municipalities, marijuana and #metoo: old and new challenges in ... · • slightly different rules...
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Municipalities, Marijuana and #metoo: Old and New Challenges in Employment Law
Marsh & McLennan Agency January 23, 2018
Sarah E. Crippen Best & Flanagan LLP
CHANGES ON THE MUNICIPAL LEVEL
• Sick and safety leave: Minneapolis & St. Paul, maybe Duluth
• Minimum wage: Minneapolis, maybe St. Paul • Other developments coming?
STATE DEVELOPMENTS
• Minimum wage
• Consider uniformity, elimination of city-by-city rules?
WHAT’S NEW ON THE FEDERAL LEVEL
• Trump Administration
• Federal legislation
• Developments in court decisions
THE TOP 5: WHAT WE’RE SEEING
• Renewed focus on harassment: policies, investigations, remedial action and settlements
• Confidentiality and non-compete/non-solicitation agreements
• Terminations: documentation, agreements and the conversation
• Two from you: what keeps you awake at night?
City Ordinances: Sick and Safety Leave, Minimum Wage
MINNEAPOLIS SICK & SAFE TIME ORDINANCE
• Covered employers: All employers must allow time off; only employers with ore than five employees must provide paid time off
• Covered employees: anyone who works 80 or more hours per year (includes part-time, seasonal and temporary staff)
MINNEAPOLIS LEAVE LAW: ACCRUAL RULES
MINNEAPOLIS LEAVE LAW: WHAT MAY EMPLOYEES USE TIME FOR?
MINNEAPOLIS LEAVE LAW: RECORDKEEPING
• Keep records for 3 years: payroll records (employee name, dates and hours worked, sick and safe time accrued, dates and amounts sick/safe time used)
• Provide employees access to current balance of sick/safe time, at least upon request
• Post ”Notice to Employers and Employees” at workplaces in all languages needed by employees
MINNEAPOLIS LEAVE LAW: REQUIRED NOTICE POSTER
MINNEAPOLIS LEAVE LAW: OPTIONS FOR EMPLOYERS
MINNEAPOLIS LEAVE LAW: RESOURCES
http://sicktimeinfo.minneapolismn.gov/employer-resources.html
MINNEAPOLIS LEAVE LAW: REQUIRED NOTICE POSTER
ST. PAUL SICK & SAFE TIME ORDINANCE
• No small employer exception
• Employees may sue employers directly under the St. Paul ordinance
• Slightly different rules for brand new employers
• Broader definition of family member than Minneapolis (“individual related by blood or affinity whose close association with the employee is the equivalent to a family relationship”)
Very similar to Minneapolis ordinance, but:
ST. PAUL LEAVE ORDINANCE: COVERED EMPLOYERS
WHO WILL BE NEXT?
http://www.duluthmn.gov/city-council/earned-sick-and-safe-time-task-force/
MINNEAPOLIS MINIMUM WAGE ORDINANCE
MINNEAPOLIS MINIMUM WAGE ORDINANCE
What else can we expect from Minnesota cities?
What’s Happening in Minnesota
Minnesota Minimum Wage Law
Other things to pay attention to in Minnesota
STATE LAW ISSUES
• Wage deductions prohibited without employee signed agreement after debt incurred: Minn. Stat. sec. 181.79
• Parenting Leave: 12 weeks; all employers with 21 or more employees; can be unpaid; available even if employer is not covered by FMLA
• Breaks: meal break (generally 30 minutes) if employee works 8 hours or more; bathroom break every 4 hours
• Overtime: time and one-half after 48 hours
• Personnel file review: no more than once every six months and at separation; employer has 7 days (or 14 if personnel file out of state
STATE LAW ISSUES
• Final pay: due within 24 hours of demand
• Reason for termination: employee must request within 15 days; employer has 10 days to respond
• References: “qualified immunity” for references given in good faith – proper purpose, proper occasion, proper motive Unemployment: generally available unless employee voluntarily resigns, resigns “for good cause attributable to the employer” or is terminated for reasons other than misconduct
Employment Law on the Federal Level: A New Approach?
