TOP TEN EMPLOYMENT LAW ISSUES FOR NONPROFITS

Transcription

1 TOP TEN EMPLOYMENT LAW ISSUES FOR NONPROFITS 2015 MCN Annual Conference October 1-2, 2015 Leonard B. Segal SEILER SCHINDEL SEGAL 5901 Cedar Lake Road Minneapolis, Minnesota THESE MATERIALS ARE PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. THEY ARE NOT INTENDED TO CONSTITUTE LEGAL ADVICE IN ANY PARTICULAR SITUATION. Copyright 2015 Leonard B. Segal

2 I. Reasonable Accommodations Under the Americans with Disabilities Act ( ADA ) Employers with 15 or more employees must provide a reasonable accommodation to allow employees with a covered disability to perform the essential functions of their job

3 Disability under the ADA 1. Having a physical or mental impairment that substantially limits one or more major life activities; 2. Having a record of such an impairment; or 3. Being regarded as having such an impairment.

4 Interactive Process When an employee with a disability has a need for an accommodation, engage in an interactive process to try to find such an accommodation.

5 Interactive Process 1. Analyze the job, 2. Confer with the employee (and possibly the employee s doctor) to determine possible accommodations, and 3. Analyze possible accommodations to determine their effectiveness and whether they would cause an undue hardship.

6 ADA Practice Tip Draft accurate job descriptions. Job descriptions can be helpful for many reasons, including determining the essential job functions under the ADA.

7 II. Provide Eligible Employees with Leave to Which they are Entitled 1. Family and Medical Leave Act ( FMLA ) 2. Minnesota Leave

8 Provide Eligible Employees With Leaves to Which They are Entitled Family and Medical Leave Act ( FMLA ) Eligible employees who work for a covered employer are entitled to take time off from work for up to 12 weeks within a 12 month period for the following reasons:

9 FMLA Reasons for Time Off 1. Their own serious health condition 2. An immediate family member s serious health condition 3. The birth or adoption of a child or placement in foster care 4. Certain military-related leaves *note that, for military caregiver leave, the leave allotment is extended to 26 weeks

10 FMLA Eligible Employee 1. Worked for a covered employer 2. For at least 12 months and 3. For at least 1,250 hours during the 12 months immediately preceding the beginning of the FMLA leave

11 FMLA Covered Employer 1. Covered private sector employers 2. Who employed 50 or more employees 3. For 20 or more weeks during the current or preceding calendar year.

12 FMLA Practice Tip Employers can specify how the 12-month period is calculated (except with regard to military caregiver leave). Options include a calendar year, any other fixed year, a rolling period measured backward from an employee s use of FMLA, or a 12-month period measured forward from an employee s first use of FMLA leave. If an employer does not specify, the option that is most beneficial to the employee will be used.

13 Provide Eligible Employees With Leaves to Which They are Entitled Minnesota Leave Laws 1. School Conferences/Activities Leave (Minn. Stat ) * Applies to all employers, no matter how small 2. Bone Marrow Donation (Minn. Stat ) 3. Leave for Immediate Family Members of Military Personnel Killed or Injured in Active Service/Leave to Attend Military Ceremonies (Minn. Stat , )

14 Minnesota Leave 4. Jury Duty (Minn. Stat ) 5. Time-off to Vote (Minn. Stat ) 6. Parental Time (Minn. Stat , )

15 III. Do Not Terminate Someone Unlawfully Minnesota is an at-will employment state, but there are a number of exceptions. Before terminating, review: - Applicable Contracts - Individual Employment Agreements - Collective Bargaining Agreements - Offer Letters - Handbook Policies - Handling of Similar Situations in the Past

16 Do Not Terminate Someone Unlawfully Terminate for Legitimate Business Reasons Documentation of prior performance problems is good evidence to support reasons for termination. Common Unlawful Reasons for Termination: Based on protected class status Whistle blowing Retaliation for seeking or obtaining benefits to which the employee is entitled

17 IV. Unique Requirements to Release Certain Employment Law Claims 1. Minnesota Human Rights Act ( MHRA ) 2. Older Workers Benefit Protection Act ( OWBPA )

18 Minnesota Human Rights Act ( MHRA ) 1. Waiver or release of MHRA claims may be rescinded within 15 calendar days of its execution 2. An employer must inform the releasing party of his/her right to rescind

19 Older Workers Benefit Protection Act ( OWBPA ) 1. Employee must be given 21 days to consider a waiver/release of claims under the federal Age Discrimination in Employment Act (45 days if offered to a group or class of employees). 2. Employee must be given at least 7 days following execution of the waiver/release to revoke the agreement.

