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Ban on Captive Audiences

09.15.2023 Written by: Henningson & Snoxell, Ltd.

New legislation went into effect on August 1, 2023 that prohibits employers from discharging, disciplining, or otherwise penalizing employees who decline to attend or participate in employer-sponsored meetings, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters (“Captive Audience Meetings”). The law also protects employees who decline to receive or listen to employer-sponsored communications. Under the statute, retaliation, or the threat thereof, is prohibited as a means of inducing an employee to attend such meetings or receive such communications. And, under no circumstances may an employer take adverse action against an employee making a good-faith report of a violation or suspected violation of this statute.

The statute does not:

  1. Prohibit communication of information that the employer is required by law to communicate.
  2. Limit employers’ right to conduct meetings involving religious or political matters if attendance or listening is wholly voluntary.
  3. Limit employers’ right to communicate with employees or require the attendance of employees at meetings and other events that are necessary for employees to perform their lawfully required job duties.

Employers must post and keep posted a notice of employee rights, where employee notices are customarily posted if they have not already. Please contact us regarding our best practice recommendations for your workplace or with any questions regarding this new ban on captive audiences.

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Using AI: A Caution to Users

08.24.2023 Written by: Henningson & Snoxell, Ltd.

Artificial intelligence (AI) programs, such as ChaptGPT, have gained immense popularity in recent months. And while AI has undoubtedly revolutionized the way we search for information, its accuracy is not guaranteed. Numerous users have reported receiving unreliable answers from AI. If these errors are not caught, they can lead to adverse and/or costly situations. Some of the major concerns related to the use of AI are highlighted below.

What Is It?

AI is a technology that mirrors human intelligence by performing tasks and iteratively improving itself. In addition to performing general searches, it can also “write” responses, reports, papers, and letters for users. Searching for a research topic or requesting a draft letter can result in paragraph-long answers freely accessible to the user.

However, it is important to note that AI does not guarantee the accuracy of its responses. Users must exercise caution when utilizing AI and should not blindly rely on AI-generated answers. Despite its advanced capabilities, errors or inaccuracies are still possible, making it essential for users to critically evaluate and verify the information obtained from AI.

Concerns

Properly used, AI can be a great resource for users and is currently free to the public. However, caution is advised when using it.

  1. Fact-Check. We cannot emphasize this enough! AI is explicit that it does not guarantee the accuracy of its responses. AI is built on patterns and data inputted into the system, which means it responds based on that alone. AI does not have the professional judgment or human instinct to realize when information may be incorrect or misleading. It is up to the user to correct the response so the AI can learn and improve its future answers.
  2. High Probability of Plagiarism. AI generates responses based on language and other content inputted by other users and published online. This means the response ultimately originates from someone else, and the references or citations provided by AI may not always be real or accurate. Although plagiarism detectors exist, these devices are themselves powered by AI and do not guarantee the successful detection of plagiarism. Plagiarism can lead to serious legal repercussions, which are entirely avoidable.
  3. AI should not be your final destination. AI is meant as a starting point, and it can be a good resource in that regard. But it should never have the final say in your research or writing. Do not blindly rely on AI-generated information.
  4. Check your sources. Several lawyers and other professionals have already learned the hard way not to rely on AI-generated responses. There have been several instances of AI citing legal cases that were later determined not to exist. Lawyers who trusted these responses and submitted them in court filings were subject to professional discipline and sanctions.
  5. No real-life experience. Despite AI’s immense realm of “knowledge,” AI does not know everything, nor does it have the proper judgment or experience to advise users in certain areas. AI has limitations. It has never gone to school, it has never attended a professional program, and it does not know the specifics of your situation. As with any online resource, it is always better to ask a human professional. For example, you may do some initial research on WebMD, but you need a real doctor to confirm your diagnosis.
  6. AI-generated documents are not cheaper! Contrary to the $99 price advertised on a website, an online legal document will cost you more in the long run. AI-generated legal documents (1) are commonly completed with incorrect information; (2) do not contain proper language to match your intentions; and (3) require payment for services that are usually free (e.g., a Registered Agent for an LLC). Litigation costs add up, and your initial $99 legal document could quickly turn into a substantial litigation fee because your document was not properly completed. Save yourself the trouble and money by skipping the do-it-yourself legal document services and meet with a (living) professional to draft your documents.  

