April 22, 2016

Registration Open for 13th Annual Employment Law Update

Posted in Discrimination, Fair Labor Standards Act, Reasonable Accommodation tagged , , , , at 11:13 am by Tom Jacobson

Swenson Lervick Law FirmPlease join us for the 13th Annual West Central Minnesota Employment Law Update at the Alexandria Technical and Community College on Thursday, June 2, 2016!

This year’s topics include:

  • Hot off the Press — Employment Law News You Can Use
  • The Changing Nature of Accommodation
  • New FLSA Developments and Salary Rules
  • Legal Considerations for Transgender Employees

This annual Employment Law Update will again focus on the significant changes and updates to employment law issues and provide current information and resources in a variety of important areas. In addition, the event will include an informative panel discussion with employement law attorneys who will answer your questions about the featured sessions and other timely topics on employment law. SHRM CP, SCP, and HRCI credits are approved for the sessions, with certificate information available for attendees.

Presenting attorneys will be Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips.

PLUS…this year’s attendees will also enjoy this Bonus HR Session:

Cultivate Courage” presented by Dave Cornell. Dave is a keynote speaker, trainer, and personal development and leadership coach, provides a variety of services to individuals and organizations, all designed to help people be better than they think they can be and do things they think might not be possible: see opportunities instead of roadblocks, embrace change and create a vision for new possibilities, and transform and energize from the inside out.

Please see the full seminar Agenda and Registration information on the attached flyers.

Seating is limited. Registrations are due by May 23, 2016.

We hope to see you there!

February 18, 2016

New Overtime Rules Could Result in Loss of Exempt Status for Salaried Employees

Posted in Administrative Exemption, Executive Exemption, Exempt/Non-Exempt Employees, Fair Labor Standards Act, Hours Worked, Professional Exemption tagged , , , , , , , , , at 4:58 pm by Tom Jacobson

new flsa overtime rules

Many salaried employees would lose their exempt status under the DOL’s new overtime rules.

The U.S. Department of Labor’s proposed changes to the nation’s overtime pay rules would have a profound impact on workplaces throughout the country. The impact would be the potential loss of exempt status for many salaried employees. To prepare, employers should familiarize themselves with the proposed new rule and review their pay practices to ensure compliance in case the new overtime rules take effect.

The new rules would increase the minimum salary an employee must be paid before s/he may be classified as exempt from overtime pay under the Fair Labor Standards Act. This means many employees who are now properly classified as exempt will no longer be exempt. Consequently, they would then be eligible for overtime pay if they work more than forty hours in a workweek.

The change would come about because the FLSA generally requires most U.S. employers to pay overtime (that is, one and one-half times the employee’s regular rate of pay) when employees work more than forty hours in a work week. However, certain categories of employees are exempt from that requirement. To qualify for some exemptions, those employees must not only perform certain duties as specified in the FLSA, but they must also be paid a minimum salary.

Currently, that minimum salary is $455 per week ($23,660 per year). Under the new rule, that threshold would more than double to $970 per week ($50,440 per year).

The impact can be illustrated with a hypothetical workplace where an employee is currently paid a salary somewhere between $24,000 and $50,000 per year and works an average of 45 to 50 hours per week. Assuming that employee meets one of the FLSA’s “duties” tests, the employee would likely be considered exempt and not entitled to overtime pay. Therefore, the employee would be paid the same regardless of how many hours s/he works in a week.

If the new rules take effect, the same employee would no longer be exempt, and s/he would be entitled to overtime pay for the extra five to ten hours of work each week. Therefore, the employer would need to increase the employee’s salary to meet the new threshold and maintain the exemption, or the employer would need to convert the employee to an hourly-rate employee and pay time and a half for any overtime.

The new rules have not yet gone into effect, and it is not entirely clear if and when they will. They were initially slated to take effect this spring. However, the Society for Human Resource Management reports that this may not happen until later this year. SHRM also reports there is a remote chance that Congress could overturn the rules using the Congressional Review Act and/or that the rules will be challenged in court.

In the meantime, employers should pay attention to the potential rule change and be prepared to change their pay practices to remain in compliance. Suggestions include:

  • Determine which currently exempt employees would no longer be exempt if the salary threshold increases;
  • Assuming an employee’s exemption would be lost under the new rules, decide whether to increase the employee’s salary to meet the new threshold or convert the employee’s salary to an hourly rate basis;
  • Budget for any increased overtime costs resulting from employees who would become eligible for it under the new rules;
  • Review scheduling issues to determine whether hours can be reduced to limit the overtime liability for an employee who must be treated as non-exempt;
  • Address morale issues that could result from any perceived “demotion” of employees from exempt/salaried to non-exempt/hourly status.

