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Commercial & Business Law

Over the course of his career, Wiley and been involved in drafting enumerable commercial contracts, and he has litigated many cases concerning contractual interpretation and other contract disputes.  Wiley’s vast experience in More »

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Investigations

Wiley has conducted workplace investigations for private and public employers throughout the State of Minnesota.  When you engage Wiley, you can be sure that he will independently perform a complete investigation within More »

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Mediation

Wiley is an experienced qualified neutral mediator under Minnesota General Rule of Practice 114.  Wiley’s years of experience in a variety of legal areas makes him the ideal choice to mediate your More »

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Civil Rights

Wiley is a local authority on constitutional civil rights law.  He successfully defended and assisted in defending dozens of claims of alleged civil rights violations under Section 1983, (42 U.S.C. 1983), and More »

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Family Law

Wiley has had extensive experience in the Minnesota family law courts.  Wiley is focused on providing practical legal advice to clients in these areas, and will develop a plan with each client More »

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Labor Law

Wiley has represented clients in labor law matters for the better part of his legal career.  He understands the dynamics between management and labor, and has assisted management in confronting the difficult More »

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Employment Law

Wiley has vast employment law experience in the State of Minnesota and nation-wide.  He has advised a diverse variety of clients, from Fortune 500 companies, to regional business, public employers, sole proprietorships, More »

MN Supreme Court Data Decision Impacts All Public Employers

In August of last year, I provided training to Minnesota public employers regarding an appeals court case to keep an eye on that held that a public employee could challenge his performance review in a hearing before the Minnesota Department of Administration. On August 6, 2014, the Minnesota Supreme Court ruled on the issue in a case that will surely impact how public employers conduct performance evaluations going forward.

Schwanke v. Minnesota Department of Administration, No. A12-2062, involved a Steele County sheriff sergeant’s data practice challenge to portions of his performance review. Minn. Stat. 13.04, subdiv. 4(a) has long provided a procedure for Minnesota citizens to file for an administrative hearing to challenge the “accuracy or completeness” of data maintained on that individual by a government entity. The Schwanke case is unusual in that a government employee invoked the statute to challenge the accuracy of information in his performance review, a type of data that had not previously been challenged under the statute.

The Minnesota Department of Administration had dismissed the challenge without proceeding to the merits of Sergeant Schwanke’s claims. The Department noted that it did not have the resources to have hearings for performance review challenges and it did not feel the statute was written to provide hearings for challenges to performance reviews. The Minnesota Court of Appeals reversed, stressing that the plain language of the statute authorizes a hearing procedure under the circumstances.
The Minnesota Supreme Court affirmed, and held that the sergeant could challenge the accuracy and completeness of objective information in the performance review. The Court cited, for instance, that the employee claimed that the employer inaccurately stated that he was assigned to a project, which impacted his review. That sort of factual information can be challenged: “[The] opinions and judgments rest on facts that are objectively verifiable, and thus falsifiable.” An employee may challenge false information that is part of the basis for his or her performance review under Minn. Stat. 13.04, the Court held.

Importantly, in a footnote that could be rather significant, the Court also noted that if a subjective opinion or judgment in a supervisor’s evaluation lacks “completeness,” the employee may challenge the basis for the subjective judgments within a performance review. In my view, this part of the opinion is more troubling and could potentially lead to a multitude of performance review challenges. Employees and supervisors may often disagree about the importance of certain aspects of work the employee performed. This part of the opinion counsels that supervisors should have clearly defined goals and specified rubrics upon which an employee will be evaluated that are clearly communicated to the employee so the employee cannot manufacture other potential work tasks that he or she completed that the employee feels is important, but the supervisor does not.

The Court was careful, however, to note that the subjective decisions of a supervisor (so long as those decisions are based on verifiable and complete facts) cannot be challenged. “[M]ere dissatisfaction with a subjective judgment or opinion cannot support a challenge under the Data Practices Act.” Of course, this is important limiting language. So long as the factual information is accurate, a supervisor’s review should remain intact after a hearing. Now more than ever, supervisors must be careful to conduct clear, accurate, and complete performance reviews, and ensure that their subjective evaluations of an employee’s work are thorough and based on actual and verifiable facts.

It is unclear how Minnesota public employees will use this interpretation of the Data Practices Act. What is clear, however, is that the case will likely lead to legislative clarification in the next session, as the Minnesota Department of Administration is not equipped (or funded) to handle a large volume of performance review challenge hearings. In the interim, public employers must beef up their performance review processes to curtail a flood of challenges, whether those be justified or manufactured.
Please contact me if you have further questions on this case or its impact on your organization.

