July 2018 – Vol. 20, No. 7 The Employer E-Letter:  Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association.

July 2018 – Vol. 20, No. 7

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:

  • Compensation Agreement Does Not Modify At-Will Status
  • NLRB Rules Restaurant Workers Wrongly Fired For Emails
  • Explaining That Hours May Vary When Offering Part-Time Employment IS IMPORTANT
  • Tip Of The Month

Compensation Agreement Does Not Modify At-Will Status

 Dan Ayala was employed by the company CyberPower. While employed, he entered into a compensation agreement that described the terms of his compensation that would remain in place until Cyberpower reached $150 million in sales. Ayala was terminated prior to the $150 million threshold being reached. Subsequent to his termination, Ayala brought a suit claiming that the compensation agreement he entered into modified his at-will status. Ayala claimed this was because of the reference to the $150 million threshold. The 8th Circuit affirmed the dismissal of Ayala’s claims stating that the language in the agreement did not meet the clear and unequivocal standard for language evidencing job security set forth in Gunderson v. All. Of Comp. Prof’ls (Minn. Ct. App. 2001). This ruling was based on the fact that Ayala’s agreement stated that it was not a multi-year commitment, was clearly titled “Compensation Agreement,” and only discussed the terms of compensation. Ayala v. Cyberpower Sys., Inc., (8th Cir. June 6, 2018).


 NLRB Rules Restaurant Workers Wrongly Fired For Emails

 The National Labor Relations Board (“NLRB”) recently determined Mexican Radio Corp., a restaurant company, violated the National Labor Relations Act (“NLRA” or the “Act”) when it fired four nonunion employees after they sent emails complaining about their wages, work schedules, tip policy and work conditions. The employer terminated the employees after emails circulated regarding concerns about a general manager’s changes to staffing and tip policies.  The employer provided reasons for the terminations, including the emails used inappropriate language (profanity), refusal to be interviewed, and missing work.  The employees filed an NLRB charge alleging retaliation. The ALJ concluded that the employer had violated section 8(a)(1) of the NLRA, which prohibits employers from interfering, restraining, or coercing employees in the exercise of their rights, by terminating the employees due to their participation in protected activity. The employer filed objections to the ALJ’s decision, including that the email(s) contained profanity, and thus lost protection under the Act.  The NLRB affirmed the ALJ’s decision, determining that the reasons for the terminations provided by the Company were pretextual, the true reason for the terminations was the employees’ participation in activity protected under the Act, and as such, the terminations violated the Act. Employers should be mindful of this ruling and the continued reach of the NLRB over nonunion employers when considering employee workplace activities. This decision reinforces the need to ensure that Company handbooks and policies comply with guidelines relating to email and social media usage, and the need to carefully review and take appropriate action in each situation that may arise involving employee actions in violation of such policies. Mexican Radio Corp. and Rachel Nicotra, Case 02-CA-168989 (April 20, 2018).


 Explaining That Hours May Vary When Offering Part-Time Employment IS IMPORTANT

 When the employee was hired as a part-time employee at a grocery store’s bakery department, the manager said she would average about thirty hours per week, but fewer some weeks, depending on customer orders.  When the employee’s hours dropped to ten for a couple of weeks, she quit and applied for unemployment.  The store contested the unemployment claim.  The district court agreed with the employer, noting that the employee would have had a claim if the store never mentioned the possibility of varying hours.  Here, however the employee should have expected the possibility of less than thirty hours per week. This case illustrates the importance of making the terms of employment clear when offering an applicant a part-time position with variable hours. Majerus v. Spartannash Assoc., No. A17-0291, (Minn. Ct. App. Dec. 11, 2017).



The National Labor Relations Board’s (“NLRB”) Division of Advice recently stated that an employee was unlawfully fired for engaging in a solo strike. The Division of Advice provides guidance and instructions to the agency’s regional directors. The employee at issue had filed a request for time off, which was denied but the employee still did not show up for his shift. Instead of going to work, the employee participated in “Fight for $15” organizing activities, which included a protest and convention. None of the employer’s other employees participated. In stating that the termination was unlawful, the memorandum said that the NLRB has ruled “a single employee’s apparent solo strike to be protected, concerted activity where the employee strikes to assist a labor union in furtherance of the union’s organizing efforts, particularly when it is done with the union’s knowledge and agreement.” This case was settled between the parties, and the memorandum of advice discussing this matter was issued after the case had been closed. RoHoHo, Inc., NLRB Div. of Advice, Case 10-CA-192458 (June 14, 2018).


TIP OF THE MONTH:  Many frequently used terms in job postings can unwittingly lead, or lend support to discrimination in hiring claims.  Words like “energetic” and phrases like “seeking new graduates” are examples of terms that can be problematic in a discrimination suit, even though the terms do not explicitly rule out older applicants and even if the employer has no intention of doing so.  Employers should focus on the skills needed for the specific position posted instead of terms that could be interpreted as discriminatory based on the age, gender, religion or other protected class of potential applicants.


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.