Employment actions and tools to address COVID-19 impacts on work

As the situation related to the SARS-CoV-2 virus and the disease it causes, “coronavirus disease 2019” (COVID-19), is rapidly evolving, cities across Minnesota are adjusting to state and federally issued guidelines and directives necessitating certain changes to city operations. Many cities have temporarily ceased operations at city-operated facilities, such as libraries and recreation centers, modified work duties, and reconsidered how work is being performed. Currently, many public-facing city positions are experiencing far less public interaction; positions providing nonessential services to the community, in some cases, have a drastically reduced workload, and public safety employees are staggering their work schedules to facilitate social distancing and prevent transmission of COVID-19 in the workplace.

Regardless of any individual city’s situation, cities across the state are doing what they can to ensure public services are maintained, while best protecting the health and safety of the public and the city’s employees.

Here is a summary of employment actions cities can consider taking as they adjust to changing operations, and what should be considered prior to taking any such action, especially with unionized employees. These actions include:

  • Perform Long-Term Tasks
  • Perform Duties from Other Jobs
  • Leave Flexibility
  • Telework
  • Reduce Work Schedule
  • Furlough
  • Layoff

I. WHAT IS MANAGEMENT RIGHT VS. NEGOTIABLE RIGHT?

First and foremost, for any of the employment actions described below, the city should first consider whether the action is a management right, or whether the city may be required to meet and negotiate with an exclusive representative of impacted employees related to establishing, modifying, or eliminating related components of employment.

Assigning work and the manner in which it is done, scheduling employees, creating, modifying, and eliminating positions, and laying off employees, are generally management rights under the Public Employment Labor Relations Act (PELRA) (Minn. Stat. §§ 179A.01-.25). PELRA provides that a public employer is not required to meet and negotiate with an exclusive representative (i.e., union) of impacted employees over matters of inherent managerial policy.

The matters of inherent managerial policy include, but are not limited to: “such areas of discretion or policy as the functions and programs of the employer, its overall budget, utilization of technology, the organization structure, selection of personnel, and direction and number of personnel” (Minn. Stat. § 179A.07, subd. 1.)

The city’s rights may either be (1) bolstered by; or (2) prohibited, restricted, or waived through applicable collective bargaining agreement language. Prior to taking any personnel action described below, the city should carefully consider the language contained in collective bargaining agreements between the city and impacted employees.

Important to note, the Minnesota Supreme Court has opined an employer action that may in itself be considered an inherent managerial right may have effects on terms and conditions of employment that may still be subject to negotiation. Whether an employer’s exercise of its management right may be negotiable is determined using a “balancing of interests” analysis, which is described in more detail related to specific employment actions below. In short, if the “balancing of interests” is in favor of the union, the city would generally be required to meet and negotiate in good faith with the union on the city’s exercise of a management right (I.S.D. No. 88, New Ulm v. School Service Employees Union Local 284, 503 N.W.2d 104, 107 (Minn. 1993)).

We recommend cities notify and discuss with union representatives any intended actions that substantially impact components of employment for unionized employees. But, in any communication to unions, cities should not concede that anything is negotiable, but the city is willing to meet and negotiate anything that is negotiable.

II. EMPLOYMENT ACTIONS

1. Perform Long-Term Tasks

City administration may first want to consider whether there are certain long-term tasks it can have an employee perform who is either prevented from performing typical day-to-day work tasks, or otherwise has a reduced workload.

Depending on the position in question, long-term tasks may include revising or providing feedback on departmental policies and procedures, creating training materials and other reference materials for new employees, or updating records to a more user-friendly electronic format.

  • Management right or negotiable?

Assuming the impacted employee is not performing substantial duties from other jobs, this “employment action” is relatively uninvolved, and assigning and directing work in this manner is generally an inherent management right not requiring negotiation with the union.

However, assigning long-term tasks may not be an option appropriate for all positions, and may only provide a short-term solution depending on the department’s project list.

2. Perform Duties from Other Jobs

Following from the above, cities may have certain positions without sufficient long-term tasks or projects to complete, and therefore may desire those individuals perform duties from other positions.

  • Management right or negotiable?

Before considering this option, the city should evaluate whether this action would result in an individual(s) not in the bargaining unit performing work otherwise performed by a bargaining unit employee. If so, the union may dispute such work being done by others as impermissible performance of bargaining unit work performed by a non-bargaining unit employee(s). The union may challenge the city’s actions through the collective bargaining agreement’s grievance arbitration process, or an unfair labor practice claim in district court.

