July 2017 – Vol. 19, No. 7 The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, P.A.

This Month’s Topics:

  • Notice and Cure Period Now Required Before Commencement of MHRA Public Accommodation Litigation
  • Statutory Supervisor Cannot Vote
  • Arbitration Not Always the Best Avenue for Employers
  • Tip Of The Month 

Notice and Cure Period Now Required Before Commencement of MHRA Public Accommodation Litigation

Pursuant to legislation effective May 24, 2017, a represented plaintiff must provide a place of public accommodation with written notice of any alleged legal noncompliance with state accessibility requirements and allow a reasonable time (at least 60 days) for the identified deficiency to be remedied.  The cure period is automatically extended for an additional 30 days if a notice recipient responds in writing that it intends to remove an architectural barrier but weather prevents it from doing so immediately.  This legislation, which amended Minn. Stat. § 363A.331, is a direct response to the dramatic increase in litigation concerning public accommodation violations of the Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA).  Minnesota businesses that receive a notice of accessibility violations are advised to take the notice seriously and promptly consult legal counsel.  Timely action to remedy the violation could avoid litigation altogether.  Similarly, businesses that are served with a lawsuit alleging violation of the MHRA’s accessibility requirements should consider whether they may move to dismiss the claim altogether on the grounds that the plaintiff did not provide the requisite pre-lawsuit notice and opportunity to cure.

Union Tries to Take Bite Out of Jimmy John’s

With the appointment of a new Republican member of the National Labor Relations Board, it is anticipated that the Board will be less pro-Union.  The 8th Circuit, however, has already taken that step in a case involving a Minnesota Jimmy John’s franchisee.  Over the course of several months, the Union in order to obtain some relief from a sick leave policy, which required employees to get replacements, or face discipline, created the posters and press releases suggesting one was risking their health if they ate a sandwich at Jimmy John’s.  Their position was that workers were “forced” to go to work when they were sick, even if they had the flu.  Certain employees were terminated, and the Union’s attacks continued.  A press release after the terminations quoted a discharged employee as saying, “It just isn’t safe – customers are getting their sandwich made by people with the flu and they have no idea…[R]ather than safeguard public health and do the right thing for their employees and their customers, Jimmy John’s owners are trying to silence us.”  Another press release suggested that the “unfettered greed of franchise owners…jeopardizes the health of thousands of customers and workers almost every day.  We will speak out until they realize that no one wants to eat a sandwich filled with cold and flu germs.”  A press release further suggested that there were health care violations at the restaurants on almost a daily basis, and this was patently false.

An administrative law judge basically concluded that this was part of a labor dispute, and that the posters and press release were not shown to be so disloyal, reckless, or maliciously untrue as to lose the protections of the National Labor Relations Act.  The 8thCircuit reversed the decision.  In general, the reversal was on the basis of the Jefferson Standard disloyalty principle.  An employer is allowed to fire an employee for “making a sharp, public, disparaging attack upon the quality of the company’s products and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.”  The court concluded there is no need to show a “malicious motive”.  The proper inquiry is whether an employee’s public communication reasonably targeted the employer’s labor practices, or indefensively disparaged the quality of the employer’s products or services.  If the attack by the employee is suggesting that an employer’s labor practices are unfair, subsequent settlement of a labor dispute brings the customers back to the benefit of both the employer and employee.  By contrast, disparaging the employer’s product or services as unsafe, unhealthy, or of shoddy quality, causes harm that outlasts the labor dispute, to the detriment of all employees as well as the employer.  MikLin Enterprises, Inc. v. NLRB (8th Cir. U.S. Ct. App., Case No. 14-3099 and No. 14-3211, 2017).

Statutory Supervisor Cannot Vote

The issue before the Eight Circuit Court of Appeals was determining whether an employee who voted in a union certification vote should be deemed a supervisor meaning that he was barred from voting in the Union election. Until June 2013, there was a clear on-site supervisor employed by the Company at issue, but thereafter the Company contended that the owner hired no replacement and implemented a decentralized system with no named supervisor.  The Union argued that Johnston was the onsite supervisor and that his vote against organizing a union should be invalid. The Court upheld the decision of the National Labor Relations Board in ruling that Johnston was a supervisor and that his vote should not be counted. This decision was made primarily due to the fact that despite the Company’s claims, it was impractical that there was no supervisor onsite, that employees of the Company had the impression that Johnston had higher authority, that Johnston received a pay raise, and was only one of two employees who had keys to the office. Most importantly, Johnston recommended hiring two employees without any substantial independent investigation by the owner. As a result, the vote was discounted and the Union was certified. National Labor Relations Board v. Missouri Red Quarries, Inc. (8th Cir. 2017).

Arbitration Not Always the Best Avenue for Employers

Andersen Windows brought a lawsuit against its former employee alleging violation of restrictive covenants in his employment agreement.  The company also filed a motion for a temporary restraining order and preliminary injunction to prevent further irreparable harm, even though the contract itself contained a mandatory arbitration provision.  The court determined that there was not a specific provision in the arbitration agreement that provided Andersen with the right to seek an injunction.  It held that Andersen was required to go through the arbitration procedure and determine whether or not it was entitled to a permanent injunction against the employee.  The necessary qualifying contractual language was not included in the contract.  Andersen Windows, Inc. v. Garfield, Case No. 17-CV-826 (D. Minn. April 5, 2017). 

TIP OF THE MONTH:   Please recall you can be responsible for interference with a person taking family medical leave, both the business and supervisor.  Anything more than standard medical certification may be considered unlawful interference with an employee’s right to take leave.  For example, a person who has approved intermittent leave can only be requested to complete a recertification no more often than every six months when an individual has a long-term or chronic condition.  Undertaking unreasonable demands for proof, may be considered harassment and, if they were to lead to termination of employment, might provide an employee with a valid claim.

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 2017 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.