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Updates, insight and analysis regarding legal developments and issues that affect you.

July 24th, 2014

The Minnesota State Bar Association announced today that Julie N. Nagorski is a MSBA Certified Real Property Law Specialist

NEWS RELEASE

July 23, 2014

www.mnbar.org

MSBA Announces 18 Newly Certified Real Property Law Specialists

The Minnesota State Bar Association announces the certification of: Robert R. Beutel, Robert Beutel, Attorney at Law; Kristin N. Blenkush, Fredrikson & Byron; Matthew R. Doherty, Brutlag Hartmann & Trucke; Racheal Holland, Melchert Hubert Sjodin; Charles W. Hollenhorst, Hollenhorst Law Firm; Christopher J. Huntley, Huntley Law; Cameron R. Kelly, Cameron Kelly Law; Kelly M. Klun, Klun Law Firm; Melissa B. Maloney, Fryberger Buchanan Smith & Frederick; J. Michael Melchert, Melchert Hubert Sjodin; Nigel H. Mendez, Carlson & Associates; Julie N. Nagorski, Wendland Utz; James J. Pauly, James J. Pauly Attorney at Law; Andrew J. Pratt, Eckberg Lammers Briggs Wolff & Vierling; Thomas J. Radio, Best & Flanagan; Bradley J. Schmidt, Johnson Moody Schmidt & Kleinhuizen; Daniel J. Van Dyk, Briggs and Morgan; and Jeffrey G. Zweifel, Markve & Zweifel as a MSBA Board Certified Real Property Law Specialists. This Certification program is administered by the MSBA and approved by the State Board of Legal Certification.

The certified specialist designation is earned by leading attorneys who have completed a rigorous approval process, including an examination in the specialty area, peer review, and documented experience. Certified attorneys have demonstrated superior knowledge, skill and integrity in their specific field and can use the designation of specialist to advertise their credentials. The MSBA has been accredited as an independent professional organization for certifying attorneys as Criminal Law Specialists, Real Property Law Specialists, Civil Trial Law Specialists and Labor and Employment Law Specialists. This achievement has been earned by fewer than 3% of all licensed Minnesota attorneys. More information about Certified Legal Specialists is at http://www2.mnbar.org/certify.

With over 16,000 members, the MSBA is the state’s largest and most influential voluntary organization of attorneys, providing continuing legal education and public service opportunities for lawyers, and assistance to the legal system. The MSBA has been accredited as an independent professional organization for certifying attorneys as Real Property Law Specialists since 1988.


January 9th, 2014

Minnesota State Legislature to Consider Revised LLC Act in 2014

The Minnesota State Legislature will consider a revised Uniform Limited Liability Company Act during the 2014 legislative session. The revised LLC Act was reviewed by a committee consisting of Minnesota business attorneys and has been endorsed by the Minnesota State Bar Association. Minnesota’s current LLC Act (§ 322B), which was adopted in 1993, closely mirrors the Minnesota Business Corporations Act (§302A). The revised LLC Act will move away from the corporation model toward a partnership model, which is consistent with a majority of other states’ LLC acts. Important provisions of Minnesota’s current LLC Act would be retained.

The Minnesota Secretary of State’s office will also have a smaller bill with technical improvements and other proposals to streamline operations for consideration this session.

If the revised LLC Act is adopted, nearly 200,000 limited liability companies will be affected.

September 25th, 2013

New Minnesota Criminal Record Checks Law

If your company’s employment application contains an inquiry as to past criminal conduct, it may have to be revised.  Effective January 1, 2014, most Minnesota employers may no longer inquire into, nor require disclosure of, a job applicant’s criminal record until the applicant has been selected for an interview or (if there is no interview process for the position) has been given a conditional offer of employment.  The new law does not apply to employers who have a statutory obligation to conduct a criminal background check or to consider criminal history in the hiring process.  The new law also does not prohibit employers from using an applicant’s criminal history to deny employment.  However, the applicant must be vetted, and either an interview or offer extended, before the employer may take the criminal background report into consideration.  Employers with questions about this new “Ban the Box” legislation may contact Wendland Utz’ employment law attorney  Chris Wendland for more information.

September 12th, 2013

Small Employers Must Comply with New ACA Rules

Much of the media attention on the Patient Protection and Affordable Care Act (“ACA”), also commonly referred to as “Obamacare,” has been focused on the obligation of employers with 50 or more full-time employees to provide health insurance.  However, small employers also have certain new obligations.  Notably, the Fair Labor Standards Act was amended to provide that employers with at least $500,000 of annual gross revenue must provide a “Notice to Employees” informing them about the existence of any healthcare marketplace available in their state and providing other information about the marketplace and the services it provides. Minnesota’s newly-established healthcare marketplace is called MNsure, and required notices must be provided to employees by October 1, 2013.  Any employee hired after October 1, 2013, must be provided notice within 14 days of his or her start date.  There has also been a great deal of press about the delay in penalties for noncompliance with certain aspects of the ACA, but there has been no indication that this notice requirement will be delayed.