In addition, although the proposed new rules do not alter the “duties” test for FLSA exemptions, employers would be wise to take this opportunity to review their exempt employees’ duties to determine whether they actually meet those duties tests. This is because even if an employee meets the salary test (whether under the current or proposed new standards), that does not automatically mean the employee is exempt from the law’s overtime pay requirements.

For more information about FLSA exemption issues, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

February 3, 2016

“Boys are Boys” No Defense to Workplace Violence Claims

Posted in Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Negligence, Negligent Hiring, Negligent Retention, Negligent Supervision tagged , , , , , at 7:03 pm by Tom Jacobson

workplace violence

Reduce the risk of negligent hiring and negligent retention claims by adopting and following proper screening and workplace violence policies.

Employers can be held liable for injuries suffered by employees who are assaulted by their co-workers, the Minnesota Court of Appeals reiterated in a recent case. The decision highlights the importance of reducing the risk of workplace violence by conducting background checks of potential employees and enforcing anti-violence policies with existing employees.

The case, Hartfiel v. Allison (Jan. 25, 2016), started when an employee of T.J. Potter Trucking, Inc., Raymond Allison, hit co-worker Richard Hartfiel with a three-foot long steel bar while Hartfiel was sitting in his truck. Hartfiel suffered broken bones and other injuries and incurred over $75,000 in medical expenses.

In the resulting lawsuit, Hartfiel claimed that Potter Trucking was liable to him because it negligently hired and retained Allison. In support of his negligent hiring claim, Hartfiel pointed to the fact that Allison had a criminal history that included multiple assault convictions. He alleged that had Potter Trucking done a criminal background check and followed its own standard hiring procedures, they would have known to not hire Allison.

The court acknowledged that Minnesota employers may be held liable for negligent hiring if they fail to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public. This means that the scope of pre-employment investigations must be directly related to the severity of risk third parties are subjected to by an incompetent employee (the greater the risk, the more intensive the pre-employment screen should be). However, the court also noted that employers do not, as a matter of law, have a duty to conduct a criminal background check on prospective employees.

The court then rejected Hartfiel’s negligent hiring claim on the basis that Potter Trucking’s pre-employment inquiry was adequate:

Here, the unchallenged evidence shows that, although Allison provided Potter Trucking a release to perform a background check, Potter Trucking checks applicants’ driving records but does not conduct criminal background checks. Typically, Potter Trucking hires people on referral. Potter Trucking followed its standard procedures—it required Allison to submit an application, interviewed him, required him to submit to drug testing, obtained a release for a background check, and relied on a referral from Allison’s previous employer…. The record contains no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him.

However, the court allowed Hartfiel’s negligent retention claim to proceed. Quoting a 1993 Minnesota Supreme Court case (Yunker v Honeywell), the court defined negligent retention:

Negligent retention … occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.

Applying that standard to Hartfiel’s claim, the court noted there was evidence that after Allison was hired, he assaulted a subcontractor, but the owner minimized it “because it ‘[was not] work related’ and because ‘boys are boys.'” Other evidence suggested that when Allison thought a foreman had been rude to him, he threatened, “it’s no secret where I live, come on over there and I’ll . . . kick your ass all over the yard.” Because of that evidence, the court allowed the negligent retention claim to proceed to trial:

The previously discussed evidence of Allison’s violent behavior against a Potter Trucking subcontractor in a tavern and threatening behavior toward a Potter Trucking foreman is the type of evidence on which a jury could find that Allison had violent propensities about which Potter Trucking knew or should have known.

The Hartfiel case reminds us that when hiring, employers should conduct pre-employment background checks that are sufficient to determine whether a candidate would pose a threat if hired. The greater the risk, the more intensive the background check should be. The depth of that investigation should be set well before the hiring process begins, and it should be consistently applied.

Moreover, the case reminds us that ignoring acts of workplace violence and threats of harm will subject an employer to liability for negligent retention. Thus, employers should adopt and enforce policies against workplace violence, and they should not brush off misconduct just because they think “boys are boys.”