Greg

2013 a banner year for The Wiley Law Office, P.C. 2014 promises even more…

This past year I had the pleasure of providing legal advice, representation, investigations, and training for individuals in Minnesota and Illinois, regional corporations, and national corporations with a presence in Minnesota.  Recently, I secured retainer agreements to provide work for three of the largest employers in the State of Minnesota, guaranteeing the continued success and vitality of the firm.

I am currently developing a state of the art program on employment investigations.  Look for that in the second half of 2014.

I look forward to helping you with your legal needs in the coming year.

Greg

Anti-Harassment Training as important as ever

Attorney Wiley reminds Minnesota employers that training your employees about sexual, racial, and protected-class harassment is an important part of a successful defense against lawsuits.   Here is what the Human Resources Director of a large local municipality had to say about Wiley’s training performed in the fall of 2013:

Attorney Wiley provided respectful workplace training to all City employees that was customized to our policies and procedures.  The training was well-received and I feel confident our employees are now well versed in what is acceptable behavior and what is not, both according to our policies and the law.

Alecia, Human Resources Director

Contact me at 612.991.9570 or greg.wiley@gmail.com to schedule your organization’s training.

 

 

Public Employees must abide by Minnesota Same-Sex Marriage Law

A number of my public clients have posed an interesting question about the new same-sex marriage law in Minnesota:  What if an employee in a public licensing office refuses to provide a marriage license to a same-sex couple on the basis that same-sex marriage conflicts with the public employee’s religious beliefs?

Though this presents an interesting legal issue, the answer is fairly straightforward based on application of the Minnesota Human Rights Act, Minnesota Chapter 363A, as discussed below.  Some background first:

New Law.  On August 1, 2013, the definition of marriage in Minnesota will change.  “Civil marriage,” will be defined as a “civil contract between two persons,” in Minn. Stat. § 517.01  (marriage is currently defined as “a civil contract between a man and a woman”).  Aside from the employee benefits implications, which are largely governed by federal law issues that are currently before the United States Supreme Court, public employers that have marriage licensing divisions will be confronted with a variety of legal issues, and presumably increased demand, based on the change in law.

Public Accommodation.  Entities that provide public services may not discriminate on the basis of sexual orientation, under the public accommodations section of the Minnesota Human Rights Act.  Under Minn. Stat. § 363A.11, “Public Accommodations” “[i]t is an unfair discriminatory practice . . . to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of . . . sexual orientation [among other protected classes].”  Minn. Stat. § 363A.11, subdiv. 1(a)(1).  Violators are subject to civil suit and, in an oft overlooked portion of the statute, guilty of a misdemeanor under Minn. Stat. § 363A.30, subdiv. 4.

No Applicable Exemptions.  Although there are specific listed exemptions for public accommodations in Minn. Stat. § 363A.24, primarily related to public restrooms, locker rooms and same-sex sports teams, there is, not surprisingly, no exemption for a public employee’s religious belief in the new law.  Similarly, the religious association exemptions listed in Minn. Stat. § 363A.26 do not apply to public entities.  Religious entities and their employees will not be required to provide goods or services in connection with a same-sex marriage if doing so would violate sincerely held religious beliefs.  But again, public employers are not subject to these exemptions.

 

Discipline Permitted.  Accordingly, it would be a violation of the law for a Minnesota public entity to deny a marriage license to a same-sex couple as of August 1, 2013. Public employees, of course, are acting on behalf of their public employer.  Public employers may, therefore, require that their public employees provide marriage licenses to all applicants, including same sex applicants.  Based on the change in law, public employers may (and should) discipline employees who refuse to provide such licenses as of August 1, 2013, even if such refusal is based on a professed religious belief.

 

