Perspectives

An employer in the state of Washington recently agreed to pay monetary damages to a former supervisor after managers and other employees intentionally misgendered the supervisor. The supervisor filed an employment discrimination charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) and alleged that after the supervisor disclosed their gender identity and pronouns to the employer, fellow co-workers repeatedly and intentionally referred to the supervisor with pronouns inconsistent with the supervisor’s gender identity. The EEOC’s investigation found that the supervisor’s co-workers intentionally misgendered the supervisor for over six months, and the employer failed to intervene to stop the sex-based harassment despite receiving complaints about the misgendering.

The EEOC concluded the intentional misgendering violated Title VII of the Civil Rights Act of 1964. Title VII prohibits the discrimination and harassment based on sex, which includes gender identity, and gender identity encompasses transgender, non-binary, and other gender non-conforming individuals. After the EEOC’s investigation, the employer agreed to pay the supervisor monetary damages, revise its non-discrimination policies, conduct employee training, and provide additional training to managerial-level- employees and other employees involved in investigating complaints of discrimination and harassment. The EEOC emphasized that employers have a duty to intervene when an employee is harassed or discriminated against because of the employee’s gender identity.

The outcome in Washington is an important reminder to employers to be aware that it is illegal for an employee to be discriminated against or harassed based on the employee’s gender identity. This means an employee cannot be fired, demoted, or have any other aspect of employment negatively affected because of the employee’s gender identity. Furthermore, harassing an employee based on gender identity becomes illegal harassment when the harassment is either so pervasive or severe that it creates a hostile work environment.

The recent ruling in Washington is an example of pervasive harassment that created a hostile work environment because the supervisor endured intentional misgendering abuse for over six months. It is important to note that the EEOC’s finding of gender identity harassment was based on intentional misgendering over an extended period of time. Accidentally misgendering an employee, minor teasing, or offhand comments made about an employee’s gender identity, or isolated incidents of intentional misgendering generally do not rise to the level of illegal harassment unless they are so severe that they create a hostile work environment.

Moving forward, employers should review their non-discrimination policies to ensure they clearly inform employees that discrimination and harassment based on gender identity are prohibited. Employers should also consider providing their employees, especially managerial-level employees, with discrimination and harassment prevention training to create a healthy work culture and to equip employees with the tools to prevent and eliminate any discrimination or harassment in the workplace.

The recent case in Washington serves as a crucial reminder for employers to maintain a work environment free from discrimination and harassment based on gender identity. Ensuring compliance with Title VII of the Civil Rights Act of 1964 is not only a legal requirement but also a fundamental step toward fostering an inclusive and respectful workplace. Employers must proactively revise their non-discrimination policies and provide comprehensive training to all employees, particularly managers, to prevent and address any incidents of harassment or discrimination.

WFJ is here to support you in creating a healthy and legally compliant work environment. We offer expert training, advice, and consultation services to help your organization avoid the costly legal consequences of non-compliance with the Title VII. Let us assist you in building a workplace where all employees feel respected and valued. 

As a homeowner, understanding your rights and legal obligations is essential for protecting your investment and ensuring a smooth living experience. From property rights to navigating homeowner association (HOA) disputes and landlord-tenant laws, here’s a brief overview of key topics every homeowner should be aware of:

Property Rights

Your property rights encompass various legal protections that safeguard your ownership and use of your home. These rights include the right to exclusive possession, the right to see or transfer the property, and the right to use the property in a manner consistent with local zoning laws. It’s crucial to familiarize yourself with local ordinances and regulations governing property use to avoid potential conflicts with neighbors or local authorities.

HOA Disputes

Many homeowners reside in communities governed by an HOA, which establishes rules and regulations aimed at maintaining property values  and community standards. While HOAs can provide benefits such as community amenities and maintenance services, disputes between homeowners and HOAs can arise over issues such as property maintenance, architectural guidelines, or assessment fees. Understanding your rights within the framework of the HOA’s governing documents and state laws can help you navigate these disputes effectively.

