8th Circuit Court of Appeals Holds that Miscalculation of FMLA Entitlement Interfered with Employee’s FMLA Rights

August 2016

Eligible employees are entitled to 12 weeks of FMLA leave per year for qualifying reasons.  But how are those 12 weeks counted?  Incorrectly answering this question got an employer in trouble when it only counted the employee’s straight time in determining how many hours of FMLA leave the employee was entitled to take.

In a recent decision, the 8^th Circuit Court of Appeals (which covers Minnesota) held that an employer unlawfully interfered with an employee’s FMLA rights when he was terminated for excessive absenteeism after the employer claimed he had exhausted his FMLA leave.  When a need for overtime arose, employees could volunteer, and the employer would schedule overtime based on the volunteers.  Once an employee was scheduled for this overtime, it was no longer voluntary.  This means that missed scheduled overtime shifts due to a reason covered by the FMLA were properly counted against his 12 week FMLA entitlement.  But, it also means that his overtime should have been taken overtime into account when calculating how many hours of leave he was entitled to take, i.e., he was entitled to more than the 480 hours (12 weeks * 40 hours/week) he would have been entitled to if he did not work any overtime. 

If an employee works the same number of hours each week, it is not too difficult to calculate both their FMLA entitlement and their FMLA usage, but it becomes more difficult where, as in this case, the employee’s schedule varies.  However, the Department of Labor’s regulations interpreting the FMLA provide for what to do in such a situation, stating that if an employee’s schedule varies to such an extent that the employer cannot determine with any certainty how many hours the employee would otherwise have worked if they hadn’t taken FMLA leave, then the employee’s average hours over the past 12 months should be used in calculating the employee’s leave entitlement. 

For questions regarding administration of FMLA leave, contact James Sherman at jasherman@wesselssherman.com or 952-746-1700.

Recent 8th Circuit Decision Affirms that Obesity, on its Own, Is Not a Disability

Most human resources professionals and employment lawyers recognize that an employee or applicant that is overweight to the point of being obese, may well be considered “disabled” under the Americans with Disabilities Act (ADA).  If disabled, it follows that such individuals are entitled to reasonable accommodations as may be needed to perform the essential functions of the job.  But according to a very recent decision from the U.S. Court of Appeals for the 8^th Circuit (which covers Minnesota, Iowa and the Dakotas, among other states) the fact that an individual is obese, even morbidly obese, does not necessarily mean that he or she is “disabled” within the meaning of the ADA.  In Morriss v. BNSF Railway Co. (April 5, 2016), the court held that in order to qualify as a “disability,” obesity must result from an underlying physiological disorder or condition.  As the court put it, being overweight – “no matter how far outside [the normal] range” – does not, standing alone, meet the definition of a physical “impairment.”  Addressing the Equal Employment Opportunity Commission’s (EEOC) position in its “friend of the court” brief, the court rejected the conclusion that morbid obesity constituted a disability regardless of the cause.  Instead, according to this new decision obesity of any level, whether termed “severe,” “morbid,” or “class III” obesity, is not a disability absent some underlying physiological disorder or condition.  Qualifying examples of physiological disorders or conditions, would include  hypothyroidism, Cushing’s syndrome, etc.

This recent decision is consistent with decisions from the Courts of Appeals for the 2^nd and 6^th Circuits.  However, these two earlier decisions came prior to the ADA Amendments Act of 2008, which significantly expanded the definition of who qualifies as “disabled” under the law, whereas the 8^th Circuit’s decision in Morriss, was issued just this month, on April 5, 2016.  However, despite this broadened definition of disability, and the EEOC’s change of position on the issue as a result of the amendments, the court held that the requirement that obesity be caused by a physiological condition in order to be a disability, remained unchanged.

Although the individual in this case was not disabled, if obesity is the result of a physiological disorder, it could be a disability, and it could also cause other disabilities, such as diabetes, sleep apnea, hypertension, or heart disease.  As a result of this decision, employers who assume that obese applicants or employees are automatically disabled, may unwittingly: (a) pursue accommodations where none may be required; or (b) risk liability under the ADA’s “regarded as” disabled prong, if they assume that the individual has an “impairment,” and adverse action is taken.   Because of this, employers faced with an accommodation request from an obese individual should look further at medical documentation, not only to verify the need for an accommodation, but also for the underlying cause of the obesity. For assistance in dealing with questions regarding disabilities, contact James Sherman, at (952) 746-1700 or email jasherman@wesselssherman.com. 