For more information about workplace violence or guidance on how to develop or enforce policies and procedures to address these issues, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

January 26, 2016

Save the Date! 13th Annual West Central MN Employment Law Update Set

Posted in Uncategorized at 12:10 pm by Tom Jacobson

The thirteenth annual West Central MN Employment Law Update will be held Thursday, June 2, 2016 at Alexandria Technical and Community College. The session will include presentations by four attorneys who practice extensively in the area of employment law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips.

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all. Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”
  • “Very informative — loved it.”

We hope you can join us on June 2 for the 13th Annual West Central MN Employment Law Update! Stay tuned for registration, agenda and other details.

Copyright 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

October 22, 2015

Nursing Mothers’ Rights

Posted in Breastfeeding & Nursing Mothers' Rights, Discrimination, Gender / Sex tagged , , , , , , at 10:21 am by Tom Jacobson

BabyThough it’s been done since the beginning of time, breastfeeding in public made waves this summer when our local paper asked for comments from its readers (see It’s Your Turn: Facebook readers share thoughts on breastfeeding, Echo Press Sept. 4, 2015; A mom’s dilemma, Echo Press Sept. 4, 2015). The waves have calmed, but they exposed misunderstanding about nursing mothers’ rights. Let’s clear the air, in particular with regard to the rights of mothers who need to express breast milk while at work.

First, nursing a child in public is perfectly legal in Minnesota. Breastfeeding is an exception to the state’s prohibition of indecent exposure.

Second, mothers who need to express breast milk while at work have the right to do so in most Minnesota workplaces. This has been the law in Minnesota since 1998, but these rights were expanded in 2014 as a part of the Women’s Economic Security Act. The following will address some of the most common questions about this law.

What basic benefit does the law require employers to provide? Employers must provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.


When must the break be provided? The break time must, if possible, run concurrently with any break time already provided to the employee.


What space must the employer provide for the break? The employer must make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.


Are there any exceptions to the law? Yes. An employer is not required to provide break time under this law if doing so would unduly disrupt the employer’s operations.


Are all Minnesota employers covered by this law? Yes. The law defines “employer” to include “a person or entity that employs one or more employees and includes the state and its political subdivisions.”


What other protections does the law provide to employees? Employers must not retaliate against an employee for asserting rights or remedies the law.


What remedies are available to an employee if an employer breaks this law? Employees may bring a civil action to recover monetary damages, plus their court costs and reasonable attorney’s fees. They may also seek injunctive and other equitable relief to be determined by a court.


Is there a state agency that could get involved in disputes regarding this law? Yes. The Minnesota Department of Labor’s Division of Labor Standards and Apprenticeship has been given the authority to receive complaints of employees against employers relating to this law. The division’s role is to attempt to resolve employee complaints by informing employees and employers of the provisions of the law and directing employers to comply with it. The division is required contact the employer within two business days and investigate the complaint within ten days of receipt of the complaint.

For more information about the rights of nursing mothers or guidance on how to develop or enforce policies and procedures to address these rights, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

October 6, 2015

Jack Link’s Missing Link: Company Pays $50K to Settle Claim of Ongoing Sexual Harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Harassment, Hostile Work Environment, Minnesota Human Rights Act, Sexual Harassment, Sexual Harassment, Title VII of the Civil Rights Act of 1964, Uncategorized tagged , , , , , , , at 10:28 am by Tom Jacobson

A recently settled Minnesota Department of Human Rights charge against Jack Link’s Beef Jerky emphasizes the importance of follow-through when responding to sexual harassment allegations. According to the Department, Jack Link’s initially took the “right step” in disciplining the alleged harasser but then failed to monitor the situation, which included ongoing harassment.

Specifically, MDHR reports that shortly after being hired by Jack Link’s, a female employee’s supervisor made sexual advances toward her, called her “baby,” said she was beautiful, asked if she was single, chanted “pack baby pack,” and asked if he was too old for her. The Department also reports that although Jack Link’s initially disciplined the supervisor, the company then promoted him to be woman’s direct supervisor, after which he continued to harass the employee. Claiming she could no longer tolerate the work environment, the woman quit.

Thus, based on the MDHR’s findings, the missing link in Jack Link’s response was the lack of follow-through and monitoring. As noted by MDHR Commissioner Kevin Lindsey:

This is an unusual case in that the employer took the right step in originally disciplining the supervisor. The employer however undermined its efforts by not subsequently monitoring the actions of the alleged harasser. Employers need to maintain contact with the employee who has complained of sexual harassment to make sure that the measures that they have undertaken are actually working.

