Attorney
James B. Sherman
will present to the Twin Cities Hospitality Personnel Association (TCHPA) on
March 18, 2015. His presentation will be on "Best Practices for Lawful Employee Discipline and Terminations."
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Attorney Chad A. Staul will be speaking to the NorthStar SHRM group in Elk River on April 8, 2015 on a presentation entitled, "Minnesota's Medical Marijuana Law and Its Impact on Employers." This presentation will cover protections to employees for the use of marijuana under certain circumstances and how this law interplays with Minnesota's Drug and Alcohol Testing in the Workplace Act.
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UPCOMING SEMINAR
Friday, May 1, 2015 from 8:15 AM to 5:00 PM CDT
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Consult with experienced labor & employment lawyers whenever you need advice, without worrying about legal fees!
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For more information about Wessels Sherman's unique Phone Consultation Program, check our web page by clicking on the below link; or contact Christine Beggan at (952) 746-1700, or email her
here.
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Minnesota Client Alert
Legal News for Minnesota Employers
March 2015
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 Adrian Peterson: A Rare Talent on the Field and Now One of the Rare Parties To Overturn a Labor Arbitrator's Decision in Court
By: James B. Sherman, Esq.
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Federal labor laws reflect a strong preference for the private settlement of labor disputes through arbitration. For this reason, arbitration awards are very rarely overturned on appeal by courts. However, in very limited circumstances, such as where an arbitrator exceeds his or her authority or an award "fails to draw its essence from the collective bargaining agreement," courts occasionally have been willing to intervene. But while many parties unhappy with an arbitrator's decision make these arguments in court, very few actually succeed. Minnesota Viking superstar running back Adrian Peterson recently became one of the rare exceptions when he succeeded in overturning an arbitrator's award that had upheld his indefinite suspension from playing.
The Peterson case has received national attention since NFL Commissioner Roger Goodell suspended him indefinitely following accusations that Peterson disciplined his son with a switch. Peterson pled no contest to misdemeanor reckless assault over the incident. This happened to follow closely after Baltimore Ravens running back Ray Rice was captured on video punching his then fianc�e in an elevator, appearing to knock her unconscious. Rice received relatively minor discipline until the video was leaked to the press, after which the entire incident became a scandalous nightmare for the NFL and Commissioner Goodell. In response and to save face if not his job, the Commissioner revised the NFL's personal conduct policy to crack down more harshly on incidents of this kind. However, when the NFL then applied its new policy retroactively to suspend Rice and then Peterson, the NFL Players Association challenged their discipline through arbitration under the collective bargaining agreement
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Read more...
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Minnesota Supreme Court Creates New Defense to Noncompete Agreements Based on Relying on Advice from Legal Counsel
By: James B. Sherman, Esq.
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In Minnesota and elsewhere, employers who hire an applicant whom they know has a noncompete agreement with a former employer often find themselves defending a lawsuit alleging "tortious interference" with that agreement. A claim of tortious interference essentially alleges that the hiring employer
caused
a former employee to breach his or her noncompete agreement by offering a job in conflict with its restrictions. Because it is an intentional tort this type of claim rests on the fact that the hiring employer
knew
about the applicant's agreement with the former employer, but nevertheless chose to hire the applicant in violation of the noncompete. A typical defense to a claim of tortious interference is for the hiring employer to prove that the noncompetition agreement is either not being breached, or is unenforceable for any number of reasons. A recent decision of the Minnesota Supreme Court, issued on March 4, 2015 in the case of
Sysdyne Corp. v. Rousslang, et al.
, has added another potential defense to claims of tortious interference. An oversimplification of this new defense might be articulated as: "My lawyer said it was okay to hire this applicant."
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Do Your On-line Job Applications, Background Check Policies and Procedures Make You a Target for Class Action Litigation?
By: Chad A. Staul, Esq.
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| Chad A. Staul |
Plaintiff's lawyers are using the FCRA in new and inventive ways to bring huge class action claims. The latest formula involves scrutinizing an employer's background check policies and procedures and then crying foul by pointing to the FCRA's technical requirements. Given this incredible upsurge in class action litigation one might think the FCRA has changed in some radical way. However, the FCRA's specific detailed requirements on performing employment background checks are not new. The only new thing is the increasing and successful trend on how plaintiff's attorneys are using them.
Read more...
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Not All Court Decisions Favor Employee Eligibility for FMLA - Recent 8th Circuit Decision Narrowly Construes DOL Regulations' Definition of Serious Health Condition Involving Outpatient Treatment Followed By Perscription
By: Phoebe A. Taurick, Esq.