Landlord-Tenant Laws

If you rent out a property you own or are a tenant yourself, it’s essential to understand the legal rights and responsibilities outlined in landlord-tenant laws. These laws govern various aspects of the landlord-tenant relationship, including lease agreements, rent payments, eviction procedures, and maintenance responsibilities. Familiarizing yourself with your state’s specific landlord-tenant laws can help protect you from potential disputes and ensure a fair and lawful renting experience.

Knowing your rights as a homeowner (and renter) empowers you to navigate legal challenges confidently and protect your interests. However, legal matters can be complex, and seeking guidance from a qualified real estate attorney can provide invaluable assistance in understanding and asserting your rights effectively. Stay informed and proactive, you can enjoy the benefits of homeownership while minimizing potential legal risks and disputes. The attorneys at Wagner, Falconer & Judd are here to help! Reach out today for a consultation.

On April 23, 2024, the U.S Department of Labor (DOL) issued a Final Rule raising the minimum salary thresholds for exempt employees under the Fair Labor Standards Act (FLSA). Exempt employees are (quite literally) exempt from the minimum wage, overtime, and time reporting provisions of the FLSA, allowing employers to pay these employees a weekly salary regardless of actual hours worked. The DOL sets the minimum threshold for compensation, and the positions must meet certain duties tests to be considered exempt. The Final Rule affects employees under the White Collar Exemption (executive, administrative, or professional) and Highly Compensated Employees’ Exemption.

Now and until July 1, 2024, employees occupying white collar exempt positions must be compensated at a rate of at least $684 per week ( about $35,568 per year). Similarly, employees in highly compensated positions must be compensated at a rate of at least $107,432 to qualify for the exemption.

The DOL, in its Final Rule, drastically raised these thresholds. But, potentially to soften the blow on the employers, the DOL is implementing the salary threshold increase in a two-part approach:

• First, effective on July 1, 2024, the salary level threshold for exempt employees will increase to a minimum of $844 per week (about $43,888 per year), and to $132, 964 per year for highly compensated employees.
• Then, starting on January 1, 2025, the threshold is set to increase to at least $1,128 per week (about $58,656 per year) for exempt employees and $151, 164 per year for highly compensated employees.

The Department of Labor plans on updating salary thresholds every three years beginning July, 1, 2027.

What Should Employers Do Now?

The Final Rule has already not been well received by some, and is expected to be challenged-which could delay implementation. Nevertheless, employers should proceed with caution and, despite the potential delay in the implementation, start preparing and budgeting for the changes.

• Employers could either prepare to increase employees’ salaries in a two-part approach, as the DOL suggests, first on July 1, 2024, and then again on January 1, 2025.
• Employers could also increase the salary threshold to January 1, 2025 levels on July 1, 2024.
• Employers can always convert the employees to the nonexempt status should the new thresholds be too burdensome.

As always, when it comes to exempt employees’ classification and compensation, employers should always seek experienced legal counsel. Our attorneys at Wagner, Falconer & Judd are always available to answer any of your questions.

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. 

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!

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.

Employers know that staying up-to-date with the latest changes in employment law is crucial to the success of your business. These updates can affect everything from how you hire and manage employees-to how you handle disputes and protect your business from legal action. That’s where the Employment Law team at Wagner, Falconer & Judd comes in! We rounded up some of the most impactful new laws across the United States that are taking effect soon.

California

California Governor Gavin Newsom signed off on a number of new laws that impact employers across various industries.