Carver County prevails in Interest Arbitration with Law Enforcement Personnel

On January 7, 2013, Arbitrator Christine Ver Ploeg submitted an arbitration award involving Teamsters Local 320, representing forty-two law enforcement personnel in the Carver County Sheriff’s Office.  The bargaining unit consisted of 29 detention deputies, 12 911 Dispatchers, and one Terminal Agency Coordinator.  Bargaining issues included wages for calendar years 2012 and 2013, range movement, severance, uniform allowance, shift differential, and whether a market adjustment was warranted for certain bargaining unit employees.
Arbitrator Ver Ploeg prefaced her award by noting two principles underlying interest arbitration: (1) that an arbitrator is to determine what the parties would have negotiated had they reached agreement at the bargaining table or to settle a strike, and (2) that arbitrators should avoid arbitration awards that significantly alter a bargaining unit’s internal or external standing “unless there are compelling reasons to do so.”  These prefatory remarks seem to indicate a bias towards the status quo, which was later borne out in the award.
Moreover, in response to the union’s argument that the employer had the ability to pay the union’s proposed increases, the arbitrator cited Minn. Stat. 179A.16, subd. 7, which requires interest arbitrators to consider the “obligations of public employers to efficiently manage and conduct their operations within the legal limitations surrounding the financing of these operations.”  This has become a common, and successful, counter to union arguments when an employer clearly has the funds to make the proposed wage and compensation increases.  With respect to financial health, the union cited healthy reserves and bond ratings.  The county countered that local government aid from the state will likely be curtailed, the county had implemented labor cost reducing measures, and that its reserves were declining.  Though the arbitrator noted that Carver County’s financial health was stronger than many Minnesota counties, she noted that the county “must be financially responsible and its expenditures must be sustainable.”
The arbitrator cited that the county’s position was consistent with internal pattern increases, but did not provide significant analysis on that point.  Externally, the arbitrator compared Carver County with Anoka, Dakota, Scott, Washington, and Wright counties. Though she noted that Carver County was smaller than these comparators, she stated that Carver County’s wages were competitive, and it did not have “difficulty attracting and retaining employees in this bargaining unit.”
On the wage issue, the union sought 4% increases in 2012 and 2013, an additional 7% market increase for Dispatchers at the top of their wage scale, and a 4.5% step increase for employees.  The county proposed a .5% increase to the wage scale and a 1% wage increase effective July 2, 2012, and a 1.25% increase to the wage scale and a 1.75% wage increase effective July 1, 2013, with no market adjustment for dispatchers.  Arbitrator Ver Ploeg adopted Carver County’s position, noting that the award was consistent with internal comparisons — 91% of Carver County employees (all but the Teamsters’ units) had agreed to the same pattern.  The award also preserved the county’s practice of treating all bargaining units and non-union employees the same.  The arbitrator determined that the dispatchers did not require a market adjustment based on external comparisons.
The arbitrator included an extended discussion about the parties’ disparate recollections about the future of step increases, and determined that the union’s position that county’s suspended step increases were to resume was not supported by the evidence.  Moreover, the arbitrator did not change: the county’s severance schedule, the unit members’ uniform allowances, or the shift differential, finding that all of the current contract provisions were fair based on internal and external comparisons.
This Carver County Arbitration award in an excellent result for the county, and the arguments therein should be quite helpful for employer-side interest arbitrations in 2013.

Arbitrator upholds Ramsey County Reduced Hours Program

On February 11, 2013, Arbitrator Carol Berg O’Toole determined that Ramsey County did not violate its CBA with AFSCME Council 5, Local 70 at its Lake Owasso Residence when it reduced hours of employees based on seniority.  In response to significant budget constraints, Ramsey County implemented a facility-wide rebid of jobs based on seniority for new schedules with less hours.  The result of the rebid was that employees with more seniority were able to secure jobs with more hours of work, and those with lesser seniority received the fewest number of scheduled hours.  Arbitrator O’Toole recognized that the rebid process might have harmed specific union members, but determined the rebid was in accordance with management rights and it did not violate the language of the applicable CBA.

Of note, the arbitrator stated that the ills that the union sought to rectify could not be fixed in arbitration:  “Much of what is complained of cannot be fixed by a Union, . . .  Neither can an arbitrator make employees [whole] . . . when such loss is the result of budget shortfall instead of a violation of the [Collective Bargaining] Agreement.”

Attorney Wiley notes that it is  likely that a number of similar grievances, with similar results, will be working through the pipeline as the economy continues its slow recovery.

Discipline reduced for Mendota Heights police officer

On March 1, 2012, Arbitrator Harley Ogata determined that a one-day suspension related to whether the officer had probable cause to arrest a citizen was excessive under the circumstances, and reduced the discipline to a written reprimand. Though the arbitrator determined that the officer could have done more to diffuse the dispute during a bad-weather roadside stop, the arbitrator felt that only a reprimand was warranted because a reprimand would explain expectations and start a basis for progressive discipline should the behavior recur.