Employers must also advise their employees how they may contact MNsure to request assistance.  If an employer offers healthcare coverage, but the employer’s share of the total allowed costs of benefits is less than 60%, the employer must also notify its employees that they may be eligible for a premium tax credit if they purchase a qualified health plan through MNsure.  Employers must also notify employees that if they purchase a qualified health plan through MNsure, the employer is not required to continue to supplement their coverage but all or part of their own contributions to the plan may be excludable from income for federal tax purposes. General information regarding these various requirements can be found at http://www.dol.gov/ebsa/newsroom/tr13-02.html.

Employers are not required to use the model notices, and deviations may be helpful in certain circumstances, but are a good place to start in pursuing compliance.  If employees use email to distribute employee benefit documents, such as summary plan descriptions, employers may use the same distribution method for the ACA notices.  Otherwise, notice may be provided by first-class mail.  Some helpful resources are linked below.

General model notices for employers:

Employers with Plans: http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf.

Employers without Plans: http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf.

MNsure specific notices for employers:

Employers with Plans: http://mnsure.org/hix/images/SEE-Notice-employers-offer.pdf.

Employers without Plans: http://mnsure.org/hix/images/SEE-Notice-employers-no-offer.pdf.

If you have any questions regarding your company’s compliance obligations, feel free to contact Chris W. Wendland.

August 13th, 2013

New OSHA Inspection Interpretation Gives Unions Access to Non-Union Worksites

On April 5, 2013, the Occupational Safety and Health Administration (OSHA) indicated for the first time in a letter of interpretation that during an OSHA inspection of non-union work-sites, employees can be represented by an outside union agent. Previously, only a union certified by the National Labor Relations Board could act as an employee representative during an OSHA inspection. Under the new interpretation, an employee may choose a person who is not an employee of the company to act as a “personal representative” in filing complaints on the employee’s behalf, requesting OSHA workplace inspections, participating in conferences to discuss citations, and challenging the abatement period in citations being contested by an employer.

OSHA’s new broad interpretation does not actually define who “a person” affiliated with the union or community representative is. This means that arguably union organizers with no safety training, community activists, or even attorneys could participate in OSHA inspections on behalf of employees. Without expressly stating so, the new policy appears to be an effort to increase union membership by giving unions direct access to employees which they do not represent.

This new interpretation is potentially subject to attack because it is directly contrary to OSHA’s own inspection regulations. Those regulations provide in relevant part:

(b) . . . If there is no authorized representative of employees, or if the Compliant Safety and Health Officer is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

 (c) The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.

29 C.F.R.1903.08

Additionally, OSHA’s current Field Operations Manual contradicts the new interpretation because it simply provides that if there is no union representative or suitable employee or employees to participate in the walk-around, the investigator should conduct interviews with a reasonable number of employees during the walkaround.

The procedure for selecting a representative is not defined in OSHA’s new interpretation, leaving open many questions including how a non-employee representative is chosen and what powers a non-employee representative would have during an inspection. For instance, it is unclear whether a non-employee representative would be able to participate in manager and supervisor interviews.

This new interpretation also creates the possibility that competitors may gain access to proprietary, confidential, and trade secret information. For example, there is nothing to prevenient a union representative who is an employee at a competitor from being brought into the worksite for the purposes of inspection,

If an employee requests a representative that the employer considers to be inappropriate, the employer has the right to refuse a walkaround inspection on any basis and to require OSHA to get a warrant. This will allow a federal district judge to review the situation. There is some indication that the courts will not be open to this change. In Christopher v. SmithKline Beecham Corp. dba GlaxoSmithKline, 567 U.S. __ (2012), the Supreme Court of the United States declined to give the Department of Labor’s recently-changed interpretation of the application of certain wage and hour laws “controlling deference” because the agency’s new interpretation conflicted with the agency’s position over the prior several decades. The same situation appears to exist here.

It is important to understand that the initial request for a warrant is an ex parte procedure in which the employer is not allowed to participate. However, if the warrant is issued, the employer may move to quash the warrant or oppose efforts to enforce the warrant in federal court. Taking this approach may not win any friends at OSHA, but if the intrusion is severe enough, it may be necessary. It is unclear how the new regulation will improve safety and health in the workplace, but it is plain how the regulation is targeted to stabilizing decreasing private union membership.