Employment Law 2014

E l L 2014

THE VOGEL LAW FIRM PRESENTS

Employment Law 2014

Bi k ND M 6 2014Bismarck, ND May 6, 2014Fargo, ND May 7, 2014

C ll PhCell PhonesWe all have them If you have to useWe all have them. If you have to use yours, please do so in the hallway.

Thank you.

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Welcome!Welcome!

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Today’s AgendaToday s Agenda

A M SessionA.M. Session• Privacy and Data ProtectionS i d• Same‐sex marriage and more

• Retaliation/whistleblower update• Lunch

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Today’s AgendaToday s AgendaP.M. Session

• Employee handbook update• Immigration & recruitingg g• Panel Discussion – featuring North Dakota Department of Labor & Human RightsDepartment of Labor & Human Rights

• Your Turn – Q&A

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H k iHousekeeping• Question cards

• Seminar evaluations

• PowerPoint slides –will be available on

llwww.vogellaw.com

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Register to Win!!!!

Register to win the new iPad and othernew iPad and other great door prizes!

Must register to participate in d i !drawings!

Must be present toMust be present to win!

Recertification HoursRecertification Hours

This program has been submitted forThis program has been submitted for HRCI recertification hours.

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CLE HCLE HoursThis seminar is approved for 6.75 CLE hours in North Dakota and 6.5 CLE

hours in Minnesota.

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Today’s Line UpToday s Line Up

The Usual SuspectsThe Usual Suspects

Seth ThompsonBismarck

Vanessa Anderson

Lisa Edison-SmithFargo

Leslie Bakken OliverBismarck

Fargo

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And moreAnd more . . .

Michelle ScimeccaMinneapolisCaren Stanley

Brenda BlazerBismarck

Robert J. UdlandFargo

Fargo

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Featuring our Special Guests

Robert J. Udland

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SECTION 1

Minding the Store:Minding the Store:

Preserving and Protecting Confidential Employer Data While p y

Protecting Employee PrivacyLeslie Bakken Oliver ‐ Bismarck

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SECTION 2

So What Has Changed?So, What Has Changed?

A R i f N L b dA Review of New Labor and Employment Law Cases

Vanessa Anderson – FargoVanessa Anderson FargoSeth Thompson ‐ Bismarck

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P t 1Part 1 Vanessa Anderson

Fargo, ND

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United States Supreme CourtUnited States Supreme Court

North Dakota Supreme CourtNorth Dakota Supreme Court

Retaliation• “Retaliation” includes firing, demoting, harassing etc against people (applicants orharassing, etc. against people (applicants or employees) because they filed a charge of discrimination because they complained todiscrimination, because they complained to their employer or other covered entity about discrimination on the job or because theydiscrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation orproceeding (such as an investigation or lawsuit).

Lawson v. FMRLawson v. FMR• Employees of a privately‐held company that manages mutual funds, which are themselves “public companies”

• Protection from retaliation under 18 U.S.C. §1514A, the Sarbanes‐Oxley Act?y– YES!– Contractors &subcontractors of public companies p pmay not retaliate against their own employees

Univ. of Texas Sw. Med. Ctr. v. Nassarf

• Nassar reported a supervisor for harassment and racial bias, then had his offer of employment withdrawn

• What is the standard for retaliation under Title VII?– Employees must show adverse action occurred because of opposition to unlawful employment practice

DiscriminationDiscrimination• Includes discrimination against an employee or applicant because of that person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

• The law forbids discrimination in every aspectThe law forbids discrimination in every aspect of employment.

Vance v. Ball State UniversityVance v. Ball State University

• Vance lodged a number of complaints againstVance lodged a number of complaints against a co‐worker, who was not a supervisor

• Was Ball State vicariously liable?• Was Ball State vicariously liable?– NO!A “ i ” i h ff– A “supervisor” is one who can effect an employee’s hiring, firing, failing to promote, reassignment with significantly differentreassignment with significantly different responsibilities

Burton v. Arkansas Sec. of StateBurton v. Arkansas Sec. of State

• Burton an African‐American claimed racialBurton, an African American, claimed racial discrimination at the State Capitol

• Discrimination under Title VII?• Discrimination under Title VII?– Enough evidence to show pretext for terminationA h l “ i il l i d”– Another employee “similarly situated” was not fired for similar behaviorSt d d i h th t l– Standard is whether a comparator employee engaged in comparatively serious conduct

Ellis v. HoustonEllis v. Houston

• Five African‐American prison guards claimedFive African American prison guards claimed racial discrimination and retaliation at Nebraska State PenitentiaryNebraska State Penitentiary

• Retaliation under Title VII?E i t d t f ld b t li t– Excessive reports and transfer could be retaliatory

• Hostile work environment under Title VII?– Supervisor participated in harassing conduct

Knutson v. Schwan’s Home ServiceKnutson v. Schwan s Home Service

• Knutson was a local manager who wasKnutson was a local manager, who was required to be DOT‐qualified but suffered an eye injuryeye injury

• Discrimination under Americans with Disabilities Act?Disabilities Act?– NO! He was no longer qualified for his positionI i bl d i li i– It is an unreasonable accommodation to eliminate an essential job function

Hysjulien v. Hill Top Home of ComfortHysjulien v. Hill Top Home of Comfort

• Hysjulien claimed sex discrimination andHysjulien claimed sex discrimination and hostile work environment all stemming from instance of sexual assault of a supervisorinstance of sexual assault of a supervisor

• Timely complaint?O t h f ll i 300 d d dli– One event may have fallen in 300 day deadline

– All of harassing conduct may then be taken into account if similar in nature frequency andaccount if similar in nature, frequency, and severity

Severance AgreementsSeverance Agreements

• A contract or legal agreement between anA contract, or legal agreement, between an employer and an employee that specifies the terms of an employment termination such asterms of an employment termination, such as a layoff

