Attorney Greg Wiley is proud to announce that he has been named to the Board of Directors of the Minnesota Public Employers Labor Relations Association.  Wiley has been involved with various aspects of the organization over the last five years, and he looks forward to adding value to the organization with his legal expertise.

Attorney Greg Wiley and Human Resources Director Roxanne Chmielewski were recently awarded the 2012 Pacesetter award by the National Public Employer Labor Relations Association (NPELRA), the premier organization for public-sector labor relations and human resources professionals. NPELRA is a network of state and regional affiliates with over 2,000 members around the country. The governmental agencies represented in NPELRA employ more than four million workers in federal, state, and local government.

The Pacesetter Award recognizes NPELRA members who have successfully developed a new tool or technique for use in resolving conflicts, addressing new challenges, or assisting others in their growth in public sector labor relations.

Wiley won the award in 2012 for developing a PTO Purchase plan as an alternative to traditional furloughs or layoffs.  The plan enabled employees more control over their time off, and gave employees discretion and dignity, which helped to maintain morale of employees in a down time.

Among other things, the award shows Wiley’s focus on problem-solving and innovation in the legal field.

This week in EEOC v. CRST Van Expedited, Inc., No. 10-1682 (8th Circuit, February 22, 2012), the EEOC lost the lion’s share of its claims alleging sex discrimination and harassment against trucking behemoth CRST, Inc.  Only a handful of the over 250 claims of discrimination remain as a result of the 8th Circuit’s decision.  Yet, because just a few of those claims survived, the 8th Circuit determined that CRST was no longer a “prevailing party” entitled to attorney’s fees, and the court reversed a $4.5 million award of attorney’s fees in CRST’s favor.

The case is noteworthy for a number of reasons.  First, the court affirmed the district court’s strong reprimand againt the EEOC for its failure to investigate claims before filing a suit.  The court reiterated that the EEOC cannot use the civil discovery process as a means to identify and add claimants.  Instead, the EEOC must conduct pre-suit investigations, which can then lead to meaningful conciliation efforts, prior to suit.

The court also summarized nicely the current state of the law and standards in the Eighth Circuit with respect to hostile work environment claims, stressing inter alia that there is “no doubt federal harassment standards are demanding.” In CRST, the court also determined that lead drivers were akin to foremen, and they did not have the requisite responsibility to “hire, fire, promote, or reassign to significantly different duties,” to be considered a supervisor under Title VII.

The case is interesting in that, from a legal standpoint, the EEOC was roundly defeated, but they prevailed on just enough of the claim to avoid a very costly attorney’s fees sanction.

There are other important point of law, like the infrequently litigated defense of judicial estoppel, in the 54-page majority opinion.  You can review the opinion by clicking on the attached PDF.  EEOC v. CRST

In a civil suit under Section 1983 this week, Messerschmidt v. Millender, No. 10-704 (February 22, 2012), the United States Supreme Court applied qualified immunity to dimiss claims alleging that officers violated the 4th Amendment by relying on an overly broad search warrant to seize a third-party’s guns and ammunition, which was not evidence of a crime or contraband.  The important take away from this case is that officers are entitled to rely in “objective good faith” on the scope of a search warrant signed by a neutral magistrate, with very limited exceptions. That stands to reason because, generally, the officers’ cannot be expected to question the magistrate’s probable cause determination.

The rare exception is when the warrant is based on an affidavit that is so lacking in probable cause as to be “entirely unreasonable,” and obviously so.  The Supreme Court took pains to state the exception to the good-faith reliance doctrine does not apply when officers sought to have the warrant approved by their supervisors, the district attorney, and the magistrate.

I attach a link to the case if you would like to read it.

http://www.supremecourt.gov/opinions/11pdf/10-704.pdf

This week, in Howes v. Fields, No. 10-280 (Feb. 21, 2012), the United States Supreme Court reiterated that whether an individual is “in custody” for the purposes of Miranda rights is a fact-dependent inquiry that evaluates all features of an interrogation.  The most pertinent inquiry is whether, when looking at all the circumstances, a reasonable person would feel free to terminate the law enforcement interview and leave, even if the individual is incarcerated.

The Sixth Circuit had applied a categorical rule that individuals that were imprisoned were “in custody,” and law enforcement officers must read the prisoner Miranda rights when questioning a prisoner about other criminal activity.  The Supreme Court reversed that holding and stated the general rule still applies to interrogations made of incarcerated persons:  given “all of the circumstances surrounding the interrogation,” how does the suspect gauge his freedom of movement?  Incarceration alone is not “custody” for Miranda purposes because: (1) a person who is already in prison is not as shocked as a person questioned after an arrest; (2) a prisoner will not be duped into speaking to seek a prompt release; and (3) prisoners know that the questioners lack authority to affect the duration of their existing sentence.