  • Contract items bolstering or limiting this right

Relevant collective bargaining agreement items to consult may include: (1) the “Employer Authority” or “Management Rights” provision that may bolster the right to take this action; and (2) the “Recognition” provision that may include a position within the bargaining unit that has work duties being assigned to a non-bargaining unit position, potentially limiting the city’s right to take this action.

Even if the city determines it would be directing or assigning a non-bargaining unit position employee to perform bargaining unit work, the “balancing of the interests” may be in favor of the city, meaning the city may not be required to meet and negotiate in good faith with the union on the city’s exercise of a management right.

The city can establish a viable defense of such an action if it describes in writing the short-term nature and emergency reasons for the work being so performed. In addition, the city should consider the following additional relevant factors an arbitrator or district court may rely on to uphold management’s action (Elkouri and Elkouri, How Arbitration Works 758-759 (6th ed. 2003)):

  • Whether the quantity of work or the effect on the bargaining unit is minor or de minimis in nature;
  • The work is not covered by the contract;
  • There has not been a past practice of bargaining unit employees exclusively performing such work, or if bargaining unit employees usually perform such work, it is not usually performed during the days or hours in which the non-bargaining unit employee performed the work;
  • The work is experimental;
  • There is a change in the character of the work;
  • Automation or a technological change is involved; and
  • The transfer was caused by a reorganization or change in work methodology or processes

General recommendations for implementing such a change are described in III below.

3. Leave Flexibility

To encourage employees to stay home when they are symptomatic or mitigate the spread of communicable disease, cities may want to provide more flexibility for employees to use paid leaves in addition to the recently enacted Emergency FMLA and Paid Sick Leaves under federal law.

More flexibility for use of such leaves related to COVID-19 may be to allow employees to use any form of accrued paid leave for such absences from work and/or use time before it is accrued that is later deducted from future time accrued for time not worked that they would otherwise normally work.

  • Management right or negotiable?

Though paid leaves are negotiable management rights, the terms of usage of such are often not described with specificity in labor contracts. Accordingly, employers will often have discretion to establish and modify the terms of usage of such time.

  • Contract items bolstering or limiting this right

The “Employer Authority” and “Management Rights” provisions, and the “Waiver of Bargaining” provision, which states the parties acknowledge each had the unlimited right and opportunity to make requests and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, of the city’s collective bargaining agreement with the union may bolster the city’s right to establish or modify terms of usage of paid leaves by an employee.

The specific paid leave provisions in the collective bargaining agreement provisions may limit the city’s right to take this action.

  • Example

To effectuate leave flexibility, cities should submit a notice like the following to impacted employees: Temporary Notice for Leave Flexibility.

4. Telework

To encourage employees to stay home when they are symptomatic or mitigate the spread of communicable disease, cities may also want to consider temporary telecommuting or working remotely for certain employees. Before pursuing this action, cities should establish written guidelines addressing employees that may be eligible, parameters of when work can be performed, appropriate retention and safeguarding of data, and expense reimbursement or not.

  • Management right or negotiable?

Even if the city is encouraging, not requiring, an employee(s) to telework, or work remotely, the city may nonetheless want to inform the union of its intention to provide this option to unionized employees.

If the city later requires employees to perform any work remotely as a result of a “Stay at Home” or “Shelter in Place” order from state or federal government officials, the union is unlikely to successfully challenge such an action resulting from a legal order as a unilateral change to terms or conditions of employment.

  • Contract items bolstering or limiting this right

The following collective bargaining agreement items may bolster the city’s right to take this action: (1) the “Employer Authority” or “Management Rights” provision related to assigning work; and (2) a “Waiver of Bargaining” provision.

Any collective bargaining agreement provision related to location of work may limit the city’s right to take this action to the extent it is inconsistent; however, most labor agreements are silent as to both location of work and telework arrangements.

  • Example

To effectuate this action while providing reasonable parameters, such as the temporary nature of this flexibility, cities should submit a notice like the following to impacted employees: Temporary Notice for Telework.

Other general recommendations for implementing such a change are described in III below.

5. Reduce Work Schedule

Many cities employ individuals in positions that perform work that is difficult, if not impossible, to perform remotely. In addition, many potential changes to city operations may result in a reduced workload for certain employees, prompting city administration to consider reducing an employee’s work schedule. Accordingly, cities can consider scheduling employees for less hours of work.

A reduction in the work schedule for hourly employees will result in the proportional reduction in their wages since they are paid by the hour for hours worked.