St. Louis Produce Market v. HughesSt. Louis Produce Market v. Hughes

• Market and Hughes entered into a severanceMarket and Hughes entered into a severance agreement originally for 14 weeks of pay and return of all company propertyreturn of all company property

• Breach of contract if Market did not pay, but Hughes did not return the property?Hughes did not return the property?– NO!R f di i d h– Return of property was a condition precedent that relieved Market of any obligation to pay

Hallmark Cards, Inc. v. MurleyHallmark Cards, Inc. v. Murley

• Hallmark and Murley entered into a severanceHallmark and Murley entered into a severance agreement that required Murley to not release Hallmark trade secretsrelease Hallmark trade secrets

• What could Hallmark claim in damages when Murley breached the agreement?Murley breached the agreement?– The severance agreement amount, but no more

Lawful ActivityLawful Activity

• N D C C § 14‐02 4‐03 prohibits an employerN.D.C.C. § 14 02.4 03 prohibits an employer from discriminating against an employee because of “participation in lawful activity offbecause of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with thehours which is not in direct conflict with the essential business‐related interests of the employer”employer

Clausnitzer v. Tesoro Refining & MarketingClausnitzer v. Tesoro Refining & Marketing

• Clausnitzer was fired after he violated company policy

• He drove a company vehicle below theHe drove a company vehicle below the statutory presumption for drunk driving, but above that allowed by the companyabove that allowed by the company

• Discriminatory under N.D.C.C. § 14‐02.4‐03?NO! A i l b i l d i– NO! An essential business‐related interest to prohibit such conduct

P t 2Part 2 Seth Thompsonp

Fargo, ND

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Olson v. N.D. Job ServiceOlson v. N.D. Job Service

• American Crystal Sugar (ACS) and variousAmerican Crystal Sugar (ACS) and various unions were unable to reach an agreement for a new CBA. The current CBA expired, and ACS locked the employees out.

• The employees applied for unemployment compensation and were denied.

• An appeals referee, Job Service, and a district court all upheld the benefit denial.

Olson v. N.D. Job ServiceOlson v. N.D. Job Service

• The North Dakota Supreme Court reversed:The North Dakota Supreme Court reversed:– Benefits are denied when “the individual's unemployment is due to a strike, sympathy strike, or a claimant's work stoppage dispute of any kind which exists because of a labor dispute.”The Co rt held the se of “a claimant’s” ill strated– The Court held the use of “a claimant’s” illustrated that only employer initiated actions (i.e., lockouts) were covered by the statute.y

Albright v. Workforce Safety & Insurance

• “The Treating Doctor’s Opinion” statuteThe Treating Doctor s Opinion statute.• WSI has independent medical records (IMR) reviews conducted on certain claimsreviews conducted on certain claims. – Issue: If a treating doctor’s opinion conflicts with the IMR review is there a presumption thethe IMR review, is there a presumption the treating doctor’s opinion controls?

• Holding: No WSI can reject a treating doctor’s• Holding: No. WSI can reject a treating doctor s opinion if it adequately explains its rationale.

Risovi v. N.D. Job ServiceRisovi v. N.D. Job Service

• Risovi was disqualified for benefits because heRisovi was disqualified for benefits because he provided false information to obtain benefits.

• The Supreme Court reviewed the• The Supreme Court reviewed the disqualification standard for false information for the first timefor the first time.

• Holding: The false information must be id d “ f ll i i ll dprovided “purposefully, intentionally, and not

inadvertently.”

Sandifer v. U.S. Steel Corp.Sandifer v. U.S. Steel Corp.

• The FLSA allows unions and employers toThe FLSA allows unions and employers to bargain to exclude time employees spend changing clothes from working timechanging clothes from working time.– The parties’ CBA excluded time spent donning and doffing protective clothing.doffing protective clothing.

• Issue: What is the definition of “clothes.”H ldi I thi t t l thi i l d• Holding: In this context, clothing includes protective clothing.

Genesis Healthcare Corp. v. SymczykGenesis Healthcare Corp. v. Symczyk

• A Plaintiff filed a collective action under theA Plaintiff filed a collective action under the FLSA on behalf of herself and other similarly situated employees alleging that she was notsituated employees alleging that she was not paid for meal breaks during which she worked.

• The Employer answered and submitted a Rule• The Employer answered and submitted a Rule 68 offer of full relief, offering the Plaintiff what she requested in the lawsuitshe requested in the lawsuit.

• The Plaintiff did not respond to the offer.

Genesis Healthcare Corp. v. SymczykGenesis Healthcare Corp. v. Symczyk

• If the sole plaintiff in a FLSA collective action isIf the sole plaintiff in a FLSA collective action is offered all relief to which she would be entitled at trial the claim becomes mootentitled at trial, the claim becomes moot.– Without a named plaintiff, there can be no collective action under the FLSA.collective action under the FLSA.

• Holding: The Court punted. Although not directly stated the case suggests the Courtdirectly stated, the case suggests the Court ratified the “pick off” strategy.

American Express Co. v. Italian Colors Restaurant

• American Express and the Plaintiff merchantsAmerican Express and the Plaintiff merchants entered into agreements requiring arbitration of disputesof disputes.

• The agreements also contained class action waiverswaivers.

• The Plaintiffs filed antitrust claims in court, i i di id l bi i ldasserting individual arbitrations would cost

more than their potential recovery.

American Express Co. v. Italian Colors Restaurant

• Holding: Courts cannot invalidate aHolding: Courts cannot invalidate a contractual waiver of class arbitration because the plaintiff’s cost of individually arbitrating athe plaintiff s cost of individually arbitrating a federal statutory claim exceeds the potential recoveryrecovery.

• This case underscores the U.S. Supreme Court’s continued support for arbitrationCourt s continued support for arbitration agreements.