So, even when the suspect being questioned is already incarcerated, if it is made clear to the inmate that he is free to leave an interview, and he is not physically restrained or threatened, and there are no other indicia of coercion, courts will likely determine that the person is not “in custody” for Miranda purposes.  It is now clear that “in custody” as in “incarcerated” does not equate with “in custody” for Miranda purposes.

This week, the Minnesota Court of Appeals held that an employer violated the Minnesota Human Rights Act by requiring that an employee provide medical information about dyslexia, when the employee had not requested an accommodation and there was no evidence that the condition was impacting the employee’s ability to do his job. The employer argued that it terminated the employee (named Crummy) because he was insubordinate in not providing the records. Not surprisingly, the court found reason to be “fundamentally flawed,” and discriminatory; an employee is not being insubordinate by refusing to provide records that an employer is prohibited from receiving by operation of law.

The case is also significant in that the appellate court upheld the district court’s doubling Crummy’s damages. In all, the employee received three years of back pay that was then doubled by the court, leading to a monetary recovery of over $500,000, plus attorneys’ fees. A painful lesson to employers; be extremely careful when requesting information about employees’ medical conditions. This area is a potential minefield of liability for employers.

Contact me for more information. The case is Crummy v. Enterprise Minnesota, Case No. A11-703, (Minn. Ct. App. Feb. 6, 2012).

More than ever, employers struggle with employee classification issues: are workers employees or independent contractors?  And now, the State of Minnesota and the IRS have started a new initiative to more aggressively audit employers about employee classification, so an improper classification can have significant consequences in the form of increased taxes, penalties and fees.

Employers often mistakenly believe that the label they attach to a worker is controlling, but the IRS and courts ignore employer labels when evaluating a worker’s status.

Unfortunately, different agencies (e.g. IRS, the Minnesota Department of Economic Development and workers’ compensation, US Department of Labor, and the courts) use slightly different test to determine independent contractor status, and there is no effective short-hand analysis, which leads to a higher likelihood of employer confusion (and litigation) over this issue.

To illustrate, I couldn’t pass this case up, which highlights the classification problem.  We lawyers often talk about whether a case passes the “smell test,” before we engage in a legal analysis.  Well, the case, St. Croix Sensory, Inc. v. Department of Employment and Economic Development, No. A09-1627 (Minn. Ct. App. 2010), relates to whether “sensory assessors” (whose job is to actually test odors) were independent contractors or employees.

In the “Smell Test” case, the court evaluated a totality of circumstances test to determine whether the status of the worker: (1) the right to control means and manner of performance; (2) mode of payment; (3) furnishing of material or tools; (4) control of the premises where the work is done; and (5) the right of the employer to discharge the employee, and a number of other factors.   The IRS typically looks at those factors, and whether: the worker hires assistants; the employer trains the worker; the worker has services available to others; the work performed is essential to the business operation; and whether the worker incurs expenses and risk of loss. Obviously, it is difficult to summarize these determinations, when so many factors are at play.

Though there is no simple formula to determine whether workers are employees or independent contractors, the control of the means and manner of work is often the most important factor.  That said, as the “Smell Test” case held, when an employer allows a worker to perform the task in the manner of their choosing, but within set parameters that are based on client expectations or industry standards, the worker may still be an independent contractor.

That is the biggest take-away for employers from the St. Croix Sensory, Inc. case—even where it appears that the employer may have a great deal of control over the work, the type of control matters.  Contact Attorney Wiley to evaluate your classification issues.

Recently, a Minnesota District Court upheld attorney Greg Wiley’s argument that a Last Chance Agreement precluded a union employee from seeking arbitration to challenge his termination from employment.

Employers use Last Change Agreements (“LCAs”) to allow employees that have made mistakes or have had performance issues a second chance, and the agreements provide that the employees may stay employed so long as certain conditions are met.  I feel that Last Chance Agreements can be a great labor relations tool in appropriate cases, and I have drafted and enforced many in my career.

This important decision validates an employer’s use of last chance agreements with a unionized workforce, and protects employers from the lengthy and expensive arbitration process in such cases.

If you have an employment situation in which you might want to use a Last Chance Agreement with your employee, whether that employee is a member of a union or not, please contact me.  I am also available to train your labor relations professionals on drafting effective Last Chance Agreements.

Order upholding Last Chance Agreement

Clients often shy away from bringing defamation claims because damages can be difficult to prove, and the burden of a trial might actually exacerbate the harm caused by defamatory remarks.  But preserving your business’s reputation may be extremely important, and, in some cases absolutely essential.

Clients should carefully evaluate whether bringing a defamation claim makes sense under the particular circumstances.  A recent Minnesota District Court case shows that, in the right case, a jury will provide significant compensation for defamatory remarks.  In that case, a news station was found to have defamed a holistic healer, and caused her $1 million in damages, which is thought to be the largest defamation verdict in Minnesota history.  It remains to be seen whether that award is upheld, but, at the very least, the jury’s verdict shows that defamation claims are still viable in Minnesota courts.  See the report below.

Report on $1 million Defamation Verdict