2015 Employment Law Update Manual

Transcription

Case Study: A Guided Tour
of Performance and Behavior
management under Justice in
Employment
Covering performance reviews, managements of employees and
Justice in Employment.
Presented by
Jennifer R. Larimore
Meier, Kennedy & Quinn
&
Dennis J. Merley
Felhaber Larson
The material contained herein is intended to be educational and is not intended to constitute legal advice.
2015 Employment Law Seminar
Case Study: A Guided Tour of Performance and Behavior Management under JIE
The Story of Mr. I. M. Osoclean
Its January 2012, St. Sample Parish is looking for a new custodial employee. Its head
custodian retired last month, and St. Sample is looking for a new employee to lead the daytime
shift. After interviewing a number of candidates, St. Sample hires Ike M. Osoclean, to fill the
position of lead daytime custodian.
His first day of work is in February 2012. And on that day, St. Sample provides Ike with
orientation documents, including a copy of his job description.
Things start out well; Ike is showing up to work on time and getting his work done. He
suggests a number of improvements, and is implementing some changes in the custodial
department to help St. Sample be more energy efficient. In April 2012 and May 2012, at the end
of Ike’s second and third month, St. Sample completes a performance review of Ike. Overall,
both reviews are positive. He therefore passes probation under JIE at this time.
By Spring 2013, Ike has settled into his role at St. Sample. Ike enjoys his job. He draws
satisfaction from maintaining the premises at St. Sample Church and School. He seems to be
managing the two part-time, daytime custodians well, and he generally comes to work on time
with a pleasant attitude. He is well-liked by coworkers and parishioners. In fact, St. Sample has
heard from a number of parishioners that Ike has always greeted them with a smile and friendly
word.
Usually, Ike is fairly productive. He can, however, get a little chatty at times. If he is busy
talking with a coworker or parishioner about something—say, his fishing trip—he directs one of
the part-time custodians to do some extra work. As a result, the part-time custodians have
expressed frustration. Occasionally, Ike does not finish with the daily tasks of sweeping the
floors, before the evening shift. Last week, the evening custodian complained that Ike failed to
empty the garbage cans.
In May 2013, one of the part-time custodian informs St. Sample, that Ike is not helping
with any of the grounds-keeping. The work is intended to be shared, with Ike helping with the
lawn mowing and plant and tree care. But instead, Ike has been directing the two part-time
employees to complete all of that work. Ike refers to those employees as his “little helpers,”
which they find demeaning. And the Director of Faith Formation complained that Ike had the
custodial staff washing windows and replacing screens during the same time that he had
scheduled some training and meetings.
Later that month, St. Sample meets with Ike for his performance review. Ike was
commended for his strengths but also instructed that he needed to change how he was working
with and addressing the custodial staff, that he had to focus on his work more especially to
ensure that work was done before the night shift, and was reminded to communicate with other
employees when custodial and maintenance work would impact them.
By July 2013, Ike has found a way to solve the grounds-keeping problems. St. Sample
gets word that Ike has found dedicated parish “volunteers” to mow the lawn and trim the trees.
The parish administrator finds two volunteers using a trimmer to cut back some of the tree
branches.
Over the next few months, Ike seems to buckle down. He works with the building
inspector to ensure that the parish’s systems met code requirements and were functioning
correctly. He also arranged for additional safety training for all custodian staff.
In December, Ike comes to work a half hour late on two occasions. He explains that on
one day he had to run an errand and on another day he had car problems.
In the Spring of 2014, Ike organized the spring cleaning schedule and employees finished
1 week early because of his efficient planning. The only snag occurred when the floors were
stripped and resealed in an area that administrative staff had planned to use. Staff was able to
change the meeting location, but not before someone had walked on the floor and damaged it.
The work had to be redone, which added time and expense.
Parishioners continue to compliment Ike on his good nature and positive demeanor. His
coworkers, however, are less impressed. The list of complaints from the part-time daytime
custodians and the evening custodian is growing. The part-time custodians continue to feel that
they have shouldered the brunt of the work and that Ike has taken to supervising the work, rather
than doing it. In addition, the evening custodian has complained that Ike is not re-stocking the
bathroom and is not completing “take downs” after special events. He believes that Ike leaves
those jobs for him.
Ike continues to occasionally come to work late. He has also been taking extended lunch
breaks. Those missed hours mean that other employees are having to finish his work.
St. Sample meets with Ike in May of 2014 for his performance review.
ST. SAMPLE CATHOLIC CHURCH
To: I. M. Osoclean
From: Ann Oid, Parish Business Administrator
Date: May 15, 2013
The terms of your employment are governed by the Archdiocesan document
entitled Justice in Employment (JIE). This document is intended to be a documented verbal
warning regarding your job performance in accordance with the requirements of JIE.
Areas of Concern
We have discussed informally at various times some areas of your job performance
that require improvement. Despite these discussions, I continue to observe certain
deficiencies in your job performance. In particular:
1. You sometimes spend too much time talking to parishioners or visitors during
working time. This prevents you from completing your assignments or requiring
other staff to cover for you. Recent examples include floors not being swept,
garbage not emptied or lawn and grounds-keeping assignments not being done.
2. Your interactions with co-workers are inappropriate. For example, you have
had a tendency to assign your work to the two part-time employees, which
diverts them from their regular assignments. In addition, you have been heard
to refer to them as your “little helpers,” a term they find unwelcomed and
condescending.
3. Your scheduling of work has disrupted other departments on more than one
occasion. The latest example was your assignment of the part-time staff to wash
windows and replace screens during the same time that the DRE had scheduled
some training and meetings.
Expectations
1. You must complete your job assignments in compliance with your schedule.
While we expect our staff to be welcoming and friendly, you must limit your
interactions so as to allow you to complete your assigned tasks.
2. You must not assign others to perform your work. This impedes their ability to
complete their own tasks and misrepresents your accomplishments.
3. You must communicate more effectively. Stop using nicknames or other
demeaning names for your co-workers and interact more with other departments
to insure that you schedule your department’s work in a less intrusive manner.
Failure to make immediate and sustained improvement will result in additional disciplinary
action up to and including termination.
ST. SAMPLE CATHOLIC CHURCH
To: I. M. Osoclean
From: Ann Oid, Parish Business Administrator
Date: July 15, 2013
The terms of your employment are governed by the Archdiocesan document
entitled Justice in Employment (JIE). This document is intended to be a written warning
regarding your job performance in accordance with the requirements of JIE.
On May 15, 2013, you received a documented verbal warning outlining a variety
of concerns with your job performance. Since that time, I have learned that you recruited
and assigned parish volunteers to mow the lawns and trim the trees. This is extremely
inappropriate because:
1. You are paid to perform these tasks. By having others perform them, you are
misrepresenting your work performance and are taking pay for work that you
are intentionally choosing not to perform.
2. You placed these volunteers and the parish at risk by having them perform
potentially dangerous work without adequate training or protective clothing.
3. You exceeded your authority and placed the parish at risk for legal penalties
by retaining workers who could be considered employees and therefore
subject to income tax, I-9 and minimum wage requirements, among other
matters.
You must immediately assume all responsibilities for lawn mowing and tree
trimming, and must inform the volunteers that they may no longer perform these tasks. In
addition, for the next month, you must prepare and submit to me a daily list of jobs you
intend to accomplish. I will use this list to evaluate whether you are scheduling an
appropriate amount of work and are completing the work as intended.
Failure to carry out these requirements and/or to continue the improvements
required in your previous warning will result in additional disciplinary action up to and
including termination.
St. Sample Catholic Church
Employee Performance Review
(To be completed by Supervisor)
EMPLOYEE: ______________________
SUPERVISOR: ______________________
A.
POSITION: ______________________
DATE: __________________________
Areas of commendable performance
1.
•
2.
•
B.
Areas needing development or improvement and performance expectations
1.
Description of the problem:
•
Expectations/Goals:
•
2.
•
Expectations/Goals:
•
C.
Consequences
•
Signature of Employee __________________________________ Date_______________
Signature of Supervisor__________________________________ Date_______________
1
St. Sample Catholic Church
Employee Performance Review
(To be completed by Supervisor)
EMPLOYEE: I.M. Osoclean
SUPERVISOR: Ann Oid, Parish Business Administrator
A.
Areas of commendable performance
1.
Spring cleaning
•
•
2.
Efficiently managed tasks and custodial employees result in early completion
Could have been further improved as noted below
Positive interactions with parishioners
•
B.
POSITION: Lead daytime custodian
DATE: May 1, 2014
Makes parishioners feel welcome by greeting parishioners in a positive and friendly way
Areas needing development or improvement and performance expectations
1.
Communication about custodial or maintenance work
•
•
•
Does not regularly and effectively communicate or consult with other departments about
custodial or maintenance work (e.g., damage to stripped and re-sealed floors during
spring cleaning)
Did not place signage or barriers to work area where floors were being re-sealed, which
resulted in work being disturbed and created a hazard for staff and visitors
Damage to floor resulted in a loss of time and additional expense because the work
needed to be redone and it disrupted the work of the other department that had been
planning to use the room
Expectations/Goals:
•
•
•
•
•
Must consult with and effectively communicate with other departments about the planned
work of the custodial department
Review shared calendar for conflicts
Use shared calendar to note work that is being planned
Attend and participate in weekly meetings (Tues., 10 a.m.) with department heads
Create and post appropriate signage and barriers around work areas to ensure safety and
notice of work being done
1
2.
Timely completion of assigned work
•
•
•
•
Does not timely complete assigned tasks and sometimes delegates them to other
employees
Has not been restocking bathrooms
Has not been completing “take downs” after special events
Failing to complete assigned tasks misrepresents work performance and disrupts work of
others
Expectations/Goals:
•
3.
Must complete assigned job assignments in accordance with daily work schedule
Attendance
•
•
•
•
½ hour late twice in December 2013
Continues to occasionally come to work late
Regularly takes extended lunch breaks
Violates parish’s attendance policy and prevents completion of work on a timely basis
Expectations/Goals:
•
•
•
C.
Review parish handbook policies on breaks and attendance
Must arrive on time each day
Must return on time from breaks
Consequences
Failing to immediately adhere to the above described expectations will result in additional
disciplinary action up to and including termination.
Signature of Employee __________________________________ Date_______________
Signature of Supervisor__________________________________ Date_______________
2
Managing the Exempt
Employee
A brief overview of Exempt Employee categories, limits on
salary deductions for the Exempt Employee and addressing the
Exempt Employee request for compensatory time off.
Presented by
Thomas B. Wieser
Meier, Kennedy & Quinn
PAY ISSUES AFFECTING EXEMPT EMPLOYEES
PRESENTED BY
THOMAS B. WIESER
Meier, Kennedy & Quinn, Chartered
INTRODUCTION
The Wage and Hour Division of the U.S. Department of Labor is responsible for
administering and enforcing labor laws, including the minimum wage and overtime
provisions of the Fair Labor Standards Act (FLSA). For fiscal year 2013 to UDL
recouped approximately $250 Million dollars in back wages for approximately 270,000
employees. Those amounts do not include fees and penalties assessed against employers.
To avoid contributing to these record breaking collections, employers must ensure
they have complied with the requirements for employees who are exempt from the FLSA
requirements.
A.
Possible Change to Minimum Weekly Salary for Exempt Employees.
To be exempt from the FLSA minimum wage and overtime rules, the employee
must meet the “duties” test, and must receive at least $455 each week as compensation.
That is:
Current minimum weekly pay rate for Exempt Employee:
$455 weekly
$910 bi-weekly
$985.83 semi-monthly
$1,971 monthly
$23,660 per year
In 2014, President Obama directed the Department of Labor to modernize and streamline
FLSA regulations for executive, administrative and professional employees. As part of
that process it is expected that the Department of Labor will increase the minimum
weekly salary threshold for exempt workers. Estimates of that proposed increase range
from $810.00 per week ($42,120 per year) to $1,325.00 per week ($68,900 per year) with
MEIER, KENNEDY & QUINN, CHARTERED
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$962.00 per week ($50,024 per year), the same threshold as adjusted for inflation from
1975, when the per week minimum pay was $250.
Estimated Adjustment in the minimum weekly pay rate for Exempt Employees:
$810 weekly
$1,620 bi-weekly
$3,510 monthly
$42,120 per year
While the Department is expected to release its proposal in the coming weeks, final
approval will take many months.
Such a change would have a significant impact on the number of employees of
parishes, that would meet the minimum weekly salary test under the FLSA.
B.
Impact of Change to Minimum Weekly Salary for Exempt Employees.
