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

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May 9, 2014

Legislative update: MHRA jury trials and Women’s Economic Security Act advance

Posted in Care of Relatives Leave, Court Trial, Discrimination, Domestic violence, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Jury Trial, Leaves of Absence, Nursing Mothers, Parenting Leave, Remedies, Sick Leave, Sick or Injured Child Care Leave tagged , , , , , , , , , , at 9:26 am by Tom Jacobson

Both houses of the Minnesota Legislature on May 8, 2014 took action to advance legislation which, if signed into law by Gov. Mark Dayton, will have significant impacts on Minnesota employers and employees.

First, with a 43-24 vote the Senate approved the Women’s Economic Security Act (HF2536) which, among other things, would expand parenting and sick leave rights. For more information on this bill, see Women’s Economic Security Act Passed by MN House.

Then, with a 79-51 vote the House approved the Senate’s amendment to the Minnesota Human Rights Act (MHRA) (SF 2322). This amendment would add the right to a jury trial as a remedy under the MHRA. For more information on this bill, see Minnesota Senate Adds Jury Trial Right to Minnesota Human Rights Act.

For more information about this legislation, 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

July 19, 2013

New MN sick leave law takes effect Aug. 1 – are you ready?

Posted in Care of Relatives Leave, Caregiver Leave, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Leaves of Absence, Sick Leave, Sick or Injured Child Care Leave tagged , , , , , at 2:27 pm by Tom Jacobson

sick day

Effective August 1, 2013 many Minnesota employers will need to update their policies to comply with the state’s new sick leave law.

In the past Minnesota’s Sick or Injured Child Care law required employers with 21 or more employees at one site to allow employees to use personal sick leave for absences due to an illness of or injury to the employee’s child on the same terms the employee was able to use sick leave benefits for the employee’s own illness or injury. Leave under this law could be limited to the reasonable amount of time the employee’s attendance with the child was necessary.

However, on May 24, 2013 Gov. Mark Dayton signed into law a significant expansion of these leave rights.  Specifically, the new law provides that:

An employee may use personal sick leave benefits provided by the employer for absences due to an illness of or injury to the employee’s child … , adult child, spouse, sibling, parent, grandparent, or stepparent, for reasonable periods of time as the employee’s attendance may be necessary, on the same terms upon which the employee is able to use sick leave benefits for the employee’s own illness or injury.

The title of the law also changed to the Sick Leave Benefits; Care of Relatives Law.

So, effective Aug. 1, in addition to being able to use sick leave to care for a child, a Minnesota employee working for a covered employer may also use sick leave to care for these other relatives specified in the law.

The law does have limits, however.  For example, it only applies to employees who have worked at least half time for a covered employer for at least 12 months prior to their request. And, not all children are covered by the law, for only those children under 18 years of age (or under 20 if still attending secondary school) are considered children for the purposes of this law. Also, the law does not require an employer to provide sick leave at all. But, employers who do provide a sick leave benefit will need to allow it to be used for the care of the relatives listed in the law.

What you need to know:  Minnesota employers are not required to provide a sick leave benefit for their employees. However, effective Aug. 1, 2013 employers who are covered by the Care of Relatives Law (that is, employers with 21 or more employees at one site) must allow eligible employees (employees who have worked at least half time for a covered employer for at least 12 months prior to their request) to use any sick leave that is provided to care for their children and the additional relatives now listed in the law. Employers who are also covered by the federal Family and Medical Leave Act (FMLA) will have the added burden of coordinating FMLA leave and state Care of Relatives Leave when leaves of absence qualify under both laws.

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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 8, 2013

Here today, gone tomorrow — intermittent leave under the FMLA

Posted in Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Intermittent Leave, Leaves of Absence tagged , , , , , at 9:58 am by Tom Jacobson

FMLALast week I had the privilege of speaking at Lakes Country Service Cooperative to a group of  HR professionals regarding recent developments in employment law. One of the participants asked about an employee’s right to take a day off here and there to help care for a parent. The question struck a personal chord with me because I’ve recently been dealing with an ailing dad and multiple days away from the office to visit him in the hospital and to help my mom. I’m happy to report that he’s now making a good recovery.

For employers covered by the Family and Medical Leave Act, the participant’s question is whether the FMLA allows an eligible employee to take intermittent leave to care for a family member with a serious health condition. By definition, intermittent leave under the FMLA is “leave taken in separate blocks of time due to a single qualifying reason,” and it may be used for this purpose. Specifically, federal regulations provide that:

Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

Of course, this only applies to eligible employees of employers who are covered by the FMLA. Also, the FMLA has detailed definitions of what qualifies as a “serious health condition” or “serious injury or illness” which would trigger the right to intermittent leave, and another FMLA regulation describes how intermittent leave is to be scheduled.

What you need to know: Based on last week’s LCSC discussion, navigating through the intersecting laws that grant employees the right to time away from work continues to be a major challenge for many employers. The FMLA is only one of those laws, and intermittent leave is just one type of leave that covered employers must be prepared to provide to eligible employees.

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 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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