November 2017 – Vol. 19, No.11 The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, PA

This Month’s Topics:

  • 7th Circuit Limits Leave After FMLA Exhausted
  • Wrongful Termination of Wage Activist
  • 5th Circuit Rejects Employee’s FMLA Interference Claim
  • No Constructive Discharge or Adverse Employment Action
  • Tip Of The Month

7th Circuit Limits Leave After FMLA Exhausted

Federal courts have generally held that employees that are unable to return to work for medically-related reasons after using all available FMLA leave are entitled to additional unpaid leave as a reasonable accommodation if there is a reasonably certain return to work date provided.  Likewise, the federal courts have generally held that employers need not grant a request for extended (post-FMLA) leave for an indefinite period of time.  In a recent case, the 7th Circuit Court of Appeals, whose jurisdiction covers Wisconsin, Indiana and Illinois, further limited an employer’s obligation to allow leave beyond that allowed under FMLA as an accommodation for a claimed disability where the employee is deemed unable to return to work on account of a disability that renders an employee unable to perform his or her job.   Stating that reasonable accommodations under the ADA are “limited to those measures that enable the disabled employee to work and that an employee who needs long-term medical leave cannot work and thus is not a qualified individual under the ADA,” the Court concluded that a “multi-month period (of extended leave) removes a person from the class protected by the ADA, and, thus, an employer need not provide such additional leave after FMLA leave has been exhausted.  According to the Court’s ruling, shorter extended leave requests may still be required under a reasonable accommodation request, so employers in the 7th Circuit still must analyze such requests carefully.  Furthermore, employers outside of the 7th Circuit, such as Minnesota employers, remain subject to the “indefinite leave” rule described above.  Seversen v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017). 

Wrongful Termination of Wage Activist

With the “15 Now” minimum wage movement continuing to increase its presence across the country it is important to be aware of what can and cannot be done regarding the treatment of those advocating for an increase in the minimum wage in an employment setting.  A specific example is that of a Burger King franchisee refusing to rehire an employee who was participating in activities supporting an increase to the minimum wage. A new owner had recently purchased the Burger King location and had given discretion to the manager to rehire the employees of her choosing. She chose to rehire most of the employees but did not rehire the employee who actively support minimum wage legislation. The 8th Circuit affirmed the decision of the Administrative Law Judge, who determined that the employer’s reasons for not rehiring the employee, including insubordination, were pre-textual and that the real reason for not rehiring the employee was his involvement in advocating for a minimum wage increase. This was determined to be interfering with the employee’s right to engage in concerted activity, which is an Unfair Labor Practice under Section 8(a)(3) of the National Labor Relations Act.  Nat’l Labor Relations Bd. v. EYM King of Missouri, LLC, 696 F. App’x 759, 761 (8th Cir. 2017).

5th Circuit Rejects Employee’s FMLA Interference Claim 

The Fifth Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi, recently affirmed General Motors LLC’s suspension of an employee for failing to follow required procedures for requesting FMLA leave.  The employee had been approved for intermittent FMLA leave but had a series of absences from work for which he did not follow company protocol for requesting the leave, leading to several weeks of unpaid suspension.  The employee sued GM for FMLA interference and retaliation, among other claims.  The Fifth Circuit held that the FMLA explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. The Court stated that even when an employee’s need for leave is unforeseeable, the regulations make clear the employee has a duty to comply with the employer’s policy.  This ruling is consistent with 8th Circuit rulings on this issue.  Acker v. General Motors, LLC, A16-11174 (5th Cir. 2017).

No Constructive Discharge or Adverse Employment Action

The plaintiff in this case was an Itasca County Sheriff’s Deputy who resigned in early 2016 after being placed on administrative leave pending an investigation into whether he had lent his squad car to be filmed in a movie against a direct order from his supervisor.  After resigning, the employee claimed constructive discharge and brought a federal claim under 42 U.S.C. § 1983 contending retaliation because he exercised his first amendment right to support a challenger sheriff candidate.  In general, adverse employment actions include, but are not limited to, termination, cuts in pay or benefits, and changes that affect an employee’s future career prospects, as well as circumstances amounting to a constructive discharge.  Being placed on administrative leave with pay is not an adverse action.  Moreover, the loss of overtime opportunity and shift-differential pay are not adverse employment actions.  The court concluded that the employee’s verbal reprimands also do not constitute adverse employment action except in extreme situations.  Resignation 18 months after the election in which his candidate lost, and suggesting a single isolated instance of employment discrimination involving a loss of opportunity to be involved in a search, did not constitute an adverse employment action.  Ugrich v. Itasca County, Minnesota, et al, Civ. No. 16-1008 (D. Minn. 2017).

TIP OF THE MONTH:  Emailing employee policies should only be done if you can pre-assist them to verify receipt, which can certainly be done by requiring acknowledgement by return email and following up to make sure it is done.  A recent case, however, suggests that if you are dealing with major changes in policies, such as requiring arbitration, you should be sending this information by paper. 

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.

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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.