Sept. 2017 – Vol.19, No. 9 The Employer E-Letter: Labor and Employment Law News from the Duluth,MN law firm of Hanft Fride, A Professional Association

September 2017 – Vol. 19, No. 9

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:

  • New Face Comment Isn’t Proof of Age Bias
  • Tip Of The Month

New Minimum Salary for Exempt Employees Invalid

In November 2016, shortly before the new exempt employer salary level would have nearly doubled ($23,660 to $47,476), the salary changes were stopped by a temporary injunction in Texas U.S. District Court.  The plaintiffs in that action then requested summary judgment, and recently it was granted.  The Court’s final order suggested that Congress intended employees who perform bona fide executive, administrative, or professional capacity duties to be exempt from overtime pay.  The Fair Labor Standards Act itself does not provide for a salary requirement, but the Court concluded that having a minimum salary level was permissible only as part of a broader exemption test.  The Court concluded that the new salary level did not give effect to Congress’s unambiguous intent to have persons with certain duties exempt from the overtime requirements, and it in fact made the duties and functions test irrelevant.  This is what the Trump Department of Labor desired, as it has been suggested and argued in the appeal of the temporary injunction that a salary level was appropriate, but the salary level set was too high.  We are looking at an extended period of time until a new salary level is established, and those employers who took a “wait and see” attitude are being rewarded.  State of Nevada, et al v. United States Department of Labor, Civ. Action No. 4:16-CV-731 (August 2017).  Experts are predicting that the new salary level will likely be between $30,000 and $35,000. 

Persuader Rule Is On The Out

The Persuader Rule was finalized in March 2016 by the Obama administration.  The rule, however, was permanently enjoined by a Texas Federal District Court on freedom of speech grounds.  Now the Trump administration is proposing that the rule be revoked.  The Persuader Rule required disclosure of the identity of parties, terms and conditions of any agreement of representation, and specific activities undertaken, in connection with a labor organizing effort or collective bargaining negotiation, and was claimed not to be a violation even when it applied to attorneys, as this was not considered privileged information.  Interestingly enough, the rule was suggested not to impose a large burden on employers and consultants, as it would only have an approximate total burden of just over $7,000,000 each year.  We can be sure that this rule will eventually reappear when we have a pro-labor administration.

New Face Comment Isn’t Proof of Age Bias

The Eighth Circuit Court of Appeals recently heard a matter concerning alleged age discrimination. The employee alleged that he was passed over for promotion and later laid off because of his age, 63. The employee’s claimed factual support for his claims was comments made by the Company’s CEO stating that the sole shareholder wanted a “new face in the position.” The employee argued this was direct evidence of age discrimination. The Court determined that the “new face” comment was both facially and contextually neutral. Further, the Court determined that an independent audit had been performed regarding the employee’s job performance, and that the person hired for the promotion was more qualified. The employee also failed to demonstrate that any of the actions of the employer were pre-text for age discrimination. James Aulick v. Skybridge Americas, Inc., Case No. 16-2648 (8thCir. June 2017).


The National Labor Relations Board (“NLRB”) recently ruled that various employer handbook provisions were illegal in an action brought by the Communications Workers of America (“CWA”). The basis for doing so was a determination that the provisions constrained, or chilled, the rights of employees to engage in protected concerted activity in violation of Sections 7 and 8 of the National Labor Relations Act. The illegal provisions included a requirement that employees report handbook violations committed by other employees and that the Code of Conduct could be changed by the employer at any time without notice to the employees.  Additional provisions ruled illegal allowed for the employer to monitor and search employee’s vehicles, prohibited employees from recording conversations at work without authorization, and the blocking of current and former employees from disclosing nonpublic financial information without permission, which the NLRB stated could be interpreted to restrict discussion of terms and conditions of employment. The decision has been appealed to the D.C. Circuit. Verizon Wireless and Communications Worker of America, AFL-CIO, case numbers 02-CA-157403, 02-CA-156761, 02-CA-156043, 02-CA-156053 and 02-CA-16147 May 25, 2017.

TIP OF THE MONTH:  Washington State has passed a new law that drivers who use other than hands-free devices can be found liable for “driving under the influence of an electronic E-DUI and receive a ticket with a penalty of $236 for the first offense.  Responsible employers and employees should consider modifying their employee vehicle policy to require only use of hand-free devices.  However, other rules may make sense such as:

  • Not use mobile phones while driving in inclement weather or when driving in high volume traffic
  • Make every attempt to plan a call so that they can handle it while not operating a vehicle.
  • Only use Bluetooth and other hand-free devices if calls must be made while in vehicle.
  • Not take notes or refer to maps or any material while the vehicle is in motion.
  • Program your speed dial on mobile home for frequently called numbers.
  • If you have a passenger, have them call or answer calls.

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 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.