To settle the charge, Jack Link’s agreed to pay the victim $50,000.00 and to provide training on the Minnesota Human Rights Act and how to properly respond to sexual harassment allegations.

Generally speaking, employers must first take steps to prevent unlawful workplace harassment. But if, despite those efforts, an employee claims that harassment has occurred, employers must take prompt action to correct and stop that behavior. As the Jack Link’s case points out, this includes careful monitoring and follow-through to make sure the harassment does not continue or recur.

For more information about this article or about the harassment training, policy development, and related services I can provide, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

August 26, 2015

Target Settlement Sheds Light on Disparate Impact Discrimination

Posted in Application Process, Background Checking, Disability, Discrimination, Disparate Impact, Disparate Treatment, Gender / Sex, Race, Uncategorized tagged , , , , , , , at 9:15 am by Tom Jacobson

By now, you’ve probably read or heard about Target Corporation’s agreement to pay $2.8 million to settle an EEOC discrimination charge. Unlike a “disparate treatment” case where the plaintiffs claim that an employer’s actions were motivated by discriminatory intent, this was a “disparate impact” case where the EEOC alleged that screening tests used by Target disproportionately excluded applicants on the basis of race and gender and violated the Americans with Disabilities Act. So, what’s the difference between “disparate impact” and “disparate treatment” discrimination?

Disparate impact discrimination cases typically arise out of pre-employment tests, medical exams, background check policies and similar assessments that are used to screen candidates for a job or advancement within a company. The theory was first recognized by the United States Supreme Court in 1971 in the case of Griggs v. Duke Power Co. In that case, the Court noted that:

[Title VII of the Civil Rights Act of 1964] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [a protected class] cannot be shown to be related to job performance, the practice is prohibited.

The Griggs Court also stressed that good intentions do not matter, for “[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

Thus, in a disparate impact case, the focus is not on evidence that the employer intended to discriminate.  Rather, the focus is on statistics. If the statistics show that the employer’s screening practice — no matter how innocuous on its face — has a substantial adverse impact on a protected group, the employer must show that the practice is job-related for the position in question and consistent with business necessity. The employer might still lose the case if there is evidence that the company refused to adopt an alternative employment practice that would have served the employer’s legitimate interests without creating a disparate impact on a protected class.

In contrast, in a disparate treatment case, the focus is on evidence of the employer’s intent. If the evidence shows that the employer intentionally discriminated against an employee or applicant on the basis of a protected classification, the employer will be held liable for unlawful employment discrimination based on the disparate treatment theory.

In addition to paying nearly $3 million to settle the EEOC case, Target also agreed to several non-monetary terms, such as:

  • Not using the assessments again as part of its exempt-level employment selection procedures;
  • Changing its applicant tracking systems to ensure that the collection of data is sufficient to assess adverse impact;
  • Performing a predictive validity study for all exempt assessments currently in use and any new assessments the company expects to use;
  • Monitoring its assessments for exempt-level professional positions for adverse impact based on race, ethnicity and gender; and
  • Annually providing the EEOC with a detailed summary of the studies and the adverse impact analysis conducted.

As the Target case shows, even seemingly innocent employment screening practices can violate Title VII and other anti-discrimination laws. Therefore, employers who use such devices should carefully evaluate their potential adverse impacts before using or continuing them.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

July 24, 2015

Safety Leave Offers Help to Abuse Victims

Posted in Safety Leave, Women's Economic Security Act tagged , , , , at 2:45 pm by Tom Jacobson

Safety leave

Safety leave is now available to many Minnesota employees who are victims of domestic abuse.

For victims of domestic abuse, sexual assault and stalking, seeking help is sometimes the most difficult first step toward safety and justice. Adding to the struggle is the reality that taking that step sometimes means committing time during the workday to seek help. Consequently, the fear of missing work has often been an obstacle to reporting those crimes, participating in the legal process, or otherwise seeking or providing help. However, for many Minnesota employees, there is a new tool to help them get over that hurdle: safety leave.

Safety leave was authorized under the Women’s Economic Security Act (WESA), which was signed into law by Gov. Mark Dayton in 2014. Under this new law, covered employers must allow most workers to use their personal sick leave for safety leave. “Safety leave” is defined as time away from work for the purpose of providing or receiving assistance because of sexual assault, domestic abuse or stalking. Safety leave may be used for assistance to the employee or the employee’s child, adult child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Because of this new law, many employees now have a right to use sick leave benefits to take time off to seek or provide help to themselves and some family members when they are suffering from the devastating impacts of these crimes.

