May 26, 2015

Registration Deadline is June 1 for Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 4:20 pm by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

The registration deadline for the Twelfth Annual West Central Minnesota Employment Law Update is June 1. Seating for the June 11, 2015 event is limited, so please register soon if you plan to attend.

For more details and registration forms, please see Registration Open for Twelfth Annual West Central MN Employment Law Update, or contact me at taj@alexandriamnlaw.com or 320-763-3141.

I hope to see you on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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April 17, 2015

Registration Open for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 9:19 am by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

Registration is now open for the Twelfth Annual West Central Minnesota Employment Law Update to be held Thursday, June 11, 2015. The event is sponsored by West Central Minnesota SHRM, and it will be held at Alexandria Technical and Community College.

The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters. Masters is an award-winning author and international speaker who provides attendees with not only a memorable multi-media experience, but also immediate “take-home” value for all levels of HR leadership to help them develop and empower a workforce of future leaders.

Click on the following links for more information and the registration form:

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.”

Contact me at taj@alexandriamnlaw.com or 320-763-3141 if you need more information. We hope you can join us on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 20, 2015

Save the Date for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , at 9:04 am by Tom Jacobson

The twelfth annual West Central Minnesota Employment Law Update will be held Thursday, June 11, 2015 at Alexandria Technical and Community College. The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters.

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.”

We hope you can join us on June 11! Stay tuned for registration, agenda and other details.

Save the Date

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

July 1, 2014

Key provisions of WESA take effect July 1

Posted in Care of Relatives Leave, Discrimination, Domestic violence, Employee Handbooks, Employee Privacy, Equal Pay, Gender / Sex, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Nursing Mothers, Parenting Leave, Pregnancy, Retaliation, Sick Leave, Sick or Injured Child Care Leave, Wage non-disclosure, Women's Economic Security Act tagged , , , , , at 12:56 pm by Tom Jacobson

2014_05_11_WESA_signingAlthough Gov. Mark Dayton signed it into law on May 11, 2014 the following key provisions of the Women’s Economic Security Act (WESA) go into effect today:

  • Expansion of Minnesota’s parenting and pregnancy leave laws: More employees are now eligible for this leave, and the amount of available leave has been increased from six to twelve weeks. Applies to Minnesota employers with 21 or more employees.
  • Expansion of permissible use of sick leave: Parents-in-law and grandchildren are now included in the list of persons for whom eligible employees may use their sick leave. Employees may also use sick leave for “safety leave,” which is leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. Applies to Minnesota employers with 21 or more employees.
  • Wage disclosure prohibitions; employee handbook notice requirement; remedies: Prohibits employers from, among other things, requiring employees to keep their wages confidential. Requires employers to include in their employee handbooks a notice regarding employees’ rights and remedies under the new law. Allows employers to prohibit wage disclosure to competitors and to otherwise protect trade secrets, proprietary and other privileged information. Applies to all Minnesota employers with one or more employees.
  • Clarifies rights of nursing mothers: Clarifies that when making reasonable efforts to provide a room or other location for expressing breast milk in privacy, that space must: be in close proximity to the work area; be somewhere other than a bathroom or a toilet stall; be shielded from view; be free from intrusion from coworkers and the public; and include access to an electrical outlet.  Applies to all Minnesota employers with one or more employees.

This is only a summary of portions of WESA that take effect today. Other provisions of WESA went into effect on May 12, 2014; more will take effect August 1, 2014. To learn how WESA may impact your workplace, 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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 12, 2014

Seminar to address Women’s Economic Security Act

Posted in Care of Relatives Leave, Discrimination, Domestic violence, Equal Pay, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Gender / Sex, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, Nursing Mothers, Parenting Leave, Pregnancy, Reasonable Accommodation, Sick or Injured Child Care Leave tagged , , , at 8:40 am by Tom Jacobson

Gov. Mark Dayton yesterday signed into law the Women’s Economic Security Act. Among other things, the new law will expand leave rights for many Minnesota employees. The new law will be covered in detail at the Eleventh Annual West Central Minnesota Employment Law Update to be held on Thursday, June 12, 2014 at Alexandria Technical and Community College.

The event has been approved for 6.0 HRCI credits. For complete details on the seminar, go to 2014 Employment Law Update Agenda. To register, go to 2014 Employment Law Update Registration.

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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 24, 2014

Women’s Economic Security Act Passed by MN House

Posted in Care of Relatives Leave, Caregiver Leave, Discrimination, Domestic violence, Employee Handbooks, Equal Pay, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Gender / Sex, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, Nursing Mothers, Pregnancy, Reasonable Accommodation, Workplace Violence tagged , , , , , , , , , at 11:32 am by Tom Jacobson

The Minnesota House of Representatives on April 9, 2014 passed the Women’s Economic Security Act (HF 2536) by a 106-24 vote. The companion Senate bill (SF 2050) awaits action in the Senate.

