Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- INTERVIEWING SKILLS MAY BE CRUCIAL IN EMPLOYMENT DECISIONS
- REVISIONS TO UNION ELECTION PROCEDURES
- Collecting Unemployment Benefits Under the CARES Act
- NLRB ESTABLISHES TEST FOR ABUSIVE LANGUAGE
- Tip Of The Month
INTERVIEWING SKILLS MAY BE CRUCIAL IN EMPLOYMENT DECISIONS
The 8th Circuit recently ruled in a case involving sex discrimination in the Sheriff’s office of Wright County. Here a female candidate for promotion had the highest score on NEO.GOV, a software program the County used to score applicants, and the successful candidate had the lowest score. The female candidate, however, was determined to be the poorest interviewer and was not one of the five candidates recommended to the Sheriff for promotion. In ruling in favor of the County, the Court made several important points:
(1) An employment decision relying on both subjective and objective criteria does not create an inference of discrimination when the subjective consideration is given primary weight.
(2) It is the employer’s role is to identify those strengths that determine the best-qualified applicant.
In a deposition the Sheriff expressed concern that a woman would not likely return to work after taking maternity leave. However, his statement was not considered in making the Court’s determination as the quote was raised by plaintiff too late, having been waived by not being included in the initial appeal documents. Pribyl v. County of Wright, No. 18-3743 (8th Cir. 2020).
REVISIONS TO UNION ELECTION PROCEDURES
The National Labor Relations Board (“NLRB”) recently enacted several changes to the union election procedure. Under the former rules, if an employer voluntarily recognized a bargaining unit, employees were barred from bringing a petition to challenge that recognition. Now, an employee has 45 days after the voluntary recognition to file an election petition challenging the same. Another change relates specifically to the construction industry. Previously an employer could act to recognize a bargaining unit without any other action or evidence than language allowing for it in a collective bargaining agreement. Now that same employer must have positive evidence of a union demand for the bargaining unit, employer recognition of it, and the union must make a showing of majority support among the members of the employee group. An additional change prevents a party from blocking an election petition through the filing of an unfair labor practice. The blocking action was common in situations where an employee would file for an election to decertify the union. Now the petition will be allowed to proceed and the ballots counted immediately unless there is the filing of unfair labor practice challenging the circumstances regarding the support for the petition or alleging that the employer has dominated the union. The shortened union election period and time from union petition to election implemented under the Obama Administration has also been eliminated. The time period will be returned to around 42 days, which was previously cut in half. Many of these changes were to be implemented on April 16, 2020, but the NLRB has delayed implementation of all of them to May 31, 2020 to allow for the consideration of recent litigation filed by the AFL-CIO
COLLECTING UNEMPLOYMENT BENEFITS UNDER THE CARES ACT
The U.S. Department of Labor recently issued guidance regarding unemployment benefits under the CARES Act, which expanded weekly benefits by as much as $600 and made more workers eligible to collect through July 31, 2020. The guidance states employees who lost their jobs for reasons unrelated to COVID-19 cannot collect unemployment benefits under the CARES Act even if the pandemic prevents them from finding employment. For example, not being able to find a job because businesses are closed and/or are not hiring to due COVID-19 is not an eligible criterion for receiving expanded CARES Act benefits. However, employees who refuse work may continue to collect expanded benefits depending on what their state considers to be safe work conditions. If an employer’s workplace falls short of a state’s mandated safety conditions, and an employee refuses to work, the employee may still qualify for expanded benefits. President Trump’s recent Executive Order extends the unemployment bonus to $400 per week (down from $600) through December 6, 2020. However, it is uncertain when the extension is scheduled to begin.
NLRB ESTABLISHES TEST FOR ABUSIVE LANGUAGE
In an effort to provide certainty and equitable results, a majority of the National Labors Relation Board (NLRB) determined under what circumstances an employee may be disciplined who has engaged in abusive conduct. Such situations often involve circumstances that may be protected under Section 7 of the National Labor Relations Act (NLRA) as “concerted activities for mutual aid or protection” without fear of reprisal, making employers’ right to discipline the employee problematic. The case in question involved a situation where a judge determined that General Motors had violated the NLRA by suspending a worker who lobbed a number of “F” words at a supervisor. The Board determined that use of the Wright Line test to determine an employer’s right to discipline if the worker who raised issues, such as striking or raising safety concerns, could be punished. This test has two prongs, the first of which is the worker must prove that protected activity factored into the discipline. Thereafter, the employer gets a chance to prove it would have fired the worker absent the protective activity, such as by showing it fired other workers over similar outbursts. If the employee stumbles on the first prong, or the employer satisfied the second prong, a worker loses. A significant part of the justification for the Wright Line test was in many instances the employer has an obligation under Section 7 to prevent harassment, racial, sexual and other types of harassment in the workplace. Indeed, the AFL-CIO accused the Republican-controlled Board of seeking to narrow workers’ rights “under the guise of accommodating state and federal civil rights law.” General Motors, LLC and Charles Robinson, Court File Nos. 14-CA-19785 AND 14-CA-208242.
TIP OF THE MONTH:
STATE’S WORK FROM HOME MANDATE DURING COVID-19 PANDEMIC
The Minnesota Department of Labor & Industry (DOLI) recently clarified Governor Walz’s Executive Orders. Executive Order 20-84 allows businesses to reopen with specific restrictions and requirements, including COVID-19 preparedness plans. However, all employees who can complete their work at home must be allowed to do so. The Order states, “Minnesotans working in any field . . must work from their home or residence as much as possible. Any worker who can work from home must do so.” Failure to allow employees to work from home if they can exposes employers to potential legal claims.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2020 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.