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It is easy to feel like the deck is stacked against employers when it comes to FMLA. The law itself, and the Department of Labor's regulations interpreting the law, are very employee-friendly. Sometimes, however, employers themselves are their own worst enemy, reading the regulations liberally to grant FMLA leave to employees who do not qualify.
In a recent decision, the 8
th
Circuit Court of Appeals held that an employee who was terminated after missing several days of work due to high blood pressure had not shown that he suffered from a serious health condition, entitling him to the protections of FMLA. In this case, the employee left work to go see a health care provider, who prescribed him medication and provided him with a note stating that he should be off work for four days. He was then terminated. Although the employer may not have handled the situation according to best practices (e.g., it allegedly never provided the employee with a notice of his rights and obligations under the FMLA), the court nevertheless found in the employer's favor, as the employee had not shown that he had a serious health condition that would have entitled him to the protections of the FMLA.
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The Department of Labor has redefined the definition of "spouse" for purposes of the Family and Medical Leave Act, effective March 27, 2014. As we discussed
here
, the DOL's new rule determines whether a person is a "spouse" based on the law of the place the marriage was entered into, rather than the place the person resides. This new definition of spouse not only includes marriages entered into in other states, but also includes same-sex and common law marriages entered into abroad, as long as they were valid where they were entered into, and could have been entered into in at least one state.
In Minnesota, where same-sex marriages are legal, this change will not affect many employers. However, employers with employees in other states that do not currently recognize same-sex marriage will need to start providing FMLA leave to employees to care for their same-sex spouses if they do not already do so.
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| Don't Get Caught Owing Tens or Hundreds of Thousands in Overtime Pay in 2015: NEW GAME CHANGING WHITE COLLAR EXEMPTION REGULATIONS PROPOSED BY THE DOL!! How to Avoid Overtime Liability for White Collar Workers Under the DOL's Proposed New Regulations and Inventive New Tactics by Plaintiff Lawyers. Thursday, April 9, 2015 --- WEBINAR @ 1:00pm - 2:00 PM Cost: $75 Join Wessels Sherman attorneys James B. Sherman and Sean F. Darke for this highly informative webinar focused on helping employers learn how to maintain exempt employment status for employees. In this webinar, we will discuss:
- Deciphering the newly proposed, 2015 White Collar Exemption Regulations that radically alter exempt/non-exempt salary criteria;
- Examining new and inventive ways plaintiff lawyers are challenging exempt status of everything from HR Directors, to professionals (even attorneys);
- Understanding nuances of which salary deductions are and are not permissible to preserve exempt status;
- Personal liability as it relates to owners, officers and supervisors;
- Best practices and practical tips.
REGISTER NOW!
HUMAN RESOURCES:
1.00 (General) HRCI credit approved.
ACCOUNTING:
1.00 CPE credit approved.
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Wessels Sherman attorneys will discuss the hottest business topics in labor & employment law in this one full day seminar. We are honored to have Peter Ohr, Regional Director of the NLRB and John Hendrickson, Regional Attorney of the EEOC as our Distinguished Guest Speakers. Our guest speakers will appear on a panel to provide much needed insight into the "actions and thinking" of two of the most aggressive federal government agencies in dealing with "employee issues." DO NOT MISS THE CHANCE to gather information/insight!
Cost:
$200 - First Person
$150 - Additional person (same company)
6.75 General HRCI credit approved. This course has also been approved for 6.75 Illinois MCLE general credit hours, 5.0 Iowa CLE credit hours, 6.0 Minnesota CLE credits, 7.0 Wisconsin CLE credits and 6.75 CPE credits.
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| The Greatest Legal Risks of Hiring/Onboarding in 2015: Do Your On-line Job Applications, Background Check Policies and Procedures Make You a Target for Class Action Litigation or Government Agency Scrutiny?
Discover why background check policies and procedures are resulting in an unprecedented wave of class action claims and other litigation.
Wednesday, May 20, 2015 --- WEBINAR @ 1:00pm - 2:00 PM Cost: $75 Join Wessels Sherman attorneys James Sherman and Chad Staul for this highly informative webinar focused on the Fair Credit Reporting Act as it applies to employers performing background checks and the Equal Employment Opportunity Commission's criminal background check guidance; and how both carry immediate and serious liability exposure. Specifically, we will discuss:
- How plaintiff lawyers are now using the FCRA's technical requirements to create a growing trend of FCRA class action lawsuits
- FCRA nuances and how to avoid becoming a class action target
- The EEOC's NEW guidelines on criminal background checks and what they mean to employers
- How some employers have successfully challenged the EEOC's position on criminal records
- Best practices and tips
HUMAN RESOURCES:
1.00 (General) HRCI credit approved.
ACCOUNTING:
1.00 CPE credit approved.
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