MN Wild


Labor & Employment Law Section


Labor & Employment Law E-News - Volume 29, Issue 1

by Kayla Erbach | Mar 28, 2017
Labor & Employment Law E-News
Spring 2017 | Volume 29, Issue 1


  • Eighth Circuit Holds Obesity Isn’t a Disability
  • Eighth Circuit Holds Employer Could Require Employee Submit to Medical Exam Based on His BMI
  • Eighth Circuit Holds Employee Can’t Ask for His Disability to Be Taken into Account in Determining Level of Discipline After He Engaged in Misconduct
  • Employer Who Required Employee to Go To Anger Management Classes Did Not Regard Him as Disabled
  • EEOC Issues Final Rules on Wellness Programs
  • EEOC Issues New Regulations on Leave as a Reasonable Accommodation
  • Read more… ADA



  • Chairman’s Statement that the Employer was Looking for a ‘New Face’ for the Plaintiff’s Position Was Facially Neutral
  • Summary Judgment for Employer Where Employee Committed Numerous Violations of Policy
  • Court Confirms ADEA Claims Not Subject to Heightened Pleading Standard
  • Employer Not Required to Find Alternative Position for Employee Under ADEA
  • Eighth Circuit Holds Plaintiff Did Not Present Proper Comparator Evidence Because Comparators Had Not Engaged in Workplace Violence
  • Eighth Circuit Upholds Summary Judgment For Employer Where Plaintiff Did Not Raise an Inference of Discrimination
  • Read more… ADEA


Federal Labor Management

  • Board Decisions Regarding Contingent Employment – Staffing Agencies, Subcontractors and Independent Contractors
    • A User Employer is a Joint Employer with a Supplier Employer Where They Are Both Employers Within Meaning of Common Law and They Share or Co-Determine Matters Governing the Essential Terms and Conditions of Employment
    • Company and Staffing Agency Are Joint Employers Where There is Likelihood the Company Would Maintain Control Over Terms and Conditions of Employment on Future Projects
    • Employer Consent No Longer Required For Employees to Obtain a Representation Election in a Bargaining Unit That Contains Both Solely and Jointly Employed Employees of a Single Employer.
    • Division of Advice Issues Guidance Calling for Strengthening the NLRA’s Protections of Employees Who Are Misclassified as Independent Contractors.
  • Board Decisions Involving Higher Education
    • For a Religious Exemption to the NLRA, a University Must Demonstrate That It Holds Itself Out as Providing a Religious Educational Environment.
    • Board Declines to Assert Jurisdiction Over University Football Players.
    • Graduate Teaching and Research Assistants Working at Private Colleges and Universities Are Employees Within the Meaning of the NLRA
  • Concerted Activity Cases
    • Employer Violated the NLRA By Discharging an Employee for Engaging in a Conversation About Job Security With Fellow Employees
    • Filing a Class Action Lawsuit is Concerted Protected Activity Under the NLRA
    • Unlawful for Employer to Prohibit Employees from Recording Meetings or Conversations at Work
  • Read more… Federal Labor Management


State Employment Law Decisions

  • Eighth Circuit Holds that MDATWA applies to Employers Who Meet the ‘Significant Contacts’ Personal Jurisdiction Test in Minnesota
  • Court of Appeals Holds That Filing a Complaint of Discrimination With Employer’s Human Resources Department Tolled Statute of Limitations
  • District of Minnesota Finds that Plaintiff’s MHRA Claims Are Pre-Empted By the LMRA and ERA
  • Three Cases Deal With the post-Amendment Definition of ‘Good Faith’ Under the MWA
  • No Requirement Under the MWCA for a Retaliatory Discharge Claim That the Plaintiff Must Show There Was an Actual or Attempted Obstruction of Workers’ Compensation Benefits by the Employer
  • Being Placed on Indefinite Leave of Absence is an Adverse Employment Action for Purposes of the MWCA
  • Read more… State Employment Law Decisions


State and Local Legislation

  • Minneapolis and St. Paul Pass Paid Sick Leave Ordinances
  • Minnesota Veteran’s Preference Act Amended
  • State Minimum Wage Increases
  • Paid Family Leave Does Not Pass
  • Read more… State and Local Legislation



  • Denial of Leave Request Following Exhaustion of FMLA Leave Is Not Discriminatory
  • Light Duty Work Does Not Interfere With Leave if Not a Condition of Employment
  • Liquidated Damages Not Limited By After-Acquired Evidence
  • FMLA Interference Where Employer Failed to Calculate Mandatory Overtime Hours
  • Read more… FMLA


Title VII

  • Eight Circuit Reverses Dismissal of Sexual Harassment Claim for Trucker
  • Eighth Circuit Holds Denial of a Sought-After Transfer is an Adverse Employment Action
  • Eighth Circuit Upholds Denial of Reinstatement and Front Pay to Plaintiff Awarded Only $1 in Back Pay By Jury in Race Discrimination Case
  • Plaintiff Judicially Estopped from Pursuing Employment Claims He Failed to Disclose in Chapter 13 Bankruptcy Proceedings
  • Divided Eighth Circuit Panel Upholds Dismissal of Pro Se Plaintiff’s Complaint of Sexual Harassment and Retaliation on Motion to Dismiss
  • Summary Judgment to Employer Proper on Race Discrimination Claim Where Racist Comments Not Directly Connected to Plaintiff’s Employment or His Termination
  • Discriminatory Wrongdoer Must Knowingly Dupe Decisionmaker into Taking Adverse Action for Cat’s Paw Liability to Apply
  • Read more… Title VII



