Perspectives

On April 23, 2024, the Federal Trade Commission (FTC) convened an open commission meeting. Following deliberation, the five commissioners cast their votes, resulting in a decisive 3-2 outcome in favor of approving the proposed final rule-banning non-compete agreements. This pivotal decision marks a significant shift in regulatory action.

This new rule could impact an estimated 30 million workers (or 1 in 5 Americans) who are subject to a non-compete through their current or former employers. Barring a successful legal challenge, this new rule will go into effect in 120 days (August 2024).

In January 2023, the FTC warned of this eventuality when it issued its proposed rule adopting the stance that non-compete clauses were an unfair method of competition due to a multitude of factors:

• preventing workers from leaving jobs
• decreasing competition for workers
• lowering wages for both workers who are subject to the agreements and who are not

This rule paints with broad strokes, applying the ban not only to workers, but also independent contractors, externs, interns, volunteers, apprentices, or any sole proprietor who provides a service to a client or customer.

This new rule not only prevents employers from entering into new non-compete agreements with workers, but it also requires employees to rescind existing non-compete clauses. The rule also requires that employers notify parties that are currently subject to a non-compete, that the agreement is now void and unenforceable. While it may be of cold comfort to employers who traditionally utilize non-compete agreements, the FTC has not banned non-solicitation or nondisclosure agreements. Existing non-competes with senior level executives remain in effect, but new agreements, even with executives, are banned.

We expect pushack from employers and business groups who will likely challenge this rule in court. Wagner, Falconer & Judd will be watching these developments closely and will share as we know more.

Staying on top of legislative updates is time consuming. Consulting with an Employment Law Attorney to proactively monitor and update company policies is a simple way to ensure compliance with your local and federal laws. Learn more about the Business Support Services provided by Wagner, Falconer & Judd here. 

That’s right. You heard us. The National Labor Relations Board (NLRB) is not the toothless, independent federal agency some would have you believe.

In March of this year, Region 25 of the NLRB secured an agreement settling a case against a Midwest employer, Hilst Enterprises, Inc. d/b/a La-Z-Boy Furniture Galleries (Hilst), for $297,000 in backpay, front, pay, interest, excess tax, mileage, and medical expenses for the two discharged employees; removal of the unlawful discharges from the employee’s files; and a letter of apology to the discharged employees with mail and email notices to its current employees.

So, what exactly happened with Hilst? Essentially, it boils down to two key issues.

First, Hilst maintained three unlawful work rules:

• Forbidding employees from discussing wages
• Imposing restrictions on employees’ use of its name and logo without explicit permission.
• Prohibiting employees’ personal use of the company email system and equipment

Additionally, two employees were fired the day after they engaged in protected concerted activity by expressing concerns about the behavior of Hilst’s President and its potential effect on Hilst’s employees and business.

As you probably know, Section 7 of the NLRA guarantees certain rights for workers. These include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representative of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right to “refrain from any or all such activities.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

In the present case, the Court concluded that “it is axiomatic that employees have a Section 7 right to discuss their wages” and observed that the three rules stated above could reasonably be construed by an employee to restrict or prohibit Section 7 activities. The Court also found “that the employee complaints about changes made by management to their working conditions constituted protected concerted activity” and that Hilst’s discharge of the two employees was intended to punish their protected conduct.

The crucial insights from this case abound. Employers need to regularly reassess their policies to ensure they are not chilling the rights of their workers under the NLRA. Employers must be aware that, in the words of NLRB Regional Director Patricia K. Nachand, “Workers have a right to take collective action free from retaliation.”

The NLRB laws serve as a crucial safeguard for employee’s rights to organize and collectively bargain. Employers who fail to uphold these rights not only risk legal penalties, but also undermine trust , morale, and productivity within their organizations. It’s essential for employers to prioritize compliance with these laws, not only to avoid financial and legal repercussions but also foster a fair and respectful workplace environment where both employees and employers can thrive together. Upholding these rights is not just a legal obligation but a cornerstone of an equitable workplace.

Being mindful of the language in your employee handbooks, contracts and agreements is solid first step in proactively protecting your business from legal risk. Consulting with an Employment Law Attorney while creating and updating your documents is a simple way to ensure compliance with your local and federal laws. Learn more about the Business Support Services provided by Wagner, Falconer & Judd here. 

Establishing clear and comprehensive best practices for workplace misconduct is essential for fostering a healthy and productive work environment. These guidelines not only define acceptable behavior but also empower leaders to address issues promptly and effectively.