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
• Trump appointments still awaiting approval: only an acting chair and two commissioners currently; awaiting approval of two appointments; both Republicans
• No reporting on charge statistics for FY 2017; know that total charges filed were 84,254, down from 91,503 in FY 2016
EEOC
“EEOC offices deployed new strategies to more efficiently prioritize charges with merit and more quickly resolve investigations once the agency had sufficient information. Together with improvements in the agency's digital systems, these strategies produced an increase in charge resolutions and a significant decrease in charge inventory. As a result, in fiscal year 2017 the EEOC resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years. Additionally, during the fiscal year, the EEOC handled over 540,000 calls to the toll-free number and more than 155,000 contacts about possible charge filing in field offices, resulting in 84,254 charges being filed.”
NATIONAL LABOR RELATIONS BOARD (NLRB)
• Trump appointments approved in September: now three Republicans, two Democrats; in Republican control for the first time since 2007
•One of new appointees, William Emanuel, is a management side labor and employment lawyer; the other, Marvin Kaplan, previously served as counsel to Republicans on House committees dealing with labor matters
• Newly constituted Board expected to roll back some Obama era policies: social media policies, confidentiality agreements, etc.
DEPARTMENT OF LABOR
• Wage and hour amendments (salary basis test for exemptions) still on hold; DoL expected to revisit amendments to exemption rules in 2018
• Secretary of Labor Alexander Acosta announced withdrawal of two Wage & Hour Division interpretations regarding independent contractors and joint employment
LABOR LAW LEGISLATION
• “Save Local Business Act,” HR 3441: narrows definition of “joint employment” to eliminate confusion about federal wage and hour law, labor law matters
• “Workflex in the 21st Century Act,” HR 4219: creates voluntary program for employers that choose to offer a minimum number of compensable leave days per year and to allow flexible work arrangements; creates exemption for participating employers from local and state paid leave laws
FEDERAL ENFORCEMENT: CANNABIS
FEDERAL CANNABIS ENFORCEMENT: THE COLE MEMO (2013)
FEDERAL CANNABIS ENFORCEMENT: THE SESSIONS MEMO (2018)
FEDERAL CANNABIS ENFORCEMENT: THE SESSIONS MEMO (2018)
THE FEDERAL COURTS
Before the U.S. Supreme Court this term: -Mandatory class action waivers
-Fair share fees for public employment unions
-Same sex wedding cakes
-Independent contractors
-Trump travel ban
THE FEDERAL COURTS
Cases to watch for: -Sexual orientation protection under federal law?
-Transgender discrimination cases
-Uptick in sexual harassment/discrimination cases?
The Top 5: What’s on the Minds of HR Professionals
THE TOP 5: RENEWED FOCUS ON SEXUAL HARASSMENT, GENDER DISCRIMINATION
THE TOP 5: RENEWED FOCUS ON SEXUAL HARASSMENT, GENDER DISCRIMINATION
• Policy review: focus on non-retaliation, reasonable and accessible process
• Training: more than just lectures on the legal definition of sexual harassment
• Defenses: statute of limitations, notice, process • Settlements/releases: confidentiality clauses and
penalties; potential legislation
THE TOP 5: EMPLOYEE AGREEMENTS
• Confidentiality, protection of trade secrets and intellectual property
• Non-compete agreements vs. non-solicitation agreements
• Reasonable balancing of interests: employer’s right to protect good will vs. employee’s right to pursue career
• Litigation increasingly expensive, not very satisfying
THE TOP 5: INVOLUNTARY TERMINATIONS
• Documentation: will the employee be surprised? • Get the right people in the room • Concise description of the reason for the separation:
containment • Release agreements: when to use them and why • Choreography before, during and after termination
meeting • Final pay, requests for personnel file or reason
What keeps you awake at night?
What do you wonder about?
What would you like to see change?