Contact Henningson & Snoxell

As always, we are here to help! Please contact us with any questions or concerns about your AI-generated legal documents. With a wealth of experience and a comprehensive knowledge of the Minnesota legal system, you can trust Henningson & Snoxell to help you navigate the ever-changing landscape of technology and information.

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COVID-Era Flexibilities Ending Soon: Form I-9 Remote Inspections

08.08.2023 Written by: Henningson & Snoxell, Ltd.

Two professionals look over paperwork.

The Department of Homeland Security and U.S. Immigration and Customs Enforcement have recently announced the “sunset” of COVID-19 temporary flexibilities announced in March 2020 which allowed employers to remotely inspect new employee identification documents required for the Form I-9. These flexibilities began to “sunset” on July 31, 2023, and employers are required to finalize physical inspections by August 30, 2023.

This means that all employers have until the August 30, 2023 deadline to go back and physically inspect the documents the employer received from all individuals hired on or after March 20, 2020, and who only had remote inspections completed by the employer for their Form I-9. DHS requires specific annotations regarding the physical inspections on Form I-9, depending on who completes the physical inspection and what documents are presented.

For more information or questions about this announcement, please contact us.

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Hiring and Testing New Employees

07.06.2023 Written by: Henningson & Snoxell, Ltd.

Minnesota has become the 23rd state to legalize recreational marijuana, which goes into effect on August 1, 2023. This means that adults (21 and older) may possess and use recreational marijuana anywhere in the state of Minnesota, except on federal property. As an employer, however, such use may have the same implications as the use of alcohol or other prescription drugs while on the job. Here is what you need to know when hiring and testing job applicants as of now.

Hiring

The use of recreational marijuana is illegal until August 1, 2023, so any test that comes back with a positive result for THC can still be subject to disciplinary action prior to that date.

After August 1, an employer may not:

  • Refuse to hire a job applicant based on an applicant’s use of cannabis products while off the employer’s premises during nonworking hours;
  • Request or require a job applicant to undergo testing solely for the purpose of determining the presence or absence thereof as a condition of employment;
  • Refuse to hire a job applicant solely based on a positive result for cannabis (unless required by state or federal law—for example, safety-sensitive positions);
  • Request or require a job applicant to undergo cannabis testing on an arbitrary or capricious basis; and
  • Withdraw an offer to a job applicant whose offer was contingent on passing a cannabis test, without a verification of a 2nd positive result from a confirmatory test (only for applicants of certain positions).

An employer may:

  • Request a cannabis test only after the employer has provided an appropriate form detailing the cannabis testing policy;
  • Request or require cannabis testing for a job applicant for certain positions.

An employer can request or require cannabis testing in three instances:

  • After an employer presents the employee or job applicant with a form detailing the cannabis testing policy—as with drug and alcohol testing policy requirements.
  • If the employee or job applicant is or will be working in one of the positions specified by statute (including but not limited to safety-sensitive positions, peace officer positions, and several others).
  • If an employer has reasonable suspicion that the employee:
    • Is under the influence of drugs or alcohol;
    • Violated the employer’s written work rules prohibiting such use;
    • Sustained a personal injury or has caused another employee to sustain a personal injury; or
    • Caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.

Where to Test?

Cannabis testing should be completed at a National Institute on Drug Abuse certified testing laboratory. However, Employers cannot conduct cannabis testing of their own employees or job applicants at a laboratory owned and operated by the employer.

What You Need to Do

  1. Update your written drug and alcohol testing policyby explicitly including cannabis in your drug and alcohol testing policy.
  2. Prepare a form detailing cannabis testing to share with job applicants and employees.

Please contact us on August 1, 2023, to update your drug and alcohol policies to include the necessary cannabis usage and testing language.

We will keep you informed as the Office of Cannabis Management continues to provide additional guidelines over the next year.

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Legalized Marijuana in the Workplace: What Do Employers Need to Know?

07.06.2023 Written by: Henningson & Snoxell, Ltd.

Legalized Marijuana in the Workplace: What Do Employers Need to Know?