By proactively outlining expectations and consequences, organizations provide a framework that encourages accountability and professionalism. In the unfortunate event of misconduct allegations, having a well-defined set of procedures facilitates a fair and thorough workplace investigation. This not only mitigates legal and reputational risks but also ensures that the investigation is conducted transparently and impartially.

Additionally, such best practices serve as a preventive measure by promoting a culture of respect and integrity, ultimately contributing to employee satisfaction and retention. Regular training and communication about these guidelines reinforce the commitment to maintaining a safe and respectful workplace, empowering leaders to handle misconduct issues with confidence.

The employment law group at Wagner, Falconer, & Judd recommend the following tips when conducting your workplace investigations, whether you are conducting them yourself, or decide to outsource the investigation:

DO:

• Explain confidentiality issues (and that confidentiality cannot be guaranteed).
• Explain retaliation issues (particularly that any retaliatory conduct should be reported immediately).
• Take time in interviews. If an interview is taking longer than anticipated, notify subsequent interviewees of any expected delay.
• Be courteous and professional toward witnesses, including the complainant and accused.
• Ask non-leading questions and provide the witnesses an opportunity to speak. Do not cut off the witnesses.
  • Don’t forget: who, what, when, where, why, how

DON’T:

• Accuse: accusatory questions that are likely to put the witness on the defensive. For example, questions like “Did you sexually harass Employee X at the Employer’s holiday party on December 23rd?” should be avoided. “Could you describe your interaction with Employee X at the Employer’s holiday party on December 23rd?” is a better approach.
• Become angry or emotional
• Use legal jargon. (For example, sexually harassed, discriminated, constructively discharged, and so on.)
• Use conclusory statements like “when Employee X harassed you, what did they do?”
• Reveal the source of the questioning unless absolutely necessary. “Ms. X stated that you stole our Employer’s trade secrets and shared them with our competition.”
• Make predictions on the outcome of the investigation to any of the interviewees, such as “this conduct is outrageous, Employee X is going to be fired for sure.”
• Express agreement or disagreement with a witness’ statement.

To ensure the legality and comprehensiveness of the investigation process, it is highly recommended to consult with an experienced employment attorney. Legal expertise can provide invaluable guidance in navigating complex situations, minimizing potential risks, and ensuring that the company’s actions align with applicable laws and regulations. Investing time and resources in a well-structured investigation process not only safeguards the organization from legal repercussions but also demonstrates a commitment to maintaining a workplace where employees feel safe, valued, and heard.

Ultimately, prioritizing the integrity of workplace investigations is an investment in the long-term success and reputation of the company.

Navigating the complexities of traffic tickets can be daunting. From understanding the charges against you to knowing your rights and options, it can all seem overwhelming. That’s where we come in! At WFJ, we’re here to help you every step of the way. When you call us, make sure you have the following information to make the process as stress-free as possible:

1. Details about the Violation

First things first, send us a picture of your ticket. This allows us to look up your court case and gather crucial information such as court dates and the charged offense(s) against you. It’s a simple and efficient way to kick-start the process.

2. Understanding Minnesota’s Petty Misdemeanors

Many traffic tickets in Minnesota, like speeding tickets, are charged as petty misdemeanors. While they may not be considered crimes in Minnesota, a conviction for a petty misdemeanor will go on your driving record. This can have a negative impact on your car insurance rates. Don’t let a simple mistake lead to long-term consequences.

3. No detail is too Small

When you call us about your traffic ticket, provide as much detail as possible. Tell us about the weather conditions, the traffic situation, and the reason the officer gave for pulling you over. Share what you told the officer during the stop. The more information we have, the better we can assist you.

4. Time-Sensitive Responses

Remember, you have 30 days to respond to your ticket. You can either:

• Pay the ticket online, by phone, or by mail.
• Call the Court Payment Center phone number listed on the back of the ticket to schedule a court date, which is usually an Arraignment.

5. Special Arrangements in Select Counties

For tickets received in Carver, Dakota, Hennepin, Ramsey, Scott, or Washington County, you have the option to schedule a Hearing Officer Appointment. This informal meeting with a court administrator—known as a Hearing Officer (not a judge or prosecutor)—allows you to discuss potential eligibility for a reduced ticket fine or a driving probation period. This can help keep the charged offense(s) off your driving record and expedite the resolution process.