However, the law has limitations. For example, it does not require employers to provide sick leave. But, when they do, they must allow employees to use it for safety leave and for such reasonable times as may be necessary. Also, only employers with twenty-one or more employees at one or more sites are covered by this law.

Another limitation is that not all employees are eligible for safety leave. In order to be eligible, an employee must work for their employer for at least twelve months prior to the request for time off, and during that time, the employee must have worked at least half time.

The fear of missing work should not prevent domestic abuse, sexual assault and stalking victims from seeking help and justice. Safety leave is a new tool to make it easier for them to do so.

If you are an employee or employer who is wondering about your safety leave rights and responsibilities, please contact me at taj@alexandriamnlaw.com.

The comments posted in this article are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

July 20, 2015

FLSA Misclassification Proves Costly for Local Employer

Posted in Administrative Exemption, Computer-related Occupations Exemption, Enforcement, Executive Exemption, Exempt/Non-Exempt Employees, Fair Labor Standards Act, Minimum Wage, Outside Sales Exemption, Overtime, Professional Exemption tagged , , , , , , , , , at 10:22 am by Tom Jacobson

US Department of Labor v Patel

Local hotelier ordered to pay $184,000.00 to settle wage violation suit.

A Fargo, ND hotelier with a property in Alexandria, MN will pay nearly $200,000.00 to settle a lawsuit brought by the US Department of Labor (see Court Orders Hotel Owner to Pay More than $180K in Back Wages, Damages to 200 Workers Across North Dakota, Montana and Minnesota, DOL Release No. 15-1294-DAK; Lawsuit Settlement Helps Hotel Workers in Alexandria, Echo Press July 16, 2015). The DOL alleged in the suit that Bharat I. Patel violated the Fair Labor Standards Act by failing to pay minimum wage and/or overtime rates to nearly 200 employees at a number of hotels, including the Country Inn and Suites in Alexandria.

More specifically, the DOL claimed that Patel misclassified nonexempt workers as exempt salaried employees (see US Labor Department Lawsuit Alleges Hotel Owner Owes $200K in Wages, Damages to 192 Workers at 13 Hotels, DOL December 16, 2104). This, the department said, resulted in these workers not receiving minimum wage for all hours worked and not being paid overtime. According to the DOL, the company also failed to combine hours for employees who worked at two locations in the same workweek and failed to maintain accurate records of all hours worked and pay rates.

The lawsuit was resolved via a July 10, 2015 consent judgment in which Patel denied any wrongdoing but agreed to pay $184,000.00 to settle the dispute. In addition Patel agreed to train managers on FLSA wage requirements and to provide workers information on wage laws and contact information for the DOL’s Wage and Hour Division for at least four years.

How are FLSA exemption mistakes made, and why are they so expensive? To answer that, one needs to understand the two basic principles of the FLSA’s overtime rule. First, the FLSA generally requires that employees be paid at 1.5 times their regular hourly rate for their overtime (that is, their hours worked in excess of 40 hours in a workweek). Second, some employees, such as certain executives, administrators and professionals are exempt from that overtime requirement.

Claiming such exemptions may seem simple, but the FLSA has complex definitions of who can lawfully be classified as an exempt executive, administrator or professional. Those definitions all include a requirement that these employees be paid a salary of at least $455.00 per week. They also include a “duties test.” This requires that in addition to the salary requirement, the employees’ actual job duties must meet certain criteria before the employees can be considered exempt.

Thus, one of the most common mistakes starts when employers wrongly assume that by paying someone a salary, they automatically become exempt from overtime. Often, the employers also give that person a title such as “manager.” Then, the employers allow or require those people to work more than 40 hours per week without paying for the overtime.

But paying someone a salary and calling them a manager (or some other authoritative title) does not make them exempt if they do not also pass the duties test for an FLSA exemption.

This mistake is expensive. When non-exempt employees are misclassified as exempt, they are entitled to recover all of the overtime they should have been paid during the preceding two years. Plus, they can recover an additional equal amount as liquidated damages and their attorney’s fees and court costs. These costs are compounded when multiple employees are at issue. And, as was the case in Patel lawsuit, employers can also be ordered to implement other remedial measures such as training.

