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, firstname.lastname@example.org and Richard R. Burns, email@example.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.
- PROHIBITION OF MOST NON-COMPETE AGREEMENTS PROCEEDING THROUGH MN LEGISLATURE
- NO DUTY TO ACCOMMODATE RELIGIOUS BELIEFS UNDER MHRA
- BILL EXPANDING EMPLOYER RETALIATION LAWS AND PREGNANCY ACCOMMODATIONS PROGRESSES THROUGH SENATE
- DC. CIRCUIT OVERRULES NLRB BOARD, SAYS BOARD DECISION “DEFIES ESTABLISHED LAW.”
- Tip Of The Month
Bills prohibiting nearly all non-compete agreements are proceeding through the Minnesota legislature. In April, the Minnesota Senate passed a bill that would ban any agreement that restricts an employee from working for another employer for a period of time, restricts the employee from working in a specific geographic region/area or bars an employee from working in a role similar to that which he/she worked for the employer. The ban would apply to agreements involving employees and independent contractors. Agreements barring disclosure of confidential, proprietary information or trade secrets would not be barred, nor would those precluding former employees from soliciting customers or other employees. Notably, the Senate bill would not apply retroactively, meaning non-compete agreements entered into before the law goes into effect would remain enforceable. That is one difference between the bill passed by the Minnesota Senate and a similar bill proceeding through the Minnesota House of Representatives, which provides a grace period during which employers and employees could renegotiate existing non-compete agreements to comply with the new rules. If the House passes a bill that is not identical to the bill passed by the Senate, the legislation would be subject to a conference committee before it could reach the Governor’s desk. The Senate’s passage would suggest some limitations on non-compete agreements is likely this session, however. Employers are encouraged to stay tuned for updates on this important issue.
NO DUTY TO ACCOMMODATE RELIGIOUS BELIEFS UNDER MHRA
The United States Federal District Court in Minnesota recently concluded that the Minnesota Human Rights Act (MHRA) does not obligate employers to provide “reasonable accommodations” for religious practices or beliefs of employees. Specifically, the court noted that while Title VII “expressly includes” a duty to provide religious accommodations, the MHRA specifically does not. The court was faced with a case where the plaintiffs were alleging religious discrimination because they were terminated for refusing to become vaccinated against COVID-19. The plaintiffs alleged they refused to comply with the employer’s vaccination requirement for religious reasons, and their employer was obligated to recognize such beliefs under the MHRA. The court disagreed. The court looked to the express language of the MHRA and noted that “the MHRA does not define religion and does not include any language requiring an employer to provide any religious accommodation.” The court went on to say that the “absence of such language is significant given that the MHRA includes a provision titled ‘Reasonable Accommodation’ that explicitly addresses the circumstances requiring reasonable accommodation under the statute.” The conclusion reached by the court in this case was that if the legislature had wanted to include religious accommodations, it could have done so. The absence of such language indicates the legislature chose not to, and therefore the claims under the MHRA for religious accommodation discrimination failed. Kehren v. Olmsted Med. Ctr., 22-CV-01560 (Dist. Minn. 2023).
BILL EXPANDING EMPLOYER RETALIATION LAWS AND PREGNANCY ACCOMMODATIONS PROGRESSES THROUGH SENATE
Under Minnesota law, employers are prohibited against “retaliating” against employees for a variety of reasons, including wage disclosure, whistleblowing, and requesting or receiving various types of protected leave and accommodations. Under HF1104, a bill currently proceeding through the state legislature, employers would not only be prohibited from “retaliating,” but could not “discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate” against an employee for these reasons. HF 1104 also expands various pregnancy related workplace rights. It would afford these rights not only to “nursing mothers,” but also to employees who lactate but do not identify as female. Pregnant employees would also be entitled to a “clean, private, and secure” location for lactation. Finally, under the law, employees would need to provided notice of their pregnancy rights in writing at the time of hire, in the employee’s preferred language, as well as upon request. HF1104 has already passed the Minnesota House and shows signs of likely being passed by the Senate as well. With the Senate controlled by to the Democrats this year, and Governor Walz’s support of the bill, there is a good chance the bill could be signed into law later this spring.
DC. CIRCUIT OVERRULES NLRB BOARD, SAYS BOARD DECISION “DEFIES ESTABLISHED LAW.”
Sunrise Operations LLC owns several container ships on the West Coast. In 2017 and 2018, the AFL-CIO sought information from Sunrise concerning four of its “Licensed Deck Officers” (“LDOs”) working aboard the ships whom the Union claimed to represent. Sunrise refused to comply, arguing that some of the LDOs were “supervisors,” not “employees,” meaning that the LDOs were not covered by a union under the NLRA. The Union filed an unfair labor practice charge against the company. The NLRB held that it could not compel Sunrise to cooperate with the Union because the company had “always believed” that the LDOs were supervisors, not bargaining employees. The D.C. Circuit Court of Appeals overturned the NLRB’s decision, noting that besides lacking sense in terms of judicial policy, the decision was unsupported by facts and law. Despite its assertion of a subjective belief that the LDOs were supervisors, Sunrise had taken actions in the past that objectively demonstrated “voluntary recognition” of the LDOs as employees covered by the Union. This case reminds employers to be mindful that a Union does not need to be certified by the NLRB to become the exclusive bargaining unit for a group of employees– this can also occur through an employer’s voluntary recognition. Int’l Org. of Masters, Mates & Pilots, ILA, AFL-CIO v. Nat’l Lab. Rels. Bd., 61 F.4th 169 (D.C. Cir. 2023).
Investigating complaints of workplace incidents is a regular part of HR duties and a strongly recommended practice for numerous reasons. An important aspect of such investigations is documenting each step of the investigation, including who is looking into what, who is providing information and what information is gathered. The timing and source of information can be as important as the substance of the information itself if there is litigation arising out of subsequent disciplinary action. Documenting the timing of decisions made over disciplinary action arising from such an investigation is also critical if litigation follows. A paper trail can go a long ways in defending employment-related 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 2023 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.