February 2018 – Vol. 20, No.2 The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, PA

February 2018 – Vol. 20, No.2

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:

  •  “Interactive Process” To Determine Reasonable Accommodations Not Required Under Minnesota Human Rights Act
  • ADA and MN Human Rights Act Utilize Same Standard
  • If Non-Compete Breached, Employer Entitled to Remedy
  • Tip Of The Month 





We are planning another interesting and informative day for seminar attendees in March. Contact Lynn Lach at lml@hanftlaw.com or 218.722.4766 with questions or requests for registration materials. Schedule and registration materials are being mailed this month.

Some of the issues that will be covered at this year’s seminar include:

  • FMLA Essentials for Employers
  • The Minnesota Whistleblower Act
  • Return to Work Issues for Workers’ Compensation
  • Continuing Health Insurance Coverage for Employee’s Former Spouse
  • Update on Employee Handbooks in Light of New NLRB Standards
  • Unemployment in Minnesota
  • Sexual Harassment in the Workplace 

“Interactive Process” To Determine Reasonable Accommodations Not Required Under Minnesota Human Rights Act

The Minnesota Court of Appeals recently issued an opinion containing important holdings on disability discrimination, reasonable accommodation and reprisal claims under the Minnesota Human Rights Act (MHRA) and retaliation claims under the Minnesota Workers’ Compensation Act (MWCA).  The employee claimant worked as a machine operator in a foundry and die-casting facility.  The position required her to be able to operate, maintain and repair heavy machinery, move heavy metal parts and lift objects weighing thirty pounds or more.  After diagnosis of disc narrowing/bulging and bone spurs in her back, the employee’s doctor gave her a ten-pound lifting restriction, advised against any neck motion beyond basic movement and warned that non-compliance could result in spinal cord injury and/or paralysis.   Shortly after receiving notification of the employee’s restrictions, the employer terminated employment on the basis that continued work posed a threat to the employee and her co-workers’ safety.  The employee sued the employer alleging discrimination, failure to accommodate and reprisal under the MHRA, as well as retaliation under the MWCA.  The Court of Appeals concluded that the employee was not a “qualified person with a disability” under the MHRA because lifting heavy materials was an essential function of her position, and the employee’s requested accommodations were unreasonable.  The Court also concluded that, unlike the Americans with Disabilities Act, the MHRA does not require employers to engage in the “interactive process” to determine if a reasonable accommodation exists.  With respect to the MHRA reprisal claim, the Court held that a claimant does not need to be a qualified person with a disability under the MHRA to assert such a claim, but the Court held that the MHRA’s “serious threat to employee or others” affirmative defense applied to reprisal claims and precluded the employee’s claim in this case.  Lastly, the Court concluded that while the MWCA retaliation provision covers future filing for workers’ compensation benefits, it does not cover potential future injuries.  Thus, an employee cannot maintain a MWCA retaliation claim based on injuries she might sustain in the future as a result of a lifting restriction. McBee v. Team Industries, Inc., A17-0060 (Minn. Ct. App. Jan. 16, 2018).


In January, the Wisconsin Supreme Court issued an important decision concerning restrictions on employee non-solicitation provisions.  The Court ruled that employee non-solicitation provisions are restraints of trade, subject to the reasonableness requirements under Wisconsin statutes regulating non-competing agreements.  In Manitowoc Company, the agreement in question required that employees not “solicit, induce or encourage any employees to terminate their employment with Manitowoc or to accept employment with any competitor, supplier or customer of Manitowoc.”  In its ruling, the Wisconsin Supreme Court held that the clause in question restrained trade and restricted the mobility of employees, and was therefore subject to the statute on non-competition agreements.  Moreover, the court suggested that the agreement was not reasonable and needed to be much more limited in its scope.  In general, the Court concluded that an employee/employer agreement of non-solicitation should be narrowly drafted to limit its application of non-solicitation to employees with whom the employee actually worked with or had specialized knowledge regarding the employee or were, for example, employees who had knowledge of sensitive, confidential and trade secret information.  Manitowoc Company, Inc. v. Lanning, (Wis. Sup. Ct. 2018).

ADA and MN Human Rights Act Utilize Same Standard TO DETERMINE “DISABILITY”

An employee brought multiple claims against his employer under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). The employee alleged disability discrimination in violation of the ADA and MHRA, improper use of medical examination results in violation of the ADA. The United States District Court in Minnesota ruled that the employee’s claims should be dismissed because there were insufficient facts demonstrating that the employee was disabled under the ADA or MHRA. For both the ADA and MHRA, a person is deemed to be disabled if they 1) have a physical, sensory, or mental impairment which materially limits one or more life activities, 2) have a record of such impairment, or 3) are regarded as having such an impairment. Despite the fact that the MHRA includes a “materially limits” standard in its definition for “disability,” whereas the ADA has a substantially limits standard, courts have treated them as one in the same. Here, the Court ruled that there were insufficient facts to demonstrate that the employer regarded the employee as disabled under the ADA, meaning there were also insufficient facts to meet the MHRA standard for disability. Wells v. BNSF, No. 17-CV-807 (D. Minn. 11/16/17).

If Non-Compete Breached, Employer Entitled to Remedy

The Minnesota Court of Appeals recently overturned a decision of a district court regarding a breach of a non-compete agreement by an employee. The non-compete agreement stated that the employer could obtain an injunction if there was a breach, but the district court refused to do so despite finding a breach. The district court stated there was lack of irreparable injury and thus declined to issue an injunction. The appellate court reversed finings that the injunction language was not simply “boilerplate,” and the fact there was a breach is at the very least an inference of harm. The appellate court concluded such a breach would justify the granting of an injunction. The appellate court also stated that contractual provisions must be enforced in order to prevent them from becoming meaningless. The case was remanded back to the district court for further proceedings. St. Judge Medical, Inc. v. Heath Carter, 899 N.W.2d 869 (Minn. Ct. App. 2017).

TIP OF THE MONTH:  The so-called “quickie” election rule likely will be significantly modified, but it has not actually been repealed.  The question always is whether it gives unions an unfair advantage.  Statistics show that union representation elections on average were held 24 days after filing a petition last year, down from 39 days the year before the rule took effect.  Unions also tended to win more elections with quickie elections, but the percentage difference was only approximately 5%.  The question is whether or not both sides should have an ability to educate the workers?  Under the existing rule unions have a clear advantage as that had been working on educating prospective members for some significant period of time.  If you have had an experience or opinion, you may want to comment specifically to the National Labor Relations Board.

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.

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

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.