Things to ComeThings to Come

Mulhall v. UNITE HERE Local 355Mulhall v. UNITE HERE Local 355

• The Labor Management Relations ActThe Labor Management Relations Act.– What is a “thing of value” under the Act?

• Neutrality agreement?Neutrality agreement?• An agreement for access to employees?• List of employees’ names and contact information?p y

– Could have addressed the validity of “card check.”

• Case was argued in November 2013 andCase was argued in November 2013 and dismissed in December 2013.

Harris v. QuinnHarris v. Quinn

• Public‐sector labor relations casePublic sector labor relations case.• In 1977, the U.S. Supreme Court held forcing public employees to pay dues via a collectivepublic employees to pay dues via a collective bargaining agreement does not violate the First AmendmentFirst Amendment.

• Argument: Forced dues payments are forced i i d f d hassociation and forced speech.

N.L.R.B. v. Noel CanningN.L.R.B. v. Noel Canning

• Recess appointment issueRecess appointment issue.• The U.S. Constitution gives the President the authority to make recess appointments whenauthority to make recess appointments when Congress is not in session. I 2012 P id Ob d• In 2012, President Obama made recess appointments for 3 members of the N.L.R.B.

• Practical impact?

Current NLRB IssuesCurrent NLRB Issues

National Labor Relations BoardNational Labor Relations Board

• The NLRB enforces the National LaborThe NLRB enforces the National Labor Relations Act (NLRA).

• Important concept of the NLRA:• Important concept of the NLRA: – Employees have the right . . . “to engage in . . . concerted activities for the purpose of collectiveconcerted activities for the purpose of collective bargaining or other mutual aid or protection.”

– The NLRA applies to non‐union employers– The NLRA applies to non‐union employers.

The Register‐Guard Rule (2007)The Register Guard Rule (2007)

• Employees generally do not have a right to useEmployees generally do not have a right to use their employer’s computers to engage in protected activity and employers may lawfullyprotected activity, and employers may lawfully discipline employees for doing so.

• But an employer is prohibited from allowing• But, an employer is prohibited from allowing use of its computers and email for non‐work purposes while discriminating against suchpurposes while discriminating against such use for similar protected activities.

Register‐Guard Changes?Register Guard Changes?

• The NLRB’s General Counsel has asked theThe NLRB s General Counsel has asked the NLRB to overrule Register‐Guard and adopt a more permissive rulemore permissive rule.

• On May 1, 2014, the NLRB announced it is considering overruling Register Guardconsidering overruling Register‐Guard.

• The NLRB is soliciting briefs and comments f i d ifrom interested parties.

Northwestern UniversityNorthwestern University

• Northwestern University football players withNorthwestern University football players with scholarships petitioned for an election. The Regional Office determined the players wereRegional Office determined the players were “employees” as defined by the NLRA.

• A representation election was held in April• A representation election was held in April.• The University requested NLRB review.• The NLRB granted review, and the ballots have been impounded.

Questions & AnswersQuestions & Answers

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Break Time!Break Time!

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SECTION 3

What’s Around the River Bend?

Same‐Sex Marriage and Other Emerging IssuesEmerging Issues

Robert J. UdlandLisa Edison‐Smith ‐ Fargo

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What’s New & Emerging in lEmployment Law?

Lisa Edison‐SmithLisa Edison Smith• MSBA Certified Labor &

Employment Law Specialist

• Wage and Hour/Compliance

• Policy Development

• HR Counseling & Trainingg g

• Litigation /Administrative Complaints – Discrimination

• Employment Mediation –Qualified Neutral

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DOMA Ruling &DOMA Ruling & Same‐Sex Marriageg

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U. S. Supreme Court’s DOMA R liDOMA Ruling

• Challenged Sec. 3 of DOMA = Defense of Marriage Actg g

• DOMA provided that under federal law, “the word ‘marriage’ means only a legal union between one manmarriage means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

• This applied regardless of whether state law allowed forThis applied regardless of whether state law allowed for same‐sex marriage

United States v. Windsor570 U.S. ___, 133 S. Ct. 2675 (2013).

• Windsor was actually a tax case• Windsor was actually a tax case

• Edith Windsor was lawfully married to her long‐time t Th S i C dsame‐sex partner, Thea Spyer, in Canada

• Spyer died in 2009 and Windsor claimed estate tax exemption available to opposite sex couples

• Windsor was denied exemption under federal law• Windsor was denied exemption under federal law, although NY State recognized their marriage

United States v. Windsor570 U.S. ___, 133 S. Ct. 2675 (2013).

$• Windsor ended up paying almost $400,000 in federal estate taxes

• Windsor appealed and case ultimately reached U.S. Supreme Court

• U.S. Supreme Court held that Section 3 of DOMA denied l l t ti b d i b fitsame‐sex couples equal protection by denying benefits

of state law on marriage

Aftermath of WindsorAftermath of Windsor• Obvious impact – lawfully

i dmarried same‐sex individuals residing in states like Minnesota were entitled to federalwere entitled to federal benefits available to opposite‐sex couples

• Left open many questions for individuals lawfully married in one state butmarried in one state, but residing in another

Federal Guidance Since Windsor• Revenue Ruling 2013‐17 – The IRS concluded that it would recognize the marriage of two same‐sex individuals who are lawfully married in the state of commitment, even if the state in which they reside does notthe state in which they reside does not

• Registered domestic partnerships ‐ civil unions or other formal relationships notunions or other formal relationships not entitled to favorable tax treatment

• Affects taxation of health benefits no• Affects taxation of health benefits ‐ no imputation

Federal Guidance Since Windsor• Revenue Ruling 2014‐19 – Qualified retirement plans

must use the “state of commitment” standard in determining same‐sex eligibility for retirement plan benefits

• Most obvious change ‐ affects eligibility for survivingMost obvious change affects eligibility for surviving spouse benefits and other related spousal protections.