8th Circuit Court of Appeals Approves of NLRB’s Micro Unit Analysis

In FedEx Freight v. NLRB, the 8^th Circuit Court of Appeals (which covers Minnesota, Iowa, and a handful of other nearby states) weighed in for the first time and determined that the analysis under the NLRB’s controversial 2011 Specialty Healthcare decision is acceptable under the National Labor Relations Act.  Under this analysis, unions have the ability to organize small “micro units,” rather than larger bargaining units encompassing all or a large portion of an employer’s workforce.  For example, if the unit meets the test in the Specialty Healthcare decision, a union could organize a small unit of 6 out of an employer’s 106 employees—or multiple unions could each organize units of 6 employees each, and cause the employer to bargain individually with each bargaining unit!  Unions like these micro units because they are often easier to organize, and provide a way to divide and conquer a larger workforce, while employers are more likely to prefer to deal with an entire workforce as a whole or, a large segment thereof. 

Based on this analysis, the NLRB will first determine whether a bargaining unit proposed by the union is appropriate because it consists of employees who are “readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)” and who “share a community of interest.”  Then, if the proposed unit is appropriate under this test, the employer can challenge the unit by showing that there are additional employees who need to be included in the unit to be appropriate—this is a high standard, and merely showing that another unit would be more appropriate is not sufficient.

This analysis is problematic for employers, because it gives unions the ability to pick and choose small groups of supporters to organize, and get a foot in the door to non-unionized employers, and then use these “insiders” to organize another group, and so on.  Additionally, bargaining with multiple different groups of employees is time consuming and leads to inconsistent labor relations.  However, the NLRB is already using this 8^th Circuit decision to support extending its analysis to other circuits.  For assistance in dealing with a union organizing campaign in your workplace, contact Wessels Sherman attorneys at (952) 746-1700 or email

jasherman@wesselssherman.com.

February 2016 Was Largely Unkind to the NLRB in Minnesota and Nearby States

Like Punxsutawney Phil, the National Labor Relations Board (NLRB) emerged from the comfort of that agency’s “den,” in February 2016, only to see some of its decisions “overshadowed” by the U.S. Court of Appeals for the 8^th Circuit when the court refused to enforce them on appeal.  In one case the appellate court reversed a Board decision that had found an employer unlawfully disciplined an employee for soliciting union support from co-workers while they were working.  In another case involving an employer in the construction industry, the court determined that the NLRB had issued an “unlawful order” when it tried to enforce an operating engineers (IUOE Local 150) collective bargaining agreement for employees already covered by an agreement with the Laborer’s Union (LIUNA).  These were big victories for those involved as well as employers everywhere, yet it remains to be seen whether they signal an extended season of cold shoulder treatment for the NLRB in 2016.  If nothing else these recent court rulings signal that our federal appellate court in the 8^th Circuit will not rubber-stamp the Board’s growing list of aggressive decisions, many of which employers see as favoring unions and employees over employers.

Employers unlucky enough to land in the NLRB’s world often find it necessary to pursue their cases on to the federal courts of appeals in order to feel that they have a reasonable shot of prevailing.  A prime example that has gained national attention, is the Board’s ruling in its D.R. Horton case involving a non-union employer.  In that case the NLRB ruled that the employer unlawfully interfered with its employees’ protected right to engage in “concerted activities” by enforcing an arbitration agreement whereby employees waived their right to pursue class action claims in court.  The 5^th Circuit Court of Appeals, in Louisiana, refused to enforce the D.R. Horton decision, criticizing the Board’s attempt to equate lawsuits with strikes and other employee group activities that have long been protected by federal labor laws.  Undeterred, the NLRB has continued to make similar findings against employers outside the 5^th Circuit.  In fact, just as the 8^th Circuit Court of Appeals was rescuing two employers from unfavorable NLRB decisions the agency issued yet another “Horton-like” decision against a Minnesota Applebee’s restaurant franchisee.  As in the D.R. Horton case, the NLRB’s February 2016 Applebee’s ruling found that the employer’s handbook “Dispute Resolution Program” violated federal labor law by including a waiver provision on class-action lawsuits.  

There is no reason to think that the Applebee’s franchisee will not appeal the Board’s decision; after all, the NLRB lost on appeal in D.R. Horton and since then at least two other U.S. Courts of Appeals have criticized the Board’s rationale for declaring class-action lawsuits as a protected form of concerted employee activity under federal labor law.  If February 2016 is any indication the 8^th Circuit will be no less friendly to the NLRB in this appeal.  It is unfortunate, however, that employers must fight to within one step of the Supreme Court in order to win these cases.

Questions? Contact Minnesota attorney James Sherman at (952) 746-1700 or by email at jasherman@wesselssherman.com