December 2019 – Vol. 21, No. 12
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.
This Month’s Topics:
- DULUTH SICK AND SAFE LEAVE POLICY
- NLRB Gives control over company email use back to employers
- Union Election Rules Changed Back
- ENGLISH-ONLY WORKPLACE POLICY
- Tip Of The Month
Duluth Sick and Safe Leave Policy
On January 1, 2020, employers will be required to conform with the City of Duluth’s Earned Sick and Safe Time (ESST) Ordinance, which requires companies with five or more employees to provide paid leave to their employees who work in Duluth. Employers are required to allow full- and part-time employees to use ESST to care for themselves or a family member in situations involving illness, injury, physical or mental health conditions, domestic violence, sexual assault, or stalking. The Ordinance does not apply to independent contractors, student interns, seasonal employees, and certain railroad workers.
This Ordinance places significant economic and administrative burdens on employers. Employers must decide whether to administer an accrual system or frontload ESST, and the Ordinance has mandatory minimums, maximums, carry-over rules and record keeping requirements. ESST must be made available to all employees after their first 90 days of employment. Employers must also give notice to all covered employees of their rights and protections under the Ordinance. Additional considerations may apply where a collective bargaining agreement exists. Unfortunately, the Ordinance provides no practical way to address potential employee misuse of ESST. Employers cannot request documentation from the employee regarding the reason behind the employee’s absence until after an employee uses three days of ESST. But at that point, most of the employee’s ESST will have been used.
Employers may have PTO policies that meet or exceed ESST requirements for accrual, use purposes, and carry over of leave. In that case, the employer does not need to provide additional paid leave to comply with the ESST Ordinance. Employers still must maintain records of employee hours worked in Duluth and PTO/ESST time used. Employers are encouraged to contact a local employment attorney to ensure compliance.
Before 2014, decades-old National Labor Relations Board (“NLRB”) precedent established that the National Labor Relations Act (“the Act”) did not restrict an employer’s right to control the use of its equipment. This precedent applied in equal force to an employer’s email system in Register Guard. 351 NLRB No. 70 (2007). In 2014, however, the NLRB’s decision in Purple Communications overturned Register Guard and held that if employers have chosen to give employees access to their email systems, the employees are presumptively permitted to use their work email during nonworking time for Section 7 purposes of the Act. The rights of employees protected under Section 7 include the rights to self-organization, collectively bargain and communicate with co‑workers regarding workplace conditions. On December 16, 2019, Purple Communications was overruled by the current NLRB. The case before the NLRB involved Rio All-Suites Hotel and Casino’s employee handbook, which barred employees from “send[ing] chain letters or other forms of non-business information.” The Administrative Law Judge determined the casino’s policy violated Purple Communications. The NLRB, however, ruled in favor of the casino, concluding that its policy did not violate federal labor laws. In its decision upholding the employer’s rights, the NLRB held that “an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communication with each other, or proof of discrimination.” Under this decision, employers may once again place neutral restrictions on employee use of employer-owned IT resources, including workplace computers and email. Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143. (Dec. 16, 2019).
During the Obama administration, the NLRB changed union election regulations to speed up the election process. The new rules adopted in 2014 were often referred to by employers as the “ambush election rule” because of the advantage the new rules gave unions. Last week, the NLRB rolled back a number of the expedited timelines adopted in 2014, but not all of them. The rules adopted in December 2019 relax the timeline for many pre-election requirements on employers. For example, once a union files a petition, the hearing must occur within 14 days instead of eight days under the 2014 rules, and the employer has three additional days to provide notice of the hearing under the new rules. In addition to returning the process to a reasonable pace, the 2019 rule changes now require the union to file a response to the Statement of Position on disputed issues the employer became obligated to produce under the 2014 rule change. Also, disputes over bargaining unit scope and voting eligibility are to be determined before, rather than after the election. The new rules, which go into effect on April 16, 2020, help to level the playing field in the union election process.
English-only Workplace Policy
According to the EEOC, English-only policies are presumed discriminatory unless the employer provides a business necessity justification. The Ninth Circuit Court of Appeals, on the other hand, requires employees alleging discrimination based on such policies to first prove the policy has a discriminatory effect. A recent California federal court determined affected workers must show the English-only policy has a negative impact on a protected group before the employer is required to justify the policy is a “business necessity.” In the case, the employee filed a discrimination lawsuit against the Navy for reprimanding her for speaking her native language (Tagalog) while discussing work with other Tagalog-speaking employees. The employee and the other employees also spoke English and did not claim English-only communication was difficult. The employee argued the Navy’s English-only policy is discriminatory because it is not justified by any business necessity. The court held that plaintiffs must prove the alleged discriminatory effect before the burden shifts to employer to show a business necessity justification. The court dismissed the employee’s discrimination claim because the employee’s case was based on the sole fact that an English-only policy was instituted and did not claim nor show the policy had a discriminatory effect. The Court’s decision did not use the EEOC’s presumption. Killeen v. Spencer, 18-cv-1590-AJB-NLS (S.D. Cal. August 7, 2019).
TIP OF THE MONTH: Working from home – sometimes referred to as “telecommuting” – is likely to continue to become more popular with better workplace/home connection technology and tighter job markets. Employers should recall, however, that there are special considerations associated with permitting telecommuter employees. First, employers are responsible for ensuring that all employees have a safe and appropriate work environment – even in a home office. Many workplace safety standards apply to both home and office settings. Employers can consult their workers’ compensation carriers for additional safety tips. Second, make sure you have a timekeeping method that will accurately capture hours worked and is not subject to abuse. Third, be aware of any local laws and ordinances (i.e. anti-discrimination, ESST) that may apply to telecommuter employees just like other employees.
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 2019 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.