• Qualified retirement plans ‐ whose terms are inconsistent• Qualified retirement plans ‐ whose terms are inconsistent with U.S. v. Windsor and the state of commitment standard have until December 31, 2014 to adopt amendments recognizing same‐sex spouses as of June 26,amendments recognizing same sex spouses as of June 26, 2013.

Federal Guidance Since Windsor• FMLA – Updated in August 2013

• Under Revised Fact Sheet 28F ‐ Spouse means a husband or wife as defined or recognized under state l f f i i th t t h thlaw for purposes of marriage in the state where the employee resides, including "common law" marriage and same‐sex marriage. g

• In Loco Parentis ‐ Employee may take leave to care for same‐sex partner’s child or any child for whom they have day‐to‐day financial or care responsibilities.

Action Items• Review benefit plans – to determine if any limit spouse

to opposite sex spouse

• Stop imputing income for federal tax purposes – to same‐sex spouses for health insurance and other benefits pprovided

• Review FMLA policy And other benefits policies to• Review FMLA policy – And other benefits policies to determine compliance; in loco parentis compliance

• Domestic partner benefits – consider whether to continue?

dWage and Hour Issues‐What’s Next?What s Next?

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U.S. Department of LaborU.S. Department of Labor

• Preparing regulations on recently issuedPreparing regulations on recently issued Executive Order for Minimum Wage for ContractorsContractors

– Minimum wage for Federal contractors will be $10.10 b i i J 1 2015beginning January 1, 2015.

– Secretary of Labor has until October 1 2014 to issue– Secretary of Labor has until October 1, 2014, to issue regulations.

U. S. Dept. of LaborU. S. Dept. of Labor

• Presidential Memorandum issued March 2014Presidential Memorandum issued March 2014 directing Secretary of Labor to update regulations on FLSA overtime:on FLSA overtime:– Update existing protections in keeping with the intention of the FLSA.of the FLSA.

– Address the changing nature of the American workplace. – Simplify the overtime rules to make them easier for both– Simplify the overtime rules to make them easier for both workers and businesses to understand and apply.

U.S. Department of LaborU.S. Department of Labor

• New regulations expected to:g p– Increase the salary threshold

– Make the duties requirements more restrictive

d k it diffi lt f l t l i– and make it more difficult for an employer to claim an overtime exemption for employees with both exempt and nonexempt dutiesexempt and nonexempt duties.

Minnesota MinimumWageMinnesota Minimum Wage

• Large Employers – Defined as any enterprise g p y y pwhose annual gross sales is not less than $625,000$ ,

• $8.00 August 1, 2014• $9.00 August 1, 2015• $9.50 August 1, 2016

EEO Issues –Gender Stereotyping &Gender Stereotyping &

Religious Garb

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What is Sex Stereotyping?What is Sex Stereotyping?

• Bias based on preconceived notions of gender –Bias based on preconceived notions of gender what it means to look and act like a man or a womanwoman.

• Not new – Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) female accountant told she needed228 (1989) – female accountant told she needed to "walk more femininely, talk more femininely, dress more femininely wear make up have herdress more femininely, wear make‐up, have her hair styled, and wear jewelry."

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Does Title VII protect Gender dIdentity?

• There is no federal law that protects againstdiscrimination based on gender identity orexpression.

• Title VII of the Civil Rights Act of 1964prohibits discrimination “because of . . . sex.”prohibits discrimination because of . . . sex.

• EEOC recently held that applicant who wastransitioning from male to female was coveredtransitioning from male to female was coveredby Title VII.

Recent EEOC GuidanceRecent EEOC Guidance

• Addresses religious garb &Addresses religious garb &grooming in workplace

• Most instances – employersp ymust accommodate

• Cannot exclude individualsfrom “front line" positionsdue to customer preference

• Exceptions to uniform policy

Recent EEOC GuidanceRecent EEOC Guidance• May bar based on safety,

i h l hsecurity or health concerns,but only if would impose anundue hardshipundue hardship

• Must consider requests on aqcase‐by‐case basis

G id il bl EEOC• Guidance available on EEOCwebsite


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Please join us for lunch!Please join us for lunch!

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SECTION 4

Whistleblowing and Retaliation Protections

Are Whistleblowers Still Whistling in the Wind?Wind?

Robert Udland ‐ Fargo

Robert J. UdlandRobert Udland Fargo

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Ripped from the HeadlinesRipped from the Headlines

• “The Whistleblowers” – Time – 2002The Whistleblowers Time 2002 Cynthia Cooper, Coleen Rowley, Sherron WatkinsWatkins

• FBI – Jane Turner (2007)• JP Morgan ‐ $64 million reward• Playboy Ent. ‐ $6 million reward y y $• Globe University ‐ $395,000 + $570,000 fees

Ripped (cont.)Ripped (cont.)

• KBR – SEC investigation – validity ofKBR SEC investigation validity of confidentiality statements

• USIS background checks• USIS – background checks• Church Whistleblower Regrets not Having Bl Whi l SBlown Whistle Stronger

• Whistleblowers have been awarded $4 billion“Whistleblower Legal Center”

Healthcare RelatedHealthcare Related

• Allina Regions Zogg Dermatology Bio‐Allina, Regions, Zogg Dermatology, BioMedical Applications, Trinity Health, Rotech

• “ObamaCare Drastically Improves the Health• ObamaCare Drastically Improves the Health of Qui Tam Suits under the False Claims ActH lif H i l D B h Fl id $85• Halifax Hospital – Daytona Beach, Florida ‐ $85 million settlement

Recent DevelopmentsRecent Developments

• Growing acceptance of whistleblowersGrowing acceptance of whistleblowers• Even Senator Grassley from Iowa started a Congressional Whistleblower CaucusCongressional Whistleblower Caucus

• Who loves whistleblowers:• Congress• Congress • ReportersF d l t• Federal prosecutors

• Public and juries

Retaliation v. WhistleblowingRetaliation v. Whistleblowing

• Retaliation generallyRetaliation generally – Elements of a retaliation claim – General principles to follow– Sample of illustrative cases – not all cases or statutes

• Whistleblowing statutes with specific statutory:– ProtectionsRequirements– Requirements

Bob Udland 83

“The Whistleblower” 2011

WB at the Movies ‐1WB at the Movies 1

Th FiThe Firm


• Robinson ‐ 1977Robinson 1977• BNSF – 2006

BNSF v. White – ISSUEBNSF v. White ISSUE

• “Not every trifling event in the workplace should giveNot every trifling event in the workplace should give rise to events of retaliation.”

