HAPPY HOLIDAYS FROM ALL OF US AT HANFT FRIDE
December 2022 – Vol. 24, No. 4
The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, email@example.com and Richard R. Burns, firstname.lastname@example.org, 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.
- MINNESOTA COURT AFFIRMS DECISION DENYING UNEMPLOYMENT BENEFITS FOR REFUSAL TO GET COVID VACCINE
- FOURTH CIRCUIT RULES GENDER DYSPHORIA MAY BE DISABILITY UNDER THE ADA
- NEW JERSEY REQUIRES EMPLOYERS TO DISCLOSE FLEET VEHICLE TRACKING
- NEW NLRB REJECTS CHANGE IN BARGAINING UNIT TEST
- Tip Of The Month
An employee was terminated for failure to adhere to her employee’s COVID-19 vaccine mandate. The employee applied for unemployment benefits and was denied, as it was found she was discharged for employment misconduct. The employee appealed the denial, arguing that her refusal to receive the COVID vaccine was motivated by a religious belief that she should abstain from “receiving foreign toxins with harmful or unknown effects, while maximizing nutrition and cultivating a healthy natural immune system in accordance with God’s design.” Conduct arising from sincerely held religious beliefs is generally not considered “misconduct” for purposes of assessing unemployment benefits. In upholding the denial of benefits, the Minnesota Court of Appeals found that the employee’s refusal was based on secular reasons, rather than religious. Conduct motivated in secular reasoning does not receive the same protection from the “misconduct” label as religiously motivated behavior. While the employee had made statements that invoked some mention of religious beliefs, she had also on multiple occasions explained that her refusal was based on skepticism of the vaccine’s efficacy, its potential effects on her nursing daughter, and that she may decide to get the vaccine in the future after she had a chance to “reevaluate the information.” Logue v. Olympus America Inc., No. A22-0282, 2022 WL 3581809 (Minn. Ct. App. Aug. 22, 2022).
FOURTH CIRCUIT RULES GENDER DYSPHORIA MAY BE DISABILITY UNDER THE ADA
A transgender woman who suffers from gender dysphoria, or a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth”, spent six months in prison housed with males and was alleged to have been repeatedly assaulted by corrections officers for her condition. The woman brought suit against the prison, arguing violations of the Americans with Disabilities Act (ADA). The prison countered, arguing that the ADA explicitly excludes from its “disability” definition “gender identity disorders not resulting from physical impairments” and that the exception includes “gender dysphoria”. The Fourth Circuit Court of Appeals rejected this argument, stating that Congress intended “gender dysphoria” to have a different meaning than “gender identity disorder” and wanted the ADA to allow coverage to the “maximum extent possible.” Thus, the Court reasoned that “gender dysphoria,” as a separate condition, is not included in the “gender identity disorder” exception. The Court did not, however, decide whether gender dysphoria is a “disability.” This is another case in a string of recent high-profile LGBTQ+ rights litigation. As cases with similar facts percolate up to federal courts, rulings that reach a different outcome than that decided here could create a “Circuit Split” that the U.S. Supreme Court may wish to resolve. Williams v. Kincaid, 45 F.4th 759, 764 (4th Cir. 2022).
NEW JERSEY REQUIRES EMPLOYERS TO DISCLOSE FLEET VEHICLE TRACKING
Does your company use vehicles in its business? Many employers choose to install GPS location trackers on their fleet vehicles for various reasons. From keeping tabs on the whereabouts of company property to garnering insurance discounts for good driving, a GPS Tracker may be a helpful tool to utilize in conducting a business. In most states, including Minnesota and Wisconsin, a GPS tracker may be placed on a vehicle by the owner or with the owner’s permission, without notice or approval required by every driver of the vehicle. However, earlier this year, in a turn away from the conventional law of most states, New Jersey enacted legislation that requires employers of fleet vehicles, regardless of ownership, to first provide written notice to employees before placing any tracking devices on the vehicle. Penalties for failure to comply are a fine of up to $1000 for the first violation, and up to $2500 for each subsequent violation. Thus, those with business operations in New Jersey or employees who drive fleet vehicles through the state should give prompt written notice of any trackers on vehicles and continue to do so anytime trackers are placed on vehicles in the future. Even if a business is not affected by this new law, it is still worth keeping on the radar (pun intended). As both the law and societal views on privacy and technology continue to evolve, legislation along these lines could pop up in states across the country. Finally, even if you are not required by law to disclose tracking devices on your fleet vehicles to employees, doing so may still be advisable to foster trust, clarity, and communication in the workplace.
NEW NLRB REJECTS CHANGE IN BARGAINING UNIT TEST
Recently the NLRB made it easier for Unions to secure representation elections for bargaining units that they design, rather than a facility’s full work force. This reversed a Trump era ruling, known as PCC Structural Challenge, which involved a 100 worker unit at a 2,600 worker facility. The Trump NLRB stated that the regional office needed to examine whether the included workers have “sufficiently distinct interests” based on a number of factors. This shifted the burden to the unions. In reversing, the Democratic majority said this would create a standard that is “vague, confusing and has no support in Board precedent.” A 3-2 vote of the NLRB restored the 2011 standard (known as “Specialty Healthcare”) that bargaining units must show workers outside the proposed group have an “overwhelming” common interest with the employees included. This obviously means union organizers need to strategically design units that will vote for union representation. American Steel Construction, Inc. and Local 25, International Association of Bridge, Structural, or Metal and Reinforcing Iron Workers, Case No. 07-RC-269162 (Dec. 2022).
Employers need to be aware that union organizing activities have increased dramatically. During the first half of 2022 union petitions for recognition were up 56%. Moreover, the number of unfair labor practices charged by employees is up nearly 15%. Be resolute in keeping your employees’ salaries and benefits fair as well as treating your employees with respect and appreciation unless you want to negotiate with a third-party for salary, benefits and working conditions.
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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