May 2018 – Vol. 20, No. 5
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, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, 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:
- OVERTIME CAN BE AN ESSENTIAL FUNCTION OF EMPLOYMENT
- SUBSEQUENT ELABORATION OF REASONS FOR TERMINATION NOT EVIDENCE OF PRETEXT
- ELEVENTH CIRCUIT REQUIRES LIGHT DUTY WORK FOR EMPLOYEE RETURNING TO WORK AFTER CHILD BIRTH
- INDEPENDENT CONTRACTOR STATUS IN CALIFORNIA
- TIP OF THE MONTH
OVERTIME CAN BE AN ESSENTIAL FUNCTION OF EMPLOYMENT
A former UPS employee brought an action against UPS claiming that he was discriminated against due to his disability. The employee was injured, and upon attempting to return to work, requested an accommodation limiting him to no more than eight (8) hours of work per day. UPS did not agree to the accommodation. The employee sued, alleging UPS failed to provide reasonable accommodations under the ADA. UPS argued that the ability to work overtime was an essential function of the job due to the need to timely deliver packages and uncontrollable factors such as weather and the holidays which can add to delivery time. The employee argued that in most cases he finished his route in under eight (8) hours and did not collect overtime. The Eighth Circuit agreed with UPS and stated, “A task may be an essential function even if the employee performs it only for a few minutes each week.” The Court also stated the accommodation would have made the employee unqualified to perform the essential job functions of a package care driver. Faidley v. UPS, No. 16-1073 (8th Cir. May 11, 2018).
SUBSEQUENT ELABORATION OF REASONS FOR TERMINATION NOT EVIDENCE OF PRETEXT
A male employee of a company that manufactures displays for retail merchants was discharged. At the time of termination, the employee was told he was terminated due to his inability to interact with coworkers and his failure to support a particular account. The employee sued the employer, alleging that he was terminated because he was male and not Jewish. The employee alleged his direct supervisor, a female, made comments about increasing the number of female employees, such as “wait until there’s more ladies in the office.” The employee also alleged that a managing supervisor was building a “Jewish empire” of employees and customers and treated Jewish employees more favorably than him. The United States District Court in Minnesota dismissed the employee’s claims, concluding that the employer “clearly and specifically articulated a number of reasons for the employee’s discharge, with the main reason being the manager’s belief that the employee’s performance was poor.” This, the Court stated, established legitimate, non-discriminatory reasons for termination. On appeal, the employee argued that the District Court’s reliance on reasons for termination beyond which he was told at the time of termination was improper, and that such evidence showed that the employer’s stated reasons were a mere pretext for discriminatory motives. The 8th Circuit Court of Appeals disagreed with the employee, holding that Title VII of the Civil Rights Act of 1964 “does not impose a legal obligation to provide an employee an articulated basis for dismissal at the time of firing, and an employer is certainly not bound as a matter of law to whatever reasons might have been provided.” The Appellate Court went on to state that “an employer may elaborate on its explanation for an employment decision,” though a “substantial shift in an employer’s explanation for a decision may be evidence of pretext.” The Appellate Court upheld the dismissal, finding that the employer’s reasons for termination were supported by the evidence and not pretextual. Rooney v. Rock-Tenn Services, Inc., et al, No. 16-3631 (8th Cir. January 9, 2018). This decision shows that the reasons provided at the time of termination will be carefully analyzed. Also, employers are reminded there is a Minnesota statute that requires employers to provide the truthful written reasons for termination if a terminated employee requests them in writing. In that case, all reasons for termination should be provided to avoid exclusion of evidence in subsequent litigation.
ELEVENTH CIRCUIT REQUIRES LIGHT DUTY WORK FOR EMPLOYEE RETURNING AFTER CHILD BIRTH
After giving birth, a police officer returned to work with a medical note requesting that she be excused from patrol duty because wearing the required bulletproof vest could cause a breast infection that would interfere with her ability to produce milk. The police department refused to accommodate this request, stating that she could either not wear the vest and risk being shot or wear one with the chest area cut out. The officer quit and sued, alleging violations of the FMLA and the Pregnancy Discrimination Act. A jury agreed with the employee and awarded her $374,000 for failure to accommodate her by offering a light-duty desk job while she was breast-feeding, a finding which was affirmed on appeal. While this case only applies to employers in the 11th Circuit, it illustrates that pregnancy accommodations don’t necessarily end at birth, but may need to continue after the mother returns to work. Hicks v. Tuscaloosa, 870 F.3d 1253 (11th Cir. 2017).
INDEPENDENT CONTRACTOR STATUS IN CALIFORNIA
At the end of April, the California Supreme Court issued a decision that is consistent with standards now applied in some other jurisdictions that makes it very difficult for persons to be designated as independent contractors rather than employees. In California, in order to establish a person as an independent contractor, all three of the following factors must be met: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work (both by contract and in fact); (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed. This is called the “ABC” test. As you can imagine, meeting the second factor is particularly difficult in instances where unsupervised temporary workers are hired. Other jurisdictions have not made any one factor determinative, but the trend seems to be moving toward these three exclusive factors. Dynamex Operations West v. California Superior Court, (Court File No. 5222732, Cal. Sup. Ct. April 30, 2018).
TIP OF THE MONTH: Generally speaking, there are two types of claims employees may seek under the FMLA: (1) interference with FMLA rights and (2) retaliation for exercising FMLA rights. Employers must be careful during employee performance evaluations to avoid negative comments or ratings on the basis of FMLA-protected leave to avoid the latter. In fact, it is best to avoid mention of FMLA or protected leave at all in employee evaluations. This is particularly true if the performance evaluations are considered for layoffs or reduction in force decisions.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com 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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Copyright 2018 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.