If the minimum weekly salary requirement is increased significantly (i.e., $810.00
or more) it will result in a number of employees being classified as non-exempt and thus
covered by the minimum wage and overtime requirement.
Q:
Can employees voluntarily agree to be considered “exempt”
rather than be treated as hourly employees and thus subject to
FLSA requirements?
A:
No. The FLSA requirements cannot be waived by the
employee or modified by agreement.
There are various steps employers can take to reduce the exposure to claims
from non-exempt employees including:
1.
Pay the Employee for All Hours Worked.
Payment to an employee for hours worked generally means paying the employee
for all time the employee is required to be on the employer’s premises at a prescribed
workplace or otherwise engaged in duties on behalf of or for the benefit of the employer.
Under the FLSA, an employer is required to pay an employee for work the employer
“suffers or permits” regardless of whether the employee has permission to do particular
work for the employer if the employer knows or should know about the work performed
by the employee. Under Minnesota law, work also includes “training time, call time,
cleaning time, waiting time or any other time when the employee must be either on the
premises of the employer or involved in the performance of duties in connection with his
or her employment or must remain on the premises until work is prepared or available.”
Minn. R. 5200.0120, subd. 1.
2.
Pay Overtime for Work Over 40 Hours.
A non-exempt employee is entitled to overtime pay at 1 ½ times the regular pay
rate for all hours worked in excess of 40 hours per week. If the employee is paid
different wage rates for different types of work performed during the same work week the
regular rate is the weighted average of all straight time pay rates.
a.
Prohibit Off-the-Clock Work.
Have a policy that you consistently follow which states that written authorization
is required for any overtime or off the clock work. Take disciplinary measures if
necessary to enforce the policy BUT promptly pay for any such work.
b.
Be Careful Not to Convert an Exempt Position to NonExempt.
Job elimination which can lead to job consolidation or adding new job
responsibilities to an exempt position can have FLSA implications. If an employee
performs work in an exempt capacity (manager) but does non-exempt work as well
(clerical) the position can become non-exempt and the obligation to pay overtime can
arise.
The standard for determining whether the combined job functions are exempt is
the primary duty test. Factors to consider are:
-
The relative importance of the major or most important duty;
The amount of time spent performing the major or most
important job duty
The employee’s relative freedom from direct supervision; and
The relationship between the employee’s salary and wages paid
to other employees for similar work.
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c.
Keep Good Time Records.
The employer is required to keep work records for each pay period. Without such
records there is no defense to a claim for unpaid work hours or overtime.
Rounding – The FLSA does not require the employer to pay an employee for each
minute the employee is at work. It does permit an employer to round employee hours to
5, 10 or 15 minute increments, provided the rounding method averages out equally for
employees and employers and does not unfairly benefit the employer.
d.
Keep Good Pay Records.
This information will show that the employee has been paid for all hours worked if
there is a claim for unpaid wages.
e.
Don’t Misclassify Workers as Independent Contractors.
Any attempt to label a worker as an independent contractor in a verbal or written
agreement is not controlling and may not be a factor in determining whether the worker is
truly an independent contractor or an employee. Improperly classifying a worker as an
independent contractor will result in claims for back wages, overtime, employee benefits,
unpaid state and federal payroll taxes plus penalties and other costs.
f.
Don’t Use “Comp” Time for Overtime Pay.
Compensatory (“Comp”) time off may not be used in lieu of paying the nonexempt employee overtime pay.
While it is permissible for employers to have a formal compensatory time off
policy for exempt employees, most employers avoid such a formal policy because it may
create an expectation that employees work set hours and that any excess work hours are
extra. Instead, compensatory time off should be permitted at the discretion of a
supervisor, and based on exceptional performance. In that case, limits should be placed
on when the exempt employee can use comp time, and there should be limits as an
employee’s ability to “bank” comp time. Also, the employer would need to specify
whether banked comp time is payable upon termination.
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C.
FLSA Overtime Exemptions – Duties Tests.
In order for employees to fall within one of the FLSA exemptions, they must
perform executive, administrative or professional (so-called “white-collar”) duties, in
addition to satisfying the salary basis requirement listed above. The burden is on the
employer to prove the “duties” elements and courts narrowly construe the white-collar
exemption.
1.
Executive.
Primary duty is managing the enterprise or managing a customarily recognized
department or subdivision.
-
2.
Must satisfy the minimum weekly salary test (currently $455 per
week).
Must customarily and regularly direct the work of at least 2 or more
employees.
Must have authority to hire or fire other employees.
Must have authority to make recommendations as to hiring, firing,
advancement, promotion and other status changes that hold weight.
(Examples: Business owners, managers, vice-presidents.)
Administrative.
Primary duty is the performance of office or non-manual work directly related to
the management or general business operations of the employer or employer’s customers.
-
-
Must satisfy the minimum weekly salary test (currently $455 per
week).
Must include the exercise of discretion or independent judgment
with respect to matters of significance.
Examples: tax, finance, accounting, budgeting, auditing, insurance,
purchasing, personnel management, human resources, public
relations.
Employees who simply apply well-established techniques or
procedures within closely prescribed limits to determine the
response do not satisfy this exemption.
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3.
Professional.
Teachers – Primary duty is teaching, tutoring, instructing or lecturing in an area
imparting knowledge and if employed or engaged in this activity as a teacher by an
educational establishment.
Other Professionals - Include “Learned,” Creative, Practice of Law or Medicine,
Computer, Outside Sales and Highly Compensated.
D.
Circumstances in Which an Employer May Make Deductions from Exempt
Employee Pay.
As a general rule if an exempt employee performs any work during the work
week, he or she must be paid the full weekly salary amount. The FLSA permits
deductions only for the following reasons:
-
-
-
-
-
-
Full-Day Absence. When absent from work for one or more full days
for personal reasons other than sickness or disability (Full deduction is
allowed).
Full-Day Sickness or Disability. For absences of one or more full days
due to sickness or disability if the deduction is made in accordance with
a bona fide plan, policy or practice of providing compensation for salary
lost due to illness (Full deduction is allowed).
To Offset Certain Payments. To offset amounts employees receive as
jury or witness fees or for temporary military duty pay (Employer may
only offset amounts received for the activity against that week’s salary).
For Violation of Significant Safety Rules. For penalties imposed in
good faith for infraction of safety rules of major significance.
Suspension for Violation of Misconduct Rules. For unpaid disciplinary
suspensions of one or more full days imposed in good faith for
workplace conduct rule infractions (Full deduction is allowed).
Initial or Terminal Week of Employment. In the employee’s initial or
terminal week of employment if the employee does not work the full
week.
FMLA Leave. For unpaid leave taken by the employee under the
Family and Medical Leave Act.
29 C.F.R. Part 541.602.
Examples of deductions not allowed to be made from exempt employee pay
include:
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-
If an exempt employee is absent for 1 ½ days for personal reasons, the
employer may only deduct for the one full day absence.
Other examples of improper deductions include:
-
E.
A deduction of a day’s pay because the employer was closed due to
inclement weather.
A deduction of three days pay because the employee was absent for jury
duty.
A deduction for a two-day absence due to a minor illness when the
employer does not have a bona fide sick leave plan, policy or practice
providing wage replacement benefits.
A deduction for a partial day absence to attend a parent-teacher conference.
Effect of Improper Deduction from Salary.
If the employer has an “actual practice” of making improper deductions
from the employee’s salary, the employer may lose the exemption. Factors that
are considered when determining if the employer has an actual practice of making
improper deductions include:
-
F.
The number of improper deductions, particularly as compared to the
number of employee infractions warranting discipline.
The time period during which the employer made improper deductions.
The number and geographic location of employees whose salary was
improperly reduced.
The number and geographic location of managers responsible for taking the
improper deductions.
Whether the employer has a clearly communicated policy permitting or
prohibiting improper deduction.
Tracking Working Hours and Work Schedule Requirements for Exempt
Employees.
Exempt employees can be required to comply with work schedule requirements.
They can also be required to record hours worked. It is useful to track the exempt
employee’s work hours if the employer permits an exempt employee to use compensatory
time off.
An employer may want exempt employees to satisfy scheduling and timekeeping
requirements to meet operational requirements to determine eligibility for certain
benefits, to assess productivity and attendance. It can also be helpful in tracking Family
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and Medical Leave Act usage. In some instances it can provide a defense to a claim for
substantial overtime pay in a case where an employee has been misclassified as exempt.
Potential negative aspects of requiring exempt employees to track their time
include:
It may create morale issues among a class of employees who find it
demeaning.
It can create a record of substantial hours worked if the employee has been
misclassified.
It may create the perception that the employee is not operating with the
discretion and independence necessary to qualify as an exempt employee.
CAUTION: The requirement for tracking hours should not be imposed on one employee
or a group of employees in a discriminatory or retaliatory manner.
CONCLUSION
Misclassification of employees as exempt and as the corresponding failure to
comply with the FLSA overtime requirements continues to expose employers to claims
for substantial damages. These materials are intended to clarify FLSA rules and provide
guidance to employers on ways to reduce exposure to such claims.
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Assessing the Implications of
Minnesota’s New Women’s
Economic Security Act
(WESA)
Explaining which of WESA’s provisions apply to your
organization, exploring WESA’s pregnancy accommodation
requirements and expanded nursing mothers’ rights and
examining WESA’s expanded parental leave and sick leave
benefits for employees.
Presented by
Jessica J. Nelson
Felhaber Larson
ASSESSING THE IMPLICATIONS
OF THE WOMEN’S ECONOMIC
SECURITY ACT
March 19, 2015
Jessica Nelson
WESA Overview
 New Pregnancy Accommodations
 Increased Pregnancy Leave from 6 to 12
weeks.
 New “Safety Leave”
 Nursing Mothers Break Statute
 Wage Disclosure Protections
 Changes to Unemployment Statute
 “Familial Status” Added to MHRA
Pregnancy Accommodation
Pregnancy Accommodation
• WESA adds a section to the Minnesota Parental
Leave Act requiring employers to provide
pregnancy accommodations.
• The provisions became effective May 12, 2014.
• The provisions apply to employers with 21 or
more employees at one site.
Pregnancy Accommodation (cont.)
 “Employee” = someone who has worked at
least 12 months proceeding the request for
an average number of hours equal to at least
one-half of the full-time equivalent.
 Because definition refers to employees who
“request leave,” there is some concern that a
broader definition of “employee” may apply
to employees who “request
accommodations.”
• An employer must provide reasonable
accommodations to an employee for health
conditions related to pregnancy or childbirth if
she so requests, with the advice of her
licensed health care provider or certified
doula, unless the employer demonstrates that
the accommodation would impose an undue
hardship on the operation of the employer’s
business.
• A pregnant employee shall not be required to
obtain the advice of her licensed health care
provider or certified doula, nor may an employer
claim undue hardship for the following
accommodations:
• More frequent restroom, food and water
breaks;
• Seating; and
• Limits on lifting over 20 pounds
• The employee and employer shall engage in an
interactive process with respect to an employee’s
request for a reasonable accommodation.
• A “reasonable accommodation” may include, but
is not limited to, temporary transfer to a less
strenuous or hazardous position, seating,
frequent restroom breaks, and limits to heavy
lifting.
• An employer “shall not be required to create a new or
additional position in order to accommodate an employee
pursuant to this section, and shall not be required to
discharge any employee, transfer any other employee with
greater seniority, or promote any employee.”
• An employer shall not require an employee to take a leave
or accept an accommodation.
• An employer shall not retaliate against an employee for
requesting or obtaining an accommodation.
• The pregnancy accommodation provisions were
added to Parental Leave Act versus the
Minnesota Human Rights Act.
• Therefore, unlike disability accommodations
(including accommodations for pregnancy-related
conditions that meet the definition of a
disability), the Minnesota Department of Human
Rights does not have oversight over these
provisions.
• WESA explicitly provides that “nothing in this
section shall be construed to affect any other
provision of law relating to sex discrimination
or pregnancy, or in any way to diminish the
coverage of pregnancy, childbirth, or health
conditions related to pregnancy or childbirth
under any other provision of any other law.”
Questions?
 Are the “Mandatory” Accommodations
under WESA really Mandatory?