Reductions to weekly salary are generally, however, not permissible for exempt employees due to Fair Labor Standards Act (FLSA) exemption requirements. The FLSA requires exempt employees be paid the same minimum weekly salary for any workweek in which they perform work, regardless of the number of hours worked (see 29 C.F.R. §§ 541.600-541.606). However, there is an exception that allows employers to reduce an exempt employee’s future salary as a result of a reduction in working hours due to a “bona fide reduction” in the amount of work (see Wage and Hour Opinion Letter (Feb. 18, 1999); see also, Wage and Hour Opinion Letter FLSA 2009-18 (Jan. 16, 2009)). The reduction in work hours and salary must not be recurrent, and be related to long-term business needs or economic slowdown (see Wage and Hour Opinion Letter FLSA 2009-18 (Jan. 16, 2009)).  If the city reduces pay and/or hours of work for an exempt employee, it must also be mindful that such reductions do not go below the minimum salary amount for exempt status.

Related to paying employees, cities can either not pay the employees for time not worked, place employees on administrative leave with pay for time not worked that they would otherwise normally work, or allow employees to use accrued paid leave and/or use time before it is accrued that is later deducted from future time accrued for time not worked that they would otherwise normally work. However, cities must be cognizant of a qualified employee’s right to receive Family and Medical Leave Act (FMLA) leave or leave as provided under the Families First Coronavirus Response Act (FFCRA) as detailed here.

  • Management right or negotiable?

A temporary decrease in an employee’s hours of work and/or amount of pay may be challenged by a union as a unilateral change by the city to terms and conditions of employment. The Minnesota Supreme Court holds that “when a work day begins and ends” is not negotiable, but “the number of hours worked” are negotiable (University Education Ass’n v. Regents of University of Minnesota, 353 N.W.2d 534, 542 (Minn. 1984)).

PELRA provides that a public employer engages in an illegal, unfair labor practice by “refusing to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit” (Minn. Stat. § 179A.13, subd. 2(5)). The Minnesota Court of Appeals holds that “a unilateral change by an employer in the terms and conditions of employment is a prima facie violation of the employees’ collective bargaining rights” (Educ. Minn. – Greenway, Local 1330 v. Indep. Sch. Dist. No. 316, 673 N.W.2d 843, 849 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004)).

The city may have certain items in its collective bargaining agreements that bolster its ability to exercise its management right to establish work schedules.

  • Contract items bolstering or limiting this right

The following collective bargaining agreement items may bolster the city’s right to take this action: (1) the “Employer Authority,” “Management Rights,” and/or “No Guarantee” provision(s) related to establishing work schedules and/or hours; and (2) a “Waiver of Bargaining” provision that states the parties acknowledge each had the unlimited right and opportunity to make requests and proposals with respect to any subject or matter not removed by law from the area of collective bargaining.

A “Work Schedules” or “Work Hours” provision may limit the city’s right to take this action.

  • Example

To effectuate this, cities should submit a notice like the following to impacted employees: Notice to Employees of Scheduling Changes.

Other general recommendations for implementing such a change are described in III below.

6. Furlough

A furlough refers generally to a short period of time where an employee works no hours for the employer yet remains employed.

As with implementing a change to a work schedule, the city should keep in mind that special considerations apply when furloughing an exempt employee as an exempt employee generally must be furloughed for an entire week (i.e. perform no work for that week) before withholding their salary.

Related to paying employees, cities can either not pay the employees for time not worked, place employees on administrative leave with pay for time not worked that they would otherwise normally work, or allow employees to use accrued paid leave and/or use time before it is accrued that is later deducted from future time accrued for time not worked that they would otherwise normally work. However, cities must be cognizant of a qualified employee’s right to receive Family and Medical Leave Act (FMLA) leave or leave as provided under the Families First Coronavirus Response Act (FFCRA) as detailed here.

  • Management right or negotiable?

A temporary decrease in an employee’s hours of work and/or amount of pay may be challenged by a union as a unilateral change by the city to terms and conditions of employment.   The Minnesota Supreme Court holds that “when a work day begins and ends” is not negotiable, but “the number of hours worked” are negotiable (University Education Ass’n v. Regents of University of Minnesota, 353 N.W.2d 534, 542 (Minn. 1984)).

PELRA provides that a public employer engages in an illegal, unfair labor practice by “refusing to meet and negotiate in good faith with the exclusive representative of its employees in an appropriate unit” (Minn. Stat. § 179A.13, subd. 2(5)). The Minnesota Court of Appeals holds that “a unilateral change by an employer in the terms and conditions of employment is a prima facie violation of the employees’ collective bargaining rights” (Educ. Minn. – Greenway, Local 1330 v. Indep. Sch. Dist. No. 316, 673 N.W.2d 843, 849 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004)).

