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March 2017 Archives

Minnesota Supreme Court holds that Employee Discharged for Lying on her Job Application was Ineligible for Unemployment Benefits due to "Misconduct"

In Minnesota, as in most every state, terminated employees are not eligible for unemployment benefits if they are dismissed for misconduct. In 2003, the legislature amended the statute to define "employment misconduct" as "any intentional, negligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment." However, despite this effort to more clearly define employee misconduct for purposes of unemployment compensation, there remains plenty of room for disagreement, depending upon the facts in each particular case. This dilemma was recently born out in Wilson v. Mortgage Resource Center, Inc. The Minnesota Supreme Court overturned an earlier decision of the Court of Appeals that had found an employee's misrepresentations about her education on her job application, did not constitute "employment misconduct." In disagreeing with the Court of Appeals, the Minnesota Supreme Court in effect recognized that employers have the right to reasonably expect the truth from job applicants. Still, the outcome of this case was determined by the particular facts of the case and therefore employers can learn from (and take advantage of) its lessons.

Court Clarifies "Misconduct" and Attendance

In 2013, the Wisconsin legislature tightened the eligibility requirements for unemployment benefits as they related to discharges for attendance. Under the previous law, an employee had to have "5 or more" absences without notice in a twelve-month period in order for his/her absenteeism to rise to the level of statutorily-defined misconduct. The legislature reduced that level to "more than 2 [absences] within a 120-day period . . . unless otherwise specified by [the] employer in an employment manual. . ." Wis. Stat. § 108.04(5)(e). (The employee must also have failed to provide both notice and a valid reason for the absence.)

IDES Audits - Ten Questions Employers Ask

Over the many years during which I have helped Illinois companies with their use of independent contractors, the most urgent call I get is from Illinois companies who have just found out they are going to be audited by the Illinois Department of Employment Security (IDES).

Illinois Legislative Stupidity

As everyone is very well aware, the State of Illinois, due to the intransigency of Governor Rauner and Speaker of the House Madigan, has been without a budget for over twenty (20) months. Both Governor Rauner and Speaker of the House Madigan are acting like two (2) little children playing in the sandbox who cannot agree and both of them have decided to "take their ball home". If only it were that easy to get rid of both of them!

ACA FAQ of the Month: What the Proposed American Health Care Act Means for Employers

On March 6, 2017, the American Health Care Act ("AHCA"), a proposal to partially repeal and replace the Affordable Care Act, was introduced. The proposal is of course subject to amendment (and almost certainly will undergo some amendments), but in its current form, it would ease the burden that the ACA placed on employers. In brief, the AHCA retroactively removes the Employer Shared Responsibility Mandate as of 2016, meaning that employers with 50 or more employees will no longer be subject to penalties for failing to offer affordable coverage to full-time employees and their dependents, and would not be penalized if they failed to do so in 2016. However, and somewhat surprisingly, the AHCA does not remove the employer reporting requirements - meaning that large employers and employers who sponsor self-funded health plans would still be responsible for completing Forms 1094 and 1095.

NLRB Rejects Wisconsin's Dues Checkoff Restriction

Wisconsin's Right-to-Work law, which became effective on March 11, 2015, prohibits employers and unions from entering into agreements which require membership in the union or the payment of dues as a condition of employment ("union security agreements"). The law also prohibits employers from deducting union dues from an employee's wages unless the employee has signed an authorization that is revocable upon thirty days' notice ("dues checkoff"), rather than the one-year period permitted under the National Labor Relations Act. The NLRA expressly allows states to enact Right-to-Work laws that prohibit union security agreements - but it does not contain a similar provision relating to dues checkoff. So, do the provisions of the NLRA that relate to dues checkoff supersede, or preempt, the more employee-friendly provisions of the Wisconsin law?

Employer Found Not Liable For Racial Harassment

In a February 9, 2017 Decision (Glenda Cable v. FCA US LLC, case number 16-2283), the United States Court of Appeals for the Seventh Circuit located in Chicago ("the Court") found that Fiat Chrysler Automobiles ("Fiat") was not liable for racial harassment.

Good Employer Documentation

One of the most difficult and time consuming tasks that has confronted me over my lengthy career as a Management Labor Employment Lawyer is the continuing lack of documentation - i.e. evidence - that exists when I am attempting to defend either a Union Grievance, an EEOC Charge, etc. The most important thing that a Supervisor, HR Professional or Employer Representative must remember is that you have to accurately and completely document any event dealing with Employee Discipline.

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