Employer cannot claim “undue
hardship” or require a doctor’s note
for certain accommodations.

But, WESA makes clear that “an
employer shall not be required to create a new or
additional position . . . .”

But, WESA also provides that “[a]n employer shall not
require an employee to take a leave or accept an
accommodation.”
Expanded Nursing
Mothers Rights
Expanded Nursing Mothers Rights
• Effective July 1, 2014, WESA amends the
Nursing Mothers Act which requires
employers to provide nursing mothers with
reasonable unpaid break time and a private
area to express breast milk.
• The Act applies to any person or entity that
employs one or more employees in the state.
Nursing Mothers (cont.)
Pre- July 1, 2014, the Nursing Mothers Act stated:
“An employer must provide reasonable unpaid break time each day to
an employee who needs to express milk for her infant child. The break
time must, if possible, run concurrently with any break time already
provided to the employee. An employer is not required to provide
break time under this section if to do so would unduly disrupt the
operations of the employer.
The employer must make reasonable efforts to provide a room or
other location, in close proximity to the work area, other than a toilet
stall, where the employee can express her mild in privacy. The
employer will be held harmless if a reasonable effort has been made.”
Effective July 1, 2014, the Nursing Mothers Act provides:
“An employer must provide reasonable unpaid break time each day to an
employee who needs to express milk for her infant child. The break time
must, if possible, run concurrently with any break time already provided to
the employee. An employer is not required to provide break time under
this section if to do so would unduly disrupt the operations of the
employer.
The employer must make reasonable efforts to provide a room or other
location, in close proximity to the work area, other than a bathroom or a
toilet stall, that is shielded from view and free from intrusion from
coworkers and the public and that includes access to an electrical outlet,
where the employee can express her milk in privacy. The employer will be
held harmless if a reasonable effort has been made.”
•WESA adds a provision prohibiting an employer
from retaliating against an employee for
asserting rights or remedies under the Nursing
Mothers Act.
• WESA expands the authority of the Minnesota
Department of Labor and Industry to receive
and investigate reports of alleged violations of
the Nursing Mothers Act.
• The Department of Labor must contact the employer
within two business days regarding any complaint and
investigate the complaint within ten days of receipt.
• Effective August 1, 2014, WESA gives a nursing mother
the right to file a civil action to enforce her right to
express breast milk during unpaid break times. The
law also allows the recovery of damages, costs and
disbursements, including reasonable attorney’s fees,
and other equitable relief deemed appropriate by a
court.
Expanded Parental (and
Pregnancy) Leave
Expanded Parental Leave
Parental Leave (cont.)
 WESA amends the Minnesota Parental Leave
Act (“MPLA”), Minn. Stat. § 181.941.
 Increases amount unpaid leave from 6 weeks
to 12 weeks.
 Now provides for both “pregnancy” and
“parental” leave.
 Effective July 1, 2014.
 Application of the MPLA
 Employers with 21 or more employees “at
at least one site.”
 Eligible “employees” must work at least ½
time for 12 consecutive months before the
requested leave is to begin.
 Types of Leave
 Parental Leave—”A biological or adoptive
parent in conjunction with the birth or
adoption of a child”; or
 Pregnancy Leave—“A female employee for
prenatal care, or incapacity due to pregnancy,
childbirth, or related health conditions.”
 Length of unpaid leave = 12 weeks
 Start of the Leave
 At a time requested by the employee.
 For Parental Leave, leave may not begin more
than 12 months after the birth or adoption, or
if the child must remain in the hospital longer
than the mother, not longer than 12 months
after the child leaves the hospital.
 Employer’s policies may require employee
planning to take leave under the MPLA to
give “reasonable notice” of:
 (1) the date the leave shall commence and
 (2) the estimated duration of the leave.
 Relationship to Other Leave
 May be reduced by “paid parental, disability,
personal, medical, or sick leave, or accrued
vacation provided by the employer so that
the total leave does not exceed 12 weeks . . .”
 May be reduced by “leave taken for the same
purpose by the employee under [FMLA].”
 Employer may agree to provide more leave.
MPLA vs. FMLA
 Eligible Employees
 FMLA—A person who: (1) has been employed for at
least 12 months on the date FMLA leave is to
commence, (2) has been employed for at least 1,250
hours, and (3) employed at a worksite with 50 or
more employees within 75 miles.
 MPLA—A person who: (1) performs services for hire
for at least 12 months preceding the request leave
and (2) for an average number of hours per week
equal to at least ½ full-time equivalent during the 12month period immediately preceding the leave.
MPLA vs. FMLA (cont.)
 Covered Employers
 FMLA—Any person engaged in commerce or
an industry that employs 50 or more
employees for each working day during each
of 20 or more calendar workweeks in the
current or preceding calendar year.
 MPLA—A person or entity that employs 21 or
more employees on at least one site.
 Healthcare Coverage
 FMLA—employer is required to maintain the
employee’s health care coverage by paying
the employee’s share that it would have paid.
 MPLA—employer must continue to make
coverage available (but does not require the
employer cover the cost).
 Foster Care Leave
 FMLA—provides for leave in conjunction with
foster care, as well as the birth or adoption of
a child.
 MPLA—provides leave for a biological or
adoptive parent only.
 Timing of Leave
 FMLA—leave can commence within a year of
the birth, adoption, or foster care placement,
but must be concluded within a year.
 MPLA—leave may not begin more than 12
months after the birth or adoption, unless the
child remains in the hospital longer than the
mother following the birth.
 Relationship to Paid Leave
 FMLA—employee can elect, or employer can
require, an employee to substitute paid leave.
 MPLA—leave may be reduced by “paid
parental, disability, personal, medical, or sick
leave, or accrued vacation provided by the
employer, so that the total leave does not
exceed 12 weeks . . . .”
 Employee Notice Requirements
 FMLA—if the need for leave is foreseeable, the
employee is required to give 30 days’ notice (unless
not practicable). Employer may required periodic
statements regarding the employee’s status and
intent to return to work.
 MPLA—employer is permitted to adopt policies
regarding the timing of leave requests and may
require “reasonable notice” of: (1) the date the
shall commence and (2) the estimated duration of
the leave.
 Reinstatement
 FMLA—Reinstatement to the position held before
the leave or to an equivalent position held before
the leave or to an equivalent position with
equivalent pay and benefits. Special rules for “key
employees.”
 MPLA—employee entitled to employment is his or
her former position, or a position with comparable
duties, hours, and pay.
 Benefits
 FMLA—Entitled to retain benefits which were
accrued prior to the beginning of the leave, and to
receive any non-seniority based pay adjustments
that occurred during the leave.
 MPLA—Entitled to retain accrued pre-leave
benefits and seniority as if there were no
interruption in service, and any automatic
adjustments that occurred during the leave.
 Intermitted Leave
 FMLA—Employer and employee may agree that an
employee can work part-time during the leave.
 MPLA—Employee and employer may agree to work
part-time during the leave, without forfeiting the
right to return to work at the end of the leave.
Questions
 Does an employee’s use of (unpaid) FMLA
leave for a knee surgery reduce the
amount of Parenting Leave available under
the MPLA?
 Key = Is it for the same purpose?
Questions
 Will a 2-week (paid) vacation reduce the
availability of leave under the MPLA?
 If so, is there any additional time available
under the FMLA?
Key Take-a-Ways
 Update leave policies to provide both
Parental Leave and Pregnancy Leave under
the MPLA.
 Ensure that leave is reduced under the
MPLA by paid leave and leave taken for the
“same purpose” under FMLA.
Sick Leave Expansion
Sick Leave Expansion
 WESA amends the Minnesota Sick Leave Statute,
Minn. Stat. § 181.9413.
 Sick Leave Statute is part of the “Parenting
Leave” portion of Chapter 181, so applies to:
 Employers with 21 or more employees at least one
site.
 Eligible “employees” must work at least ½ time for 12
consecutive months before the requested leave is to
begin.
 Effective July 1, 2014.
Sick Leave (cont.)
 Section 181.9413 permits employees to use “personal
sick leave benefits” for absences due to the illness or
injury of the employee’s child.
 “Child” is anyone under 18 or under 20 if attending
secondary school.
 “Personal sick leave benefits” means time accrued and
available to an employee to be used as a result of
absence from work due to illness or injury.