According to the Senate’s bill summary, the law will:

  • Allow mothers to stay in the workplace by expanding family leave and providing minor, reasonable accommodations for pregnant and nursing employees;
  • Decrease the gender pay gap through the participation of women in high-wage, high-demand nontraditional work;
  • Reduce the gender pay gap through increased enforcement of equal pay laws for state contractors and by allowing employees to discuss pay inequities;
  • Address economic consequences of domestic violence, stalking, and sexual assault;
  • Enhance retirement security by considering a state retirement savings plan for those without an employer-provided option
  • Expand grandparent care-giving options.

The law would also allow employers to reduce the period of leave it may require by the amount of any paid leave or leave required by the Family and Medical Leave Act (FMLA), so that the total time off does not exceed 12 weeks. The new law would clarify that only 12 weeks of leave are required even if the employee is eligible for both state and federal leave.

What you need to know: If enacted into law, this legislation will require most Minnesota employers to take a close look at their existing policies and procedures and to make any changes necessary to bring them into compliance.

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 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 22, 2013

Updating employee handbooks: now is the time

Posted in Acknowledgment, Arrest records, At-will Employment, Background Checking, Computer Use, Confidential Information, Conviction Records, Criminal History, Disclaimers, Employee Handbooks, Family and Medical Leave Act (FMLA), Hiring and Recruiting, Internet Policies, Interviewing, Leaves of Absence, Leaves of Absence, Minnesota Parenting Leave Act, National Labor Relations Act, Protected Concerted Activity, Social Media, Social Media in the Workplace, Social Networking tagged , , , , , , , , at 10:47 am by Tom Jacobson

employee handbook1I recently had the privilege of speaking at and moderating a day-long seminar covering recent developments in employment law. Although the topics ranged broadly from background checks to the basics of employee leave, one common theme emerged: employers who have not kept their employee handbooks and other policies up to date are running the increased risk of liability for legal claims brought by their employees.

For example:

  • Some commonly used “at-will” employment acknowledgments, confidentiality clauses, investigation practices, and social medial policies have been deemed to violate the National Labor Relations Act.
  • The Equal Employment Opportunity Commission has published guidance on how arrest and conviction records may be used when performing background checks on applicants or employees. Among other things, these guidelines address when an individualized assessment of an applicant’s or employee’s arrest or conviction record should be done.
  • One recent litigation trend is employers and employees (or former employees)  fighting over the ownership of social media accounts and followers.
  • Recent court decisions have broadly interpreted employees’ rights to parenting leave under Minnesota law.
  • At least four states (California, Illinois, Maryland and Michigan) have adopted laws regulating employers’ access to employees’ social media sites, and similar legislation has been proposed in Minnesota.

What you need to know: If your employee handbooks and policies have not been reviewed by legal counsel and updated recently, now is the time. For more information about this process, please contact me at 320-763-3141 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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 12, 2012

Minnesota Parenting Leave Rights Expanded by Federal Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , , , , , , at 11:25 am by Tom Jacobson

IMGIn June I noted how the Minnesota Supreme Court ruled in the case of Hansen v. Robert Half International that so long as employees disclose a qualifying reason for parenting leave, they are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave. A federal court has further expanded the MPLA by ruling that no specific language is needed to extend the right to reinstatement following an MPLA leave and that a reduction in force (RIF) is not a lawful reason for denying reinstatement.

The federal case, Kersten v. Old Dominion Freight Line, revolved around Anastasia Kersten’s maternity leave while working for Old Dominion.  According to court documents, Kersten and Old Dominion agreed that her leave would run from September 10 through November 1, 2009. On September 18, 2009 Kersten e-mailed an Old Dominion manager and requested to “come back on the 9th as long as that is ok with you.” The manager responded that “Nov 9 will work.” Old Dominion terminated Kersten on November 4, 2009, claiming that the termination was part of a RIF.

Under the MPLA employees may determine the length of leave, “but [the leave] may not exceed six weeks, unless agreed to by the employer.” Also, employees have a limited right to reinstatement at the end of their leave. Old Dominion argued that its agreement to extend Kersten’s leave was not an agreement to extend her right to reinstatement. Relying on the Minnesota Supreme Court’s decision in Hansen, the United States District Court for the District of Minnesota rejected that theory:

Using Hansen as a guide, the court determines that no specific language is required to extend leave; rather, a specific agreement to reinstate is reached when an employee requests a date to return to work, and an employer consents. A contrary interpretation would contravene the goal of the MPLA – to provide pregnancy leave for a term mutually agreed upon by the employer and employee.

