The Complete Employment Lawyer’s Quick Answer Book
Answers to 97 Questions in 12 Areas of Employment Law
Edited by Robert C. Boisvert, Jr. & Penelope J. Phillips
Hiring and Screening Employees
- What types of questions can employers ask and not ask job applicants?
- What type of background searches may employers conduct and what are the limitations?
- What restrictions apply to medical examinations and obtaining medical history during the hiring process?
- What type of applicant screening or testing may employers conduct?
- When do criminal history checks need to be conducted?
- Can applicants be asked about disabilities and reasonable accommodations?
– Howard L. Bolter
The Fair Labor Standards Act
- Who is covered by the FLSA?
- Are volunteers, interns, and independent contractors covered by the FLSA?
- What do the FLSA and state wage and hour laws require, in general terms?
- Who is entitled to be paid the minimum wage and to receive overtime pay?
- Who is exempt from overtime pay?
- What does it mean to be paid “on a salary basis”?
- If an hourly employee is eligible for overtime pay, how does an employer calculate the overtime rate?
- How does an employer determine what is working time?
- What records are required to be kept by employers to comply with the FLSA?
- What are the recoverable damages in an FLSA case?
– E. Michelle Drake & Eleanor E. Frisch
Non-Competes and Trade Secrets
- What are the requirements for a legally enforceable non-compete agreement?
- What are the differences between a non-compete provision, a non-solicitation provision, and a confidentiality provision?
- What is considered to be valid consideration?
- Will Minnesota courts “blue pencil” a non-compete agreement?
- If there is no non-compete agreement, or it is deemed unenforceable, does the former employer have other claims it can pursue against a departing employee?
- What legal claims does a former employer have against the new employer that hires its former employee?
- If a new employer wants to hire someone who has a non-compete agreement, what can/should it do to minimize its legal risks?
– Jeffrey B. Oberman
Title VII, Minnesota Human Rights Act, ADEA, and Discrimination
- In Minnesota, what classes of applicants and employees are protected against employment discrimination?
- What conduct is prohibited by anti-discrimination laws?
- What is an employee required to do to initiate a cause of action for discrimination under local, state, and federal laws?
- How much time does a Minnesota employee have to bring a claim of discrimination under Title VII, the MHRA, the ADA, and the ADEA?
- What damages or remedies are available to employees who commence claims under Title VII, the MHRA, the ADA, or the ADEA?
- How do courts analyze discrimination laws?
– Steven Andrew Smith
The Americans with Disabilities Act
- In general terms, what do the American with Disabilities Act and the Minnesota Human Rights Act require?
- What employers are covered by the ADA and MHRA?
- What is the definition of “disability” under the ADA and MHRA?
- Are all medical limitations considered to be a disability?
- How do the ADA and MHRA define a “major life activity”?
- What does it mean to have a “substantial impairment” of a “major life activity”?
- What are an employer’s obligations with respect to hiring and/or employing a person with a disability?
- How does an employer determine what is a reasonable accommodation?
- May an employer ask for medical documentation or for a medical examination when dealing with an employee who says he or she has a disability?
- What are an employer’s defenses to a claim of failure to accommodate?
- What happens if the employer is concerned that the employee is unsafe to work?
– Mary M. Krakow
Reasonable Accommodation Under Discrimination Laws
- What is a covered employer’s reasonable accommodation obligation under anti-discrimination laws pertaining to disability, religion, and pregnancy?
- Are applicants for jobs entitled to accommodations?
- What triggers an employer’s obligations to reasonably accommodate?
- What process must an employer undertake when it is on notice of a need or request for a reasonable accommodation?
- What type of documentation or records can an employer request when considering a request forreasonable accommodation for a disability, for religion, and for pregnancy?
- What are some examples of reasonable accommodations for disability, religion, and pregnancy?
- When are employers not required to accommodate an employee?
– T.J. Conley
The Family and Medical Leave Act and Other Leave
- What employers are covered by, and which employees are eligible to take leave under, the Family and Medical Leave Act?
- For what purposes can an eligible employee take FMLA leave?
- What is a “serious health condition”?
- What are employee and employer FMLA notice requirements?
- In what increments may an employee take FMLA leave?
- What are an employee’s protected rights under the FMLA?
- What actions that an employer takes may be seen as either “interfering” with an employee’s FMLA rights or retaliating unlawfully against an employee for taking leave?
- Is FMLA leave paid or unpaid?
– Penelope J. Phillips & Meggen E. Lindsay
Discipline and Termination
- What is employment at-will?
- What are the exceptions to employment at-will?
- Why and how should an employer document?
- If a Minnesota employer is doing a reduction in force or mass termination, are there any special legal requirements?
- Should an employer give the employee a written explanation of the reasons for termination?
- Are Minnesota employers required to offer severance pay and benefits to a terminated employee?
- Can employment claims be released and, if so, how?
– Robert C. Boisvert, Jr.
Unlawful Harassment in the Workplace
- What is the definition of “unlawful harassment”?
- How does one determine what constitutes “severe or pervasive” or whether conduct is “unwelcome”?
- Is the standard for determining unlawful harassment objective or subjective?
- When is a company liable for unlawful harassment?
- Is the standard of liability different when the harasser is a supervisor as opposed to a co-worker?
- Who is considered to be a “supervisor” under the law?
- What is a “tangible employment action”?
- What are an employer’s defenses to a claim of unlawful harassment?
- What are key elements of a good anti-harassment policy?
– Leonard B. Segal
Whistleblower and Retaliation Claims
- What does it mean to have a whistleblower claim?
- Are there differences between whistleblowing, retaliation, and “wrongful discharge” claims?
- What types of conduct does the Minnesota Whistleblower Act protect?
- What are the basic elements of a legal claim under the MWA?
- How has the 2013 amendment to the MWA changed the law?
- What are common defenses to an MWA claim?
- What are the remedies under the MWA if an employee proves a violation of the statute?
- Are there federal laws protecting whistleblowers?
- Are the basic elements of a retaliation claim the same as a whistleblower claim?
- Is it illegal retaliation if the employer would have taken the same adverse action against the employee even if the employee had not engaged in the protected activity?
– John D. Thompson
The National Labor Relations Act
- What employers are covered by the National Labor Relations Act?
- Does the NLRA apply in a non-union workplace?
- What types of workplace policies and practices can run afoul of the NLRA?
- Is it unlawful to retaliate or discriminate against an employee who supports a union, engages in union activities, or participates in an NLRB case?
- Do employees have the right under the NLRA to engage in other concerted activities for mutual aid and protection?
- What is the process by which employees become represented by a labor organization?
- Is there a process for employees to remove their union, or to change the identity of the union that represents them?
- Is it lawful for an employer and a union to agree that employees must pay union dues or fees as a condition of continued employment with the employer?
- If an employer purchases a unionized company, or if an employer obtains a service contract that had been performed by a unionized vendor, what obligation does the employer have to recognize and bargain with the union that represented the employees of the previous employer?
– Thomas R. Trachsel
- What are an employer’s workers’ compensation obligations when an employee becomes ill or injured at work?
- When a Minnesota employment relationship ends, what payments are owed to the employee, when are they due, and when may an employer deduct from final pay?
- What leaves are available to employees under Minnesota law?
- If a Minnesota employer wants to test an applicant or employee for drugs or alcohol use, what steps do they need to take?
- When an employee or former employee requests to review their personnel file, what must an employer do to comply with Minnesota law?
- What privacy rights does an employee have in the workplace (e.g., emails, medical information, and other personal information)?
- What kinds of deductions can be taken from an employee’s paycheck?
– Chris D. Jozwiak