Does not include short-term or long-term disability or
other salary continuation benefits.
Must be paid from the employer’s general assets.
Sick Leave (cont.)
 2013 Amendments (2013 Minn. Laws ch. 87 § 1)
 Expands right to use sick leave for purpose of caring
for (a) adult child, (b) spouse, (c) sibling, (d) parent,
(e) grandparent, or (f) strep-parent.
 Employer may limit this leave entitlement to “no
less than 160 hours in any 12-month period.”
 Employee’s use limited to “reasonable periods of
time as the employee's attendance may be
necessary . . .,” but must be “on the same terms” as
employee’s use of sick leave for self-care.
Sick Leave (cont.)
 2014 WESA Amendments
 Adds “mother-in-law,” “father-in-law,” and
“grandchild” to the list of extended family for
whom sick leave may be used.
 “Grandchild” is defined to include stepgrandchild, and a biological, adopted, and
foster grandchild.
 Creates new “safety leave.”
Sick Leave (cont.)
 New “Safety Leave”
 Employees may use sick leave provided by
their employer for the purpose of “providing
or receiving assistance because of sexual
assault, domestic abuse, or stalking.”
 Includes employee’s own use and use to assist
“relatives” as defined in § 181.9413(a).
 “Domestic abuse,” “sexual assault,” and
“stalking” are defined elsewhere.
Sick Leave (cont.)
 “Safety Leave” supplements existing leave for
obtaining a Harassment Restraining Order.
 An HRO protects individuals from “harassment.”
 “Harassment” includes:
 Single incident of “physical or sexual assault”;
 Repeated incidents of “unwanted acts, words, or
gestures that have a substantial adverse effect or
are intended to have a substantial adverse effect
on the safety, security, or privacy of another.”
Sick Leave (cont.)
 HRO Leave
 Minn. Stat. § 609.748, subd. 10 requires the
employer to give “reasonable time off” to
obtain an HRO.
 Employers can require verification and 48
hours notice (except in special cases).
 Violation is a misdemeanor and employee can
bring civil action to recover costs and
attorneys’ fees.
Questions
 Are employers required to provide sick
leave?
 If the employer provides PTO, are the
employer’s policies affected?
 What about other leave “banks” that
operate similar to sick leave?
Thank you
Jessica Nelson
Felhaber Larson
220 South Sixth Street, Suite 2200
Minneapolis, MN 55402
(612) 339-6321
felhaber.com
Mediation and Conciliation
Process
Employment within the Church is not always “Shangri-La”
Presented by
Joseph F. Kueppers
Chancellor for Civil Affairs
Archdiocese of Saint Paul and Minneapolis
OFFICE OF CONCILIATION
PROCEDURES OF THE OFFICE OF CONCILIATION
INTRODUCTION
This is my Commandment: Love one another as I have loved you.
John 15:13
God's presence is found and reflected in our love of God and one another. It is through
love and faith that the mission of our Church - to accept the Reign of God in our lives - is
accomplished. When we are in conflict with each other, and with those organizations that
seek to serve the common good, there is a fundamental spiritual and social need to resolve
such conflict.
The Office of Conciliation serves those individuals and organizations in conflict who seek
reconciliation in a manner that embraces Christ's presence, the rich legacy of the Scriptures,
and the principles of Catholic social teaching.
In fulfilling its mission, the Office of Conciliation recognizes four key principles of Catholic
social teaching: the value and dignity of the human person, the common good,
participation and justice. By applying these principles, we seek a unified relationship
among individuals and organizations.
In seeking to resolve conflicts that interfere with our relationship with God and with each
other, the Office of Conciliation acknowledges God's presence throughout the processes of
conciliation and arbitration. The Office encourages all participants in these processes to
embrace the following principles:
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that we acknowledge Christ's presence in this process, in discourse and in prayer;
that we be respectful in speech and manner;
that we strive to open our hearts to the needs and voices of others, in the spirit of
good will and justice;
that we recognize that no law can be as compelling as Christ’s commandment to
love one another; and
that we recognize that the ultimate goal is to find Christ and His love for us
through reconciliation with Him and each other.
328 Kellogg Boulevard West | Saint Paul, MN 55102-1997 | T: 651.291.4429 | F: 651.290.1628 | www.archspm.org
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The Office of Conciliation offers its services as a simple and readily accessible response to
human conflicts, with the hope that it will help the people of this Archdiocese to abide by
Christ's commandment and to accept and establish the Reign of God.
The Office of Conciliation offers two methods to resolve conflicts:
1) Conciliation.
In conciliation, the parties are the agents of reaching a just resolution of the conflict, with
the assistance of an experienced, impartial conciliator approved by the parties. The object
of conciliation is for the parties to work together to develop a just resolution. The proposed
resolution must be accepted by both of the parties in order to be a binding agreement. In
this process the conciliator assists the parties in developing proposals for resolution, but
does not have the authority to impose a solution without the agreement of the parties.
The Office of Conciliation encourages parties to seek resolution through this process,
because persons of good will, committed to the Gospel spirit of love and reconciliation, can
often find resolution with the assistance of another committed to that same spirit.
2) Arbitration
Because not all conflicts can be resolved through conciliation, arbitration is also offered. In
arbitration, those in conflict agree to allow an experienced, impartial arbitrator approved
by the parties to resolve the conflict. Arbitration adds the important element of the
readiness of the parties to accept the decision of the arbitrator as final and binding.
PARTICIPANTS

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

The “director” refers to the Director of the Office of Conciliation, an
Archdiocesan Employee with the responsibility of administering the
conciliation and arbitration process.
The “Board of the Office of Conciliation” refers to the group of individuals,
appointed by the Archbishop, who are responsible for supervising, monitoring,
and evaluating the Archdiocesan conflict resolution program, and who
maintain the panel of conciliators, arbitrators, and advisors who assist the
Office of Conciliation.
The “petitioner(s)” are individuals, groups of persons, or organizations within
the Archdiocese who have requested conciliation by submitting a petition.
The “respondent(s)” are individuals, groups of persons, or institutions against
whom a complaint has been lodged alleging the violation of a right recognized
as such in the law of the Church, including the particular law of the
Archdiocese of Saint Paul and Minneapolis, or in the documents of the
magisterium.
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April 23, 2013

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
The “advisor” is a person appointed to assist and support the petitioner or the
respondent as s/he utilizes the conciliation process.
The “conciliator” is a person who guides and facilitates the conciliation process,
as the parties attempt to achieve a just and peaceful resolution of the problem.
The “arbitrator” is a person to whom a dispute is presented for final and
binding determination according to the ethical and procedural rules for
arbitration.
ALLOWABLE AND NON-ALLOWABLE DISPUTES
Allowable disputes include:
 disputes between individuals, groups of persons, or organizations within the
Archdiocese who contend that an act or decision of some other individual,
group or organization within the Archdiocese has violated a right recognized as
such in the law of the Church, including the particular law of the Archdiocese
of Saint Paul and Minneapolis, or in the documents of the magisterium;
 disputes between individuals, groups of persons, or organizations within the
Archdiocese who contend that the failure to act or failure to make a decision of
some other individual, group or organization within the Archdiocese has
violated a right recognized as such in the law of the Church, including the
particular law of the Archdiocese of Saint Paul and Minneapolis, or in the
documents of the magisterium.
 disputes between an employee and an employer concerning the terms and
conditions of employment, when such disputes cannot be resolved through less
formal procedures;
Non-allowable disputes include:
 disputes which are pending or resolved in another conflict resolution process;
 disputes involving a challenge to the basic tenets or authority of the Church;
 disputes for which canonical processes are provided;
 disputes involving the internal affairs of members of religious congregations;
 disputes involving material protected by the seal of confession;
 disputes in which the alleged injury took place more than one year before the
filing of the petition unless a civil statute of limitations requires a longer period
of time.
PROCESS FOR CONCILIATION
The primary focus of the Archdiocesan conciliation process is to bring about the
reconciliation of the parties and to heal relationships that have been damaged.
It is expected that, before approaching the Archdiocesan Office of Conciliation, the parties
will have attempted to address the matter directly with the person with whom they are in
conflict, or with his or her immediate supervisor. When the dispute involves an
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April 23, 2013
employment issue, the parties are expected to utilize the local level process for resolving
work-related issues, as specified in Justice in Employment.
Initiating the Process

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The petitioner submits to the director a completed petition, using the form
provided in Appendix A or available on the Archdiocesan website
The director determines whether the petition falls within the scope of allowable
disputes as outlined above. If it does, the director sends a copy of the petition
to the respondent and invites the respondent to participate in conciliation.
If the director determines that the petition is non-allowable, the petitioner may
request that the question be referred to the Office of Conciliation Board for
review.
Prior to or at the time of submitting the petition, the petitioner may request the
services of an advisor. The respondent may request an advisor at the time that
they become aware of the petition, keeping in mind the requirement of Justice in
Employment that an employer must consult with legal counsel prior to taking
adverse action.
Upon receipt of the petition and invitation to participate, respondent should
carefully review the petition and this Manual to determine whether respondent
is willing and able to participate. The director should be notified in writing of
respondent’s decision within the time specified by the letter of invitation. By
agreeing to participate, the respondent is also agreeing to abide by the
principles stated in this Manual.
All participants must agree to abide by the “Agreement to Conciliate,”
(Appendix B) a document that describes the spirit of confidentiality and other
key principles which guide the conciliation process. The parties, the advisors,
and the conciliator will be required to sign this document before the actual
conciliation process begins.
Refusal to Participate or to Make Referrals


If the respondent fails to respond or refuses to participate in conciliation, the
matter shall be referred to the Chair of the Board of the Office of Conciliation,
who shall try to persuade the respondent to participate.
If the respondent still fails to respond or refuses to participate, the matter may
be referred to other person(s) who might be able to encourage the participant to
reconsider the decision.
Selection of the Conciliator

After the parties have agreed to participate in conciliation, the director shall
provide them with the names and brief biographies of at least three conciliators
selected from the approved Archdiocesan list.
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April 23, 2013
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The parties shall be asked to indicate if any proposed conciliator is
unacceptable. Using the remaining names, the parties shall then be asked to
indicate first, second, and third choices.
If no mutually acceptable conciliator is found, the process shall be repeated,
using the names of other proposed conciliators.
If the parties have not agreed upon a conciliator within fourteen (14) days, the
director shall designate a conciliator.
Resolution of the Dispute
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
Conciliators shall strive to conclude the conciliation process within ninety (90)
days, except when unusual circumstances justify a longer time or when the
parties wish to continue.
The conciliator shall not force the parties to agree to a solution.
If the problem is resolved by agreement, the conciliator shall submit to the
director a summary statement of the problem and its resolution.
If the problem is unresolved, despite the good faith efforts of the parties, the
conciliator shall submit to the director a written report containing the reasons
that a resolution was not possible.
If the conciliator determines that either party is not cooperating in good faith,
he or she shall notify the Director or the Chair of the Board, requesting that that
person endeavor to persuade the party to cooperate.
Confidentiality

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The conciliator shall impress upon the parties at the outset the importance of
maintaining confidentiality.
Meetings shall be private and without publicity. Joint meetings will ordinarily
be restricted to the parties, their advisors, and the conciliator.
The conciliator will determine ground-rules regarding the participation of
advisors and other persons who are permitted to be present. Ordinarily,
primary communication should involve the parties, speaking for themselves.
At the discretion of the conciliator and with the agreement of the parties, others
may join the meeting from time to time. Whenever such additional persons are
permitted to be present at a conciliation meeting, the conciliator will instruct
those persons about the philosophy and values underlying the Archdiocesan
conciliation process, placing particular emphasis upon the need for
confidentiality.
All communications made to a conciliator or between participants shall be
treated as confidential.
All reports of the conciliator shall be confidential.
If the problem is resolved by agreement, and the parties agree to publicize the
agreement, announcement of it shall be made.
If there is no agreement, or a party does not wish to publicize the agreement, no
announcement shall be made.
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April 23, 2013
Costs


