February 2020 – Vol. 22, 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:

  • NLRB Says Pay Talk is Protected Concerted Activity
  • EEOC required to pay attorney’s fees of over $3,000,000
  • Tip Of The Month


In Richardson v. Chicago Transit Authority, a temporary bus driver was attempting to get a permanent job.  He weighed close to 600 pounds and was tested to determine if he could safely drive the bus.  He had significant difficulty with it because his foot was on both the gas and the brake; he was unable to make hand-over-hand turns; rested his leg too close to the door handle; could not see the floor of the bus from his seat; and the seat was not designed to withstand weight over 400 pounds and deflated when he sat down.  He was placed on temporary leave and after two years of inactive service was terminated.  Judgment had been granted by the District Court on the basis that there was no proof that the obesity was a result of a physiological condition, and a physiological disorder is required to have a disability under the ADA.  The Seventh Circuit, which includes the State of Wisconsin, affirmed the judgment of the District Court as no evidence had been presented that a physiological disorder or condition caused his obesity.  The court relied on the definition of physical or mental impairment found at 29 CFR § 1630.2(h)(1), requiring the presence of a physiological disorder or condition.  Currently obesity is not a protected class, and the Seventh Circuit ruling is consistent with one in the Second Circuit.  Of course, having no disability the courts did not have to address whether he was able to perform the essential functions of the job with a reasonable accommodation possible, which seems doubtful.  Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).


In Sears, Roebuck and Company and. Local 881 United Food & Commercial Workers, the National Labor Relations Board (NLRB) affirmed the Judge’s conclusion that the employer had violated Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by withdrawing recognition from the Union based on a petition that employees signed and presented to the Union three weeks before the end of the certification year.  The Administrative Law Judge distinguished a prior case by suggesting Sears did not involve only a ministerial act of assistance.  The NLRB determined that the employer’s lawful assistance was not a legitimate basis to distinguish the case.  The decertification petition had been provided to an openly anti-Union employee in response to her unsolicited inquiry whether certain employees could be eliminated from doing anything with the Union.  Therefore, it would appear that under the current rules at the NLRB an unsolicited request for information on how to get rid of the Union can be followed by providing a petition or by otherwise suggesting that a petition is a way to oust the Union.  As indicated earlier, however, the fact that the employer failed to bargain with the Union after the decertification petition was not legitimate because of the timing of the decertification.  Sears, Roebuck & Co. and Local 881 United Food & Commercial Workers, Case 13-CA-191829 (July 30, 2019). 

NLRB Says Pay Talk is Protected Concerted Activity

Generally, to be protected “concerted activities” under Section 7 of the National Labor Relations Act (“NLRA”) the “concerted” activity involves two or more employees. However, the National Labor Relations Board (“NLRB”) in a recent advisory memo determined a single employee’s discussion of pay rates is a concerted activity protected by the Act. At issue in the case was an employee who repeatedly discussed pay changes with co-workers and supervisors during work and at meetings, often unsuccessfully campaigning others to join in complaints to management. Ultimately, the employer terminated the employee for “talking about pay” to other people. The employee filed charges with the NLRB claiming discussions about pay are a protected concerted activity under the Act. The NLRB agreed and determined the employer violated Section 8(a)(1) of the Act by instructing the employee to refrain from talking about pay and subsequently terminating the employee for talking about pay. Gallup, Inc., NLRB ADV. No. 14-CA-234530 (July 24, 2019). Based on this advice memorandum and Minnesota Statutes that preclude employers from having rules precluding wage disclosure, employers are cautioned not to make disciplinary decisions based on employees’ discussions about wage and salary information.  

EEOC required to pay attorney’s fees of over $3,000,000

We previously reported on a case in which a lower court had ordered the Equal Employment Opportunity Commission (EEOC) to pay significant attorney’s fees to an employer when the employer defeated the discrimination claims asserted.  This matter was appealed, however, to the U.S. Supreme Court, after the District Court had awarded fees of almost $4,700,000, and the Eighth Circuit had reversed the award on the basis that, among other things, there were no particular findings of frivolous, unreasonable or groundless claims being asserted by the EEOC.  This in part was because the matter had been determined on summary judgment.  The Supreme Court, however, granted certiorari on the proper interpretation of “prevailing party” and held that a “favorable ruling” on the merits is not necessarily predicate to finding that a “defendant has prevailed,” finding that the District Court’s disposition of these claims for failure to investigate and conciliate was a ruling on the merits.  CRST Van Expedited, Inc. v. EEOC, 135 S. Ct. 1642, 1646 (2016).  On remand, an extensive 82-page Order was issued by the District Court, which exhaustively went through the various claims accepting that a few of the 78 claims were not frivolous, unreasonable or groundless.  The District Court ultimately awarded the amount of $3,317,280.67.  The Court of Appeals reviewed the detailed Order in which the District Court had exhaustively explained its rationale for why certain claims brought by the EEOC were frivolous, unreasonable, or without foundation, and concluded that the District Court did not abuse its discretion.  Hopefully, there will not be further appeal.  EEOC v. CRST Van Expedited, Inc., No. 18-1446 (8th Cir. 2019).


Employer should not delay disciplinary action, including termination, when there is good reason to take such action.  This is especially true when the reason is poor performance.  If the employee complains of discrimination or engages in any other protected activity (i.e. notifies employer of non-compliance with state or federal law, files a workers’ compensation claim, files a claim with OSHA or other federal agency) between the poor performance or discipline-warranting event and the employer’s response, the employer is exposed to a potential retaliation claim.  Such claims can be avoided by decisive action, including contacting counsel immediately if there are other concerns. 





We are planning another interesting and informative day for seminar attendees in March. Contact Jean Welle at jaw@hanftlaw.com or 218.722.4766 with questions.

Schedule and registration materials will be mailed in February. 

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 jaw@hanftlaw.com or call Scott Witty at 218.722.4766.

Copyright 2020 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.