The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association.

April 2019 – Vol. 21, No. 4

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:

  • Providing New Parents with Different Leave Periods Based on Gender is a One-Way Ticket to a Discrimination Suit
  • Employer Not Required to Pay for All Volunteer TimE
  • Employer May Not Delay Leave Start Under FMLA 
  • Employers Should Avoid Taking Adverse Employment Action in Situations Where it May Appear that the Employee is being Penalized for Completing Jury Service
  • Tip Of The Month

Providing New Parents with Different Leave Periods Based on Gender is a One-Way Ticket to a Discrimination Suit

On July 17, 2018, Estée Lauder, one of the world’s leading manufacturers and marketers of skin and hair care products, became subject to an EEOC consent decree due to an unlawful parental leave policy. Under the company’s noncompliant parental leave policy, new fathers were provided with less paid leave than new mothers. More specifically, new fathers received two weeks of paid parental leave whereas new mothers received six weeks of paid parental leave. The EEOC successfully brought suit against Estée Lauder for violations of the Equal Pay Act and Title VII. Pursuant to the consent decree entered in the case, Estée Lauder paid a total of $1,100,000 to the class of male employees, was required to utilize sex-neutral criteria, processes, and procedures in relation to parental leave and was subject to EEOC monitoring. See Equal Employment Opportunity Commission v. Estee Lauder Companies, Inc.,Civil Action No. 2:17-cv-03897. This recent case highlights the need for employers to ensure their parental leave policies, practices, and procedures are not based on presumptions or stereotypes about gender roles. If an employer provides parental leave it is critical that all new parents (male and female) are provided with the same degree of leave. Failing to do so can be a one-way ticket to a costly lawsuit and increased, unwanted regulatory oversight.

Employer Not Required to Pay for All Volunteer Time 

The Department of Labor, Wage and Hour Division, issued an opinion letter (not binding on courts) involving an employer’s optional volunteer program, which awarded a bonus to certain participating employees.  It allowed employees to work on employer-sponsored activities or activities the employees selected themselves.  The employees were compensated for the time they spent on volunteer activities during working hours or while they were required to be on the client’s premises.  However, any hours these employees spent on volunteer activities outside normal work hours were not compensated.  The employer did not require employees to participate in the program or direct or control their participation.  The Department noted that the Fair Labor Standards Act (FLSA) recognizes “the generosity and public benefits of volunteering and allows people to freely volunteer time for religious, charitable, civic, humanitarian or similar public services.”  WHD Opinion Letter FLSA 2006-4.  The opinion notes that the employer program is charitable and voluntary as an employee offers his or her services freely without coercion or under undue pressure, direct or implied from the employer, including no negative ramifications if an employee chooses not to participate.  WHD Opinion Letter FLSA 2019-2.

Employer May Not Delay Leave Start Under FMLA 

In 2014, the Ninth Circuit Court of Appeals (West Coast) ruled in Esriba v. Foster Poultry Farms that a person can defer FMLA leave and take paid time off or other sick leave instead.  In a new opinion letter, the agency addressed the question of whether employers can voluntarily permit employees to exhaust some or all of their available paid sick (or other leave) prior to designating leave as FMLA qualifying?  In the opinion letter, the Department determined that an employer may not delay the designation of FMLA leave/qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military care giver leave) as FMLA leave.  Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.  As soon as the employer has sufficient information to make a determination, the employer must, absent extenuating circumstances, provide notice of the designation within five days.  Notwithstanding the foregoing, an employer is required to observe any employee benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, but this does not expand the FMLA leave.  FMLA 2019-1-A

Employers Should Avoid Taking Adverse Employment Action in Situations Where it May Appear that the Employee is being Penalized for Completing Jury Service

Both the Jury Systems Improvement Act, 28 U.S.C. § 1875, and its Minnesota counterpart, Minn. Stat. § 593.50, prohibit employers from taking adverse employment action as a result of or in connection with an employee’s jury service. Failure to comply with either the federal or state act can carrier serious civil penalties as well as a potential contempt of court. Thus, employers must not only ensure that adverse employment action is not taken against an employees because of their jury service, they must also be aware that it is important to avoid situations where it may appear that adverse action was taken in connection with jury service, because failure to do so could result in a costly discrimination suit. For example, in Rosenwinkel v. Entrust Datacard Corp., Civ. No. 17-4788 (D. Minn. Apr. 9, 2019), an employee’s discrimination claim under the aforementioned federal and state laws survived a motion for summary judgment when the employee was able to make a genuine claim that the employer’s reason for terminating his employment was pre-textual because negative statements were allegedly made about his jury service and the reasons for termination shifted over time. The Rosenwinkel case highlights that employers need to be cautious when terminating or disciplining employees shortly after service on  a jury.

TIP OF THE MONTH We recently wrote about the reporting requirements for Component 2 pay data, which is the new information that will be required.  At that time we speculated this might not be required to be submitted until 2020, but the EEOC has now suggested that it should be able to start accepting this information earlier, and the required submission date will be September 30, 2019.  We recommend that covered employers start preparing the information if you have not already done so.

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.