Here are a few proposals that would help achieve a better balance for employers in the Minneapolis City Council’s draft Working Families Agenda:
(1) Include An Exception for Small Employers: Many laws that impose obligations similar to those required by the Working Families Agenda include an exception for small employers who will not be able to comply without suffering undue hardship. For example, the obligation to accommodate disabled employees under the Americans with Disabilities Act or the Minnesota Human Rights Act only applies to employers with at least 15 employees. The Minnesota Parenting Leave Act only applies to employers “that employs 21 or more employees at at least one site.” And the Family Medical Leave Act only applies to employers with 50 or more employees. A similar exception should be included in the Working Families Agenda.
(2) Reduce the Amount of Time Required For Advanced Scheduling and Include an Exception for Businesses with Unpredictable Work. The draft Working Families Agenda requires that an employee’s schedule must be established at least 28 days in advance. Many employers have objected to this requirement on the grounds that they cannot determine what type of staffing they will need that far in advance. One group called the Main Street Alliance of Minnesota is advocating that the City Council reduce this requirement to 14 days as a compromise. However, for some employers whose businesses are unpredictable – like snowplow operators or hospitals – even 14 days is too long to know when work will be required. Therefore, even if the 28-day requirement is shortened, an exception for businesses with unpredictable workloads should be included as well.
(3) Get Rid of the Presumption of Retaliation or Shorten It Significantly. The draft Working Families Agenda provides that:
Employers will be prohibited from firing, demoting, suspending or taking other adverse actions against employees for exercising their rights or assisting others to exercise their rights. Employer bears the burden of proving that an adverse action within one year of protected activity is not retaliatory in nature.
Under current law, courts have held that the “mere coincidence of timing . . . is rarely sufficient” to prove retaliation and that the temporal proximity “must be extremely close to establish the causal connection without other evidence of discriminatory animus.” Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2014). Generally, courts will not infer causation based on timing unless the adverse action occurs within approximately two weeks or less of protected activity. Smith v. Allen Health Systems, Inc., 302 F.3d 827, 833 (8th Cir. 2002) (holding that a 13-day period was “barely” sufficient to infer causation).
Assuming that employers are guilty until proven innocent is contrary to an employer’s due process rights and the general rule that a plaintiff bears the burden of proof. It is particularly inappropriate when the protected activity at issue consists of taking a sick day or requesting a change in schedule – things that employees may routinely do, resulting in a perpetual assumption of guilt for employers. For these reasons, the City Council should remove the presumption altogether. If any presumption is adopted, however, it should be consistent with current law and be based on a period of two weeks or less, not a year.
(4) Narrowly Define “Flexible Working Arrangement.” The draft Working Families Agenda gives employees the right to request a “flexible working arrangement” and, in some cases, requires that employers provide it. The problem with the phrase “flexible working arrangement,” however, is that it is undefined and too flexible. Interpreted broadly, a “flexible working arrangement” would arguably include allowing an employee to work whenever he or she felt like it or allowing an employee’s unemployed and unqualified cousin to cover his or her shifts.
When the Minnesota Legislature considered a similar mandate as part of the Working Parents Act, the proposed definition of the term “flexible working arrangement” was extremely broad and included “a change in an employee’s terms and conditions of employment with respect to work schedule, including, but not limited to, a modified work schedule, changes in start or end times in a work schedule or work shift, a predictable, stable work schedule, part-time employment, job sharing arrangements, working from home, telecommuting, limitations on the employee’s availability to work, the location of the employee’s worksite, reduction or change in work duties, or part-year employment.” See H.F. 1093.
The definition previously considered by the Minnesota Legislature is too broad. By encompassing virtually any schedule change or change in work duties imaginable, the definition of “flexible working arrangement” would give employees the right to dictate the terms of their employment. If the City Council chooses to mandate that employers provide “flexible working arrangements,” that term should be narrowly defined so that employers know precisely what is required and so that employers will still be able to determine how their businesses are run.
(5)Include Exceptions For The “Flexible Working Arrangement” Mandate. The draft Working Families Agenda includes a requirement that an employer must grant a requested “flexible working arrangement” if the request is based on the employee’s “serious health condition, caregiving obligations, educational pursuits or second job.” This requirement does not include any exceptions. Read literally, this requirement could lead to some very odd results. For example, it would arguably require that: (i) an employer must allow a construction worker to telecommute even though the worker’s in-person attendance is an essential function of his or her job; (ii) an employer must change the work schedule of one employee with caregiving responsibilities to accommodate the schedule of another employee with caregiving responsibilities; or (iii) an employer must allow an employee to work a part-time schedule so that the employee could also work part-time for the employer’s competitor, even though this may result in a conflict-of-interest.
Including some common-sense exceptions to the requirement for flexible working arrangements could avoid these problems. At a minimum, the requirement should include exceptions that would permit an employer to deny a requested flexible working arrangement if the requested arrangement: (i) would not allow the employee to perform his or her essential job functions; (ii) would result in an undue hardship; (iii) would create a conflict-of-interest; (iv) would violate applicable law; or (v) would pose a direct threat to the health or safety of the employee or others. The ordinance should also make clear that an employer need not disrupt another employee’s work schedule, terminate another employee, or create a new position in response to an employee’s request for a flexible working arrangement.
(6) Exclude Exempt Employees. The draft Working Family Agenda appears designed to help primarily non-exempt employees in service industries, yet it is written broadly to apply to “[a]ll employees . . . unless a collective bargaining agreement waives the law in clear and unambiguous terms.” Arguably, this would include exempt employees like emergency room physicians, teachers, engineers, and accountants. It would also include high-ranking officials of the City of Minneapolis, like the Mayor or the Chief of Police. As explained here, applying the fair scheduling requirements of the draft Working Families Agenda to exempt employees does not make sense and will likely create more problems than it will solve.
Takeaway: Although not exhaustive, the changes listed above would significantly improve the draft Working Families Agenda currently under consideration by the Minneapolis City Council. Employers may contact City Council Members or submit comments about the draft agenda via email at firstname.lastname@example.org at any time before October 16, 2015.