Minnesota has become the 23rd State to legalize recreational marijuana, which goes into effect on August 1, 2023. With this change, employers have a few important steps to take to ensure safety in the workplace for their employees and their business. Here is what employers should know:

  • Recreational marijuana is still illegal until August 1, 2023; therefore, any use or possession can still be subject to disciplinary action.
  • After August 1, employers have some restrictions for prohibiting the use or possession of cannabis at work and when they can test for cannabis.

Prohibition on Use or Possession at Work

An employer cannot regulate an employee’s use and possession of recreational marijuana off work premises and during nonworking hours.

Employers can, however, regulate an employee’s use and possession during working hours, on work premises, or while operating an employer’s vehicle, machinery, or equipment.

Additionally, employers have no duty to permit or accommodate the use, possession, impairment, sale, or transfer of cannabis product (etc.) while an employee is working, on work premises, or operating an employer’s vehicle, machinery, or equipment.

Disciplinary Action Allowed

Employers may discipline, discharge, or take other adverse action against an employee for such use if:

  • As a result of consumption, the employee does not possess the clearness of intellect and control of self that the employee otherwise would have;
  • Cannabis testing verifies the presence of cannabis product (etc.) following a confirmatory test;
  • As provided in the employer’s written work rules for cannabis products (etc.), provided the rules are in writing and in a written policy containing the minimum information; or
  • As otherwise authorized or required under state or federal law, or if failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.

Employers may not discipline, discharge, discriminate against, or request rehabilitation of an employee:

  • Based on a positive result that has not been verified by a confirmatory test.
  • Based on a positive result from a confirmatory cannabis test unless:
    • Employer has first given the employee an opportunity to participate in a counseling or rehabilitation program; and
    • The employee either refused to participate or has failed to successfully complete the program (via withdrawal from program before completion or by positive confirmatory test after completion of program).

Employers may temporarily suspend or transfer an employee to another position (at the same rate of pay) pending the outcome of the confirmatory test, as long as the employer believes it is to be reasonably necessary to protect the health or safety of the employee, co-employees, or the public.

Cannabis Testing for Employees

An employer can test for cannabis when:

  • The employee works in a “safety-sensitive position.” Such positions are subject to Random Testing.
  • The employer has a reasonable suspicion that the employee:
  • Is under the influence of drugs or alcohol;
  • Has violated the employer’s written work rules prohibiting such use;
  • Sustained a personal injury or has caused another employee to sustain a personal injury; or
  • Caused a work-related accident or was operating or helping to operate machinery, equipment or vehicles involved in a work-related accident.
  • The employee has been referred by employer for substance use disorder treatment or evaluation.

An employer cannot test for cannabis on an arbitrary or capricious basis. In addition, employees have the right to request and receive a copy of the cannabis testing results from the employer.

What You Need to Do

  1. Update written drug and alcohol policies (usage and testing) to explicitly include cannabis language. This statute sets forth specific requirements for your written policy in order that it be compliant. Please contact our offices to ensure your policy reflects such language (some of which includes but is not limited to listing the employees or job applicants subject to testing under the policy, etc.)
  2. Prepare a form detailing the employer’s drug, alcohol, and cannabis testing policy and present it to the employees.

Please contact us before August 1, 2023, to update your drug and alcohol policies to include the necessary cannabis usage and testing language.

We will keep you informed as the Office of Cannabis Management continues to provide additional guidelines over the next year.

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How the New Amendments Are Protecting Employees

06.23.2023 Written by: Business Law Department

On July 1, 2023, in addition to the new noncompete legislation, two new amendments will go into effect that will impact employees and businesses. The amendment to the wage disclosure protection will prohibit employers from retaliating against an employee for asserting rights or remedies, and there will be an increase in protection for nursing mothers and employees. Continue reading our blog as we navigate the two new amendments going into effect this year.

Amendment to the Wage Disclosure Protection

Effective July 1, 2023, the Wage Disclosure Protection will prohibit employers from discharging, disciplining, penalizing, interfering with, threatening, restraining, coercing, retaliating, or discriminating against an employee for asserting his or her rights or remedies under the Wage Disclosure Protection.