There is no cost associated with filing a petition for conciliation.
Archdiocesan conciliators and advisors serve without compensation.
PROCESS FOR ARBITRATION
Arbitration is the reference of a dispute to an impartial person or persons for final and
binding determination on the basis of information and arguments presented by the parties.
Disputes that are governed by Justice in Employment are subject to mandatory arbitration.
In other cases, the agreement to submit a dispute to arbitration is subject to the voluntary
agreement of the parties.
In situations in which arbitration is not the appropriate first step, parties should first
explore other forms of conflict resolution such as conciliation. Only for serious reasons
should conciliation be waived to allow direct use of arbitration proceedings.
On occasion, variations in the procedures described in this manual will better serve the
interests of justice. If such variations are acceptable to the parties and to the arbitrator,
they may be employed.
In order to ensure a just hearing and resolution, while at the same time avoiding
unnecessary delays, the arbitrator shall exercise discretion in establishing or modifying
time limits.
Initiating the Process




The petitioner submits to the director a completed petition, using the form
provided in Appendix A and available on the Archdiocesan website.
The director determines whether the petition falls within the scope of allowable
disputes as outlined above. If it does, the director sends a copy of the petition
to the respondent and invites the respondent to respond to the petition.
Prior to or at the time of submitting the petition, the petitioner may request the
services of an advisor. The respondent may request an advisor at the time that
they become aware of the petition, keeping in mind the requirement of Justice in
Employment that an employer must consult with legal counsel prior to taking
adverse action.
Participants must agree to abide by the “Agreement to Arbitrate,” (Appendix C)
a document that describes the spirit of confidentiality and other key principles
that guide the arbitration process. The parties, the advisors, and the arbitrator
will be required to sign this document before the actual arbitration process
begins.
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Selection of the Arbitrator
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The director shall provide both parties with the names and brief biographies of
at least three arbitrators selected from the approved Archdiocesan list.
Both parties shall be asked to indicate if any proposed arbitrator is totally
unacceptable.
Using the remaining names, each party shall then indicate their first, second,
and third choices.
If no mutually acceptable arbitrator is found, the process shall be repeated,
using the names of other proposed arbitrators.
If no agreement is reached after this second attempt, the Director shall choose
five potential arbitrators. After deciding by lot which party will first strike a
name, each party in turn shall strike a name, until each has eliminated two
names. The fifth candidate, the sole remaining name on the list, shall then be
appointed arbitrator for the case.
Confidentiality
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Confidentiality will be respected in all cases.
Parties who wish to be assisted by advisors or attorneys during this process
shall notify the arbitrator prior to the hearing. The arbitrator shall make the
names of such persons known to the other party.
It shall be at the discretion of the arbitrator to determine the propriety of the
attendance of any other person at the hearings. Whenever such additional
persons are permitted to be present at an arbitration session, the arbitrator will
instruct those persons about the philosophy and values underlying the
Archdiocesan arbitration process, placing particular emphasis upon the need
for confidentiality.
At the discretion of the arbitrator a taped recording may be made of the
proceedings. Any record of the proceedings remains the exclusive property of
the Archdiocese.
The Hearing
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All hearings shall be opened by recording the place, time and date of the
hearing, and the presence of the arbitrator, the parties, and other persons.
The parties are entitled
-- to be heard;
-- to present information pertinent to the controversy;
-- to question witnesses appearing at the hearings.
Arbitration may proceed in the absence of any party who, after due notice, fails
to be present.
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April 23, 2013
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The arbitrator has the discretion to vary the normal procedure under which the
petitioner's claims are first presented, but in any case shall afford full and equal
opportunity to all parties for presentation of relevant proofs.
Exhibits offered in evidence, as well as the names and addresses of all
witnesses, shall be made a part of the record.
The arbitrator may ask experts to provide information during the hearing.
The arbitrator shall inquire of all parties whether they have any further proofs
to offer or witnesses to be heard. Upon receiving negative replies, the arbitrator
shall declare the hearings closed.
The hearings may be reopened by the arbitrator on his/her own initiative, or at
the request of either party, for a good cause shown, at any time before the
decision is made.
Proposed Determination
Before rendering a final determination, the arbitrator may provide the parties with a
proposed determination, for the purpose of offering them a final opportunity to resolve the
conflict through conciliation.
Final Determination
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The determination shall be rendered promptly by the arbitrator and, unless
otherwise agreed by the parties, no later than thirty (30) days from the date of
closing the hearings, or if oral hearings have been waived, then from the date of
transmitting the final statements and proofs to the arbitrator.
The determination shall be in writing, signed and dated by the arbitrator, and it
shall become final and binding upon all parties twenty (20) days after delivery
of the determination to the parties unless, within that time, one of the parties
requests in writing a change of decision or a party appeals to the Board of
Review.
Written notice of a request for a change of decision shall be delivered to the
opposing party or parties, who shall have ten (10) days to respond.
After reviewing the request for a change of decision, the arbitrator may confirm,
modify, correct or clarify the proposed decision, after which the decision shall
become final.
The arbitrator may call for further hearings to assist in deciding the requested
change.
An appeal of a final determination of an arbitration shall comply with the
requirements established under the Board of Review.
Costs


Archdiocesan arbitrators and advisors shall serve without compensation.
Any witness expense or any evidentiary expense shall be paid by the party
producing the witness or the evidence.
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April 23, 2013

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The expenses of witnesses or costs of proofs requested by the arbitrator shall be
borne equally by the parties unless the arbitrator's decision assesses these
expenses against a specified party.
The parties involved in arbitration may be assessed a fee to cover expenses in an
amount determined by the director.
Board of Review
The Board of Review shall review the final determination of an arbitrator if an appeal is
delivered to the Office of Conciliation within twenty days of that determination, and the
appeal alleges one or more of the following:
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New evidence has been discovered that could not have been previously
discovered by due diligence and is likely to have materially altered the final
determination;
Principles of fundamental procedural fairness were violated;
The method of selection of the arbitrator, agreed upon by the parties
beforehand, was not followed;
There was evident partiality on the part of the arbitrator;
The arbitrator exceeded the arbitrator’s authority;
The arbitrator refused to hear evidence material to the controversy, or otherwise
conducted the hearing in a way that adversely affected a substantial right of a
party;
The determination of the arbitrator was arbitrary and capricious;
The decision was obtained by corruption, fraud or other illicit means.
The Board of Review shall consist of three persons, two appointed by the Office of
Conciliation Board, and one appointed by the Archbishop. The persons shall be chosen for
their ability to consider the issues before them with fairness and impartiality.
The Board of Review shall have the power to:


Sustain, reverse or modify a decision;
Order a rehearing, either before the arbitrator who made the decision, or before
a different arbitrator chosen in the same manner as the original arbitrator.
Interpretation and Application of Rules
Questions concerning the interpretation and application of these rules shall be referred to
the Board of the Office of Conciliation for final decision.
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April 23, 2013
APPENDIX A
□
Petition for Conciliation
□
Petition for Arbitration
NAME:
_____________________________________________
ADDRESS:
_____________________________________________
PHONE/EMAIL: _____________________________________________
POSITION:
_____________________________________________
ADVISOR/ATTORNEY: _____________________________________
PHONE/EMAIL: _____________________________________________
RESPONDENT’S NAME:______________________________________
ADDRESS:
_____________________________________________
PHONE/EMAIL: ______________________________________________
POSITION:
______________________________________________
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April 23, 2013
1. Please identify the parties involved.
2. Please describe the dispute which you would like to submit for conciliation or
arbitration.
3. Please describe the efforts you have made to resolve this issue prior to this time.
Page 13
April 23, 2013
4. What result do you hope to achieve through the conciliation/arbitration process?
5. Why is this result important to you?
By signing this petition, I agree to take part in conciliation or arbitration in the
spirit of good will and Christian values. I also agree to abide by the principles
outlined in the ‘Agreement to Conciliate’ or ‘Agreement to Arbitrate’ appropriate
to the process I am requesting.
DATE:
_____________________________
SIGNATURE:
_____________________________
DATE RECEIVED:
_____________________________
Complete and return to:
Sara Smith Kronholm
Director, Office of Conciliation
328 Kellogg Boulevard West
Saint Paul, MN 55102-1997
Page 14
April 23, 2013
APPENDIX B
Agreement to Conciliate
As a party to this conciliation:








I am interested in reconciling with the other party in the spirit of
Christianity, which reflects Gospel values and principles. I will be
mindful that mutual forgiveness is a goal of this process.
I will use this process to come to some understanding of the
dispute, with the realization that there are different perceptions of
the issue/s. I understand the importance of coming to a joint
constructive resolution of the issue/s.
I come as an equal to this discussion in an attempt to balance the
issue of power, and to emphasize that we are brothers and sisters
in Christ.
I will be respectful in my speech and manner, and the values of
good will and justice will have priority.
I will be aware of my own feelings and the feelings of the other
party/ies, but understand that only focusing on feelings associated
with the past will not move us in a forward direction.
Only with the permission of all parties of the conciliation will I
invite others who are neither parties to the dispute nor advisors to
take part in the conciliation sessions.
I will practice confidentiality. That is, I will not speak about the
discussion that has taken place at this conciliation to others who
are not parties in the process, except as necessary to seek advice or
counsel.
I will respond to all requests and communications made by the
conciliator within the timeframe allotted.
I will therefore agree to take part in conciliation in the spirit of good will and
Christian values as described in the principles stated above.
Petitioner: __________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Page 15
April 23, 2013
Respondent: ________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an advisor or conciliator:








I will thoughtfully deliberate upon my role and ask for Christ’s
help in this ministry of service.
I will attempt to find ways to acknowledge Christ’s presence in
this process, in words and prayer.
I understand that secular law should not necessarily determine
outcome, that no other law can influence us as much as Christ’s
single commandment: to love one another.
I will not presume anything about an individual, whether they be
petitioner or respondent, whether they have acted individually or
on behalf of others.
I will encourage the parties to understand the perspective of the
other and to open their hearts.
I understand that the ultimate goal is to find Christ and His love
for all of us through reconciliation with Him and each other, and
not to simply negotiate or justify a result.
discussion which has taken place at this conciliation to others who
are neither parties in this process nor advisors other than as is
necessary to report to or consult with the Director or Board of the
Conciliator: _________________________________
Date:______________
Advisor: ____________________________________
Date:______________
Page 16
April 23, 2013
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Advisor: ____________________________________
Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an attorney representing a party to this conciliation:
I acknowledge that I have read this agreement and understand the
obligations that my client is assuming by signing this agreement.
Attorney:____________________________________
Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Attorney: ____________________________________
Date: ______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Dispute_____________________________
Page 17
April 23, 2013
APPENDIX C
Agreement to Arbitrate
As a party to this arbitration:








I will use this process to come to some understanding of the
dispute, with the realization that there are different perceptions of
the issue/s. I understand the importance of coming to a joint
constructive resolution of the issue/s.
I come as an equal to this discussion in an attempt to balance the
issue of power, and to emphasize that we are brothers and sisters
in Christ.
I will be respectful in my speech and manner, and the values of
good will and justice will have priority.
party/ies, but understand that only focusing on feelings associated
with the past will not move us in a forward direction.
Only with the permission of the arbitrator will I invite others who
are neither parties to the dispute nor advisors to take part in the
arbitration sessions.
discussion that has taken place at this arbitration to others who are
not parties in the process, except as necessary to seek advice or
counsel.
arbitrator within the timeframe allotted.
I will therefore agree to take part in arbitration in the spirit of good will and
Petitioner: __________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Page 18
April 23, 2013
Respondent: ________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an advisor or arbitrator:








I will thoughtfully deliberate upon my role and ask for Christ’s
help in this ministry of service.
I will attempt to find ways to acknowledge Christ’s presence in
this process, in words and prayer.
I understand that secular law should not necessarily determine
outcome, that no other law can influence us as much as Christ’s
single commandment: to love one another.
petitioner or respondent, whether they have acted individually or
on behalf of others.
I will encourage the parties to understand the perspective of the
other and to open their hearts.
I understand that the ultimate goal is to find Christ and His love
for all of us through reconciliation with Him and each other, and
not to simply negotiate or justify a result.
discussion which has taken place at this arbitration to others who
are neither parties in this process nor advisors other than as is
necessary to report to or consult with the Director or Board of the
Arbitrator: _________________________________
Date:______________
Page 19
April 23, 2013
Advisor: ____________________________________
Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Advisor: ____________________________________
Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an attorney representing a party to this arbitration:
I acknowledge that I have read this agreement and understand the
obligations that my client is assuming by signing this agreement.
Attorney:____________________________________
Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Attorney: ____________________________________
Date: ______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Dispute _______________________________
PETITION FOR CONCILIATION OR ARBITRATION
Please complete the following form and return to:
Sara Smith Kronholm
Director, Office of Conciliation
328 Kellogg Boulevard West
Saint Paul, MN 55102-1997
Indicate whether this is a Petition for Conciliation or Petition for Arbitration.
Petition for Conciliation
 Petition for Arbitration
Your Name: __________________________________________________________
Street Address: _________________________________________________________
City, State, Zip Code: ____________________________________________________
Phone: _______________________________________________________________
Email: ________________________________________________________________
Your Advisor / Attorney: _______________________________________________
Phone: _______________________________________________________________
Email: ________________________________________________________________
Respondent’s Name: ___________________________________________________
Street Address: _________________________________________________________
City, State, Zip Code: ____________________________________________________
Phone: _______________________________________________________________
Email: ________________________________________________________________
Position: ______________________________________________________________
328 Kellogg Boulevard West | Saint Paul, MN 55102 | T: 651.291.4429 | F: 651.290.1628 | www.archspm.org
Page 2
Updated April 2013
1. Please identify the parties involved.
2. Please describe the dispute which you would like to submit for conciliation or
arbitration.
3. Please describe the efforts you have made to resolve this issue prior to this time.
4. What result do you hope to achieve through the conciliation/arbitration process?
Page 3
Updated April 2013
5. Why is this result important to you?
By signing this petition, I agree to take part in conciliation or arbitration in the spirit of
good will and Christian values. I also agree to abide by the principles outlined in the
‘Agreement to Conciliate’ or ‘Agreement to Arbitrate’ appropriate to the process I am
requesting.
Signature: ___________________________________
Date: ________________
Date Received: _______________________________
AGREEMENT TO CONCILIATE
As a party to this conciliation:








I will use this process to come to some understanding of the dispute,
with the realization that there are different perceptions of the issue/s. I
understand the importance of coming to a joint constructive resolution
of the issue/s.
I come as an equal to this discussion in an attempt to balance the issue of
power, and to emphasize that we are brothers and sisters in Christ.
I will be respectful in my speech and manner, and the values of good
will and justice will have priority.
party/ies, but understand that only focusing on feelings associated with
the past will not move us in a forward direction.
Only with the permission of all parties of the conciliation will I invite
others who are neither parties to the dispute nor advisors to take part in
the conciliation sessions.
discussion that has taken place at this conciliation to others who are not
parties in the process, except as necessary to seek advice or counsel.
Petitioner: __________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Page 2
April 23, 2013
Respondent: ________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an advisor or conciliator:








I will thoughtfully deliberate upon my role and ask for Christ’s help in
this ministry of service.
I will attempt to find ways to acknowledge Christ’s presence in this
process, in words and prayer.
I understand that secular law should not necessarily determine outcome,
that no other law can influence us as much as Christ’s single
commandment: to love one another.
petitioner or respondent, whether they have acted individually or on
behalf of others.
I will encourage the parties to understand the perspective of the other
and to open their hearts.
I understand that the ultimate goal is to find Christ and His love for all
of us through reconciliation with Him and each other, and not to simply
negotiate or justify a result.
discussion which has taken place at this conciliation to others who are
neither parties in this process nor advisors other than as is necessary to
report to or consult with the Director or Board of the Office of
Conciliation.
Conciliator: _________________________________ Date:______________
Advisor: ____________________________________ Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Page 3
April 23, 2013
Advisor: ____________________________________ Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an attorney representing a party to this conciliation:
I acknowledge that I have read this agreement and understand the obligations that
my client is assuming by signing this agreement.
Attorney:____________________________________ Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Attorney: ____________________________________ Date: ______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Dispute_____________________________
AGREEMENT TO ARBITRATE
As a party to this arbitration:








I will use this process to come to some understanding of the dispute,
with the realization that there are different perceptions of the issue/s. I
understand the importance of coming to a joint constructive resolution
of the issue/s.
I come as an equal to this discussion in an attempt to balance the issue of
power, and to emphasize that we are brothers and sisters in Christ.
I will be respectful in my speech and manner, and the values of good
will and justice will have priority.
party/ies, but understand that only focusing on feelings associated with
the past will not move us in a forward direction.
Only with the permission of the arbitrator will I invite others who are
neither parties to the dispute nor advisors to take part in the arbitration
sessions.
discussion that has taken place at this arbitration to others who are not
parties in the process, except as necessary to seek advice or counsel.
Petitioner: __________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Page 2
April 23, 2013
Respondent: ________________________________Date: ___________________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an advisor or arbitrator:








I will thoughtfully deliberate upon my role and ask for Christ’s help in
this ministry of service.
I will attempt to find ways to acknowledge Christ’s presence in this
process, in words and prayer.
I understand that secular law should not necessarily determine outcome,
that no other law can influence us as much as Christ’s single
commandment: to love one another.
petitioner or respondent, whether they have acted individually or on
behalf of others.
I will encourage the parties to understand the perspective of the other
and to open their hearts.
I understand that the ultimate goal is to find Christ and His love for all
of us through reconciliation with Him and each other, and not to simply
negotiate or justify a result.
discussion which has taken place at this arbitration to others who are
neither parties in this process nor advisors other than as is necessary to
report to or consult with the Director or Board of the Office of
Conciliation.
Arbitrator: _________________________________
Date:______________
Advisor: ____________________________________ Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Page 3
April 23, 2013
Advisor: ____________________________________ Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
As an attorney representing a party to this arbitration:
I acknowledge that I have read this agreement and understand the obligations that
my client is assuming by signing this agreement.
Attorney:____________________________________ Date:______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Attorney: ____________________________________ Date: ______________
Address: ___________________________________________________________
Phone/Email: _______________________________________________________
Dispute _______________________________
210 G.M.
ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS
CLERGY BULLETIN
March 15, 2007
VOLUME XXXII, Number 3
JUSTICE IN EMPLOYMENT
(Second Revision)
PREAMBLE
Reverend and dear Fathers and Deacons, and our dedicated employees,
The Archdiocese of Saint Paul and Minneapolis seeks to create an environment of
openness, mutuality and respect among and between all those who come to work for this
local Church
This effort is well reflected in the following words: "Work is more than a way to make a
living. It is an expression of our dignity and a form of ongoing participation in God's
creation. It is a means by which people contribute to the common good. Because work is
so important, people have the right to decent and productive work and to fair wages.
Workers have a proportionate responsibility to work conscientiously and justly for the
compensation and benefits they receive. They have the right to economic initiative and
to basic freedoms within the marketplace. As a general principle of economic justice,
Catholic teaching asserts that the economy exists to serve people, not the other way
around." (Reviving the Common Good, A Pastoral Letter on Social Justice -- Archbishop
John R. Roach, January, 1991).
These policies are a response not only to the need for good management and employment
practices, but are also a response to God's call through scripture, tradition, doctrine and
experience to employ justly.
These policies are also based on the following four key principles established in the
teaching of the Church on labor enunciated in papal encyclicals:
1.
The Value and Dignity of the Human Person. Pope John Paul II stated
"work is a good thing, because through work people not only transform nature, adapting
it to their needs, but they also achieve fulfillment as human beings and indeed, in a sense,
become more fully human." (Laborem Exercens).
2.
The Common Good. The common good embraces the sum total of those
conditions of social living whereby people are enabled more fully and readily to achieve
their own fulfillment (Mater et Magistra).
211 G.M.
3.
Justice. Anyone who ventures to speak to people about justice, must first
be just in their eyes. This in the work place occurs when workers contribute competently
and conscientiously to the mission and when employers establish policies and systems to
provide wages and benefits sufficient to support a family in dignity (Economic Justice
For All).
4.
Participation. Participation in a system in which one has membership is
a legitimate expectation of individuals which has been demonstrated to lead to greater
efficiency and better service to members. Participation of everyone in the running of the
enterprise should be promoted (Gaudium et Spes).
These policies call for establishing clear expectations throughout the entire period of
employment; and further, they acknowledge respectfully the rights and responsibilities of
all concerned when and if separation becomes necessary.
INTRODUCTION
The original Justice in Employment policy became effective on January 1, 1999. The
experience of the intervening eight years has strongly reinforced our conviction that the
above principles are the appropriate framework for accomplishing our goal of openness,
mutuality and respect among and between all those who work for this local Church. At
the same time, the experience gained during those eight years has prompted us to make
certain adjustments, to clarify language, and to sharpen the focus of some provisions. In
the hope that they will continue to strengthen the development of working relationships
based on trust and mutual respect within the Church, we hereby adopt these revised
policies and procedures, which shall become effective July 1, 2007.
These policies apply to all employees of the Archdiocesan Corporation, parishes within
this archdiocese, and their related schools, as well as those institutions specifically
designated by me. Those who make up the staff of the Archdiocesan Corporation and
parishes and schools consist of lay people, as well as priests and religious women and
men. This mixture adds a richness to the quality of ministry in the Church. It also
creates complex relationships where application of personnel policies is concerned.
Although all Archdiocesan employees, as well as parish and school staffs, are called to
minister to the People of God, there are some distinct differences that must be recognized
in terms of the more legally oriented employment relationships. The Code of Canon Law
establishes superseding or sometimes overriding relationships between a bishop and
priests and also regulates the relationships of religious to the Church. It is in the context
of these relationships that the "employment" status of priests and religious is qualified
from a legal point of view. Because the Archdiocese values consistency and fairness in
administration, all staff members are asked to observe these policies except when and if
the Code of Canon Law sets forth different regulations or policies.
212 G.M.
The policies contained in this document issued under my authority as the Archbishop, as
well as other policies issued by a pastor or supervisor, as long as they are consistent with
the basic intent of this document, form the basis of the employment relationship. These
policies supersede and cancel any policies, procedures or other employment contracts
when inconsistent with this document. These policies are considered the basic terms and
conditions of employment. Each individual's application file should include the
employer's offer of employment, a position description, a completed employment
application and a signed and dated receipt of these policies.
I mandate these policies as the spiritual and religious leader of all Catholics in this
diocese. This mandate shall not change or amend the status of employees as employees
of the civil corporation by whom they are employed. In short, employees of our parishes,
related schools and other institutions designated by me to whom these policies apply shall
not be considered employees of the Archdiocese.
The policies do not cover two groups, who typically would not be deemed employees.
They are individuals hired for specific projects, such as a study of the particular
department or operation, which would have a specific termination date; and individuals
hired for a specific task on a part-time basis, such as athletic coaches, tutors, and the like.
To make their status clear, an employer has the right to exempt those persons falling in
the above two categories from the application of this Justice in Employment policy. If
appropriate, such individuals may be offered term contracts for the duration of the project
for which they are retained. This term contract will be governed solely by its provisions,
including provisions relating to termination. In the absence of a written contract,
whatever oral agreement is reached with such an employee, will similarly control the
terms of the engagement, including termination.
By accepting a position or continuing in a position on or after the effective date of these
policies, an employee shall be deemed to have accepted these policies and their
application, including mandatory arbitration.
Sincerely yours in Christ,
/S/
The Most Reverend Harry J. Flynn, DD
Archbishop of Saint Paul and Minneapolis
213 G.M.
EQUAL EMPLOYMENT OPPORTUNITY
Policy
It is the policy of the Archdiocese of Saint Paul and Minneapolis to provide equal
employment opportunity to all qualified persons without regard to race, color, religion,
creed, sex, marital status, disability, age, national origin, veteran status and status with
regard to public assistance. Employment practices are intended to assure that all
individuals are recruited, hired, assigned, advanced, compensated, and retained on the
basis of their qualifications, and treated equally in these and all other respects without
regard to race, color, religion, creed, sex, marital status, disability, age, national origin,
veteran status and status with regard to public assistance. Exceptions to this nondiscrimination policy may be necessary when based upon a bona fide occupational
qualification.
Procedures
I.
RECRUITMENT
The effective recruiting of qualified candidates requires that the employer use a
current position description. Current information about compensation and
benefits should be provided to the candidates. The use of a Search Committee is
suggested, where appropriate, to assist in the selection process.
II.
SELECTION PROCESS
A)
Prior to making the final selection for employment, the candidate’s
eligibility must be verified according to the Immigration Reform and
Control Act of 1986.
B)
According to Clergy Bulletin Volume XVIII, Number 5, the employer
must conduct a background check through the appropriate sources for all
candidates for employment within the Archdiocese.
C)
When appropriate, an offer of employment may be extended subject to the
successful completion of a physical examination, but only when the
examination tests for essential job related abilities and only when all
persons conditionally offered employment for the same position are
required to undergo the same examination.
214 G.M.
III.
OFFER OF EMPLOYMENT
Once a hiring decision is made and an offer is extended to the applicant, the
employer should avoid delays. To minimize the potential for confusion or
misunderstanding, an offer made by phone must be confirmed in writing. The
written offer normally should contain at least the following information:
Position title
Reporting relationship (name of supervisor)
Starting date and effective date of employment, if different
Length of probationary period
Beginning compensation
Benefit information
Any special arrangements
Date for orientation
Acknowledgment that the employee relationship is subject to the provisions of
Justice in Employment
IV.
EMPLOYEE DEFINITION
The word “employee” as used in these policies means a regular employee, and not
a probationary employee, unless the policy refers specifically to probationary
employees, as in Section V.
The employer must designate all employees as non-exempt under the Fair Labor
Standards Act (FLSA) unless the employer can document that the position as
performed is exempt and the employer wants to treat the position as exempt.
EXEMPT EMPLOYEE: An employee in a position that can be documented as
meeting the tests for one of the exempt classifications as defined by the Fair
Labor Standards Act. This would normally be individuals in jobs that meet both
the duties and salary tests for executive, professional, or administrative positions.
NON-EXEMPT EMPLOYEE: All other employees who are not able to be
classified as exempt under the FLSA must have their hours of work recorded, be
paid for all time worked and be paid overtime (time and a half) when their hours
worked in a work week are over 40/48 hours.
Those parish church employees who work for, and are on the staff of, the parish
are paid overtime at the rate of time and one-half after 48 hours in a 7 day week
(which is the Minnesota standard); those parish employees who are employees of
the parish school or of other non-parish institutions (e.g., credit union, etc.) must
be paid overtime at the rate of time and one-half after 40 hours in a 7 day week.
Employers may choose to pay overtime after 40 hours in all cases, if preferred.
215 G.M.
V.
PROBATION OR IN-TRAINING PERIOD
Unless otherwise specified in writing, all new employees are subject to an initial
training period of up to three (3) calendar months. If a longer initial training
period is required, it will be specified in writing. When circumstances warrant,
certain new employees may have an extended probationary period.
The training period permits the employer to evaluate the employee’s performance
and provides an opportunity for the employee to assess whether the position is
appropriate for his/her interests and skills. During this time, the employee is
considered an at-will employee and may be terminated for any non-discriminatory
reason. The employee’s immediate supervisor must conduct written evaluations
at the end of the second and third month of employment and prior to a change of
status to regular employment.
The approval of the employer and his/her designate (i.e., supervisor) is required
before an employee may be upgraded from an in-training employee to a regular
employee status. The upgrade must be in writing and must state the effective date
of the change from in-training status to regular employee status. The written
upgrade approval also must be made a part of the employee’s personnel file.
Benefit eligibility will be the same for the in-training period as it is for all regular
employees unless the benefit program itself (e.g. retirement program, etc.) states
otherwise.
Similarly, in fulfillment of the spirit and intent of these policies, probationary
employees should, to the extent practical, be accorded the necessary assistance to
become regular employees. However, this does not affect their status as “at will”
employees, that is, employees who may be terminated without cause at any time.
216 G.M.
ORIENTATION
Policy
An effective orientation makes a positive and lasting impression and can have a
significant impact on a person's success or failure during the first few weeks of
employment. It is most important to have someone welcome a new person to the work
environment, introduce that person, provide important information, and answer questions.
Hospitality eases the stress of initiation and enhances a new person's adaptation process.
Procedures
An orientation package should be provided to new personnel. Helpful information may
include:
Mission statement
Expectations regarding attitudes, behavior, and practices which promote the
mission of the parish or institution
Organization chart
Diagram of the facilities
Policy handbook
Information on benefits
Other information to help the new employee feel welcome
A signed and dated receipt should be received for the policy handbook.
217 G.M.
WORK MINISTRY/PLANNING AND REVIEW
Policy
Performance analysis and evaluation is built on a foundation of careful planning,
employee involvement, use of objective job-related criteria, commitment to employee
development and candid communication about performance between the employee and
the supervisor.
Through observation and dialogue with the employee about expectations and job related
issues, the supervisor and the employee work to establish an environment in which
mutual respect may develop and work related issues may be resolved.
Procedures
The supervisor and the employee establish criteria for performance analysis based on
information contained in the position description. They also establish the priorities to be
accomplished and the relative importance of duties and responsibilities.
A performance analysis should be conducted at least once a year. There may be a need
for more frequent meetings during the first year of employment or in a new assignment.
Supervisors should be attentive to the need for additional interaction during transition
periods. Performance-related meetings should be conducted privately and allow enough
time for all important matters to be discussed. The employee has the right to comment, in
writing, on his or her performance analysis. Any conclusions reached by the employee
and the supervisor should be in writing to assure understanding and clarity.
A copy of both the performance analysis and employee comments will be retained by
both parties and will become a part of the individual's personnel file.
218 G.M.
RESOLUTION OF WORK RELATED ISSUES
Policy
Experience teaches us that even among people of good will, differences may arise
concerning the employment relationship. Most of these issues should and can be
