November 2019 – Vol. 21, 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:

  • Obesity Not Protected Under ADA According To 7th Circuit Court of Appeals
  • Whistleblower Act Retaliation Case Allowed to Trial
  • three step approach to bargaining unit determination
  • Tip Of The Month

Obesity Not Protected Under ADA According To 7th Circuit Court of Appeals

The 7th Circuit Court of Appeals, which hears cases from Wisconsin, Illinois and Indiana, recently joined several other circuit courts of appeal in deciding that the Americans with Disabilities Act does not prohibit an employer from electing not to hire an applicant due to its concern that the applicant’s weight could impair the applicant’s ability to work.  The applicant sought employment as an intermodal operator in a railyard.  The position required climbing onto railcars, driving trucks around the railyard and operating cranes to move cargo containers.  The railroad company considers intermodal operators a “safety-sensitive” position due to the required work with heavy equipment.  The company extended an offer of employment contingent on a medical exam after reviewing the applicant’s application materials.  The medical examination revealed the applicant’s weight was 331 pounds, and his BMI was 47, which exceeded the company’s maximum BMI limit of 40 for safety sensitive positions.  The rationale behind the BMI restriction is that individuals with higher BMI are at greater risk of significant illness that could lead to a debilitating health episode at work, thus endangering themselves and others if they are operating equipment.  When the applicant was informed he was not hired due to his weight, he sued the railroad company alleging disability discrimination.  The district court denied the railroad’s request to dismiss the case, holding that there was a question of fact as to whether the company “regarded” the applicant as having a physical impairment, thus falling within the “regarded as” disability clause of the ADA.  The 7th Circuit Court of Appeals reversed, holding the ADA does not apply to discrimination based on a future disability/impairment.  The 7th Circuit also had held earlier this year that obesity itself is not a “qualified disability” under the ADA unless it is the result of an existing physiological disorder.  Shell v. Burlington Northern Santa Fe Railway, No. 19-1030 (7th Cir. Oct. 29, 2019).

Whistleblower Act Retaliation Case Allowed to Trial

In a recent case heard by the Minnesota Court of Appeals, an employee’s Whistleblower Act retaliation claim survived the employer’s effort to have the claim dismissed prior to trial because the Court determined the employer’s explanation for not promoting the employee left a question of fact as to whether it was retaliation for reports of co-worker misconduct.  The employee was a police officer employed by the Metropolitan Airport Commission and had complained of inappropriate conduct by a co-worker that included photographing other officers in the locker room/shower areas and posting the photos online.  The employee later sought promotions three times in the following five years, being denied each time notwithstanding he was the top-ranked candidate in the last of the three promotion applications.  The trial court dismissed the employee’s claims.  On appeal, however, the court concluded the employer’s explanation for denying promotion may be a “pretext” for retaliatory reasons for denying the promotion – leaving for the jury the question of whether the employer’s reasons were truthful or retaliation.  The Court of Appeals noted the employee’s exemplary performance reviews, including the absence of any concerns about his ability to communicate with co-workers, which was the reason cited for denying the promotions.  The Court also noted the employer’s history of promoting the top-ranked candidate for promotions and a similar complaint of retaliatory treatment in relation to another employee.  This case shows the importance of employer responses and disciplinary actions for improper conduct in the workplace and stating with specificity the reasons for denying promotions, particularly when the employee’s performance records do not note the deficiencies cited for denying a promotion.  Wingate v. Metro. Airports Comm’n, A-19-0226 (Minn. Ct. App. Aug. 19, 2019). 

Three step approach to bargaining unit determination

One of the responsibilities of the National Labor Relations Board (“NLRB”) is to determine whether a petitioned for bargaining unit is an appropriate unit, or group of employees. In 2017, the NLRB decision in PCC Structurals adopted the community of interest standard. It states that if the employees included in the petition share a community of interest that is sufficiently distinct from the excluded employees to warrant separate bargaining units, the petition for the unit will be granted. Many factors are analyzed, including the shared and distinct interests of the included and excluded employees, but a clear standard was not established as to how to weigh said interests. This changed with an NLRB decision issued on September 9, 2019. The case came before the NLRB on a review sought by Boeing, which challenged a petitioned for a unit of 178 employees. The total number of employees was 2,700. Boeing argued that the 178 employee group shared a community of interest with the larger 2,700 employee group and was not sufficiently distinct. The NLRB ruled in favor of Boeing and established a three step approach in making any analysis: 1) determine whether the proposed unit as an internal community of interest; 2) determine whether there are shared interests between the petitioned for and excluded employees; and 3) special considerations of facility, industry guidelines established by the NLRB, or employer precedent. Under this decision, it will be less likely that unions will attempt to target micro units of employees for organizing a union. The Boeing Company, 368 NLRB No. 67.


The franchisor/franchisee relationship comes up in a number of different employment law circumstances.  Often, plaintiff/employee, whether individually or as part of a class action, asserts claims against the franchisor to hold it liable for damages arising from events on the premises of the local franchisee.  A recent decision out of a federal court in Kansas provides helpful guidance with respect to a plaintiff’s/employee’s burden when pursuing claims against the franchisor.  In N.T. v. Taco Bell Corp. et al., an employee sued the franchisee/restaurant owner asserting claims of sexual harassment and discrimination by a co-worker.  19-CV-01028 (D. Kan. 9/3/19).  The employee also asserted a claim of negligence against Taco Bell Corp. (franchisor), alleging the franchisor had been aware of the risk of sexual assault being committed in Taco Bell restaurants and failed to institute policies/procedures to prevent sexual assault in the workplace of its franchisees.  The employee further alleged the franchisor had duties to provide rules and otherwise ensure the restaurants are safe work environments, as well as to disclose known defects and risks of operating a Taco Bell restaurant.  The Court dismissed the employee’s claims against the franchisor for multiple reasons.  First, the franchisor did not have a “special relationship,” such as common carrier/passenger, innkeeper/guest, from which there exists a duty to protect others from harm by third persons.  Second, the franchisor did not render services to franchisees relating to the enforcement of discrimination laws, and thus no services rendered by franchisor created risk that franchisee employees would be harassed or assaulted.  Third, the franchisor did not control the daily operation of the specific aspect of the franchisee’s business that allegedly caused the harm to the employee.  Since these negligence and vicarious liability rules are similar across jurisdictions, Minnesota and Wisconsin franchisors and franchisees should be aware of these limitations on liability for Title VII discrimination and harassment claims.

In a similar ruling, the 9th Circuit Court of Appeals (CA) ruled that McDonald’s Corp. is not liable for alleged wage and hour violations claimed by employees of a California franchise restaurant.  The Court held McDonald’s Corp. is not a “joint employer” of the franchise’s employees because it did not exercise control over the workers’ wages, hours or working conditions.  Salazr v. McDonald’s Corp., No. 17-15673 (9th Cir. Oct. 1, 2019).

TIP OF THE MONTH:  At some point, every employer is faced with the difficult and sometimes tense task of disciplining, terminating, or investigating an employee for poor performance or misconduct. When meeting with employees about these topics it is important for employers to remember to ensure the conditions of the meeting are such that the employee feels free to leave because failing to do so could lead to claims of false imprisonment. To avoid this hidden trap, it is important that the employee be allowed to sit by an unlocked door that can easily be accessed by the employee. It is also important to avoid making statements or engaging in conduct that could be interpreted to mean that the employee is not free to leave.

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 2019 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.