The Wage Disclosure Protection was enacted in 2014 and amended in 2022. The previous language merely prohibited an employer from retaliating against an employee for asserting rights or remedies under the Protection. The July 1, 2023, amendment clarifies the types of retaliation prohibited under the statute. Contact us regarding these clarifications and what employers need to know.

Increased Protections for Nursing Mothers and Pregnant Employees

Also, effective July 1, 2023, the Minnesota Legislature passed several amendments to the Nursing Mothers and Pregnant Employee laws.

  1. No more 12-month limitation. There is no longer a 12-month limitation for employers to provide reasonable break times each day for lactation. This means that employers must allow nursing mothers and lactating employees breaks each day beyond the 12-month period.
  2. Concurrent with other breaks. Previously, such breaks were required to be taken concurrently with other breaks. However, the new amendment now merely allows for concurrent breaks but does not require the lactation breaks to run concurrently.
  3. Elimination of “unduly disrupts operations.” Employers are no longer allowed to deny nursing mothers and lactating employees a break if the break would ‘unduly disrupt operations.’
  4. Increased protections for pregnancy accommodations without health care provider’s advisement. The new amendment provides increased protections without requiring a licensed health care provider or certified doula for (a) more frequent and longer break periods; (b) a temporary leave of absence; and (c) modification in work schedule or job assignments.
  5. Notice to Employees. Employers are required to inform employees of their rights under this law at the time of hire and when the employee makes an inquiry about or requests parental leave. Notice shall also be provided in the employee handbook, if available, stating the employee rights and remedies. The Department of Labor will make available a suggested text to be included in the notice for employers.

Please contact us to update your employee handbook and answer any questions regarding the new amendment.

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No New Noncompetes

06.16.2023 Written by: Business Law Department

Warning to employers: A notable shift in employment law regarding the regulation of noncompete agreements has been passed by the Minnesota Legislature. Learn more about these changes and how they will affect your business moving forward.

No New Noncompetes: Effective July 1, 2023, any noncompete agreements agreed and entered into on or after July 1, 2023, will be considered void and unenforceable. This new law applies to non-profit organizations as well as for-profit businesses.

What Does it Mean?

  • The ban applies to all employees or independent contractors’ agreements, regardless of the person’s income, from working for another business after termination of employment, including:
    – for a specified period of time,
    – in a specified geographic area, or
    – for another employer in a capacity similar to the employee’s work for employer party to the agreement.
  • Noncompetes during employment are still valid.
  • The ban is not retroactive and will hold any noncompete provisions entered into before July 1, 2023, as valid and enforceable.
  • If the noncompete provision is rendered unenforceable, the remaining contract or agreement will still be valid and enforceable but without an enforceable noncompete provision.

What Can You Still Do?

  • Employers can still use noncompetes:
    – in the sale of a business, or
    – in anticipation of the dissolution of a business.
  • Employers can still use non-competes during the time of the employee’s employment.
  • Employees will still be subject to the following agreements:
    – Nondisclosure,
    – Confidentiality,
    – Trade secret, and
    – Non-solicitation.

Henningson & Snoxell Can Help

Please contact us with any questions or concerns regarding employee protections. We can utilize the tools mentioned above to protect your business and organizations.

In addition, please keep an eye out for more updates regarding the other new employment laws passed this session.

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May is National Elder Law Month – What Can an Elder Law Attorney Do For You?

05.26.2023 Written by: Rachell L. Henning

May is National Elder Law Month. Elder law attorneys are distinct from estate planning attorneys. While they may offer similar services, elder law attorneys bring additional knowledge to the table that benefits elderly and disabled individuals and their families. 

Elder law attorneys can provide many different types of services such as assisting in the setup of long-term care and Medicaid planning, Medicare appeals, long-term care contract reviews, special needs planning, and more. By working with families and providers in the elder law field daily, we develop connections and resources that help our clients navigate the challenging elder care system more effectively. 

Our elder law attorneys bring peace and predictability to families of aging loved ones or loved ones with disabilities.  We offer emergency services that meet the client and their family where they are and help them connect with resources to ensure their needs are met. Our services range from helping get conservatorships and guardianships to working with family members, care facilities, and the county to obtain assistance with paying for care costs. Our elder law attorneys provide a wide array of services that help take the stress off of families during some of the most challenging times. 