The DOL’s recent rulemaking actions provide an additional reason for employers to pay close attention to these FLSA exemption issues. On July 6, 2015 the DOL proposed a rule that would raise the salary basis test from around $23,600.00 per year to approximately $50,000.00 per year. If implemented, the new rule would greatly reduce the number employees who would be exempt under the law.

As the Patel case confirms, FLSA exemption mistakes are costly. And, based on recent DOL activity, those mistakes could get even more expensive in the future.

If you are an employer that is wondering if your employees are properly classified under the FLSA, or if you are an employee who wonders if you have been misclassified and underpaid, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

June 16, 2015

Medical Marijuana: Are You Ready to Roll with It?

Posted in Application Process, Discrimination, Drug and Alcohol Testing, Drug and Alcohol Testing, Medical Marijuana, Medical Marijuana, Minnesota Drug and Alcohol Testing in the Workplace Act tagged , , , , , , , at 9:53 am by Tom Jacobson

medical marijuana and the workplace

Medical cannabis can be lawfully dispensed in Minnesota starting July 1, 2015. How will it impact your workplace?

Medical marijuana (technically, “medical cannabis”) can be lawfully dispensed in Minnesota starting July 1, 2015. What does this mean for Minnesota employers?

First, the state’s new medical cannabis law generally prohibits Minnesota employers from using a job applicant’s or employee’s status of being on the medical cannabis registry as a reason for discriminating against that person. In other words, Minnesota employers generally cannot discipline, discharge or refuse to hire someone just because they are on the registry.

The new law also largely prohibits employers from discriminating against employees and applicants who test positive for cannabis unless they used, possessed or were impaired by the drug while at the work site or during work. While proving use or possession should not be too problematic, the law certainly complicates the “impaired by” part of the analysis.

Historically, employers could prove impairment by administering a drug test that complies with the Minnesota Drug and Alcohol Testing in the Workplace Act (“MDATWA”). A positive test under MDATWA opened the door for future disciplinary action or withdrawing a job offer. Now, not only are employers prohibited from discriminating against employees and applicants who test positive, but also employees and applicants will have the right to provide their medical cannabis registration as an explanation for a positive test. While this still does not allow a registered patient to use, possess or be impaired by the drug at work, the challenge is that a positive test for cannabis will not necessarily prove when the employee or applicant used, possessed or was impaired by the drug.

As noted above, these are the general rules. There are a few key exceptions. Specifically, employers may discriminate against those on the state’s medical marijuana registry if failing to do so would violate federal law or regulations or cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. Thus, employers who are covered by laws such as the Federal Drug-Free Workplace Act of 1988 or the Omnibus Transportation Employee Testing Act of 1991 will be able to hold registered patients to a higher standard.

Employers also need to recognize that Minnesota’s medical marijuana law differs significantly from comparable laws in other states. Therefore, they should not pay too much attention to what happens elsewhere. For example, in one recent case (Coats v. Dish Network, LLC) the Colorado Supreme Court ruled that Dish Network lawfully fired an employee who tested positive for marijuana, even though that employee was apparently using the drug lawfully under that state’s marijuana laws. Given Minnesota’s prohibition against discriminating against registered patients who test positive, the outcome would probably be different here.

As a practical matter, dealing with the implications of the state’s medical cannabis law should be a relatively rare occurrence. The state estimates there are only 5,000 people (about 0.09% of the entire state) who will qualify to be on the registry (see J. Ehrlich, Minnesota Medical Marijuana: What You Need to Know, MPR News, June 1, 2015). With a labor force of about three million workers (see Minnesota Department of Employment and Economic Development Unemployment Statistics for April, 2015), that means there are probably only 2,700 potential workers statewide who could be on the registry. Given the severity of the conditions for which a person may qualify to be on the registry, the likelihood of those people also being in the workforce is even more remote.

Nevertheless, employers must be prepared to address the workplace challenges presented by Minnesota’s medical cannabis law. Specifically, workplace drug and alcohol policies (particularly MDATWA-compliant testing policies) should be reviewed and revised if needed to take into account the state’s medical cannabis law. And, employers will need to rely on evidence other than a drug test if they want to take action against employees or applicants who they believe have used, possessed or were impaired by marijuana on the work site or during work hours.

For more information, see please contact me at taj@alexandriamnlaw.com.

The comments posted in this article are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

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