Category: Employment Law

BGS Attorney Scott Lepak to Present on Labor Relations from a Pandemic Perspective on November 10

November 5, 2020  |  Barna, Guzy & Steffen, Ltd.

COVID-19 has raised new questions and concerns for employers everywhere. To help owners understand and address these unprecedented circumstances, BGS Attorney Scott Lepak will be co-presenting a free, one-hour webinar on labor relations from a pandemic perspective at 11 a.m. on Tuesday November 10, 2020. Sponsored by the League of Minnesota Cities, this webinar will explore how to avoid common pitfalls while successfully leading and managing employees during a pandemic. The free, hour-long session will address best practices in the following areas:  Understanding how to establish and maintain management rights Exploring common mistakes when responding to grievances and ways to avoid them Reviewing ways to respond to unfair labor practice claims Learning negotiation skills and how to manage critical workers during a pandemic To register for the webinar, go to: Scott Lepak authored a treatise of the Minnesota Public Sector Labor Law and is one of Barna, Guzy & Steffen’s highly knowledgeable and experienced labor law attorneys. Our talented team of business law professionals is here to discuss your specific needs and provide innovative legal solutions. Contact us today to learn more.

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Disciplining Employees in a Newly Unionized Setting

July 17, 2020  |  Scott M. Lepak

The time after a union is voted into place and before the parties have entered into a collective bargaining agreement is often viewed as a period of great uncertainty. It is typically a time of considerable posturing as the employer and union seek to establish their respective authority as they work through this new relationship. There is often disagreement on what constitutes a management right (that does not need to be negotiated) as opposed to a mandatory subject of bargaining (that must be negotiated). Read on to learn more about disciplining employees in a newly unionized setting. A typical disputed area is the employer’s right to determine how to discipline employees before a first union contract is finalized. This area received significant clarity from the National Labor Relations Board (NLRB or Board) on June 23, 2020, as it applies to private sector employers.1 In 800 River Road Operating Company, LLC d/b/a Care One at New Milford and 1199 SEIU, United Healthcare Workers East, 369 NLRB No. 109, the Board issued a decision stating that upon commencement of a collective-bargaining relationship, employers do not have an obligation to bargain prior to disciplining bargaining unit employees in accordance with an established disciplinary policy or practice.  This Care One at New Milford decision significantly and specifically…

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COVID-19 Return to Work: What Can an Employer Do When a Higher Risk Employee Wishes to Return to Work?

June 25, 2020  |  BGS

In another recent blog post, we addressed the issue of what employers may do when they have employees who the employer knows are at high risk. The short answer is that even if they are trying to act in the worker’s best interests, an employer is not permitted to assume the role of a benevolent parent – it is within the employee’s control to exercise their rights. Here, we go into more detail related to what an employer can do when a higher risk employee wishes to return to work. According to the EEOC, if an employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee or take adverse action solely because the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee gets COVID-19. This action under the ADA is not allowed unless the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. The “direct threat” requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial…

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