The award is also significant because the arbitrator rejected outright the argument from the union Teamsters Local 320 that the officer’s investigatory interview needed to be recorded.  Attorney Wiley suggests that this arbitration award can help to counter similar union arguments in the future.

http://www.bms.state.mn.us/documents/awards/20130301%20Mendota.pdf

Employer must use new I-9 forms in May 2013

Employers required to use new I-9 form in May 2013. See the form and get more information at

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=84c267ee5cb38210VgnVCM100000082ca60aRCRD&vgnextchannel=84c267ee5cb38210VgnVCM100000082ca60aRCRD 

Probationary Police Officer Reinstated at Veteran’s Preference Hearing

 In December 2012, a Veteran’s Preference Act hearing was held to determine whether the City of Brooklyn Park had just cause for the termination of a probationary police officer, Daniel Strickland.  The city argued the officer had willfully violated a standing order prohibiting outside employment while in field training, lied to a superior about the extent of the violation, had integrity issues, and failed to demonstrate the ability to do the job.

On March 1, 2013, the majority of the panel, including David Paull and Ryan Kaess, filed its opinion, and determined that a veteran, even on probation, can only be discharged for incompetency or misconduct under Minn. Stat. 197.46.  The panel stated that under the VPA the incompetence or misconduct must be substantial and relate to the public interest.  The panel determined that the standard is the “benchmark equivalent” of the just cause standard under PELRA, Ch. 179A, citing Ekstedt v. Village of New Hope, 292 Minn. 152, 193 N.W.2d 821 (1972).  A VPA hearing panel must determine whether the employer acted reasonably, including whether the matter was properly investigated, and determine whether extenuating circumstances justify modifying the employer’s choice of discipline.  The majority stated that “a police officer’s integrity and ability to be truthful is of prime importance.”

The majority went into a lengthy discussion of credibility determinations, and then determined that the officer did not lie with respect to his outside employment to his superiors.  The panel held that Officer Strickland was not speaking falsely when he though it was acceptable for him to teach near the end of his field training, and he therefore did not intentionally violate the city’s policy. Central to the panel’s determination was that the Officer made no attempt to conceal his actions.  The panel determined that “it was incumbent upon the City to establish by substantial evidence that Officer Strickland lied. . . The evidence presented is not sufficient in this regard.”  The panel also noted that Officer Strickland received passing scores in all four phases of his training, so performance was not a sufficient basis for termination of employment.

The panel determined that the City had sent mixed signals to the officer about the enforcement of the outside work policy, an extenuating circumstance that mitigated the level of discipline. The termination was reduced to a 3 day suspension without pay.  http://www.bms.state.mn.us/documents/awards/20130301%20Brooklyn.pdf

James Martin, the employer’s appointee to the panel, filed a dissenting opinion, in which he opined, among other things, that the Veteran admitted to violating the city’s policy  without permission which provided just cause for the veteran’s termination of employment.  http://www.bms.state.mn.us/documents/awards/20130301%20Brooklyn%20Dissent.pdf

This decision is a good reminder that the VPA applies to probationary and non-probationary veterans alike, and that some panels might seemingly apply a somewhat heightened level of just cause in VPA hearings.

 

City of Brooklyn Center receives split interest arbitration award with LELS

Law Enforcement Labor Services, Inc., Local 82 challenged the City’s wage proposals, and a number of other compensation related items in the collective bargaining agreement.  Evidence was presented on the City’s ability to pay, economic conditions, internal comparisons, external comparisons, unemployment, inflation, and employee retention.  The parties’ disputed many of the issues, including the appropriate comparator group for external comparisons.  The union argued for a comparison with 24 cities, while the City sought a comparison to 8 cities.  The City argued that the Police Officers’ unit should receive a lesser increase for 2012 and 2013 than other groups whose contracts had already settled – other groups had received 2% increases and the employer sought to provide a 1% increase.

On February 9, 2012, Arbitrator Thomas Gallagher rendered his award. Based on his analysis of the external and internal comparators, the arbitrator awarded a 2% increase for each year.  One key to Arbitrator Gallagher’s rationale was internal consistency:  “As employers often argue in interest arbitration, internal comparison should be given greater consideration than external comparison, unless the external market shows substantially disparate comparison.”  The arbitrator awarded a slight increase in monthly longevity pay, and on-call pay.  The arbitrator, however, awarded the employer’s position on insurance, finding that the employer had provided the same insurance benefits to all of its employees for nearly 15 years, and the employer had a remarkable pattern of internal consistency for union and non-union employees.   The arbitrator also determined that the employer’s proposal to apportion the cost reduction in medical insurance premiums (of about 17% to 20%) between it and the employees was reasonable.

http://www.bms.state.mn.us/documents/awards/20130209%20brooklyn.pdf

Attorney Greg Wiley counsels his clients that arbitrators will frequently apply an internal settlement pattern, whether the employer or union seeks to apply it.