North Dakota News & Analysis

  • Package undeliverable: UPS driver's disability bias claim loses appeal

    In the August 2017 North Dakota Employment Law Letter, we gave you a brief synopsis of a case involving a UPS driver who asserted discrimination claims against his employer for failure to accommodate his disability (see "Former UPS driver gets second chance to prove disability bias claim" on pg. 6 of that issue). Back in 2017, the U.S. 8th Circuit Court of Appeals (whose decisions apply to employers in North Dakota) found that there were fact issues related to the driver's failure-to-accommodate claim that required the case to be sent back to the trial court.

  • Upholding the psychological employment contract

    Do you realize that every one of us has a psychological contract with our organization? The psychological contract is a concept that describes the understandings, beliefs, and commitments that exist between an employee and an employer. Although it is unwritten and intangible, it represents the mutual expectations that are felt between the two. The psychological contract is strengthened (or weakened) by each party's perception of the employment relationship. It is formed through daily interactions between colleagues, managers, and the organization.

  • 'Fair-share' fee ruling brings new day for public employers, employees

    With proponents of a U.S. Supreme Court decision against the collection of "fair-share" fees claiming a victory for First Amendment rights and critics calling the ruling an example of the Court siding with billionaires against workers, employers are adjusting to a major change in the world of agency shops in the public sector.

  • DOL loosens rules for association health plans

    Employers may soon have new options to obtain group health insurance through association health plans (AHPs) under new regulations recently issued by the U.S. Department of Labor (DOL). A brief primer on the mechanics of insurance may be helpful before we dive into the new rules and what they could mean for you.

  • Agency Action

    EEOC reports on age discrimination 50 years after ADEA. Age discrimination remains too common and too accepted 50 years after the federal Age Discrimination in Employment Act (ADEA) took effect, according to a report from Victoria A. Lipnic, acting chair of the Equal Employment Opportunity Commission (EEOC). The report, released June 26, 2018, says only about three percent of those who have experienced age discrimination complained to their employer or a government agency. Studies find that more than three-fourths of older workers surveyed report their age is an obstacle to getting a job. The report includes recommendations on strategies to prevent age discrimination, such as including age in diversity and inclusion programs and having age-diverse hiring panels. The report says research shows that age diversity can improve organizational performance and lower employee turnover and that mixed-age work teams result in higher productivity for both older and younger workers.

  • Workplace Trends

    Research finds people of color less likely to get requested pay raises. Research from compensation data and software provider PayScale, Inc., shows that people of color were less likely than white men to have received a raise when they asked for one. The research, announced in June, found women of color were 19% less likely to have received a raise and men of color were 25% less likely. The research also notes that no single gender or racial/ethnic group was more likely to have asked for a raise than any other group. The most common justification for denying a raise was budgetary constraints (49%). Just 22% of employees who heard that rationale actually believed it. Of those who said they didnt ask for a raise, 30% reported their reason for not asking was that they received a raise before they felt the need to ask for one.

  • Supreme Court upholds class action waivers in arbitration agreements

    On May 21, 2018, the U.S. Supreme Court ruled 5-4, in what will likely be an important decision for employers and employees, that employees who sign agreements with their employers can be required to arbitrate employment claims (nothing new) and, in arbitration, can be required to give up proceeding on a class or collective basis.

  • Reins are loosened: What NLRB's new guidance means for your handbook

    In our February 2018 issue, we informed you that the National Labor Relations Board (NLRB) was "loosening the reins on employer handbook rules" (see the lead article in that issue). This month, we can finally tell you exactly how much the reins have been loosened because the NLRB's General Counsel has outlined the standards the Board will follow when assessing employers' personnel policies. Overall, you will have much greater leeway in drafting and enforcing workplace rules—and, in particular, any rules related to civility, insubordination, disruptive behavior, photography/recordings in the workplace, confidential information, defamation, disloyalty, or media contact on behalf of the company.

  • 8th Circuit finds fast-food shops bound by bonus contracts offered to at-will managers

    Panera Bread employs general managers in its restaurants throughout the country. These general managers are at-will employees. However, the company implemented a bonus plan for its general managers and had them sign a contract outlining the plan. Was the bonus contract enforceable even though the managers are at-will employees? Under what circumstances, if any, could the company change the terms of the contract? A group of managers filed a lawsuit against Panera in which the U.S. 8th Circuit Court of Appeals (whose rulings are binding in North Dakota) was required to offer a resolution.

  • Planning and education are key to successful HSA

    Over the past decade, the percentage of employers offering a health savings account (HSA) to their employees has grown dramatically. HSAs are a form of "consumer-driven health plan," a category of employee benefit that strives to place more responsibility on employees to be better consumers of health care. In short, employees pay 100 percent of the deductible under a high-deductible health plan (HDHP). In return, they are given the opportunity to contribute to an HSA, which offers substantial tax benefits.