September 2018 – Vol. 20, 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 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:

  • NLRB Pursuing Rulemaking Process to Address Joint Employer Standard          
  • FMLA Protects Organ Donors, DOL Says in Opinion Letter
  • Tip Of The Month


A diabetic Dollar General employee, who had been promoted to a supervisory position, was fired when a store audit revealed she had on at least two occasions, during hypoglycemic episodes, taken orange juice from the store’s cooler. Dollar General’s policies prohibited employees from eating and drinking on the store floor as well as taking and using a product before paying for it. The EEOC claimed Dollar General had failed to reasonably accommodate the employee because she had previously requested to keep her own juice at her register, and the store denied the request.  The 6th Circuit agreed with the EEOC, holding that Dollar General’s general policy could not be used to shield from its obligation to accommodate the employee. EEOC v. Dolgencorp, LLC, dba Dollar General Corporation, 3:14-cv-00441 (August 7, 2018). The case highlights that employers must be careful when declining requested accommodations on the basis of general company policies.



The Minnesota Court of Appeals recently overturned a decision of an Unemployment Law Judge (“ULJ”) who ruled an applicant ineligible for unemployment benefits due to his incarceration. The employee who already had violated a no show/no call rule on more than 5 occasions, was terminated because he was unable to report to work while in jail. The Court stated the ULJ was correct in finding that a violation of an employer’s attendance policy is generally employment misconduct, but ruled the ULJ was incorrect in establishing misconduct for absence due to incarceration as a per se rule. Rather, the Court concluded the decision must be based on the facts of each particular case. In this case, the ULJ made no finding as to whether the acts leading to the employee’s incarceration were within his control. The Court stated this finding was necessary due to case precedent and Minnesota statutes which state that unemployment benefits are intended to aid those “who are unemployed through no fault of their own.” In light of this decision, employers should be prepared to present evidence, such as police reports, at unemployment hearings to show why a former employer was incarcerated. Muse v. New Flyer of Am., Inc., (Minn. Ct. App. 2018).


NLRB Pursuing Rulemaking Process to Address Joint Employer Standard               

The question of when an entity is a “joint employer” under the National Labor Relations Act has been on a rollercoaster ride over the past four years.  Dating back to the mid-1980’s, the test for determining joint employer status required a finding that the putative joint employer had direct and immediate control over the essential terms of employment (i.e. hiring, firing, discipline, supervision and direction) of a worker who was employed by another entity.  That standard remained in place for decades, until 2015, when the National Labor Relations Board abandoned the test in favor of a test that only required a finding that an entity has exercised indirect control, or even reserved the right to do so, over the employee of another entity.  Browning-Ferris Industries of CA, Inc., 362 NLRB No. 186 (2015).  Then in 2017, with a new administration controlling the White House and appointments to the Board, the NLRB issued a decision overturning Browning-Ferris, and thus returning to the pre-Browning-Ferris “direct and immediate control” test.  Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017).  That decision was subsequently vacated, however, after it was found a voting Board member had a conflict of interest in the case.  That left us again with the Browning-Ferris “indirect control” rule.  Now, the Board has decided to pursue administrative rulemaking to address the joint employer question rather than waiting for a case to change the rule back.  Thus, the Board has issued a draft rule returning to the pre-Browning-Ferris “direct and immediate control” rule once again.  Employers will also be pleased to hear that in comments supporting its proposed rule, the Board has gone so far to say that even “direct and immediate control” over employment terms may not result in a joint employer relationship where the control is “limited in scope.”  The proposed rule must go through a comment period before becoming effective law.  Only time will tell if there will be more bumps in the road.


FMLA Protects Organ Donors, DOL Says in Opinion Letter

The U.S. Department of Labor recently issued an opinion letter concluding ““organ-donation surgery can qualify as a ‘serious health condition’” under the FMLA, thus entitling the employee to protected leave.  The DOL reached this conclusion despite the fact that the employee was in good health before the donation and voluntarily elected to undergo the surgery.  The DOL reasoned that organ-donation surgery may require both “inpatient care” or “continuing treatment” and, therefore, meets the regulatory definitions of a serious health condition.  The opinion letter can be found at


TIP OF THE MONTH:  Trying to recall an event that occurred even a few days ago is sometimes challenging.  Therefore, documentation of discipline should take place right after the incident occurs.  Provide enough detail to put the decision in context and stick to the facts by staying objective, so avoid opinions.


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 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.