Recent Employment Law Developments: A Top Ten List

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1 Recent Employment Law Developments: A Top Ten List I. The Women s Economic Security Act ( WESA ) of Minnesota is now in effect A. WESA provides certain protections for pregnant women or mothers with minor children. B. Employers must provide reasonable accommodations for women with health conditions relating to pregnancy, such as: 1. More frequent restroom, food and water breaks; 2. Seating accommodations; or 3. Limits on lifting over 20 pounds. C. WESA also expands the Minnesota Human Rights Act ( MHRA ) to protect job applicants who are pregnant or have minor children. 1. Employers must provide a private space, other than a the restroom, for women to take unpaid nursing breaks. 2. For Minnesota employers with 21 or more employees: a) Pregnancy and parenting leave is expanded from six to twelve weeks. b) Employees may also use sick leave benefits to care for grandchildren, step- grandchildren, or a spouse s parents. c) Employees may take safety leave to care for close relatives who are victims of sexual assaults, domestic abuse, or stalking. II. WESA Part II: Closing the gender pay gap A. Employers are prohibited from disciplining employees for discussing wage information. 1. Many employees are unaware that their co-workers have asked for higher wages, contributing to the persistent wage gap. 2. Many employment policies prohibit discussion of wages, whether in general, or specifically referencing social media. 3. Policies must be amended to ensure that they are not prohibiting employees from discussing their wages. B. State contractors must now obtain Equal Pay Certificates to be eligible for state or municipal projects. 1. The requirement applies to employers who: a) employ more than 40 workers; b) are seeking contracts of at least $500,000; and c) seek to contract with the State of Minnesota, a Department or agency of the State, the Metropolitan Council, or a metropolitan agency. Copyright 2014, Winthrop & Weinstine, P.A. All Rights Reserved. This information should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your legal counsel concerning your situation and any specific legal questions you may have. This may be considered Advertising Material.

2 2. Certificates are issued by the Minnesota Department of Human Rights ( MDHR ) 3. To obtain a certificate, a contractor must issue a statement to the MDHR stating that: a) the contractor is in compliance with federal and state employment laws; b) female employees are not consistently compensated below comparably situated male employees; c) the contractor does not restrict employees of one sex to certain job classifications; d) sex is not a factor in employment retention; e) wage and benefits are monitored for compliance with equal pay certificates; and f) the contractor satisfies certain other gender conscious requirements when determining wages and benefits. III. EEOC Issues Pregnancy Guidance A. The EEOC has clarified federal law protecting women from discrimination on the basis of anticipated work performance problems due to pregnancy. B. The Guidance reaffirms protections against stereotypes and assumptions regarding pregnant women s work performance. 1. Protections are granted for current, past, or possibility of future pregnancy. 2. Employers may not discriminate against women due to stereotypes related to workplace attendance or likelihood of quitting. 3. U.S. Supreme Court: We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group. C. Access to Benefits Must be Equally Granted to Pregnant Employees 1. Policies must treat pregnant employees the same as similarly situated non-pregnant employees. a) Employees injured on the job and workers considered disabled by the ADA are apt comparisons according to courts. 2. Employees may request light duty work during pregnancy. a) A denied request for light duty work may not be motivated by an aversion to pregnant employees. b) Requests stemming from pregnancy and those from similarly restricting non- pregnancy conditions must be treated alike. 3. Policies which limit the availability of benefits and accommodations must be applied equally to pregnant employees. a) However, even if applied evenly, policies may not have an overall disparate impact on pregnancy, unless the policy is clearly job related and constitutes a business necessity.