Henningson & Snoxell has elder law attorneys who are able to help you and your loved ones navigate this complex area. Call or email us today to get in contact with one of our knowledgeable elder law attorneys.

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Honoring Rights and Fulfilling Responsibilities of a Guardianship/Conservatorship

05.23.2023 Written by: David T. Estle

When a loved one starts to experience difficulty in taking care of himself or herself—whether due to disability or aging—there are often concerns about having the legal authority to act for the person who needs additional assistance in his or her support, finances, or otherwise. Anticipating these issues is the main feature of incapacity planning. If there has been no advanced planning in the case of incapacity, or even if the person named in the incapacity documents needs more legal authority to help effectively, there is a court process to assist people with greater needs by putting them under a guardianship or conservatorship. However, being under a guardianship or conservatorship does not mean a person has lost control over his or her own life. Continue reading our blog to learn more about the responsibilities of guardianships and conservatorships.

People subject to guardianship or conservatorship (sometimes called “wards” or “protected persons,” respectively) are granted a list of rights under Minnesota law. These rights—including the rights to participate in their own healthcare decisions, to personal privacy, to have an attorney at any proceeding, and to generally still have control over their own lives—are guaranteed by the court. While the court ultimately enforces and protects these rights of the person subject to guardianship/conservatorship, as a practical matter, all stakeholders in the guardianship/conservatorship should know about the rights which they must respect.

Guardians or conservators of a person subject to a guardianship/conservatorship must additionally know about the duties associated with their role. Guardians have a duty to look after the person of the ward. They must provide for the person’s health and safety, ensuring that a person subject to guardianship has adequate food and shelter. Personal property is also under the purview of a guardian, requiring a guardian to take reasonable care of personal items, but even allowing the sale and removal of those items, as long as the person subject to guardianship is given notice and a chance to object. Being the overseer of personal well-being also carries with it the power to consent to or decline most medical care. Overall, the guardian must act in the best interest of the person. When guardians want help in determining the best interest of the person they are caring for, they can always seek the approval of the court for the chosen course of action.

Conservators have the responsibility to look after the protected person’s estate, or assets. Their responsibilities include paying for (and keeping detailed records of those expenses) the person’s support and financial maintenance. A conservator is tasked with paying the bills, writing checks, and maintaining financial accounts, all on behalf of the person subject to conservatorship and with that person’s assets. Necessarily, the court must oversee the conservator’s actions with an auditor’s eye view, requiring a yearly accounting of the assets, income, and expenses. Conservators use an online program to make these annual reports. The conservator needs to be comfortable with handling financial matters, including real estate. The conservator serves in the protected person’s best interest, but with regard to the kinds of needs, services, and purchases that need to be made for the benefit of the protected person. Where a person subject to guardianship has only income and no financial assets, the guardian collects income and pays the bills instead of having an appointed conservator.

The combination of respecting rights while fulfilling responsibilities can make for a difficult job. But guardians and conservators are often willing to go above and beyond for their loved ones who need their help. This does not mean that there is no conflict, or that the guardian or conservator will always get it right. The appointed guardian or conservator is often a spouse, child, sibling, or other close family relative. Indeed, the guardian and conservator can end up being the same person in many instances. Guardians and conservators straddle a line between deeply caring for the person subject to guardianship/conservatorship and having new legal responsibilities to help that person.

Guardianships and conservatorships add a new dimension to already complex familial relationships. Although the guardian or conservator may have been previously tapped for that role in an incapacity planning document, there are suddenly more responsibilities and accompanying duties. Even where the person subject to guardianship or conservatorship completely trusts and loves the person who is now guardian or conservator, the situation now requires interacting with that loved one in a court-monitored process that is regimented and particular.

Take, for example, a daughter who becomes the court-appointed guardian and conservator of her father. The daughter is an accountant, understanding all of her responsibilities with the capability to fulfill her role as conservator ably. When the daughter decides to approach her father about decluttering and organizing the house because she thinks it is unsafe as is, her father objects, claiming that he wants to keep all of his personal effects. The father is unhappy because he feels his desire to keep his house the way he wants is being questioned. The daughter is worried because she knows she has a legal duty to be proactive in protecting her father’s safety and well-being. She also needs to ensure that disposing of whatever property is sold is favorable to the estate.