resolved through the procedures provided below.
Employees have a right to seek a timely resolution of work-related issues. For purposes
of this policy, a work-related issue may be defined as an unresolved complaint or dispute,
disagreement, misunderstanding or expressed dissatisfaction on the part of the employee,
relating to the conditions of employment or to the meaning and application of these
written policies.
While the provisions which follow are intended to provide a process to resolve workrelated issues, they are not intended to prevent employees from having access to their
pastor, or their supervisor. The persons involved can make necessary modifications in
keeping with the overall policy of timely resolution.
Employees who believe that an employment condition or the application of any of the
policies outlined in this manual is unjust or inequitable may employ the following
provisions. In pursuing this procedure, employees are assured freedom from restraint,
interference, coercion, discrimination or reprisal. Keeping in mind the purpose of the
Justice in Employment policy, the procedures employed in resolving work-related issues
should be characterized by honesty and respect, as all involved strive to preserve and
strengthen appropriate professional and human relationships.
Procedures
I.
The employee and the immediate supervisor first should discuss thoroughly the
work-related issue(s) to achieve a mutually satisfactory resolution. If discussion
does not resolve the matter, the employee should, within thirty days or some other
mutually agreed upon period of time, give the immediate supervisor a written
statement summarizing the nature of the work-related issue under consideration,
and proposing suggestions for its resolution. The proposed remedy should reflect
clearly the attitudes, behavior and practices which promote the mission of the
parish or institution.
If resolution is not reached within ten (10) working days after the supervisor
receives the written statement, the employee may request further discussion at
the next supervisory level. The higher supervisor will investigate the dispute
and respond to the employee in writing within ten (10) working days after
receiving the written complaint.
The higher supervisor, with the consent of the parties, may form an ad hoc
committee to consult with the parties to achieve a consensus resolution. The
members of this committee shall be obligated to maintain confidentiality,
unless otherwise required by law.
219 G.M.
II.
It is expected that the parties will use local level processes which are available to
them. Counsel may be sought from appropriate Archdiocesan officials or other
knowledgeable experts. However, this consultation ordinarily should not displace
the local process. Any questions about application or interpretation of these
policies should be directed to the Archdiocesan Office of the Chancellor.
III.
If resolution is not achieved at the local level, the parties should seek resolution
through the conciliation process of the Archdiocesan Office of Conciliation.
They should exert every effort to resolve their differences through this process,
recognizing that each may be required to make concessions to achieve resolution.
IV.
To protect the privacy of those who are involved and to enhance the
integrity of the process, all participants involved in the resolution of a workrelated issue shall agree to maintain confidentiality, unless otherwise required by
law.
Information and documents related to the resolution process shall not be shared
with persons who are not directly involved and do not have a legitimate need to
know their contents. Parties may confide in and seek appropriate counsel from
persons of their choice, with the understanding that these confidants will maintain
confidentiality unless otherwise required by law.
220 G.M.
PROGRESSIVE DISCIPLINE
Policy
When performance deficiencies are observed, the supervisor will first offer suggestions,
criticism or comments to the employee to correct those deficiencies or workplace
behavior issues.
If this approach fails to resolve the problem, the supervisor will inform the employee that
the supervisor is initiating progressive discipline under JIE. The following series of
corrective steps may then be followed. Any step in the procedure may be bypassed if the
severity of the circumstances warrant. In the process of implementing the procedures for
progressive discipline, the employer is encouraged, but not required, to seek the advice
and counsel of a human resources professional qualified in employment related matters
and knowledgeable about these policies.
Procedures
I.
The immediate supervisor will give the employee an oral warning that may
include a time frame for correction of the issue. The immediate supervisor will
document the date, time and subject matter of the oral warning.
II.
If the oral warning is not effective in producing the desired results within the
specified time frame, the supervisor then will give the employee a written
warning at the next review meeting. All written disciplinary statements will
include specific information as to the improvement needed and corrective
measures required. The supervisor will give a copy of the written warning to the
employee and place a copy in the employee’s personnel file.
III.
If sufficient improvement does not occur within the noted time frame or if serious
work performance or behavior issues warrant immediate attention, disciplinary
action in the form of a final written warning and/or a suspension without pay may
be taken by the supervisor.
IV.
If lack of sufficient improvement continues or if serious issues warrant immediate
action, the supervisor may recommend and then implement dismissal. Prior to
dismissal, consultation must take place as required in the section of these policies
on Discharge for Just Cause.
V.
Employees who believe that they have been disciplined unfairly may resort to the
Policy on Resolution of Work Related Issues.
221 G.M.
DISCHARGE: JUST CAUSE
Policy
After an employee is upgraded from probationary or in-training status to the status of a
regular employee, the employment relationship which exists between the employer and
its employees will be broken only "for cause", that is, if there are valid reasons for taking
such an action.
Appropriate reasons for breaking the employment relationship include poor employee
performance, improper conduct, violation of work rules and other violations of the
employer/employee relationship. In the process of implementing the procedures for
discharge, the employer is encouraged, but not required, to seek the advice and counsel of
a human resources professional qualified in employment related matters and
knowledgeable about these policies.
Prior to discharging any employee for cause, the employer or his or her designate shall
seek and follow the advice of an attorney qualified in employment law and familiar with
these policies, to ensure that these policies are followed. The required consultation
includes review of relevant facts, circumstances, documents, records and other data
relating to such employment, as they deem necessary. All such consultations shall be
deemed privileged communications, and confidential, and no statements made nor
documents produced in such consultations shall be subject to discovery or other
disclosure and shall be inadmissible for any purpose, including impeachment, in any
subsequent Arbitration under these policies.
The general insurance program requires the consultation with an attorney as described
above. Failure to do so prior to a discharge may result in denial of insurance coverage for
claims of wrongful termination. If coverage is denied, the defense of the wrongful
termination and any award of damages will be the sole obligation of the employer.
Procedures
I.
Discharge following progressive discipline:
Ordinarily, less serious employee performance deficiencies or workplace behavior
issues will be addressed through the steps described in the Policy on Progressive
Discipline. Discharge may result if progressive discipline fails to bring about
desired results. In this case, the employee will be given the facts pertaining to and
the reasons for discharge in writing.
II.
Immediate discharge without progressive discipline:
Any of the following acts may result in immediate discharge without progressive
discipline:
A)
Illegal discrimination or harassment
B)
Theft, misappropriation, falsification of records
C)
Misconduct at the work place which endangers others
D)
Insubordination or breach of professional ethics
E)
Working under the influence of illegal or controlled substances
222 G.M.
F)
G)
H)
Consumption of alcohol (unless authorized) or drugs at work or
prior to work, so as to affect the employee’s performance.
Public conduct which is inconsistent with the faith, morals,
teachings and laws of the Catholic Church
Other gross violations of the employer/employee relationship
If the seriousness of an incident warrants removal of the employee from the
premises before consultation is possible, the employee should be suspended
without pay pending an investigation and prior to a final decision regarding
discharge.
223 G.M.
REDUCTION IN STAFF OR LAY OFF
Policy
A reduction in staff or lay off may occur because of a change in the organization's
institutional goals or the prevailing economic condition of the employer. A termination
under this section is a termination for cause. In the process of implementing the
procedures for a reduction in staff or lay off, the employer is encouraged, but not
required, to seek the advice and counsel of a human resources professional qualified in
employment related matters and knowledgeable about these policies.
Prior to discharging any employee for cause under this section, the employer or his or her
designate shall seek and follow the advice of an attorney qualified in employment law
and familiar with these policies, to ensure that these policies are followed. The required
consultation includes review of relevant facts, circumstances, documents, records and
other data relating to such employment, as they deem necessary. All such consultations
shall be deemed privileged communications, and confidential, and no statements made
nor documents produced in such consultations shall be subject to discovery or other
disclosure and shall be inadmissible for any purpose, including impeachment, in any
subsequent Arbitration under these policies.
The archdiocesan insurance policy requires the consultation described above. Failure to
do so prior to a discharge may result in denial of insurance coverage for claims of
wrongful termination. If coverage is denied, the defense of the wrongful termination and
any award of damages will be the sole obligation of the employer.
In the spirit of these policies, an appropriate level of severance will be provided to those
affected.
Procedures
After determining the need for a reduction in staff, the employer must decide who will be
affected based on valid criteria such as past performance, seniority, education, training
and work skills needed by the organization. All employees affected will be advised in
writing as to the criteria used and decisions made.
224 G.M.
ARBITRATION
Policy
If a controversy between the employee and the employer concerning terms and conditions
of employment, other than those relating to Workers’ Compensation or Re-employment
Insurance Compensation, is not resolved through the Policy on Resolution of Work
Related Issues, the employee and employer agree to submit the dispute to final and
binding arbitration, in accordance with the procedure explained below, which will be the
exclusive remedy available to the parties, and to abide by the decision of the arbitrator.
Such arbitrator may determine the extent and scope of any discovery to be permitted.
Procedures
If the employee is not satisfied with the resolution of the complaint or grievance, it is the
responsibility of that employee to submit the matter to binding arbitration, which will be
the exclusive remedy available to the parties.
Likewise, in those cases in which a former employee wishes to challenge the termination
of employment, the former employee agrees to follow the Policy on Resolution of Work
Related Issues set forth in these policies concerning the termination. The former
employee further agrees that, absent an acceptable resolution through the Policy on
Resolution of Work Related Issues, he or she will submit the matter to final and binding
arbitration and will abide by the decision rendered, which may include any type of relief
available in the civil courts.
Ordinarily, arbitration will be conducted according to the arbitration provisions of the
Archdiocesan Office of Conciliation. The arbitrator will determine the extent and scope
of any discovery to be permitted.
If either party chooses to arbitrate the matter pursuant to the Minnesota Uniform
Arbitration Act and not the Archdiocesan arbitration process, that party, through the
Archdiocesan Office of Conciliation, can attempt to agree with the other party on a
qualified neutral arbitrator. If that effort fails, then either party, through the
Archdiocesan Office of Conciliation, may request appointment of an arbitrator from an
outside arbitration service made available for that purpose by the Archdiocesan Office of
Conciliation and consistent with the Minnesota Uniform Arbitration Act. The selection
of a neutral arbitrator, in such instance, will be according to the provisions and rules
established by the outside arbitration service. The fees and expenses of the arbitrator shall
be paid by the employer. However, the employee will pay any cost for an attorney for
the employee, if one is desired.
225 G.M.
RECEIPT OF JUSTICE IN EMPLOYMENT POLICIES
I HAVE RECEIVED A COPY OF:
CLERGY BULLETIN
MARCH 15, 2007
VOLUME XXXII, NUMBER 3
JUSTICE IN EMPLOYMENT
(SECOND REVISION)
PAGES 210 G. M. TO 225 G.M.
I UNDERSTAND THAT THESE POLICIES SUPERSEDE AND
CANCEL ANY POLICIES, PROCEDURES, OR OTHER
EMPLOYMENT CONTRACTS WHEN INCONSISTENT WITH THIS
DOCUMENT. THESE POLICIES ARE CONSIDERED THE BASIC
TERMS AND CONDITIONS OF EMPLOYMENT. BY ACCEPTING
A POSITION OR CONTINUING IN A POSITION SUBSEQUENT TO
THE EFFECTIVE DATE OF THESE POLICIES, AN EMPLOYEE
SHALL BE DEEMED TO HAVE ACCEPTED THESE POLICIES
AND THEIR APPLICATION, INCLUDING MANDATORY
ARBITRATION.
NAME(Print)__________________________________________________
SIGNATURE____________________________________________
DATE______________________________________________
This receipt will be placed in my personnel file.
Panel Discussion on
“Hot Topics” and Q & A
 Five Common Missteps to Avoid in Progressive Discipline
Dennis Merley
 Other WESA Provisions (supplement included)
Jessica Nelson
 Get Ready for Mandatory Paid Leave
Thomas Wieser
 Intermittent FMLA Leave
Jennifer Larimore
 Updates on Current Topics
Joseph Kueppers
MODEL WAGE DISCLOSURE POLICY *
An employee’s wages are personal. Each employee has the right to keep his or her
wage information private or to choose to share his or her wage information with others.
[Employer] will not take any adverse employment action against an employee who
chooses to disclose his or her own wages to others, or who discusses another
employee’s wages if the other employee has already disclosed those wages to the
employee.
However, nothing in this policy creates an obligation on the part of any employee to
disclose his or her wages. Employees are free to refrain from such discussions and may
not be subject to retaliation of any kind for choosing not to discuss his or her wages.
Nevertheless, nothing in this policy permits employees to disclose proprietary
information, trade secret information, or information that is otherwise subject to a
legal privilege or protected by law. For example, nothing in this policy permits
employees to disclose [patient information protected by HIPAA or other similar state
laws / confidential company financial information / intellectual property / etc.] For further
information on this topic, please see the [Employer’s Confidentiality / Trade Secrets / IP
Policy].
This policy does not permit an employee to disclose wage information of other
employees to a competitor of [Employer]. This policy also does not diminish any
existing rights under the National Labor Relations Act.
Any suspected violations of this policy by [Employer] or another individual should be
reported immediately to [H.R., Vice President or CEO]. Consistent with [Employer]’s
Non-Retaliation Policy, employees who make good faith reports are protected from
adverse employment action.
An employee who believes his or her rights regarding wage disclosures have been
violated may bring a civil action under Minn. Stat. § 181.172. [Employer] will not
retaliate against an employee for asserting rights or remedies pursuant to Minn. Stat. §
181.172.
If you have any questions about this policy, please contact [H.R., Vice President or
CEO].
*
This Model Policy was prepared by attorneys at Felhaber Larson, and illustrates employers’
wage disclosure notice obligations as set forth in the Women’s Economic Security Act (codified
at Minn. Stat. § 181.172). To ensure that you are in compliance with this new law, you should
have a member of Felhaber Larson’s Labor & Employment Law Group review your employee
handbook or, at the very least, any of your wage-related policies.
635227.v4
© 2014 Felhaber Larson
Notes:

2015 Employment Law Update Manual

Transcription

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