3 4. Some examples of reasonable accommodations for pregnancy related conditions: a) reassigning marginal functions; b) modified work schedule; c) temporary reassignment to light duty; or d) other accommodations that address complications or conditions specific to pregnant employee. IV. Minnesota Whistleblower Act Amendments 1 Year Later A. Last year, the Minnesota Whistleblower Act ( MWA ) was amended to expand on protections for employee reports of employer misconduct. 1. Courts are now interpreting cases more liberally under the standard from the amended MWA, and the number of protected reports will likely rise. B. Post-termination conduct by an employer may now be considered retaliation. 1. The MWA amendment defined penalize broadly to expand on employer conduct that could be considered retaliation. 2. Under the prior version, only conduct leading up to and including termination could be considered retaliatory. 3. Employers must now be careful to not take any actions, or withhold taking actions, that could have a negative impact on the employee s career after termination. a) For example, an employee who is bringing a MWA claim may allege that any challenge to the employee s worker s compensation or unemployment benefits was retaliation for blowing the whistle. C. An employee s motivation for making a report is no longer a strict limit on protection. 1. Under the old version of the MWA, an employee only acted in good faith when making a report if the employee knew that the employer had not been already aware of the violation and if the employee had been motivated by a desire to protect the general public. 2. The amended MWA s definition of good faith would encompass any report that the employee made, unless the employee knew the report was false or acted with reckless disregard of the truth. 3. Employees may now be able to blow the whistle to protect their own job status, even when their employers are already aware of a violation. V. Medical Marijuana in the Workplace Impact of Minnesota s Medical Marijuana Law A. Minnesota s Department of Health has created a registry for individuals who are authorized to use medical marijuana. B. Employers may not discriminate against employees who are listed on the registry. 1. Protections apply to tangible employment acts, such as hiring, termination, demotion, and promotion.

4 C. Employees are not protected with respect to marijuana use during work hours, or on the work premises. D. An employee subject to drug testing may provide evidence of certification to avoid discipline for testing positive for marijuana. VI. E-cigarettes in the Workplace A. E-cigarettes use water vapor to deliver tobacco discharges to the user, and e-cigarette use is called vaping. 1. Currently a $1.5b industry, e-cigarette use is pervasive and expanding. B. The Minnesota Clean Indoor Air Act of 2014 bans vaping on most state property. 1. Private sector employers are not affected directly by this legislation at this time. C. Vaping may not be addressed by existing smoking policies. 1. Vaping is oftentimes not addressed in employer smoking policies and employees may be using that fact to circumvent anti-smoking policies. 2. Many e-cigarette users are not inhaling nicotine or even tobacco; users may inhale bubblegum, snickerdoodle, or other flavored products. D. Areas to consider when amending employee policies to address e-cigarettes and vaping: 1. Company vehicles vaping does not typically leave an odor, so employers may have difficulty determining whether employees are using e-cigarettes while behind the wheel. 2. Smoking area should e-cigarette users be required to share a smoking area with users of traditional cigarettes? 3. Indoor use e-cigarette advertisements often depict indoor use, and it may be difficult to detect in the workplace. VII. Jury Trials Now Available for Discrimination and Whistleblower Cases A. In Minnesota, employees were previously only eligible for a bench trial (trial decided by the judge). 1. Juries are now available for discrimination and whistleblower claims. 2. More sufficient protections available to protected classes: data shows that juries grant more favorable outcomes to plaintiffs bringing race and sex discrimination claims. 1 B. Jury trials are generally longer, more expensive, and less predictable than bench trials. C. Costs could also decrease; judges may be more likely to decide employment cases on summary judgment if a jury trial has been demanded. 1 Oppenheimer, David Benjamin, Verdicts Matter: An Empirical Study of California Employment Discrimination and Wrongful Discharge Jury Verdicts Reveals Low Success Rates for Women and Minorities, 37 U.C. Davis L. Rev. 511 (2003)

