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, 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.
- FAILURE TO INTERVIEW ALL WITNESSES OF EVENT LEADING TO TERMINATION NOT REASON FOR DISCRIMINATION FINDING
- SO-CALLED AMBUSH RULE APPROVED BY NLRB
- RELIGIOUS ACCOMMODATIONS MUST ALLOW EMPLOYEE TO FULFILL JOB FUNCTIONS WITHOUT INTERFERING WITH RELIGIOUS BELIEFS, NOTHING MORE
- NLRB SAYS GOOGLE AND CONTRACTOR ARE JOINT EMPLOYERS
- Tip Of The Month
A former bank employee sued her employer after being terminated for sexually harassing another employee. The employee claimed the termination was on the basis of sex in violation of the Minnesota Human Rights Act and argued the Bank discriminated against her. The employee argued the non-discriminatory reason for termination offered by the Bank was insufficient because it conducted a faulty investigation and violated its own record-keeping policies during her termination. The court concluded that an employer’s failure to interview some witnesses present at the harassment incident does not automatically create evidence showing discriminatory motive or that the employer’s proffered reason for termination was merely a pretext for discriminatory motivations. In addition, the employee argued that the Bank’s shredding of the handwritten witness interview notes was evidence of discriminatory motives. However, the court found there was no violation of the company’s policy regarding record keeping because the Bank’s policy instructed that, once handwritten notes were transcribed into an electronic format, they should be destroyed for confidentiality reasons. This case is instructive for employers both on the investigation and record-keeping fronts. Namely, employers should interview witnesses to a sufficient extend that they have a reasonable and trustworthy handle on the facts. Furthermore, compliance with internal record-keeping polices or practices can be critical in claims of unlawful employment practices. Nelson v. Lake Elmo Bank, No. 22-2827 (8th Cir. Aug. 1, 2023).
SO-CALLED AMBUSH RULE APPROVED BY NLRB
The National Labor Relations Board issued a final ruling in late August unwinding what remained of regulations adopted by the Trump Administration Board in 2019 relating to union petitions and elections. Recall that in general, a party files a petition with a regional NLRB office requesting that a union election be held. The regional NLRB director then sets a “pre-election hearing” to hear arguments on various issues concerning the potential election that are raised by the employer in a “position statement” submitted prior to the hearing. The regional office then sets a date for an election if most issues are resolved at the hearing. Arguing that the rule changes were procedural in nature and therefor required no notice and comment, the Board eliminated a 20-day minimum waiting period and required that the election be at “the earliest practicable date” after it accepts an election petition at a hearing. Other changes include 1) pre-election hearings must be held 8 days after notice of a union petition, rather than 14 days under the previous rule; 2) the NLRB can only postpone a pre-election hearing for up to 2 days, previously it could postpone indefinitely when necessary; 3) Union petitioners are no longer required to respond in writing to an employer’s position statement at least 3 days prior to a pre-election hearing, but may respond orally at the hearing. Under these rules, the union can control how long it takes to be certified to have an election by propagandizing for a significant period of time and then the employer will only have a couple of weeks to provide its own point of view on whether the employees should unionize. 29 CFR Part 102.
RELIGIOUS ACCOMMODATIONS MUST ALLOW EMPLOYEE TO FULFILL JOB FUNCTIONS WITHOUT INTERFERING WITH RELIGIOUS BELIEFS, NOTHING MORE
An employee’s claims of religious discrimination and failure to accommodate under the Minnesota Human Rights Act (MHRA) and Title VII of the Civil Rights Act were dismissed where the employee refused to get the COVID vaccination. The Court, in reviewing both the federal and state claims, held that the first question in both claims is “whether the employee’s job obligations are in conflict with her religious obligations.” Here, the Court said, the religious obligation would have been to not get the vaccine. However, the employer did not mandate the vaccine and provided a reasonable accommodation. The employee did not feel the accommodation was reasonable, but the accommodations were not against her religious beliefs and therefore did not lead to a conflict between her job obligations and religious obligations. Thus, the Court held that the employee failed to establish a viable claim and the case was dismissed. Essentially, the employer’s accommodation – requiring the employee to wear a special badge and protective gear – was reasonable, despite the employee feeling this led to ridicule. Accommodations for religious beliefs need only allow the employee to fulfill both her religious and job functions. Cole v. Grp. Health Plan, Inc., No. 22-CV-2686-WMW-DLM (D. Minn., August 10, 2023).
NLRB SAYS GOOGLE AND CONTRACTOR ARE JOINT EMPLOYERS
In a case not viewed as of significant precedential value, the NLRB has determined Google to be a joint employer with a contractor that supplies labor for its YouTube music unit. The question in determining whether there are joint employers is the direct and immediate control over certain “essential terms and conditions” of employment. Here, there was significant control, as Google developed the work charts they used, decided what tools and processes they used and maintained tight control over the prioritization of the performance of assigned duties. Moreover, they also had some control over the workers’ benefits, including minimum eligibility standards and determining holiday schedules and overtime hours. As a challenge to a joint employer status determination does not stop a union election, the contractor employees had voted 41-0 to unionize with the Communication Workers of America. Interestingly, there is no right to directly appeal this NLRB Board decision, and the only choice would be to not bargain with the union and then have the NLRB find a refusal to bargain which could then lead to an appeal.
In late August the U.S. Department of Labor announced a proposal to increase the minimum salary threshold requirements for the “white collar” (Executive, Administrative, and Professional) overtime exemption to cover an additional 3.6 million workers. The current level is $35,568, and the proposed new threshold is $55,068 (approximately $1,050 per week). The proposal includes provision for automatic updates every three years based on salary data. This obviously is a dramatic change, but it will take a significant period of time until this proposal is finalized and then it will face possible court challenges. You must, however, keep this on your radar, and this may be a good time to review employee duties to see whether they are exempt under current rules.
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.