• “If you are just transferred from one set of y jresponsibilities to another, there are no adverse effects.”

• Arguments by BNSF Counsel

Bob Udland 87

Question: Retaliation or NotQuestion: Retaliation or Not

• Suspension for 10 days for complaining ofSuspension for 10 days for complaining of sexual harassment?

• Suspension for 37 days without pay?Suspension for 37 days without pay? • Transfer to a more physically demanding position – track laborer v. fork lift operator?position track laborer v. fork lift operator?

• Same pay and benefits.

Bob Udland 88

BNSF v. WhiteBNSF v. White

• United States Supreme CourtUnited States Supreme Court• Question: Whether a job reassignment and pay suspension amount to illegal retaliationpay suspension amount to illegal retaliation against a worker who claimed sex discriminationdiscrimination.

• Answer: YES

Bob Udland 89

BNSF v. WhiteBNSF v. White

• Distinguished:Distinguished:– Substantive Protection v. Anti Retaliation Protection– Anti‐Retaliation Protection

• Material Adversity – Dissuading a reasonable worker – Objective basis not subjective basis –

Adverse Employment ActionAdverse Employment Action

• Fired? Terminated?Fired? Terminated?• Demoted?

f d?• Transferred? • Denial of promotion? • Refusal to hire? • Unjustified negative evaluations?Unjustified negative evaluations?• Ridiculed?

Bob Udland 91

Adverse Employment ActionAdverse Employment Action

• Increased surveillance?Increased surveillance?• Assault?

f d d i il i i l h ?• Unfounded civil or criminal charges? • Shunned? Silent treatment?• Negative employment references?

Bob Udland 92

Issue – Adverse Employment ActionIssue Adverse Employment Action

• Subtle forms of retaliationSubtle forms of retaliation• Trivializing the workplace and lawsuits

Bob Udland 93


• Crawford – 2009Crawford 2009• Thompson – 2010

20• Kasten – 2011• Nassar – 2013• Lawson ‐ 2014

Presidential Memo or EOPresidential Memo or EO

• April 8 2014April 8, 2014• PM

O 366• EO 13665• Flex Frac Logistics, LLC v. NLRB• Ewald v. Royal Norwegian Embassy

Big Three Federal LawsBig Three Federal Laws

EEOCEEOC

FLSA

OSHAOSHA

Typical ClaimTypical Claim

• Easy ‐ Smartphone era – call or webEasy Smartphone era call or web• OSHA as an example

i i• Investigation– Interviews– Files

• Determination• Resolution

WB at the Movies ‐2WB at the Movies 2

E i B k i hErin Brockovich

Retaliation – Prima facie caseRetaliation Prima facie case

• 1 Engaged in protected activity• 1. Engaged in protected activity• 2. Suffers adverse employment2. Suffers adverse employment action

• 3. Causal connection

Engaged in protected activityEngaged in protected activity

1. Opposition to discriminationpp2. Good faith belief – subjective test 3. Belief must be reasonable – objective testj4. Participated in investigation of discrimination

Bob Udland 100

Retaliation – Prima facie caseRetaliation Prima facie case

• Thereafter subjected to adverse employmentThereafter subjected to adverse employment action– Suspension for 10 days for complaining of sexualSuspension for 10 days for complaining of sexual harassment?

– Suspension for 37 days without pay? – Transfer to a more physically demanding position – track laborer v. fork lift operator? Same pay and benefits– Same pay and benefits.

Bob Udland 101

Covered IndividualCovered Individual • Employees• Employees • Those with a close association • Must raise issues related to

l t di i i tiemployment discrimination

Bob Udland 102

Post Employment ProtectionPost Employment Protection

• Former employeesFormer employees• Retaliation Generally

l f i• Employment Reference Protection – N.D.C.C. 34‐02‐18– Minn. Stat. 181.967, Subds. 2 and 3 – Mont. Stat. 39‐2‐803

Bob Udland 103

Causal ConnectionCausal Connection–Direct EvidenceDirect Evidence–Circumstantial Evidence

l i–Not speculative – Temporal Proximity–Defenses

Bob Udland 104

8th Circuit8 Circuit

• Rille – 2014Rille 2014• Ellis – 2014

20• Young‐Losee – 2011• Yon – 2010• Heaton – 2008• Fjelsta ‐ 2007Fjelsta 2007


• Wenzel – second request for medical opinionWenzel second request for medical opinion • No

h i f i l• Burchett – negative performance review alone• No

Bob Udland 106


• Brown ‐ transfer from the operating room toBrown transfer from the operating room to the surgical supply room?