6. No Need for Driver’s License Picture

While we don’t require a picture of your driver’s license, it’s essential for us to know if you have a Commercial Driver’s License (CDL). Special traffic laws apply to individuals with a CDL, and we want to ensure we provide you with the most accurate and relevant advice.

7. Limitations of the LegalShield Traffic Benefit

Please note that the LegalShield traffic benefit generally does not cover criminal offenses, such as DWIs. Additionally, it does not cover matters involving a Commercial Driver’s License unless you have the CDL Supplement Plan.

Don’t let a traffic violation derail your life. Reach out to WFJ for expert guidance and support. Our team is dedicated to helping you understand your options, protect your rights, and navigate the legal system with confidence. Contact us today and let us help you resolve your traffic violations efficiently and effectively!

Navigating the rental market can be a daunting task, with both landlords and tenants seeking clarity on their rights and responsibilities. Minnesota has recently introduced new landlord-tenant laws aimed to enhance the rights and protections for both parties involved in the rental agreement.

Pet policies

Good news for pet owners! If you are renting a place in Minnesota, your landlord cannot demand declawing or devocalization of your furry companions.This ensures that pet owners can access housing without having to put their pet through an unnecessary and potentially harmful (and expensive!) procedure.

Your Right to Move-in/Move-out Inspections

Before moving in or out of a rental property, tenants now have the right to request inspections. This not only ensures transparency but also allows both tenants and landlords to document the condition of the rental property, helping to avoid disputes over security deposits down the road. So don’t hesitate to ask for the inspection-it’s in your best interest!

Transparent Fee Disclosure

Say goodbye to hidden fees! Landlords are now required to disclose all non-optional fees in addition to rent in the form of a “total monthly payment.” This transparency ensures that tenants are fully aware of all the costs associated with their rental agreement upfront. No surprises, just straightforward and honest dealings.

Minimum Heat Standards

Nobody likes shivering through the winter months. Thanks to the new law, landlords must ensure that heating is provided- maintaining a minimum temperature of 68 degrees Fahrenheit from October 1 to April 30. Allowing tenants to remain comfortable during the chilly Minnesota winters without having the crank up their own heaters.

Fair Eviction Practices

If you are facing financial difficulties and are at risk of eviction due to non-payment of rent, landlords are now required to send a letter at least 14 days prior to filing an eviction action. This will give tenants a fair chance to address issues before facing eviction proceedings.

Advance Notice for Entry

Under the new law, landlords must provide at least 24 hours’ notice for non-emergency entry into the rental property. Additionally, entry may only occur between 8 a.m. and 8 p.m., allowing tenants to plan and prepare for any necessary access by the landlord.

Lease Renewals

Planning ahead is crucial, especially when it comes to where you live. Landlords are now prohibited from forcing tenants to renew a lease more than six months before the current lease expires. This allows tenants to make decisions based on their changing circumstances without feeling pressured.

These new landlord-tenant laws are designed to create a more fair and transparent rental market for everyone involved. They aim to foster healthier landlord-tenant relationships and protect both parties from legal risk. Whether you are a landlord or a tenant, it’s essential to stay informed about your rights and responsibilities under these new regulations.

If you have concerns about a rental agreement, or are a landlord looking to protect their property, don’t wait! Take the time to review your rights and obligations under these updated regulations-and don’t be afraid to reach out to Wagner, Falconer & Judd to help you simplify the process!

It’s no surprise that the number of DWI’s and alcohol related crashes increases during the St. Patrick’s day weekend. If you are caught drinking and driving, the luck of the Irish won’t be much help, but advice from an attorney could be invaluable.

