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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- NEW HIRES MUST HAVE NOTICE OF RIGHT TO PERSONNEL RECORDS
- SUPERVISORS MAY FACE PERSONAL LIABILITY
- WARN EMPLOYEES BEFORE PLANT CLOSING OR MASS LAYOFF
- TIP OF THE MONTH
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NEW HIRES MUST HAVE NOTICE OF RIGHT TO PERSONNEL RECORDS
Effective January 1, 2008, a new Minnesota law will impact all employers with 20 or more employees. It will require that new hires be given notice of the current Minnesota law that mandates employee access to personnel records by a written request every six months and at least once per year following termination. The new provision does not require any particular method of notice. If the employer has an employee handbook, a provision therein may be sufficient, but it is probably best to contain the notice in an orientation package or offer letter, if applicable. The penalty for failure to comply is likely enforcement fines from the Minnesota Department of Labor and Industry.
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SUPERVISORS MAY FACE PERSONAL LIABILITY
A recent Court of Appeals case reminds us that supervisors may have personal liability for certain types of employee actions. At issue was what was characterized as altering of timesheets which were approved by the CEO of a non-profit home for the disabled. The altering involved paying employees for only 40 hours, when they had worked 48-hour weekend shifts and were given two 4-hour breaks during that time. It was determined that these breaks had to be paid time, as the employees were not really free to use this as their own time—they could not leave the building during the breaks, did not have sleeping facilities, and had to call in to the main office once an hour over the weekend. The Court held the CEO personally liable for $500,000 to the employees, including $155,000 as a penalty. See Chao v. Self-Pride (4th Cir. 2007).
Another significant area of personal liability can relate to discrimination cases, particularly sexual and other types of harassment cases.
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WARN EMPLOYEES BEFORE PLANT CLOSING OR MASS LAYOFF
The Worker Adjustment and Retraining Notification Act ("WARN") prohibits certain employers from terminating affected employees without first providing 60-days advance written notice to the employees and certain governmental bodies. The notice requirements under WARN are triggered only when there is a "plant closing" or "mass layoff."
A plant closing in general is the permanent or temporary shutdown of a single site of employment if the shutdown results in an employment loss during any 30-day period for 50 or more employees, excluding part-time, certain temporary or contract employees. A mass layoff is a reduction in force that results in an employment loss at the single site of employment during any 30-day period for at least 50-499 employees if they represent at least 33% of the total active workforce, excluding any part-time employees, or 500 or more non-part-time employees.
WARN applies to employers that employ 100 or more full-time workers or 100 or more employees who, in the aggregate, work at least a combined 4,000 hours per week (exclusive of overtime). However, there is no notice requirement where job losses are due to strikes, bona fide lockouts, and natural disasters. Also, there is a reduced notice requirement when a closing or layoff is caused by unforeseen business circumstances, or, if the employer is actively seeking capital or business which, if obtained, would have allowed the employer to avoid or postpone the employment loss.
An employer that violates WARN is liable to each affected employee for lost compensation. WARN is a complex Act. Before conducting a mass layoff or plant closing, you should discuss it with legal counsel.
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TIP OF THE MONTH: Last month's Tip referred to "serious workplace violations." These are situations where an employer could suspend an exempt employee and deduct pay in full day increments, and not be required to suspend the employee for a week or more. Without explaining what those might consist of, such pay deductions must be imposed pursuant to a written policy that applies to all employees. In regard to the first requirement, serious workplace misconduct includes such things as sexual harassment, violence, drug or alcohol violations, as well as violations of state or federal law. It does not, however, include an employee's attendance or general performance problems. Most employee handbooks will include statements that suggest an employee may be subject to discipline, including suspension or termination, in many circumstances, including the types of violations discussed above. This general notice is sufficient.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Richard Burns, Tom Torgerson, Rob Merritt and Gabe Johnson.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2007 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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