• Yes• Yes • Duffy ‐minor shifts in deputy chief's

l ibiliemployment responsibility • No

Bob Udland 107


• Cooney ‐ railroad employees over age fortyCooney railroad employees over age forty who were denied buyout severance benefits

• NoNo• Philips – poor performance evaluation alone • No• No

Bob Udland 108


• Ross – reassignment to more stressful jobRoss reassignment to more stressful job• Yes

i h f h i ki• Fisher – A transfer or change in working conditions or a diminution in the transferred

l ' i l l b fiemployee's title, salary, or benefits.• Yes

Bob Udland 109


• LePique – transfer with no change in salary orLePique transfer with no change in salary or benefits

• NoNo• Kim – reduction in duties, disciplinary action, and negative personnel reportand negative personnel report

• Yes

Bob Udland 110


• Ledergerber ‐ Transfer involving only minorLedergerber Transfer involving only minor changes in working conditions and no reduction in pay or benefits

• No • Davis – transfer to less desirable job withDavis transfer to less desirable job with increase in pay

• YesYes

Bob Udland 111

Trial Lawyer’s PerspectiveTrial Lawyer s Perspective

• *8th Circuit Jury Instructions8 Circuit Jury Instructions– 5.61 – Participation 5 62 Opposition– 5.62 – Opposition

Bob Udland 112

North DakotaNorth Dakota

• NDHRA – substantive and retaliationNDHRA substantive and retaliation• 34‐01‐20 retaliation3 0 0 i i id i• 34‐01‐04 intimidation

• References

North Dakota StatutesNorth Dakota Statutes

• N D C C 14‐02 4‐03N.D.C.C. 14 02.4 03• N.D.C.C. 34‐01‐20 – Whistleblower

Bob Udland 114

North Dakota CasesNorth Dakota Cases

• Krein – Common law claimKrein Common law claim• Ressler – wrongful discharge claim

l bli li lid l i• Jose – no clear public policy – no valid claim• Dahlberg – no report at time report made

Bob Udland 115

North Dakota CasesNorth Dakota Cases

• Anderson – lengthy time – no inference ofAnderson lengthy time no inference of discrimination

• Vandall – no common law whistleblowerVandall no common law whistleblower claim?

• Heng – the “pain” of retaliationHeng the pain of retaliation • Jacob – report to insurance commissioner not protected activityprotected activity

Bob Udland 116

ND Federal Dist. Ct. CasesND Federal Dist. Ct. Cases

• Ambers – 2004Ambers 2004• Clausen – 2010Sh 200• Shape – 2005

• Holmes – 2013– Retaliation Claim – 34‐01‐20– Intimidation Claim – 34‐01‐04

SECTION 5

Employee Handbook andEmployee Handbook and Policy Update

Words to the WiseWords to the Wise . . .

Caren Stanley ‐ Fargo

Robert J. UdlandCaren Stanley Fargo

118

Part 1:Do I really need an Employee Handbook?

Caren StanleyffFargo Office

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To Be or Not To Be

• No law requiring you to have a handbook.

• Why should you have one at all?at all?

• Won’t it just be used against me in court?against me in court?

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Handbooks Make Sense

L t l k h t i t d f• Lets employees know what is expected of them.

• Provides guidance to supervisors and increases the likelihood of fair, consistent treatment of employeestreatment of employees.

• Lessens legal risks through “at-will” t t t h t ti li istatement, harassment reporting policies

and disclaimers.

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Handbooks Make SenseHandbooks Make Sense

• Minimizes the likelihood of liability for illegal y gwrongful conduct, such as alleged sexual harassment. Faragher & Ellerth cases.

• May promote good will, fewer misunderstandings with employeesmisunderstandings with employees.

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ButBut . . .

• It is true that a “bad” handbook can be worse than no handbook at all.

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Part 2:Risks of a “Bad” EmployeeRisks of a Bad Employee Handbook.

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Legal Matters with a HandbookLegal Matters with a Handbook• Unintended contractual obligationsobligations– Altering “at‐will” relationship– Imposing other obligationsImposing other obligations– Need a Disclaimer to avoid

• Harassment/discrimination prevention & reporting

• Other compliance issues –FMLA, FLSA, Workers Comp. etc.

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“At‐Will Employment”

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Employment “At Will”Employment At Will• “An employment having no specified term p y g pmay be terminated at the will of either party on notice to the other, except when otherwise provided by this title.“ NDCC § 34‐03‐01.

• May be altered by a poorly drafted h db k h db k hhandbook or handbook without a disclaimer

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Disclaimers

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What is a disclaimer?What is a disclaimer?• Every handbook should contain a DISCLAIMER that theEvery handbook should contain a DISCLAIMER that the terms and procedures appearing in it: – do not constitute a contract– are not binding on the employer, and – are subject to unilateral change at the management’s discretion.

• The disclaimer should specifically state that the employment relationship is “at‐will.”

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Keys to an Effective Disclaimer

• ClearClear • Conspicuous• Specific should state:• Specific – should state:

– The handbook is not to be considered a contract.– Employment is “at will” and may be terminated by either– Employment is at‐will and may be terminated by either employee or employer at any time.

– The company has the right to change, modify, suspend, or disregard its policies and procedures without noticedisregard its policies and procedures without notice.

– Any verbal or written assurances otherwise are not binding; supercedes all verbal or written promises or policies.

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Is This an Effective Disclaimer?

• “Nothing in this handbook is meant to create an employment contract or to guarantee the

l t d ti f l t femployment or duration of employment of any individual with the Medical Center. Employees may be terminated or mayEmployees may be terminated or may terminate their employment with the Medical Center at any time, subject only toMedical Center at any time, subject only to applicable requirements of law.”

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Disclaimer was Ineffective“No employee will be• “No employee will be terminated without prior review fromprior review from Human Resources”D t il d i• Detailed progressive discipline policy with

di l ino disclaimer or reservation of rights.

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Is This an Effective Disclaimer?

• “This written policy statement is not a contract. It is a statement of personnel policies which have been p pestablished by management. These policies are subject to change in the sole discretion of management.”

• “This manual contains statements of personnel policies, practices, guidelines, and procedure. It is designed to be a working guide for supervisory and staff personnelbe a working guide for supervisory and staff personnel in the day‐to‐day administration of our company program.”

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Disclaimer was Effective• “Here, the policy , p ymanual unambiguously states it does not create ait does not create a contract.”

• Have to look at theHave to look at the policy manual as a whole to determine h h i iwhether it is a

contract.

