August 2019 – Vol. 21, No. 8 The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association

August 2019 – Vol. 21, 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:

  • Music Sours on Equal Pay Claim
  • Ignoring an Employee Overtime Pay Compliant Equals a ‘Willful’ Violation
  • Best Practices for Handling a Chronically Tardy Employee
  • Interactive Process Not Required Under MHRA Disability Discrimination Claims
  • Tip Of The Month

Music Sours on Equal Pay Claim

Irma Routen oversaw the school district’s fine-arts program at the elementary school level.  Due to budget difficulties and loss of a grant, her pay was cut and her contract shortened.  She sued under three theories, but the most important was the Federal Equal Pay Act alleging that a male fine-arts director earned a higher salary and received better benefits than she did for basically the same work.  Other claims involved charges that the terms and conditions of her employment were changed because of her age and sex.  In a bench trial, Routen failed to prevail that the male fine-arts director’s work was “substantially equal to her own considering all the facts and circumstances of the case, including…[the] level of experience, training, education, ability, effort and responsibility” associated with each job.  The male colleague involved was responsible for both secondary and elementary fine-arts, and Routen coordinated only elementary fine-arts and worked under the direction of other administrators.  Moreover, the lower court heard testimony that the secondary fine-arts curriculum is more demanding than its elementary-level counterpart involving additional course offerings, advanced placement courses and after school programs.  Therefore, given the difference in authority of the two employees, the Eighth Circuit Court of Appeals affirmed the lower court’s finding that the positions were not “substantially equal.”  The court also found that the other claims did not show sufficient discrimination based on age or sex, including a “but for” cause test on the age claim.  Routen v. Suggs, No. 18-1289 (8th Cir. 2019).

Ignoring an Employee Overtime Pay Compliant Equals a ‘Willful’ Violation

Last year the U.S. District Court in the Eastern District of Pennsylvania addressed a matter concerning the payment of overtime to a recently terminated employee. The employee at issue regularly worked about 41.5 hours per week. In addition, the employee was often required to be “on call” and carry her work phone with her. During her sixteen years of employment with the employer, the employee was not paid overtime for time she worked in excess of forty hours per week, which is a clear violation of the Fair Labor Standards Act (“FLSA”). Under the FLSA claims must be filed within two years after the cause of action accrued, but if there is a “willful” violation the action may be commenced within three years. 29 U.S.C. § 255(a). “Willful” is defined as the employer either knowing or showing reckless disregard for whether its conduct was prohibited. Here, the employee had complained to her employer as to why she wasn’t being paid overtime. The employer responded, “We don’t pay overtime.” The Court determined that because the employer ignored and failed to investigate the complaint it amounted to a willful violation. As such, the employer was liable for three years of overtime payments plus penalties. Everett v. Maternal Child Consortium (2018 E.D. Pennsylvania).

Best Practices for Handling a Chronically Tardy Employee

All employers invariably deal with employees who are chronically tardy, which in some cases necessitates dismissal from employment. While dismissing chronically tardy employees is commonplace and a reasonable employment practice, many employers are encouraged document and preserve the oral and written warnings provided to the employee. Documenting tardiness and associated warnings ensures the employer is in the best position to fend off discrimination claims brought by a disgruntled employee. For example, in Jeffrey v. Met Logistics, 07-CV-3301 (N.D. Ill. 2019), an employee sued her former employer claiming discrimination related to her pregnancy. The employee claimed that once she told her employer that she was pregnant she was treated differently until ultimately fired. The employer responded that the employee was fired because of excessive tardiness and poor performance. In support of its position, the employer pointed to numerous emails and other documentation, predating the employee’s pregnancy, showing the employee had been repeatedly warned about tardiness and her performance. In light of the wealth of documentary support presented by the employer, the Court concluded the employee’s discrimination claims could not survive as a matter of law. Had the employer not documented and preserved the warnings provided to the employee, the employee’s claim could have been allowed to proceed to trial.

Interactive Process Not Required Under MHRA Disability Discrimination Claims

Like the Americans with Disability Act (ADA), the Minnesota Human Rights Act (MHRA) prohibits discrimination on the basis of an employee’s disability.  The MHRA also states, like the ADA, that an employer must offer a reasonable accommodation to the known disability of a qualified disabled person unless the employer can demonstrate that the accommodation is an undue hardship.  In such circumstances, the ADA expressly requires employers to engage in an “interactive process” to determine whether a reasonable accommodation is available and, if so, what that accommodation might be.  The MHRA contains no such requirement, and the Minnesota Supreme Court recently concluded that the requirement cannot be read into the statute.  Thus, where a reasonable accommodation claim is asserted under the MHRA only (and not joined with an ADA claim), the employer can determine whether a reasonable accommodation is warranted, and second, whether a reasonable accommodation can be made (without undue hardship).  As a practical matter, this may limit when the remedies of the MHRA are available to the employee.  It should be noted, however, that a process involving an employee’s input on potential accommodations is often the best way to determine an appropriate accommodation.  McBee v. Team Indus., 925 N.W.2d 222

TIP OF THE MONTHProgressive disciplinary policies commonly serve as effective workplace tools to address and correct workplace behavior.  Employers with such policies should ensure to include language permitting the employer to skip steps in the progressive discipline ladder, including termination for a single display of egregious conduct or dangerous behavior in the workplace.  In addition, careful analysis of conduct reaching that level should be undertaken before termination instead of progressive discipline, with a focus on making sure such a termination is consistent with prior terminations. 

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.

To subscribe or unsubscribe to Employer E-Letter, e-mail your request to or call Scott Witty at 218.722.4766.

Copyright 2019 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.