20 OWBPA Notice Requirements An ADEA release must be knowing and voluntary, which requires the agreement: 1. Must be calculated to be understood by the waiving individual; 2. Must specifically refer to rights arising under the ADEA; 3. does not waive claims prospectively;

21 OWBPA Notice Requirements 4. Employee must receive consideration; 5. Employee is advised in writing to consult with an attorney; 6. Employee is given the requisite consideration and revocation period; and 7. Required written disclosures are provided to the waiving party if the waiver is part of an exit incentive or other group termination program

22 Equal Employment Opportunity Commission ( EEOC ) Position Any release that purports to prevent someone from filing a discrimination with the EEOC or from participating in an EEOC investigation or proceeding is unenforceable.

23 V. Misclassifying Individuals is a Hot Area Employee v. Independent Contractor Non-Exempt Employee v. Exempt Employee

24 Misclassifying an Employee as an Independent Contractor Independent Contractor Agreement Relationship between Company and Worker

25 Misclassifying a Non-Exempt Employee as an Exempt Employee Exempt employees are not subject to the overtime requirements of the Federal Fair Labor Standards Act or the Minnesota Fair Labor Standards Act. Misclassifying a non-exempt employee as exempt can have devastating consequences down the road, including liability for back pay, penalties, interest and attorneys fees.

26 Misclassifying a Non-Exempt Employee as an Exempt Employee Being paid on a salary basis alone is not enough to make someone an exempt employee. Salary or Fee Basis Test AND Duties Test Caution: Do not make improper deductions and risk losing the exemption.

27 VOLUNTEERS Must volunteer freely and without coercion Do not expect or receive compensation Perform ordinary volunteerism If work in a commercial business -> Not a volunteer If provide same services as he/she does as an employee for the organization -> Not a volunteer

28 VI. Properly Conduct Background Checks Consistent Background checks on job applicants or employees should be done consistently for all individuals in the same or similar positions. Eliminate blanket exclusions Companies should eliminate blanket exclusions based on any criminal record, limit inquiries to business necessity, make inquiries post application, and train hiring decision makers on the proper use of background checks.

29 Use of a Third Party to Conduct Background Checks ( Consumer Reporting Agency ) Fair Credit Reporting Act Notice/disclosure to individual Signed authorization Pre-adverse action letter Adverse action letter Minnesota Access to Consumer Reports Act Notice must be separate from job application (can be on same form as the authorization) Disclosure must include a check box for individual to check to receive a copy of the report

30 Minnesota s Ban the Box Law Since January 1, 2014, most private Minnesota employers are no longer allowed to ask about a job applicant s criminal history on a job application. Employers are allowed to ask such questions after an individual has been selected for an interview or, if there will not be an interview, as part of a conditional job offer. This restriction previously applied only to public employers.

31 VII. Non-Compete Agreements To be enforceable, non-compete agreements must be: 1. Necessary to safeguard an employer s protectable interests, 2. Reasonable as between the parties, and 3. Impose no greater restriction on the employee than is necessary to protect the employer s business.

32 Consideration In Minnesota, the job itself can be sufficient consideration if the employee knew the noncompete was a condition of employment and entered into the agreement at the inception of the employment relationship. After the employment relationship begins, an enforceable non-compete agreement requires adequate, independent consideration.

33 Reasonable Restrictions Temporal Restriction. A non-compete agreement must be reasonable from a temporal standpoint. Courts consider many factors to determine reasonableness including: the nature of the work, the time necessary to train a replacement and to allow customers to become familiar with the new employee, and the time necessary to obliterate the identification between the employer and the former employee.

34 Reasonable Restrictions Geographic Restriction. A non-compete agreement should be reasonable from a geographic standpoint. Courts consider many factors to determine whether a geographic restriction is reasonable including: where the employee performed his duties, the employer s business area, and the location of customers.

