November 2018 – Vol. 20, No. 11 The Employer E-Letter:  Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association

November 2018 – Vol. 20, No. 11

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, and Richard R. Burns,, 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: 

  • Eighth Circuit Clarifies that Generally a Request for a Religious Accommodation is Not Protected Under Title VII’s Anti-Retaliation Provision
  • Travel Per Diem Payments Determined Wages for FLSA Purposes
  • Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA Discrimination
  • Tip Of The Month


Eighth Circuit Clarifies that Generally a Request for a Religious Accommodation is Not Protected Under Title VII’s Anti-Retaliation Provision

The Eighth Circuit recently held that the withdrawal of a conditional offer of employment, when an applicant requests a religious accommodation that presents an undue hardship, does not generally give rise to a Title VII retaliation claim. Instead, such cases would generally need to be brought as a disparate treatment claim under Title VII. In E.E.O.C. v. North Memorial Health Care, an applicant requested, after having been offered and accepting a conditional offer of employment, a religious accommodation. 2018 WL 5913860 (8th Cir. Nov. 13, 2018).  The applicant was a 7th Day Adventist, and she requested that she have Fridays off to observe the Sabbath. The employer, which had a collective bargaining agreement mandating weekend work, determined the applicant would be unable to meet the basic work requirements. The EEOC sued the employer claiming that it unlawfully retaliated against the applicant by rescinding the offer of employment. The Eighth Circuit clarified that the complained of conduct in these types of cases is not retaliation for purposes of Title VII, but would instead need to be brought as a disparate treatment claim. Put simply, the requested accommodation was not “opposition” to an unlawful employment practice and thus it cannot properly be considered a retaliation claim. This recent case provides some additional clarity as to the scope of Title VII’s anti-retaliation provision and highlights the complexity and difficulty of religious accommodation cases. As always, employers should be extremely cautious and consult legal consul when determining whether to approve or deny a request for a religious accommodation because there is a heightened risk of litigation in this area.



The Minnesota Court of Appeals recently affirmed a decision of an Unemployment Law Judge (“ULJ”) who found that an employee’s improper language and argument with a coworker in front of clients disqualified her from unemployment benefits. This was a reversal of the decision of the Department of Employment and Economic Development which had granted the initial application for benefits. The individual at issue was formerly employed at a Senior Care Center that cared for vulnerable adults. The Court of Appeals determined that the employee, through her actions of swearing, yelling, and arguing with a fellow employee in front of residents showed a substantial lack of concern for her employment, which disqualifies the applicant from benefits under Minn. Stat. § 268.095, subd. 6.  The Court of Appeals also stated that its decision was consistent with past decisions that found that aggressive and offensive conduct constitutes employment misconduct for purposes of eligibility of unemployment benefits. In addition, the employer had a policy in place that prohibited swearing in front of residents, which reinforced the determination that employment misconduct took place. The Court of Appeals also affirmed the credibility determination made by the ULJ, who stated that the testimony of the supervisor and the report of the employer regarding the incident were consistent and credible. Kirkey v. LSS of Traverse, LLC, 2018 WL 3966240 at *1 (Minn. Ct. App. Aug. 20, 2018).


Travel Per Diem Payments Determined Wages for FLSA Purposes

An employer may reimburse travel expenses, with such payments not subject to employment and income taxes, and still have those payments count as wages for the purpose of determining minimum wage if they are part of an “accountable plan” under IRS regulations.  In order to qualify as an “accountable plan,” the employer’s per diem policy has to meet the IRS’ “business connection, substantiation, and return of excess expenses” requirements.  At issue in Baouch v. Werner Enterprises, Inc., were per diem payments made to 52,000 truck drivers who had the option of receiving mileage-based per diem as reimbursement for expenses incurred while performing out of town work (untaxed) and lower mileage-based pay (taxed) or higher mileage-based pay (taxed) and the ability to deduct travel expenses from their personal tax returns.  No. 17-1661 (8th Cir. Nov. 14, 2018).  The per diem payments had the effect of increasing take-home pay while maintaining a low taxable daily rate of pay.  The question was whether the employer could include the per diem payments when calculating minimum wage compliance under the FLSA.  The 8th Circuit Court of Appeals answered “yes” to that question.  The Court concluded that since the per diem payments were calculated on a per-mile/per-hour basis, they were distinguishable from reimbursement on a receipt for a meal, which would not be included for minimum wage purposes.  The Court also noted that the total pay (per diem plus wages) for employees opting to participate in the per diem plan was similar to those wages paid to non-participating employees.  Employers that wish to adopt a per diem plan that reduces taxable wages to the minimum wage rate or below should consult with an attorney as navigating through the IRS and FLSA regulations can be a complex endeavor.


Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA Discrimination

A diabetic former sales associate at Dollar General requested and was refused permission to keep orange juice at her register because of the company’s “Personal Appearance” policy, which prohibited employees from consuming food or drink outside the break room.  During two hypoglycemic episodes when she was working alone and had customers in the store, the associate took a bottle of orange juice from the store cooler, drank it, paid for the juice, and told her store manager what happened. When Dollar General’s district manager and regional loss prevention manager learned what the associate had done, they terminated her for violating the company’s policy that forbids employees from consuming merchandise in the store before paying for it.  The associate filed a lawsuit against Dollar General alleging failure to provide a reasonable accommodation and discriminatory discharge under the ADA.  At trial, a jury found in favor of the employee on both claims.  She was awarded nearly one million dollars in back pay, compensatory damages and attorney’s fees.  On appeal, the Sixth Circuit Court of Appeals found that Dollar General failed to provide the associate with a reasonable accommodation to its “Personal Appearance” policy, and Dollar General could not “illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].”  This decision makes it clear that employers who apply policies without regard to an employee’s disclosed disability do so at their own risk.  When faced with an employee who requests a reasonable accommodation, the employer should consider alternatives to accommodate the employee’s disability, solicit the employee’s doctor’s input if necessary or consider a second opinion, and determine whether there are vacant positions for which the employee is qualified and in which the accommodation could be provided. See Equal Employment Opportunity Comm. v. Dolgencorp, LLC, No. 17-1678 (6th Cir. Aug. 7, 2018).


TIP OF THE MONTH:  Courts have historically assumed that documents sent to a person (or employee) via mail reached the intended recipient.  This is often referred to as “the mailbox rule.”  A recent opinion from the 3rd Circuit Court of Appeals called this general rule into question, however, when the Court suggested that employers should send FMLA notices (and other legal documents) using same form of mailing that includes verifiable receipt.  Accordingly, we recommend sending FMLA and other important notices by certified mail or email requiring receipt.


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.


To subscribe or unsubscribe to Employer E-Letter, e-mail your request to 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.