Next, the court addressed Old Dominion’s RIF argument. Under the MPLA, an employee has no right to reinstatement if “the employer experiences a layoff and the employee would have lost a position had the employee not been on leave, pursuant to the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement.” Thus, the question was whether Old Dominion’s alleged RIF was a layoff that fit within the exception. The court said no. Specifically, the court noted that in this case, Old Dominion was merely implementing a verbal standard operating procedure which did not include any right of a RIF’d employee to be recalled/reinstated; therefore, it was not a “bona fide layoff and recall system,” and it was not a legitimate reason for failing to reinstate Kersten.

What you need to know: Recent court decisions indicate that the MPLA has a very expansive reach and will be liberally interpreted to allow parenting leave. Specifically, based on the Hansen and Kersten cases:

  • Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave; so long as the eligible employee puts the employer on notice of a qualifying reason, s/he is protected by the MPLA.
  • No specific language is required to extend MPLA leave; rather, a specific agreement to reinstate is reached when an employee requests a date to return to work, and the employer consents.
  • A RIF is not a bona fide layoff and recall system that can be used to deny reinstatement to an employee on MPLA leave. 

Managing leaves of absence under the MPLA, Family and Medical Leave Act (FMLA) and/or related statutes can be extremely complicated. Therefore, it is important for employers to establish clear policies and procedures for managing these complicated leave situations and to consult with legal counsel for advice when they arise.

For more information about this article, 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 8, 2012

No Magic Words Needed under Minnesota Parenting Leave Act, says State’s Highest Court

Posted in Family and Medical Leave Act (FMLA), Family Leave, Minnesota Parenting Leave Act tagged , , , , , at 9:24 am by Tom Jacobson

Employees are not required to specifically mention the Minnesota Parenting Leave Act (MPLA) to qualify for MPLA leave, says the Minnesota Supreme Court.

The MPLA requires Minnesota employers with 21 or more employees to grant an unpaid leave of absence to eligible employees who are natural or adoptive parents in conjunction with the birth or adoption of a child. Employers must continue to make coverage available to the employee while on leave under any group insurance policy, group subscriber contract, or health care plan for the employee and any dependents. Employees returning from MPLA leave are entitled to return to employment in the their former position or in a position of comparable duties, number of hours, and pay.

Unfortunately, the statute does not precisely say what an employee must do to request MPLA leave. This lack of precision was at the heart of the Court’s May 30, 2012 decision in the case of Hansen v. Robert Half International.

In this case Kim Hansen, who was employed by RHI, became pregnant and requested a leave of absence. In the paperwork that accompanied her request, Hansen indicated that her leave was pregnancy related, but she did not specifically mention the MPLA. RHI granted Hansen’s leave request and characterized it as a 12-week short term disability/FMLA leave.

Hansen returned to work after her approved leave ended, but she was dismissed a week later during a reduction in force. She then sued RHI, claiming, among other things, that RHI violated the MPLA by failing to reinstate her to the same or a comparable position after her maternity leave. The trial court dismissed Hansen’s MPLA claims for a number of reasons, including that Hansen had no right to reinstatement because the MPLA requires employees to request leave specifically under the MPLA, and Hansen failed to do so.

The case made its way to the Minnesota Supreme Court which analyzed the wording of the statute and compared it to the FMLA. The Court then concluded:

The record shows Hansen informed RHI of a qualifying reason for her leave. When Hansen completed her leave of absence request form, she completed section A of the form pertaining to “short-term medical disability,” “pregnancy-related disability,” or “worker’s compensation disability” leave. She completed the line entitled “[p]regnancy related disability” and stated her delivery date. In addition, [one of RHI’s managers] admitted that she was on notice that Hansen would need to leave due to Hansen’s complications related to her pregnancy. Because Hansen stated a qualifying reason for needing leave under the MPLA – childbirth – we conclude that she invoked the protections of the Act.

Although Hansen won on this issue, the Court threw out her case for other reasons.

What you need to know: Employees who are eligible for MPLA leave are not required to specifically invoke the MPLA in order to qualify for leave. So long as the eligible employee puts the employer on notice of a qualifying reason – childbirth – s/he is protected by the MPLA. Also, the Hansen case highlights the challenges that arise when MPLA, FMLA and other leaves of absence overlap. For these reasons, it is important for employers to establish clear policies and procedures for managing these complicated leave situations.

For more information about this article, 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 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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