contract

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 »

Private Investigations

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 »

mediation

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 »

CivilRightsLaw

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 »

EmploymentLaw

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 »

Same sex marriage protected by 14th Amendment

I’ll let the final paragraph of the majority opinion speak on this issue:

 

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Gay Marriage protected by 14th Amendment

Though the opinion is quite lengthy, I’d strongly encourage all readers to read the majority and dissents.  Though the result I applaud, the dissents make some very good points about flaws in the majority’s reasoning; not so much what the result is, but how the result was reached.  Not so much that this decision was made, but who ended up making the decision within our system of government.  Very interesting decision that could have far reaching impact about the power wielded by the United States Supreme Court.

Supreme Court announces standard for claims of excessive force against pretrial detainees

In 2011, I wrote an article for the state-wide publication Bench & Bar, entitled “Excessive Force: Disentangling Constitutional Standards.” http://mnbenchbar.com/2011/07/excessive-force-claims-disentangling-constitutional-standards/    That article received a fair amount of attention locally.

Today, the United States Supreme Court issued an opinion touching on that subject, Kingsley v. Hendrickson, attached.  It held (with 5 judges in the majority and 4 dissenting) that excessive force claims by pretrial detainees should be determined on an objective standard.  The Court cited the following standards for such claims.

Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury;any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. See, e.g., Graham, supra, at 396. We do not consider this list to be exclusive. We mention these factors only to illustrate the types of objective circumstances potentially relevant to a determination of excessive force.  ***

We have also explained that a court must take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate.

Importantly, the jailers’ subjective intent in using force against a pretrial detainee is not a consideration under the Supreme Court’s ruling.  This issue resolved a circuit split, and arguably changes the law in the 8th Circuit (and clearly the 7th Circuit from which the case came).  This dissent by Justice Scalia read the Court’s precedents differently, and determined that a jailer’s stated of mind should be considered in such cases.

While this ruling will make analysis of such claims more simple, it will potentially expand jailers’ liability for claims of excessive force by pretrial detainees.

Kingsley Hendrickson Supreme Court on pretrial detainee

 

 

County prevails in interest arbitration

A county client recently prevailed in interest arbitration based on its internal pattern and external standing among its comparator counties.  Key to this decision (attached below), was the county’s relatively small tax capacity.  It was one of the lower ranking counties in its comparator group in that area.  As such, the arbitrator determined that the county was not required to pay an average wage for the comparator group.

Please contact me if you have questions about this arbitration award.

 

Sherburne County Interest Award TCSLCO

Check out Attorney Wiley’s appearance on a national podcast

See the attached link for my podcast interview with LRIS regarding the potential impact on the Minnesota Supreme Court’s Schwanke decision regarding public employee challenges to performance reviews.  Please let me know what you think.  Thanks.

Greg

greg.wiley@wiley-law.com

The podcast is online here: http://www.lris.com/2015/02/13/interview-attorney-greg-wiley/

 

Theft from an employer, even in a small amount, can support discharge

A recent arbitration decision highlights the well-accepted rule that theft from an employer is a serious offense that can support a just cause discharge in a union environment.  In this matter,  management advocate Attorney Wiley also stressed that theft from a public employer — in any amount — rises to the level of felony theft.  The attached award provides very thorough analysis of other arbitration decisions that have held that even a small value theft supports disciplinary discharge.

While there may be circumstances when an employer would not want to necessarily terminate an employee for a small theft, this arbitration authority supports employer-side arguments that discharge is, indeed, an appropriate remedy.  Contact attorney Wiley for representation in your employee misconduct matter.

Cole Arbitration Award

County employer found to have disciplined Corrections Supervisor appropriately

Safe practices in law enforcement are absolutely essential.  In his career, Wiley has seen many examples of law enforcement officers and citizens being seriously injured when critical information is not provided, or is not communicated effectively between law enforcement officers.  One of Wiley’s clients runs one of the largest jails in the State of Minnesota.   The Sheriff’s Office disciplined a supervisor for failing to adequately inform a corrections officer of a dangerous situation in the jail., including that an inmate had made a threat against a corrections officer.  See attached award.  The arbitration award not only shows that the employer carefully considered its level of discipline, but reinforces the importance of communication between members of law enforcement. It is not just a good safety practice; it is an essential job function.

Attorney Greg Wiley represents clients in labor grievance and interest arbitration/  Call him for advice and representation for your next labor case.

Sherburne County Grievance Award Suspension

 

String of Arbitration and Court Victories for Wiley’s Clients

Recently, my clients have fared very well in court and in arbitration settings.  I’ll be sharing some of these success stories in coming weeks.

First, I’d like to share an interest arbitration award in favor of Sherburne County.  In that matter, Arbitrator Crump ruled in favor of the county on all fronts, including wages, fringe benefits, and proposed language changes.  Wiley credits the victory to the testimony of some very well prepared witnesses and extensive research into the union group’s sought after market adjustment.  With a number of additional arbitration hearings scheduled for this client, this was an important victory in helping to reinforce the county’s settlement pattern.

A full copy of the award is attached.

Sherburne County interest award Licensed Supervisors

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.