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The Good, the Bad and the ,Ugly

• The Good – Handbook has “at‐will” statement, prominent disclaimer and effective harassment policyprominent disclaimer and effective harassment policy.

• The Bad – Handbook has no disclaimer.

• The Ugly – Handbook promises termination only for “good cause” and has no harassment policy.g p y

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Part 3:Part 3: So what must my handbook include?

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10 Things You Should Have in an Employee Handbookan Employee Handbook

(“The Big Ten”)

• Disclaimer

“At ill” P li

• Communications Resources

• Reasonable Accommodation• “At‐will” Policy

• EEO Statement

Reasonable Accommodation

• Absence/attendance

• Harassment/Discrimination P li

• FMLA

Policy• Safety & Injury Reporting/ Workers Compensation

• Drug & Alcohol Testing (if you are going to do it)

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Workers Compensation

EEO Statement – ND protected classesEEO Statement ND protected classes

• Race • Mental or physicalRace• Color• Creed

Mental or physical disability

• Marital StatusCreed• National Origin• Religion

• Genetic Information• Public Assistance• Religion

• Sex, including pregnancy

Public Assistance• Participation in Lawful Activities (off ER’s pregnancy

• Age

(premises, non‐working hours

EEO Statement – MN protected classesEEO Statement MN protected classes

• Race • Mental or physicalRace• Color• Creed

Mental or physical disability

• Marital StatusCreed• National Origin• Religion

• Sexual orientation• Genetic Information• Religion

• Sex, including pregnancy

Genetic Information• Public Assistance• Human Rightspregnancy

• AgeHuman Rights Commission

Harassment & Discrimination PoliciesPolicies

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Effective Harassment PoliciesEffective Harassment Policies

• Prohibit all types of harassment and• Prohibit all types of harassment and discrimination based on protective classes.P id l d d fi b h i• Provide examples and define behavior prohibited.

• Provide more than one person to whom the harassment can be reported.

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Effective Harassment PoliciesEffective Harassment Policies

• Encourage early reporting before the situation• Encourage early reporting, before the situation escalates.

• Provide for confidentiality to the extent possible.possible.

• Prohibit retaliation.

• Provide for punishment of violators.

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C i tiCommunications Resources Policy y

(E‐mail, internet & more)

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What might your employees be g y p ydoing on the internet or e‐mail?

• Work (you hope!)• Ordering from gAmazon.com

• Viewing pornographyS di h i• Sending harassing or threatening e‐mails

• Disclosing your tradeDisclosing your trade secrets

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• Cover all communications resources

Contents of Policy• Cover all communications resources (computers, e‐mail, internet, fax, voice mail, etc )etc.)

• Eliminate privacy expectations (subject to monitoring)monitoring)

• Prohibit e‐mail harassment, visiting obscene websites downloading obscenity solicitationwebsites, downloading obscenity, solicitation and other offensive or inappropriate use

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Contents of Policy

• Require that employees respect licensing and copyrights not install “bootleg” softwarecopyrights; not install “bootleg” software

• Require use of virus detection software• Provide that violators will be disciplined, up to and including, termination

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Family & Medical Leave ActFamily & Medical Leave Act

• Only covers employers with 50 or more employeesemployees

• Requires that covered employers have a written FMLA policy if they have a written handbook or other written policies

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P t 4 Oth li iPart 4: Other policies

What are some other standard policies to

include?include?

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Standard Items to IncludeStandard Items to Include• Workplace Violence policy• Drug Free Workplace policy• Work hours & scheduling policy• Overtime policy• Overtime policy• Sick leave, PTO, Vacation policy• Bereavement leave• Military leave policy• I‐9 or Immigration policy• Performance appraisal policy• Performance appraisal policy• Drug & alcohol testing (if you do)

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Other Items to ConsiderOther Items to Consider• Employee conduct and work rules• Break and lunch rules• Personnel records policy• No smoking policyNo smoking policy• Cell phone policy• Office dating/fraternization policy• Disciplinar polic• Disciplinary policy• Problem resolution policy• Benefits policies• Emergency evacuation policy• Inclement weather policy

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Corrective DisciplineCorrective Discipline• Formal verbal warningFormal verbal warning• Written warning• Suspension w/o pay• Suspension w/o pay• Termination (including immediate termination w/o following above steps)termination w/o following above steps)

• Corrective discipline steps are encouraged, but is not a contract Employment is “at‐but is not a contract. Employment is at‐will.”

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Cell Phone Use Case Study

• Roberts v. Smith Barney Inc., 1998 WL 1753646 (E.D.Pa. , (1998).

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/ /No Smoking – 12/6/12• No smoking within• No smoking within 20 feet of entrances, exits, , ,operable windows, air intakes, and ventilation systems of enclosed areas f Cof Company

facilities

Part 5: Handbook Language

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Choose Your Words Carefully

• Phrases such as “Probationary Period” should be replaced by the h “i d ” “ i i ” “ i l” i d Thiphrase “introductory”, “orientation” or “trial” period. This

should eliminate the likelihood that an employee could successfully argue that completion of such a period rendered them a “permanent” employee.

• Never use the word “permanent employee” because it can be p p yconstrued as meaning exactly what it says. The Phrase “regular employee” is preferable.

• Certain phrases such as “good cause” or “sufficient cause” must be avoided.

155

10 Things You Shouldn’t Say in an Employee Handbook

• Just Cause • Permanent Position• Just Cause

• Good Cause

• Permanent Position

• PromiseGood Cause

• Maternity Leave • Guaranteey

• Probationary Period • Shall

• Probationary Employee • Due Process

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General Drafting GuidelinesGeneral Drafting Guidelines• Be clear and concise• Be realistic• Don’t overdo it• Don’t “underdo” it• Use permissive language such as “may”• Use permissive language, such as may, “generally,” “typically”

• Don’t include policies in your handbook that you• Don t include policies in your handbook that you intend to be binding on employees.