5 VIII. New Affirmative Action for Individuals with Disabilities ( IWDs ) and Veterans A. These regulatory changes apply to businesses that operate as federal contractors. 1. The goal is to provide additional employment opportunities to IWDs and veterans. B. Employers must now invite employees and applicants to self-identify disability or veteran status. 1. During the pre-hire stage, applicants must be invited to declare a disability or veteran status. 2. Contractors must also invite current employees to self-identify a disability once every five years at minimum. C. The nationwide goal is for IWDs to constitute 7% of total contractor employees and for veterans to constitute 8%. 1. Employers must establish action-oriented programs to reach employment goals. 2. Data collection standards have been imposed to keep track of the number of IWDs who apply for positions and the number of IWDs hired. D. Equal Opportunity clause will now be incorporated in government contracts to alert contractors to their affirmative action duties. IX. Violence in and out of the Workplace: What s an Employer to Do? A. Well-publicized domestic abuse charges brought against NFL players Ray Rice and Adrian Peterson have exposed the dangers to employers associated with accusations of violent crime by employees: 1. Key employees or executives may be tried by the press before the justice system can run its course. 2. An employer should be prepared to handle serious allegations quickly. B. Employers should take steps to limit an accused employee s contact with co-workers while the matter is investigated. 1. Each case should be determined on a case-by-case basis. 2. An employee accused of a violent crime could be placed on administrative leave to limit contact with other employees. 3. An employer should seek professional help as needed. 4. Employers should consider a workplace violence policy. C. Employers should also determine the impact of an employee s criminal accusation on company contracts, particularly if the accusation involves a felony. 1. Morality clauses or other provisions may govern contact between an employee and a vendor or client.

6 X. Implementing the Affordable Care Act. A. Incentives for Workplace Wellness Programs 1. These incentives, which took effect on January 1, 2014, provide rewards to employers for non-discriminatory wellness plans. 2. Employers may be reimbursed for some of the total cost of health coverage provided to an employee participating in the program. a) Proposed rules indicate health-contingent wellness programs may lead to a reward of up to 30% of the total cost of employee coverage. b) Proposed rules indicate rewards for programs designed to reduce tobacco may yield up to 50% reimbursements. B. Employer Shared Responsibility payments. 1. Payments may only apply to employers with 50 or more full-time employees. a) Employees are full-time if they work at least 30 hours a week. 2. Payments are due if any full-time employee has not been offered affordable or minimal value insurance and such employee receives a premium tax credit for insurance purchased on an exchange. a) Affordable insurance must not cost more than 9.5% of the employee s household income, with some exceptions. b) Minimal coverage insurance covers at least 60% of the total allowed cost of benefits expected to be incurred. 3. If the IRS notifies an employer that Employer Shared Responsibility payments are due, the payment is equal to: a) $2,000 multiplied by; b) The total number of full-time employees working for the employer minus Payments may be incurred for premium credits received by employees in C. Employer Health Coverage Reporting. 1. Beginning in 2016, employers with 50 or more full-time employees must file a report regarding coverage offered to full-time employees. 2. Reporting in 2016 will include coverages offered in 2015, so employers should begin collecting information for reports next year. 3. Reports will include information about the type of coverage offered to each employee, contact information, and number of employees. D. Summary of Benefits and Coverage (SBCs) disclosures. 1. Employers must provide a standard SBC form to employees by their first day of coverage, which explains what plans cover and what they cost. 2. Disclosures must be provided in the event of any changes to coverages. 3. Penalties may be imposed for non-compliance.

7 XI. Lost Productivity Has it Been Found by Employee Fantasy Football Teams? A. A Challenger Gray study found that the average fantasy football player spends two hours a week during work hours on fantasy football. B. With about 20 million employed fantasy football players (or general managers, as they prefer), the lost productivity totals $13.4 billion annually. C. The news is not all bad: fantasy sports leagues, particularly those run interoffice, have a positive effect on morale, and the average fantasy player has gained at least one business contact through fantasy sports. 1. Employers can understand that employees may spend a nominal amount of time on fantasy sports at work, but the company reserves the right to discipline employees who are found to engage in excessive use of company time dealing with fantasy sports leagues. 2. A no tolerance policy may involve blocking employees access to fantasy sports websites.