35 Reasonable Restrictions Customer Restriction. Courts seem inclined to accept customer based restrictions as a complement to, or substitute for, a geographic restriction.

36 Other Non-Compete Agreement Problems 1. The Non-Compete Agreement Was Not Drafted to Survive the Termination of the Employment Relationship 2. The Non-Compete Agreement Was Drafted Without Considering Possible Remedies or the Forum to Resolve Disputes

37 VIII. Minnesota s Drug and Alcohol Testing in the Workplace Act Minn. Stat , et seq. 1. Have a written policy 2. Properly disclose the policy to applicants/employees 3. Only test for reasons allowed by Minnesota law Pre-employment/Post-offer Routine physical examination Random testing (for employees in safety-sensitive positions) Reasonable suspicion testing Treatment program testing 4. Use an approved testing laboratory

38 Minnesota s Drug and Alcohol Testing in the Workplace Act 5. Obtain appropriate consents 6. Provide proper notice of test results, including notice of the right to request a confirmatory retest 7. If current employees are tested, do not terminate an employee for a first failed test, unless the employee has been given an opportunity to participate in a treatment program and refused to do so or fails to complete the program 8. If testing is done pre-employment, it must be after a conditional job offer is extended that makes the job contingent upon passing a drug and/or alcohol test. Also, require the same test of all applicants who receive a conditional job offer for the position.

39 IX. Post-Termination Obligations 1. Pay within time required by law When final payment is due to a terminated/resigning employee or a commissioned salesperson can be found at Minn. Stat Generally, an involuntarily terminated employee must be paid immediately upon demand and an employee who resigns must be paid on the next regularly scheduled pay day.

40 Post-Termination Obligations Caution: An employer cannot make a deduction from an employee s paycheck for amounts that it claims the employee owes the employer unless the employee has authorized the employer to do so in writing after the indebtedness has arisen (or a court has found the employee liable for such indebtedness). Minn. Stat

41 Post-Termination Obligations 2. Provide access to personnel records - Current employees have the right to review their personnel records once every six months. - Former employees right is limited to once per year for as long as the personnel records are maintained. - An employer may not charge for copying the records. - When providing an employee his/her personnel records, be careful not to inadvertently disclose attorney-client privileged communications. - 7 days to provide if records located in MN; 14 days if outside of MN

42 Post-Termination Obligations 3. Carefully draft a truthful reasons letter - An employee who has been involuntarily terminated may request in writing, within 15 working days of her termination, the reasons for her termination. - The employer has ten working days to respond to such a request. *Note - The response will likely be an exhibit in the event of a lawsuit. A well-drafted response may also help avoid a lawsuit.

43 X. Minnesota s Pregnancy Accommodations Statute (Minn.Stat ) In 2014, Minnesota passed the Women s Economic Security Act, an expansive piece of legislation that enacted or amended numerous Minnesota statutes. One of the new laws requires employers with 21 or more employees to provide reasonable accommodations to a female employee for health conditions related to pregnancy or childbirth if requested, with the advice of the employee s licensed health care provider or certified doula, unless doing so would impose an undue hardship on business operations.

44 Minnesota s Pregnancy Accommodations Statute Cannot claim undue hardship for the following accommodations, and advice from the employee s a licensed health care provider or certified doula are not required for: More frequent restroom, food and water breaks; seating; and 20 pound lifting restrictions. Like the ADA, engage in an interactive process. Not required to create a position or to discharge or transfer an employee with greater seniority.

45 BONUS TIP: Do not ignore the National Labor Relations Board Social Media Policies Two Examples: Under the National Labor Relations Act, employees have the right to engage in certain activity ( concerted, protected activity ). An employer s social media policy may conflict with the NLRA if it infringes on an employee s ability to engage in protected activity.

46 BONUS TIP: Do not ignore the National Labor Relations Board Employee Handbooks The NLRB s General Counsel issued guidance in March 2015 that addresses the proper and improper use of policies that many employers use in their employee handbooks.

47 THANK YOU! If you want a copy of this PowerPoint presentation, please leave your business card with me and I will it to you. If you have questions, feel free to call me at or me at LSEGAL@SEILERSCHINDEL.COM.