The father has a right to be notified of his property being disposed of; the daughter must inform her father of her decision by mailing a written notice to her father listing the property that she intends to get rid of. The father may object within ten days of the postmark date and then demand court review of the daughter’s plans to remove his property. The objection must be officially served on the daughter. If her father objects, the court will have to calendar a hearing date to consider the daughter’s plan and whether it is in the best interest of her father. What started as a disagreement has become a legal quagmire.

The father understandably does not want to lose control over his life. The daughter loves her father dearly, but feels she is being more than reasonable in wanting to get rid of items she sees no value in and could create a safety issue for her father. There is a push-and-pull between the rights of the person subject to guardianship/conservatorship and the responsibilities of the guardian/conservator. Are these two headed to the courthouse all because of a difference in opinion about the father’s clutter? How much more difficult would it be if the daughter was not a financial professional with career experience and knowledge in these topics?

The possibility for these types of conflicts is real and anxiety-producing. Seeking representation from elder law attorneys can help you navigate, and even anticipate these scenarios in guardianships and conservatorships, potentially resolving disagreements before they get to the expense and publicity of a courtroom. Our attorneys can help you if you are under guardianship and/or conservatorship, advocating for your rights. We also set up guardianships and conservatorships for those seeking to take care of their family member or loved one, assisting proposed guardians or conservators in accepting their roles with the courts, and then advising the court-appointed guardians and conservators on how best to fulfill their obligations.

Come see an elder law attorney at Henningson & Snoxell to discuss your guardianship/conservatorship matter. Contact us to see how we can provide valuable representation that aims to achieve your best outcome.

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FRONTLINE WORKER PAYMENTS: Immediate Impact on Employers

06.07.2022 Written by: Henningson & Snoxell, Ltd.

To thank those Minnesotans who worked on the frontlines during the COVID-19 peacetime emergency, Gov. Tim Walz signed Frontline Worker Payments into law April 29, 2022, enabling those workers to apply for Frontline Worker Pay. If you employed these workers, please pay close attention to the information below as it requires your immediate action.

Do your business or non-profit organizations fall under any of the following sectors?

  • Long-term care and home care
  • Health care
  • Emergency responders
  • Public health, social service, and regulatory service
  • Courts and corrections
  • Childcare
  • Schools, including charter schools, state schools, and higher education
  • Food service
  • Retail
  • Temporary shelters and hotels
  • Building services
  • Public transit
  • Ground and air transportation services
  • Manufacturing
  • Vocational rehabilitation

If so, you have a maximum of 15 days once the application period opens to provide notice in a form approved by the Commissioner of Minnesota’s Department of Labor and Industry. This application period opens on June 8th. The notice must tell all current workers who may be eligible for payments under this law about such payments and how to apply for them. A notice that meets this obligation has been posted at frontlinepay.mn.gov.

Note that this notice must be provided using the same means that you use to provide other work-related notices to employees. Additionally, the notice must be at least as conspicuous as posting a copy of the notice at each work site where workers work and where the notice may be readily observed and reviewed by all workers working at the site or providing a paper or electronic copy of the notice to all workers. In other words, it should either be visible to all workers or provided to each worker individually via email or paper copy,

If your employees have questions regarding the application process, direct them to frontlinepay.mn.gov.

If you are a current client of the firm, give us a call at 763-560-5700 if you have questions on any of the above information.

If you are new to the firm and have questions you would like us to address, please reach out to any of our business or nonprofit law attorneys.

Copyright © 2022 Henningson & Snoxell, Ltd. – All Rights Reserved.

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    Copyright © Henningson & Snoxell, Ltd. - All Rights Reserved. This blog provides only very general, high level information about legal issues. Henningson & Snoxell, Ltd. is not providing legal advice through this blog, this blog is not an advertisement for legal services, and this blog does not create any attorney-client relationship between this firm and anyone, and this blog is not a solicitation for legal services. No reader should rely on this blog as a source of legal advice but rather should be advised by a local attorney. Henningson & Snoxell, Ltd. And its attorneys are licensed to practice law only in the State of Minnesota, USA. Persons interested in the subject matter of this message should consult their own attorney for any desired legal advice.