• Set healthcare industry minimum wage requirements for nearly all healthcare workers, whether they are hourly or salaried employees, or independent contractors. The law also provides these workers with an independent private right of action to enforce these minimum wage requirements.
• Codified legal precedent banning certain non-compete and non-solicitation agreements and requires that employers notify current and former employees in writing by February 14th, 2024 that any prior non-compete agreements contravening the law are void.
• Update to California Fair Employment and House Act allowing eligible employees to take up to five days of reproductive loss leave following failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction.
• New law requires employers to pay food handler employees for the costs associated with obtaining a food handler card required by the California Health and Safety Code. The new law also makes employers responsible for the time required for the employee complete the training, the cost of testing, and any element required for the completion of the certification program.
• California Consumer Privacy Act (CCPA) definition of “sensitive personal information” is revised to include personal information that reveals a consumer’s citizenship or immigration status.
• SB 700 expanded California’s Fair Employment and Housing Act to protect applicants from discrimination based on prior cannabis use, with certain exceptions
• Expanded California’s existing paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) increasing employee’s entitlement to annual paid sick leave
• Raised minimum wage for restaurant workers at national fast food chains to $20/hour

Colorado

• The Boulder County Board of Commissioners adopted a minimum wage ordinance, effective January 1, 2024
• SB 23-105 which expands notifications requirements in Colorado’s Equal Pay for Equal Work Act
• Enacted the Job Application Fairness Act (JAFA), effective July 1, 2024, which prohibits employers from requesting or requiring that job applicants provide information relate to “age, date of birth, or dates of attendance at or graduation from an educational institution” on initial employment applications.

Connecticut

• Minimum wage will increase to $15.69 on January 1, 2024 under its first-time economic indicator adjustment and will adjust annually
• PA 23-35 “An Act Expanding Worker’s Compensation Coverage for Post-Traumatic Stress Injuries for All Employees”, which expands the definition of employee to allow nearly all workers (not just first responders) who suffer certain tragic qualifying events to claim workers’ compensation benefits, effective January 1, 2024

Hawaii

SB 1057, effective January 1, 2024 will:

• require most employers with 50 or more employees to disclose a position’s hourly rate or salary range in certain job postings
• amend existing equal pay requirements by prohibiting an employer from paying employees in any protected category of the state’s employment discrimination statute less than it pays other employees

Illinois

Governor J.B. Pritzker joined other states in signing legislation to expand leave protections to employees, and provided guidance on a number of matters impacting employers and employees.

• Chicago City Council passed a new paid leave ordinance requiring all Chicago employers to provide employees with 10 paid leave days. Adding complications for employers, the varying types of leave will have different rules for initial eligibility, minimum usage, rollover and payout upon termination.
• New law, Child Extended Bereavement Leave Act (also known as Zachary’s Parent Protection Act) requires employers with at least 50 employees to provide between 6 and 12 weeks unpaid leave (depending on the employer size) for employees who have lost a child due to suicide or homicide
• Evanston, IL adopted a Fair Workweek Ordinance, expanding hourly workers’ rights to predictable scheduling across multiple industries
• The Illinois Department of Labor (IDOL) published Paid Leave for All Workers Act FAQ, which provides guidance on the state’s Paid Leave for All Workers Act, effective January 1, 2024
• Illinois will require private employers to provide a minimum of 40 hours of annual paid leave to employees to be used for any reason. Employers have options on how to distribute that leave time, but may not require any documentation on the need for leave.

Maryland

• Maryland Governor Wes Moore approved the Maryland General Assembly’s modifications to the Maryland Time to Care Act of 2022 which will add a critical provision, mandating employee and employer contribution rates at 50/50 to the sweeping paid family and medical leave program.
• Moore also signed the Fair Wage Act of 2023, which mandates a uniform $15 hourly minimum wage for all employers effective January 1, 2024.

Minnesota

Minnesota was another state with sweeping changes to the legal landscape of the state in 2023, legalizing recreational marijuana and expanding expanding employee protections.