1.  Always have your driver’s license, registration, and Proof of Insurance in a location where you can easily locate them. Police Officers will take notice if you fumble around looking for these items. In the eyes of the Police Officer, fumbling can be used against you as a sign of impairment.
2. Be polite and cooperative. However, please remember, you have absolutely no obligation to provide any information to the police officer except for the items listed above. In fact, it always better to not answer questions about how many drinks you may have had and where you are coming from/going to. (You are free to exercise your right to remain silent.)
3. If the police officer requests that you get out of your vehicle to do some Field Sobriety Tests, you may refuse to do so. These tests can include reciting the alphabet backwards, and walking in a straight line. Whether or not it is a good idea to take these tests depends on the situation. If you are not impaired, full cooperation is the quickest way to be sent on your way. However, if you are impaired (or fear you might be), your cooperation can provide incriminating evidence that could be used against you at trial.
4. If the Police Office requests that you take a Preliminary Breath Test, commonly referred to as “PBT”,  at the initial traffic stop you may refuse to do so. Putting in breath mints, chewing gum, or drinking coffee will not help if you have been drinking. If the PBT indicates that your Blood Alcohol Content “BAC” is above the legal limit (.08 in MN and most other states), you will likely be arrested for Driving While Impaired or Intoxicated. (“DWI”).
5. If you are arrested for DWI in Minnesota (this applies to most other states as well, but always be aware of the laws in your specific location), Police Officers have an obligation to inform you of the Implied Consent Advisory. An Implied Consent Advisory will inform you that the law requires you to take the test to determine your BAC, even if you already took the PBT on the side of the road. When the Police Officer informs you to take a breath test at the station, you must do so. It is never in your best interest to refuse to take a test at this point, doing so will most likely result in more serious criminal penalties, longer license revocation, and mandatory ignition interlock. (Which comes at an extra cost to you!)
6. Before taking the test, you have a right to consult with an attorney. In fact, Police Officers must supply you with a phone book in order to ease your search to contact an attorney. However, it is always best to have an experienced Criminal Defense team at the ready, like WFJ, through LegalShield or other methods, as a contact in your cell phone to call case of an  emergency.
7. Regardless of the outcome, use the experience as a lesson. Consider alternative transportation options for future events, such as designated drivers, rideshare services, or public transportation. Planning ahead can prevent similar situations in the future.

While the goal is always to celebrate responsibly, life is unpredictable, and mistakes can happen. But DWI charges are complicated-they can result in serious jail time, fines, loss of license, forfeiture of your vehicle, and a criminal record. You should always seek competent legal advice as soon as possible. If you find yourself in this position, contact Wagner, Falconer & Judd for a consultation.

In the construction industry, where flexibility and specialized skills are heavily sought after, the classification of workers as independent contractors has long been a common practice. Independent contractors bring a range of talents and expertise to construction projects, offering unique advantages for both employers and workers.

However, recent developments in labor regulations have brought about significant changes in how independent contractors are classified, particularly in the construction sector. It is crucial for all stakeholders involved to stay informed and adapt to these new requirements to ensure compliance with the law.

The reclassification of independent contractors have significant implications for construction projects. From compliance with wage and hour laws to eligibility for certain benefits, the changes affect how construction businesses operate and engage with their workforce.

The New (Old) Regulations

Beginning March 11, a new Department of Labor rule will change how employers determine if a worker is an independent contractor of employee. The federal rule, first proposed in October 2022 and published in the Federal Register January 10, will reverse a rule made late in former President, Donald Trump’s term.

The 2021 shift by the former President’s administration altered worker classifications to focus on two factors: the nature and degree of control over work, and opportunity for profits or loss. Under the new framework-a return to the standard before the 2021 alteration-six nonexhaustive factors will determine a worker’s employment status.

The Six Major Factors When Determining Employment Status:

• Worker’s opportunity for profit or loss
• Investments made by the worker and the employer
• Degree of permanence of the work relationship
• Nature and degree of control over performance of the work
• Extent to which the work performed is an integral part of the employer’s business
• Use of the worker’s skill and initiative

There are Mixed Reviews

Construction employer groups balked at the change-calling the final rule’s standard “ambiguous and difficult to interpret”. (Associated Builders and Contractors).

Labor groups, on the other hand, applauded the update.

“Simply put, this rule will ensure the basic rights of all workers, consistent with the Fair Labor Standards Act.” (United Association of Union Plumbers and Pipefitters.)

Acting Secretary of Labor Julie Su said the final rule would ensure a level playing field for workers, particularly vulnerable workers who are misclassified and lose out on minimum wage, overtime pay, and other protections under the FLSA. Worker misclassification is prevalent in the construction industry: an estimated 1.1 million to 2.1 million workers are misclassified or paid off the books. (Century Foundation)

Final Thoughts

Employers, and especially employers who utilize the work of specialty and independent contractors, should conduct thorough audits of the employees and their current classification. Failing to comply with federal and state labor laws often leads to costly consequences such as legal penalties, back pay claims, and damages. Additionally, proper employee classification contributes to a fair and equitable workplace, building trust between employers and their workforce.

Employers would benefit from consulting with a lawyer will versed in employment law to assist in their audit of worker classifications. The attorneys at Wagner, Falconer & Judd stay up-to-date on the various laws that impact the classification of employees by state. Learn more about our services and get started today-that way you’ll be ready for the next employment law updates!