Minnesota Client Alert
Legal News for Minnesota Employers
August  2016

For the first time since 1998, the EEOC has published updated guidance on workplace retaliation.  Retaliation charges are by far the most common and fastest growing type of claim filed with the EEOC, comprising nearly 45 percent of all charges it now receives. Given the surge in retaliation claims and the additional attention these claims are receiving from the EEOC, employers need to know what activities are protected from retaliation.     
Among other things the new EEOC guidance addresses:
  • The scope of employee activity protected by the laws, which includes "participation" in the EEO process-by raising a claim, testifying, assisting or participating in an investigation, proceeding or hearing under these laws-as well as "opposing" discrimination.
  • Examples of retaliatory actions that would be likely to deter a reasonable person from engaging in protected activity.
  • Guidance on the ADA's unique prohibition on "interference" with the exercise of rights under the law, which is broader than the anti-retaliation provision.
  • Best practices to minimize the likelihood of retaliation violations.

Also In This Issue
By now most everyone is aware of the Department of Labor's new overtime regulations.  Effective December 1, 2016 the minimum salary necessary for exempt status in the so-called "white collar" positions (executive, administrative and professional), increases drastically from $23,660 to $47,476, or $913 per week.  Any white collar employee currently exempt from overtime pay, must be paid 1 ½ times his or her "regular rate of pay" if their salary does not meet this new minimum as of the 1st of December.  For employers, the impact of the DOL's new rule and the many issues and decisions it presents - some with significant consequences to their bottom line - should not be ignored or underestimated.  Those that fail to address the many nuances and details of this fast approaching change to their wage and hour practices, may encounter serious problems, as well as lost opportunities, even before the end of the year. 

Proposed Minnesota Supreme Court to Decide Who Makes the Call on a $15/hour Minimum Wage Rate for the City of Minneapolis  
Following a trend of cities such as Seattle, Los Angeles and San Francisco, Minneapolis is considering creating a $15/hour minimum wage for employees working in the city.  Who gets to decide the issue, however, is the subject of considerable debate that has gone all the way to the Minnesota Supreme Court. 
Advocates for a higher minimum wage collected the signatures required to place the question on the November ballot, as an amendment to the city charter, but the Minneapolis City Council opposed the measure, instead wanting the discretion to decide the issue as an ordinance passed by the Council.  A state trial court judge sided with the advocates, and ruled that the question should be included on the ballot to be voted on by the residents of Minneapolis.  Given the obvious time constraints, the Supreme Court has agreed to decide the issue on appeal directly from the trial court.

minimum8th Circuit Court of Appeals Holds that Miscalculation of FMLA Entitlement Interfered with Employee's FMLA Rights
Eligible employees are entitled to 12 weeks of FMLA leave per year for qualifying reasons.  But how are those 12 weeks counted?  Incorrectly answering this question got an employer in trouble when it only counted the employee's straight time in determining how many hours of FMLA leave the employee was entitled to take.
In a recent decision, the 8th Circuit Court of Appeals (which covers Minnesota) held that an employer unlawfully interfered with an employee's FMLA rights when he was terminated for excessive absenteeism after the employer claimed he had exhausted his FMLA leave...

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