• MN Department of Labor and Industry has issued guidance on the state’s paid earned sick and safe time (ESST) law, which takes effect January 1, 2024. The agency has also published a sample employee notice employers may use to satisfy their ESST notice obligations
• City of Bloomington amended its paid sick leave law to more closely align it with the statewide paid sick leave mandate. Among other things, the amendment (effective January 1, 2024):
  • expands the definition of “family member”
  • modifies the allowable reasons for leave
  • allows frontloading with no waiting period
  • allows reasonable documentation to justify the reasons for leave
• MN DOL announced that minimum wage rates will be adjusted for inflation and increase 2.5% on January 1, 2024
• Governor Walz also signed a far-reaching omnibus jobs and economic development and labor funding bill that:
  • provides for investing $500 million in a fund matching federal investments in infrastructure and large development projects
  • bans employment non-compete agreements signed after July 1, 2023
  • mandates certain worker safety protections
  • creates new paid sick leave entitlements
  • provides employees with additional pregnancy and nursing accommodations
  • prohibits employers from mandating attendance at employer-sponsored meetings about religious or political matters
  • adds protections for employees who disclose their own wages or voluntarily discuss their wages with other employees
• Bloomington published initial rules implementing its Earned Sick and Safe Leave (ESSL) Ordinance, which took effect on July 1, 2023. It also published the mandatory Notice of Employee Rights in English ( posters in other languages will also be available.)

Nevada

• Nevada passed SB 290, which requires earned wage access providers to obtain a license from the state government and regulates the providers. The law governs entities that provide consumers with an advance of income they have earned or accrued but have not been paid yet.
• Nevada OSHA announced increased penalties that took effect on January 17, 2023 and on March 24, 2023, released an updated list of establishments it is targeting for programmed inspections.

New Jersey

The New Jersey DOL launched the Workplace Accountability in Labor List (the WALL), a publicly available list of businesses with outstanding liabilities for violations of state wage, benefit, and tax laws enforced by the agency. Businesses on the list are prohibited from public contracting.

New York

New York’s Paid Family Leave Program will be updated for 2024 so that employee’s maximum:

• • weekly benefit is $1,151.16
  • annual contribution is $333.25
• Additionally, the list of family members for whom eligible workers can take Paid Family Leave to care for was expanded in 2023 to include biological, adopted, step-, and half-siblings, including those living outside of NY and outside the U.S.

• A5295, with some exceptions, renders unenforceable agreements that assign an employee’s rights in an invention to their employer even where the employee develops the invention entirely on their own time without using the employer’s property.
• S5572 increases the salary threshold for certain wage payment exceptions, such as pay frequency requirements. Effective March 2024.
• S2518A prohibits employers from requesting or requiring an employee or applicant to disclose access information for a personal social media account or performing other related acts.
• S4878A requires employers to provide employees written notice of their right to file for unemployment benefits when they are let go or experience a reduction in hours or other interruption of employment.

Ohio

Joining 23 other states, Ohio has passed a recreational marijuana law legalizing and regulating the cultivation, sale, purchase, possession, use and home growth of recreational marijuana. The new law does not require an employer to “accommodate an employee’s use, possession, or distribution of adult use cannabis”.

The City of Columbus joins Toledo and Cincinnati as the latest Ohio city to prohibit employers from asking prospective employees about past compensation. Effective March 1, 2024, employers operating in Columbus may not ask about a prospective employee’s wage or salary history. The new ordinance makes it an “unlawful discriminatory practice” for an employer to: ask about an applicant’s salary history, which includes current or prior wages, benefits or other compensation.

Rhode Island

Rhode Island Governor Daniel McKee signed a bill that increase the penalties for employers that knowingly and willfully violate the wage and hour laws, and specified additional penalties for employers in the construction industry.

Washington

• The Department of Labor and Industries announcement of increases to state and local minimum wage and exempt salary thresholds for 2024. The increases are effective January 1, 2024.
• SB 5586 allows employees, an employer, and third parties acting on behalf of the employee or employer to request access to records related to paid family or medical leave claims.
• SB 5123 prohibits employers from making hiring decisions based on off-duty cannabis use or a positive pre-employment drug test result detecting psychoactive cannabis metabolites. Takes effect January 1, 2024
• SB 5111 amends the minimum wage law and requires employers to pay out standalone unused paid sick and safe time to certain short-term or temporary construction workers.

Staying on top of local employment laws doesn’t have to be complicated! Work with the attorneys at Wagner, Falconer & Judd and make compliance a breeze.