December 2018 Updates in Labor and Employment Law

Holiday and New Year Reminders for Employers

Holiday Party Do’s and Don’ts

It is the time of year for holiday parties. While a good time can be had by all, employers need to be sure to set expectations beforehand. Employers may consider the following:

1. Notify employees that the company’s anti-discrimination and other employee conduct policies apply. One way to assist with this is for employers to notify its managers that they are considered “on duty,” and should be instructed to keep an eye on the employees under their management.
2. If employers decide to serve alcohol at the holiday party, be sure to take the necessary precautions to ensure employees are not overserved. Providing each employee with a drink ticket is an option to limit excessive consumption. To further minimize risk, employers may consider having the party during the afternoon, and not after work into the evening or weekend. Inviting employees’ spouses or significant others can also help in ensuring that employees are on their best behavior. If employers do serve alcohol, it is important to serve food and close the bar at least an hour before the party ends.
3. Avoid the use of overly religious symbols, such as a nativity scene or crosses and instead use symbols such as snowmen or snowflakes.

Finally, if complaints do arise following a holiday party, employers should address them in a timely manner, consistent with company policy. They should be given the same weight as any other complaint.

New Year Reminders

If you have not already started, now is a good time to review company policies, procedures, and practices before the New Year. While this is not an exhaustive list, employers may want to consider the following:

1. Review job descriptions to make sure they are still accurate.
2. Review sick leave or vacation time policies to ensure they are compliant with the applicable state and city laws.
3. Given the recent passing of state and city minimum wage laws, ensure all your employees are being paid in accordance with the applicable laws and ordinances. Minnesota’s minimum wage increases on January 1, 2019 to $9.86/hr. for large employers (more than 100 employees) and $8.04 for all others (small employers, training wage and youth wage rate).
4. Review your employee handbook to determine if any updates need to be made. We generally recommend a full review/update to a company’s employee handbook at least every two years.
5. Check to make sure all employees have acknowledged receipt of the most recent employee handbook.
6. Verify that all labor and employment posters are current.

Eighth Circuit Weighs in on Religious Accommodations

The Eighth Circuit recently held in EEOC v. North Memorial Health Care, 908 F.3d 1098 (8th Cir. 2018), that the hospital properly moved on to another candidate after the first candidate refused to perform an essential function of the job. After receiving a conditional offer as a nurse, the plaintiff told North Memorial that as a Seventh Day Adventist, she could not work on Friday nights. In response to the accommodation request, North Memorial indicated that the applicable CBA required her to be available to work on Fridays and ultimately decided to offer the job to a different candidate. With the assistance of the EEOC, the plaintiff sued North Memorial for alleged discrimination. The Eight Circuit ultimately agreed with the district court and held that, “North Memorial had a duty to attempt to accommodate her religious practice. But North Memorial presented evidence that it is not feasible to hire an untrained [nurse] … if the applicant will not work the collectively bargained schedule. There is no duty to accommodate an applicant or employee by hiring or transferring her into a position when she is unwilling or unable to perform one of its essential job functions.”

This case serves as a reminder to employers to ensure that the essential functions of an employee’s job are in writing in an up-to-date job description. When an employee refuses to perform an essential function of the job, this can serve as a strong defense to a discrimination/failure to accommodate claim.

If you have any questions about anything in this article, please contact Brent Kettelkamp at 952-921-4606 or bkettelkamp@seatonlaw.com or any of the Peters, Revnew, Kappenman & Anderson, P.A. attorneys.