a non-compete clause. The Federal Trade Commission (FTC) now describes these clauses as unfair methods of competition.
The rule does not impact or limit the enforcement of state laws that restrict non-competes, as long as they do not conflict with the final rule. In Minnesota, non-compete agreements are already illegal, so no changes are needed there. For those in other states, make sure you’re checking your local regulations to make sure you are in compliance with the most restrictive law.
As for alternatives to non-compete agreements, trade secret laws, non-solicitation, and non-disclosure agreements work to protect employers from the poaching of clients or the release of proprietary information. The FTC encourages employers to compete to retain their employees by “improving wages and working conditions.” This rule will likely be challenged by an employer at some point, but until it is, it is important to abide by the rule.
Note: Above was prepared by Ben Reber, Attorney at Wiley Reber Law and MPELRA Board Legal Counsel