November 2020 – Vol. 22, 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:

  • Tip Of The Month


The FFCRA is a stimulus measure enacted by Congress in March 2020 to support workers financially in staying home to prevent the spread of coronavirus. Currently under the Act eligible workers may take up to two weeks’ paid leave for certain virus-related absences, and an additional 10 weeks’ partially‑paid leave to care for children homebound due to school and daycare closures. Effective September 16, 2020, the Department of Labor (DOL) issued the following revisions and clarifications to the FFCRA paid leave rules:

Health Care Providers

Generally, employers may exclude heath care providers from leave requirements under FFCRA. The term “health care provider” is now narrowed to include those providers who are authorized to sign FMLA certification and those who “provide diagnostic, preventative, treatment services, or other patient care services” or those whose work is integrated and necessary to providing those services. For example, IT professionals, accounting, and billing personnel are not exempt from FFCRA provisions even if they work in health care.

Documentation Timing

Previously employees were required to provide documentation before taking leave. Now employees taking leave must provide documentation “as soon as practicable.” Advanced notice is still required for foreseeable leave such as school or day care closure.

Intermittent Leave

Employers may decline to allow paid intermittent FFCRA leave. However, the Department of Labor is responsible for regulating compliance with the statute. The DOL’s suggestion is that onsite workers generally must take leave in full-day and continuous increments until leave time is exhausted or until the employee is no longer qualified for leave. However, intermittent leave due to school or daycare closure is allowed because each day of closure is a separate reason for leave.

Work Available Requirement

The DOL reaffirms that employees are eligible for leave when the employer has work available for them. Laid off employees remain ineligible for FFCRA benefits.


Over the last few years, the classification of workers in the so-called “gig” economy has been one of the most closely watched areas in employment law. Companies and workers have been relentlessly disputing whether gig workers (e.g. Uber/Lyft drivers) should be classified as employees or independent contractors. Companies that operate within the gig economy contend their workers are independent contractors because their workers control when, where, and for how long they work. Conversely, many gig workers and labor groups have argued that gig companies have wrongly classified them as independent contractors in order to artificially avoid the costs and benefits to the worker associated with an employer/employee relationship. Courts around the country have come out on both sides of the issue. Most notably, in California, it was determined that gig workers are employees and not independent contractors. The decision in California raised the prospect that gig workers around the country would ultimately be classified as employees. Thus, the gig companies launched the most expensive proposition fight in California history, which resulted in the passage of the industry-friendly Proposition 22. The passage of Proposition 22 rewrote California law and firmly established that many gig workers can and will be classified as independent contractors. The success of Proposition 22 signals that the voting public is inclined to support the idea that gig work is not akin to employment. It is possible—even likely—the shift in California will lead to industry-friendly changes across the country. Therefore, it is important that employers remain aware of the latest state and federal developments that are likely to occur in worker classification in light of Proposition 22’s passage.


In a case of first impression, the 5th Circuit Court of Appeals held that employees, not their employers, have the burden to prove whether their bonuses must be included in overtime calculations or are discretionary and not included.  Under the Fair Labor Standards Act (FLSA), employers must pay non-exempt employees time and a half for hours worked over 40 in a week.  The bonuses in question were required to be included in the overtime calculation.  In this case, it would not seem that it was difficult to make that determination, as the employer had set out two bonuses in a contract outlining how they were to be earned and the amount an employee could expect.  However, there was another bonus that might be paid when a new stage of fracking operations was completed, which was determined to be discretionary as there was no specific description of how the amount was to be determined or when and whether certain employees were eligible.  Edwards, et al v. 4JLJ LLC, et al, Case No. 19-40553 (5th Cir. 2020)


The National Labor Relations Board (NLRB) recently overturned a rule which gave the Board jurisdiction to allow faculty members at religious institutions of higher education to unionize through the NLRB. The Board’s previous jurisdictional standard—set forth in Pacific Lutheran University, 361 NLRB 1404 (2014)—required the Board to assess whether faculty members perform specific religious functions. The NLRB also adopted the Great Falls Test which requires the Board to decline jurisdiction over faculty members at religious institutions if the institution: (a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”  University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002).  Now, the NLRB will decline jurisdiction over faculty members at religiously affiliated colleges and universities that satisfy the Great Falls test. The Board reasoned that as a government entity, its assessment of specific religious job functions intrudes an area safeguarded by the First Amendment’s religion clauses and such determinations should be made by the religious institutions themselves.  Bethany College, 369 NLRB No. 98 (June 10, 2020).


As snow is what we desire for the holiday season, it is good to be reminded of the Fair Labor Standard Act rules that apply during the work week, particularly as they may be relevant in weather-related closures.

Hourly employees do not need to be paid when they do not show up for work because of inclement weather or even when the employer closes the business early during inclement weather, such as a snowstorm. Exempt salaried employees, however, cannot be docked pay for partial days missed or full days missed when you close your business. The Fair Labor Standard Act (FLSA) rules make it clear that, if you provide personal days or vacation, you, in fact, may require a salaried employee to apply vacation or other paid time off. For example, if you close your office after two hours on one day and remain closed the next day, you could require a salaried employee to deduct 14 hours of vacation or paid time off. To the extent a salaried employee has used all of his/her vacation or paid time off, you need to pay them without any deduction. On the other hand, if a salaried employee simply does not show up because he/she feels, for example, “snowed in,” this could be considered an absence for personal reasons, and you can deduct a full day of pay. However, if a salaried employee decides to leave early to make sure he/she gets home safely, your only alternative is to use paid time off or vacation, as you cannot dock for partial days without risking loss of exempt status.


Due to COVID-19, we will not be holding the Annual Employment and Labor Law Seminar in March 2021.  We expect the seminar to resume in 2022.

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 2020 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.