  • Pending Changes to FLSA Overtime Regulations Put on Hold
  • Court Dismisses Claim on Summary Judgment, Finding Evidence Insufficient to Support Reasonable Inference of Unpaid Overtime
  • FLSA Executive Exemption Applies to ‘Team Leaders’ Lacking Ability to Hire or Fire
  • Summary Judgment for Employer in Donning and Doffing Case Despite Expired CBA
  • Motor Carrier Act Exemption Bars Wage Claims Against Trucking Company
  • Read more… FLSA


Public Sector

  • Supreme Court Affirms Ninth Circuit Ruling That Collection of Agency Fees by an Exclusive Representative from Objecting Non-Members Does Not Violate the First Amendment
  • Supreme Court Holds That When a Public Employer Demotes an Employee Out of a Desire to Prevent the Employee from Engaging in Protected Political Activity, Employee Entitled to Challenge the Action Under First Amendment
  • Minnesota Supreme Court Holds That Public Information Under the MGDPA Does Not Become Private Because it is Duplicative of Information Held in Confidential Materials; Deputy Commissioners Entitled to Absolute Immunity for Defamation Claims for Statements Made Within Scope of Statutory Authority
  • Under MGDPA, Video Recordings from Buses are Only Private Personnel Data if the Videos are Exclusively Maintained for the Purpose of Monitoring Employees
  • Police Officer Not Entitled to Official Immunity for an Incident in Which He Left Squad Car Unlocked with Engine Running in Violation of City Ordinance and Department Policy
  • Contractor Retained By City to Serve as City Engineer Was Entitled to Official Immunity from Tort Liability and City Enjoyed Vicarious Official Immunity
  • School District Immune from Vicarious Liability for Sexual Abuse that was Outside of Coach-Employee’s Scope of Employment and Was Not Foreseeable
  • Charter School Not a Public Corporation Subject to Appellate Jurisdiction Via Writ of Certiorari
  • Read more… Public Sector


Unemployment Compensation

  • Employee’s Swearing and Rude, Unprofessional Behavior During Last Year of Her 10-Year Employment Did Not Constitute Misconduct
  • Employer Calling Relator a Racial Slur Did Not Excuse Relator’s Reaction
  • Relator’s Unprofessional Name Calling and Threats Constituted Misconduct
  • Read more… Unemployment Compensation




Interested in writing for the L&E Newsletter?
Contact Kayla Erbach

MSBA Labor & Employment Law Section
Annual Report


Section Membership
As of June 19, 2017, the Section has 825 members.

Financial Status
The Section had an account balance of $31,866.40 as of May 31, 2017.

CLEs & Events
The Section hosted 9 CLE programs in fiscal year 2016-17. 

Program Title


Event Code

CLE Credits

Number of Attendees

Annual Labor & Employment Section Fall Social





Local Employment Laws Across the Country: Understanding Paid Sick Leave Laws and Much More



1 Standard


Employing Those Who Serve Our Nation – Employers’ Rights and Responsibilities under USERRA and the FMLA (co-sponsored with Military & Veterans Affairs Section)



1 Standard




Exciting and Meaningful Pro Bono Opportunities for Labor & Employment Lawyers



1 Ethics



It’s Complicated: Employment Relationships in an Uber Era



1 Standard


Mid Winter Luncheon – Keeping It Local: Legislating Employment Matters at the State and Local Level



1 Standard



Service Animals in the Workplace – Making It Work (co-sponsored with Animal Law Section)



1 Standard



Spring Law Student Reception





NLRB Update – A Review of Current Labor Law Issues



1 Standard


Mediating the Challenging Employment Law Matter and Tips to be Effective (co-sponsored with ADR Section)



1 Standard



Labor Trafficking for Legal Professionals – Laws and Response



1 Standard



Welcome Reception for NLRB Regional Director Jennifer Hadsall





Annual Spring Dinner






Annual Meeting and Election Results

The Section’s Annual Meeting was held on June 13, 2017 and 101 people attended.

The following council members were elected to serve on the Section’s Governing Council from 2017 to 2018:

            Chair: Kelly Jeanetta

            Vice Chair: Sara McGrane

            Secretary / Treasurer: Dan Prokott

            Past Chair: Craig Trepanier

The following officers were elected to serve on the Section’s Governing Council from 2017 to 2018:

            Benjamin Kwan

            Kristi Hastings

            Gina Janeiro

            Emma Denny

            Rebecca Bernhard

            Jessica Hofrichter

            Meg Luger-Nikolai

            Keisha Mayes

            Janet Olawsky


Diversity and Inclusion
The Section adopted a diversity and inclusion policy and reached out to diverse candidates to join the Governing Council.

Other Section Accomplishments
The Section drafted job descriptions for all positions and programs sponsored by the Section.

Submitted By:
Craig Trepanier, Section Chair
Date June 28, 2017

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