The city may have certain items in its collective bargaining agreements that bolster its decision to furlough that favor the city’s ability to exercise its management right to take such action.

  • Contract items bolstering or limiting this right

The following collective bargaining agreement items may bolster the city’s right to take this action: (1) the “Employer Authority,” “Management Rights,” and/or “No Guarantee” provision(s) related to establishing work schedules and/or hours; and (2) a “Waiver of Bargaining” provision that states the parties acknowledge each had the unlimited right and opportunity to make requests and proposals with respect to any subject or matter not removed by law from the area of collective bargaining.

A “Work Schedules” or “Work Hours” provision may limit the city’s right to take this action.

  • Example

To effectuate a furlough, cities should submit a notice like the following to impacted employees: Notice of Furlough

Other general recommendations for implementing such a change are described in III below.

7. Layoff

Unlike a furlough, a layoff separates an individual from employment with the city.

  • Management right or negotiable?

As stated above, laying off employees and creating, modifying, and eliminating positions are generally management rights under PELRA.

The city also likely has provisions in its collective bargaining agreements that would support its action of laying off an employee. However, the city still needs to remain cognizant that exercising its management right to layoff an employee may still be negotiable based on the “balancing on interests” principle. For example, the Minnesota Supreme Court has held that “whether or not an employee’s job will be terminated so that the same function can be performed by a non-unit employee is a subject contemplated for negotiation as a term and condition of employment” (Gen. Drivers Union Local 346 v. Indep. Sch. Dist. No. 704, 283 N.W.2d 524, 527 (Minn. 1979)).

  • Contract items bolstering or limiting this right

The “Employer Authority,” “Management Rights,” “Seniority,” and “Layoff” or “Reduction in Force” provisions of the city’s collective bargaining agreement with the union may bolster the city’s right to layoff an employee.

The following collective bargaining agreement provisions may limit the city’s right to take this action: (1) the “Recognition” provision (i.e., the City eliminated a position included in the bargaining unit and represented by the union); (2) “Salary” or “Pay Schedule” provisions (i.e., the city eliminated a job classification established in the contract if a position is eliminated); and (3) a “Seniority,” “Layoff,” or “Reduction in Force” provision, which may establish certain requirements related to a layoff.

  • Example

To effectuate a layoff, cities should submit a notice like the following to impacted employees: Notice of Layoff and Layoff Information.

Other general recommendations for implementing such a change are described below.

III.        IMPLEMENTATION RECOMMENDATIONS

Generally applicable recommendations for implementing any of the above personnel action options include the following steps:

  1. Compile and retain in one file relevant documents related to the change
  2. Analyze and document background for the option the city intends to pursue
  • Relevant services or functions performed
  • Option(s) for changes to such services or functions
  • Reasons for changes
  • Number and names of employees and positions impacted
  • Expected:
    • Savings (monetary) in which cities should consider that they will have to eventually pay for unemployment insurance benefits for up to 26 weeks equal to 50% of the employee’s weekly wages for all employees that end up working less than 32 hours and are paid less than 50% of their weekly wages
    • Efficiencies (non-monetary) from options
  • Process, including timeline, to implement
  1. Discuss the issue with city decision-makers
  2. Submit a notice to union and impacted employees about the intended action and discuss it with them. In all such notices and discussions, the city should not concede that any item is negotiable, but that it is willing to meet and negotiate over any item that is negotiable.
  3. Either:
  • Take necessary city actions to exercise final option; and/or
  • Continue discussing with the union an agreement
  1. Give notice to union and impacted employees of final decision, which includes acknowledgment of delivery of such notice

More information on pandemic planning for your employer’s workforce are included in the Coalition of Greater Minnesota Cities’ document: 5 Steps to Handling a Pandemic in Minnesota Government Workplaces and Federal government enacts employee leave laws in response to COVID-19, which are available at greatermncities.org/blog/5-steps-to-handling-a-pandemic-in-minnesota-government-workplaces/.

If you need any assistance on handling a pandemic in the workplace or any other labor employment advice, please contact labor and employment attorneys Brandon M. Fitzsimmons (bmfitzsimmons@flaherty-hood.com) or Chelsea J. Bodin (cjbodin@flaherty-hood.com) of Flaherty & Hood, P.A.

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