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Step by Step ApproachStep‐by‐Step Approach

• Consider what subjects your company needs• Consider what subjects your company needs addressed.

• Talk to employees to get their input.

• Review other companies' handbooks for additional ideas.

• Review sample handbooks.

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Step by Step ApproachStep‐by‐Step Approach

D t i h t f t t (• Determine what format to use (paper or online?)

• Select the topics to include. (Don’t forget the Big Ten!)

• Prepare your draft and have it reviewed by mgmt.g

• Have an employment law attorney review it.

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Reviewing Your Handbook With E lEmployees

• This last and most important step should be done when the handbooks are first distributed as well as in all subsequent “New Employee Orientation” programs.

– Anytime you revise your handbook the changes or additions you make should again be reviewed with your entire staff.

– You should be sure to have on file a signed acknowledgment form from each employee stating that they reviewed the handbook and understand all of the policies of your company.

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Employee AcknowledgmentEmployee Acknowledgment• Employment is “at will”p y• Understands harassment and discrimination policies

• Understands “no retaliation”

• Consents to monitoring gof e‐mail, internet, etc.

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Keep Your Handbook Current and Follow it!Follow it!

• A disregarded handbook is worse than no handbook at all. If l d f ll i h db k han employer does not follow its own handbook, there are

essentially two negative results.

– First, it will look suspicious not only to the employees, but also to a jury or government agency who may be reviewing a particular employment decision or practice.reviewing a particular employment decision or practice.

– Second, If an employer rather routinely ignores or fails to h i d i h h db k lmeet the commitments made in the handbook, employee

morale and management credibility will suffer.

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Part 6: A Word About Minnesota and Montana Law

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Minnesota Specifics• Sexual orientation is a protected class.

Minnesota Specifics

• Parental Leave law.

Si k L l ( hild d lt hild t• Sick Leave law (child, adult child, parents, grandparents, spouse, siblings, stepparents) .

• Bone Marrow Donation Leave law• Bone Marrow Donation Leave law.

• Time Off for School Conferences and Activities.

• Personnel Records Access Statute.

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• Minnesota Drug & Alcohol Testing Law.

Montana is beyond the scope of this presentation!

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For More Information –North Dakota

• North Dakota Department of LaborLabor http://www.state.nd.us/labor/

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For More Information ‐MinnesotaFor More Information Minnesota

• Minnesota Dept. of Labor and Industry

http://www.dli.mn.gov/LaborLaw.aspp g p

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SECTION 6

Immi rationImmigration

Breaking the Cycle of Unsuccessful RecruitingRecruiting

Michelle Eaton Scimecca‐Minneapolis

Robert J. UdlandMichelle Eaton Scimecca Minneapolis

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Immigration: Breaking the cycle of unsuccessful recruitment

“Find the Good Life in North Dakota”Find the Good Life in North Dakota

• Lowest unemployment rate p yin the country

H i i• How are your positions filled?– 25,000 open jobs today, p j y– 76,000 open jobs by 2020

“Find the Good Life in North Dakota”Find the Good Life in North Dakota

• Campaign seeks to focus on STEM workersCampaign seeks to focus on STEM workers, however:

– Full employment of US STEM workers exists now

Why Immigration?Why Immigration?‐ You hire the most qualified worker

‐ Employers from various industries benefit:

‐ Healthcare ‐ Engineering‐ Transportation‐ Energy

g g‐ Skilled Trades‐ IT

Why Immigration?Why Immigration?

• Who wants to shrink their business?

• To grow and thrive, many businesses realize there is a place forthere is a place for immigrants in their workforceworkforce

Make the immigration process go…Make the immigration process go…

From this: To this:From this: To this:

Break the CycleBreak the Cycle

• Removing the unknown makes the decisionRemoving the unknown makes the decision easier

• Examples of how this can be done• Examples of how this can be done– H‐1B workers in “specialty occupations”Q lif i f U S P R id PERM– Qualifying for U.S. Permanent Residence: PERM

– H‐2A/H‐2B seasonal workers

Break the Cycle: H‐1BBreak the Cycle: H 1B

• H‐1B cap of 85 000 visas each fiscal yearH 1B cap of 85,000 visas each fiscal year• FY2015: USCIS received over 172,000 petitions a 40% increase over FY2014’spetitions, a 40% increase over FY2014 s 124,000 petitionsI i i f hi h d i d h i• Institutions of higher education and their affiliated nonprofits are cap‐exempt

Break the Cycle: PERMBreak the Cycle: PERM

Break the Cycle: H‐2A/H‐2BBreak the Cycle: H 2A/H 2B

Thank you!

Michelle M. Eaton Scimecca, [email protected]@ g

1‐800‐677‐5024

Break Time!Break Time!

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SECTION 7

(Almost) Everything You Wanted to Know about the Northto Know about the North

Dakota Department of Labor But Were Afraid to Ask . . .

Special GuestNorth Dakota Labor Commissioner Bonnie

Robert J. UdlandNorth Dakota Labor Commissioner Bonnie

Storbakken

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Now for the Fun!

iPad Drawing!iPad Drawing!

Thank You!

VOGEL LAW FIRMVOGEL LAW FIRMLocations in Fargo, Bismarck,

Williston Moorhead and MinneapolisWilliston, Moorhead and Minneapolis

www. Vogellaw.com

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Th Fi P i tThe Fine Print• These materials do not constitute, and should not be taken as legal

advice as to any particular situation. Although every effort has been made to insure the accuracy of these materials and comments at this

i ith th t th V l L Fiseminar, neither the presenter nor the Vogel Law Firm assume any responsibility for any person’s reliance on written or oral information disseminated at or in connection with this seminar. Each participant should independently verify the accuracy of these materials and any p y y y ystatements at this seminar to determine the legal consequences of any given situation.

Vogel Law Firm 2014©

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Employment Law 2014

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