Minnesota Federal Court Rules That Employer Did Not Have to Accommodate Disabled Employee by Excusing Him from Mandatory Overtime Requirements of CBA

August 2015

By: James B. Sherman, Esq.

The Americans with Disabilities Act (ADA) and Minnesota state law require employers to reasonably accommodate disabled applicants and employees. However, many employers overlook the fact that the accommodations to which an employee may by law be entitled, ultimately must enable the employee to adequately perform all of the essential functions of the job in question. In a recent decision a federal court judge in Minnesota dismissed a disability case based on finding that working overtime was an essential function of the job.

EEOC guidelines clearly provide that reasonable accommodations may include restructuring an employee’s work schedule. Sometimes employers misinterpret this to mean that they must always, absent a showing of “undue hardship,” permit a disabled employee to work hours as directed by the employee’s doctor. However, as this particular case demonstrates where an essential function of the job in question requires a particular work schedule, it need not be altered as an accommodation.

Requests for altered work schedules are very common. Whether such accommodations are required for any disabled employee or applicant can depend on details of the particular job and work environment. So before writing a blank pass for a disabled individual to pencil in his or her own work schedule, seek experienced advice on whether it is necessary under the law to do so.

Questions? Call Attorney James Sherman at 952-746-1700 or email jasherman@wesselssherman.com. 

Beware the Risks of Performing Compliance Audits

Lawyers are often asked to audit the employment practices of clients; however, attorneys or other advisers who conduct these audits could face malpractice charges for missing issues that expose the employer to liability.  Earlier this year, for example, a large, international agri-food commercial co-operative brought a $5 million malpractice lawsuit against its national full-service law firm for an allegedly negligent employment practices audit.  This audit stated that the company’s exempt vs. non-exempt classification of employees complied with the federal Fair Labor Standards Act (FLSA), but failed to address California’s state counterpart, under which the outside sales associates were not exempt from the law’s overtime provisions.   Wage and hour law is somewhat unique in that both federal and state law needs to carefully and separately be analyzed to determine compliance.  Relying on this audit, the employer did not change its classifications, and was hit with a class action lawsuit.  The employer, in turn, sued the attorney for what it claimed was a negligent audit. 

This is just one example of how an employment practices audit—in this case, of how California workers are classified—can expose an attorney to major liability. Although this type of audit would seem to require less specialized training than, for instance, litigation of an employment dispute, it carries its own substantial risks.  Those with a more generalized practice may wish to consult with an employment attorney, rather than attempt to take on an audit alone. 

For questions or assistance with an employment practices audit, contact Wessels Sherman’s Minnesota office at (952) 746-1700.

A Good Example of How Not to Handle a Discharge Case

August 2015
By Richard H. Wessels, Esq.

Every now and then we come across a really good case that gives us a road map for what not to do. A recent decision by a NLRB Administrative Law Judge illustrates this point. The case is Alternative Entertainment, Inc. It was issued July 9, 2015 and was tried just a couple of months ago in Grand Rapids, Michigan.

The fact pattern involved protected concerted activity. In other words, there was no union involved. We are seeing more and more of these types of cases being decided by the NLRB. The legal theory here is that, even though union activity is not involved, if an employee is engaging in some kind of group protest or acting with others, it is protected by the National Labor Relations Act (NLRA). A discharge would violate the NLRA in the same way that a discharge for union organizing activity would be an unfair labor practice.

In the Alternative Entertainment case, the employee was one of 77 field technicians who did installation work and service for a Dish Network contractor. The contractor made several changes in compensation policy. The changes were not well received. The employee began talking with others about the changes in compensation policy and, of course, this is pretty clearly protected concerted activity. 

After trial of the case, it took the ALJ little time to cut through the Company’s arguments. Here are some of the elements that led to the finding by the ALJ that the discharge was discriminatory and that the discharged employee was to be reinstated with full back pay: 

• Vague reason for the termination – “our relationship isn’t working out”. The Judge called the reason “vague and transparently pretextual.” 
• Suspicious timing – the Judge carefully analyzed Board case law and fundamental principle that “timing alone may suggest anti-union animus as a motivating factor in an employer’s action”. 
• No prior indication that the Company was dissatisfied with the employee’s work. 
• During the termination interview, the judge found that the Company ignored the employee’s inquiry for an explanation as to why he was discharged. 
• Departure from usual disciplinary procedure of providing a warning. 
• Several months before discharge the employee had broken Company sales records. 
• Although the employee’s sales had recently declined, they still exceeded goals set by the Company.

This case is well worth reading for any reader who might be interested. It is short by NLRB standards (16 pages). Here is a link to the case.

Questions? Call Attorney Dick Wessels of Wessels Sherman's St. Charles, Illinois office: (630) 377-1554 or email him at riwessels@wesselssherman.com.