August 2018 – Vol. 20, No. 8 The Employer E-Letter:  Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association

August 2018 – Vol. 20, No. 8

The Employer E-Letter:  Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association

Co-Editors, Scott A. Witty, and Richard R. Burns,, or 218.722.4766. Please feel free to forward this e-mail or share it with others.  If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.

This Month’s Topics:

  • Compensation for Donning/Doffing Determined by CBA or Workplace Custom
  • Clarifying an Employee’s Right to Intermittent FMLA is Important
  • Court Permits Website Accessibility Lawsuit Against Hooters to Proceed
  • Tip Of The Month

Compensation for Donning/Doffing Determined by CBA or Workplace Custom

From time to time, employees challenge an employer’s pay policy in relation to the time the employees spend putting on uniforms and/or safety gear at the employer’s facility.  These cases provide a good reminder of the Fair Labor Standards Act’s rules pertaining to “donning and doffing” time.  A recent case involved employees of a prepared foods packaging facility, who are required to put on and take off company-provided personal protective equipment outside the plant’s production areas.  Since the employees’ time clocks are inside the production areas, however, the employees are not compensated for the time they spend “donning and doffing” the protective equipment or the time they spend walking to and from the time clock.  The FLSA states that employers must pay employees a minimum wage for hours worked, but may exclude “time spent changing clothes or washing at the beginning or end of each workday” if the time is excluded “by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.”  In the case of the packaged food workers, even though the issue was raised during contract negotiations, nothing in the contract expressly included or excluded “donning and doffing” time.  And, since the practice before and after the most recent contract was ratified was to exclude such time, the employees were not entitled to compensation for “donning and doffing” their protective gear outside the production area.  The employees also challenged the employer’s practice of not compensating time taken to check-out and check-in tools at the beginning and end of the work shift.  Since these processes took only 2-5 minutes (combined), however, the court denied the employees claim under the FLSA’s “de minimis” doctrine, which allows employers to disregard otherwise compensable work when only a few seconds or minutes of work beyond the scheduled working hours are in dispute.  Lyons v. ConAgra Foods, No. 17-3134 (8th Cir. August 9, 2018).


Clarifying an Employee’s Right to Intermittent FMLA is Important

When an employee needs to take FMLA leave in order to deal with his or her own serious health condition or to care for a parent, spouse, or child, the employee may need a number of shorter periods of leave rather than a block of time. These shorter periods of leave are commonly referred to as “intermittent leave.” It is important for employers to clearly communicate to their employees that they are entitled to intermediate leave when considering FMLA leave. Failing to do so can result in unnecessary confusion and even litigation. For example, in one recent case, an employee claimed she had been improperly denied intermittent FMLA leave because managers in her bank branch had allegedly indicated that she could only take one continuous leave under the FMLA. The court dismissed the employee’s claim because the employer’s policies and forms indicated the employee was entitled to intermittent leave. The court determined that the employee’s failure to have her doctor check the intermittent leave box on the employer’s form was the root cause of her not receiving intermittent FMLA leave. Yet, even though the employer prevailed, the entire FMLA situation could likely have been avoided had the employee’s right to intermittent leave been more clearly communicated to her through better policies, procedures, and forms. Esar v. JP Morgan Chase Bank, 1:15-CV-00382 (E.D.N.Y. May 2, 2018).



The Minnesota Supreme Court recently ruled that a non-compete contract cannot dictate what remedies will be available in the event of a breach of the agreement. In the case, the parties agreed that if the employee breached the agreement, a remedy at law for damages would be inadequate, and the employer would be entitled to injunctive relief. The employer in this case, St. Jude Medical, Inc., brought suit against its former employee after he began working for a competitor. The only remedy sought by St. Jude was injunctive relief. As a result of the contract terms, the Minnesota Court of Appeals ruled that because the contract acknowledged the need for injunctive relief the terms should be considered in deciding whether to grant the relief. The Minnesota Supreme Court reversed this ruling, stating that it was not required to find irreparable harm on the sole basis that it was contracted for.  The Court held private parties cannot agree to circumvent the Court’s equitable powers. St. Jude Med., Inc., v. Carter, 913 N.W.2d 678 (Minn. 2018).


Court Permits Website Accessibility Lawsuit Against Hooters to Proceed

The U.S. Court of Appeals for the Eleventh Circuit has revived a lawsuit filed under the Americans with Disabilities Act demanding that the Hooters restaurant chain make its website accessible for those with vision impairment, holding that a plan to come into ADA compliance does not render moot a related lawsuit. Title III of the ADA requires businesses that provide services open to the public to ensure that those services are accessible to all individuals, including those with disabilities.  The law has recently been interpreted to apply to websites just as it does to physical stores, restaurants, shops, offices, and other brick-and-mortar places of business.  Hooters was aware of the accessibility problem because, a year earlier, a different plaintiff filed a lawsuit nearly identical to the one Haynes brought.  Plaintiff filed the action because the restaurant’s website was not compatible with his screen-reader software.  The trial court ruled that the complaint was moot because the restaurant had already entered into a remediation plan as part of a resolution for a similar lawsuit.  Haynes appealed, and the Eleventh Circuit concluded that the settlement agreement did not block Haynes’ lawsuit.   Although the Eighth Circuit Court of Appeals has yet to rule on this issue, most other circuit courts have ruled that the ADA applies to websites.  This decision should be a wake-up call to all businesses with websites accessible to the public by serving as a reminder to ensure their sites are ADA-compliant.  Haynes v. Hooters of America, Case No. 17-1170 (11th Cir. 2018).


TIP OF THE MONTH:  Employers are sometimes frustrated when they think they need to provide COBRA notice and coverage for people who are terminated for misconduct.  However, if an employee is terminated for gross misconduct, the termination is not considered a “qualifying event” under COBRA.  We believe employers can safely rely on unemployment cases in Minnesota to show what, in fact, is gross misconduct.  Of course, mere incompetence, negligence or minor misbehavior would not be sufficient, but intentional, wanton, willful, deliberate or reckless acts would be.


Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota.  Visit our website at for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty.  Richard Burns is now of Counsel.


The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice.  The communication and receipt of this information is not intended to create an attorney-client relationship.  Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.


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